Port Stephens Council Enterprise Agreement 2025-2028 (No 2) [2025] NSWIRComm 1104 (10 December 2025)

1. To vary an enterprise agreement, a further enterprise agreement must be made and approved in accordance with Pt 2 of the IR Act.
2. At the hearing on 18 November 2025, I communicated my intention to approve the Varied Agreement subject to receipt of a signed copy of the Varied Agreement as required by s 38(1) of the IR Act, and to issue a decision to that effect.
3. On 2 December 2025, the Council filed and the Commission sealed a signed copy of the Varied Agreement.
4. For the reasons that follow, pursuant to ss 35 and 43 of the IR Act, I approve the Varied Agreement. The Varied Agreement has effect from the date of its approval (today) and will apply for the residue of the term of the Current Agreement. The Current Agreement no longer has effect. The Varied Agreement is to be entered into a register kept by the Industrial Registrar and published on this Commission's website.

1. As with an application to approve an enterprise agreement, the Commission must be satisfied that:

(1) the requirements of s 35 of the IR Act have been met, principally, that the agreement does not, on balance, provide a net detriment to the employees when compared with the aggregate package of conditions of employment under the State awards; and

(2) the agreement is consistent with the Principles for Approval of Enterprise Agreements (Principles) at Annexure A of Review of the Principles for Approval of Enterprise Agreements 2021/2022 [2022] NSWIRComm 1005, unless the Commission is satisfied that any departure from those Principles would not prejudice the interests of any of the parties to the agreement.

1. In State Super Enterprise Agreement 2024-2027 [2024] NSWIRComm 8 at [88], the President of the Commission, Taylor J, provided general guidance, in the form of a checklist, on the requirements for the approval of an enterprise agreement.

1. The Current Agreement was approved by the Commission on 21 July 2025: Port Stephens Council Enterprise Agreement 2025-2028 [2025] NSWIRComm 1053. In approving the Current Agreement I was satisfied that the Agreement complied with all of the necessary statutory tests and the Principles set by the Commission. I also considered the filed material against the checklist referred to above: see Port Stephens Council Enterprise Agreement 2025-2028 [2025] NSWIRComm 1053 at [8].
2. The purpose of the variation sought in the Varied Agreement is to remove sub-clause 49.7 from the Current Agreement.
3. Sub-clause 49.7 in the Current Agreement provides:

"49.7 This clause shall not apply where another employee of Council receives paid parental leave in connection with the pregnancy, birth, permanent foster care or adoption of the same child or children."

1. Ms Dodds's evidence is that the parties agreed during the mutual gains bargaining for the Current Agreement that this sub-clause was to be removed and the consultation with employees of the Council occurred on the basis that this sub-clause would be removed. The failure to remove it was an administrative error. This is supported by the evidence of each of the union witnesses. The union witnesses each also confirmed their support for the variation to the Current Agreement orally at the hearing on 19 November 2025.

1. On the evidence before me, I am satisfied that the variation sought provides additional access to Parental Leave for the non-primary care parent. Accordingly, the variation sought has a positive impact on the comparison of the Varied Agreement with the relevant provisions of the IR Act and the Principles, over and above the comparison undertaken in respect of the Current Agreement. The parental leave entitlements under the Current Agreement and the Varied Agreement are more beneficial than those which apply under the Local Government (State) Award 2023.
2. I refer to the checklist contained within State Super Enterprise Agreement 2024-2027 [2024] NSWIRComm 8 and my satisfaction as set out in Port Stephens Council Enterprise Agreement 2025-2028 [2025] NSWIRComm 1053.
3. Despite the drafting error that occurred prior to the approval of the Current Agreement, I am satisfied that the Varied Agreement was the subject of the negotiation and consultation process, that the text of the Varied Agreement properly reflects the outcome of that negotiation and there has been no duress applied during the process of negotiation or approval.
4. During the consultation process, the parties to the Varied Agreement attended meetings, during which relevant documents and information were exchanged, including material indicating that sub-clause 49.7 would be removed.
5. On 2 December 2025, the parties provided a version of the Varied Agreement signed by representatives of each party, satisfying s 38(1) of the IR Act.
6. Consequently, the Varied Agreement can be approved.

(1) The varied enterprise agreement titled 'Port Stephens Council Enterprise Agreement 2025-2028' sealed by the Industrial Relations Commission on 2 December 2025 is approved in accordance with s 35 of the Industrial Relations Act 1996 (NSW).

(2) In accordance with s 43 of the Industrial Relations Act 1996 (NSW), the enterprise agreement titled 'Port Stephens Council Enterprise Agreement 2025-2028' approved by the Commission on 21 July 2025 is varied by the further enterprise agreement titled 'Port Stephens Council Enterprise Agreement 2025-2028' sealed by the Industrial Relations Commission on 2 December 2025.

(3) The Industrial Registrar is directed to enter the further enterprise agreement titled 'Port Stephens Council Enterprise Agreement 2025-2028' sealed by the Industrial Relations Commission on 2 December 2025 and approved on 10 December 2025 in the register of approved enterprise agreements.