The Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales (PSA) has notified the existence of industrial disputes with:
1. the Industrial Relations Secretary (IR Secretary) relating to salaries in the Crown Employees (Public Sector-Salaries 2022) Award (the Salaries Award);
2. the Secretary of the Department of Education (Education Secretary) relating to salaries in the Crown Employees (School Administrative and Support Staff) Award 2022 (the SASS Award); and
3. the Secretary, Transport for NSW (Transport Secretary) relating to salaries in the Roads and Maritime Services Consolidated Salaried Award 2019 and Transport for New South Wales and Sydney Metro Salaries and Conditions of Employment Award 2022 (together, the Transport Awards). In substance, the dispute concerning the Transport Awards also involves a number of other unions [1] (the Combined Transport Unions) in dispute with the Transport Secretary with respect to salaries and conditions in those awards.
The crux of the disputes is over the parties' different positions on increases to remuneration. The Salaries Award, the SASS Award and the Transport Awards expired on 30 June 2024. Consistent with past practice, it is expected by all parties that salaries should increase effective 1 July 2024.
On 19 May, 5 June and 11 June 2024 respectively, the IR Secretary, Education Secretary and Transport Secretary (together, the Secretaries) offered to provide workers with a 10.5 per cent increase to remuneration over three years, inclusive of two 0.5 per cent legislated increases to superannuation, being:
Year 1 - up to 4 per cent increase. Of this, 0.5 per cent is conditioned on timely agreement, and available only to workers who have not received structural adjustment in the past 12 months.
Year 2 - 3.5 per cent.
Year 3 - 3 per cent.
The offer also includes for each year a $1000 taxable, one-off cost of living adjustment payment, plus superannuation, conditional on the Sydney CPI rate exceeding 4.5 per cent in the year to the March quarter for that year.
This offer (the Secretaries' offer) was described as "a baseline remuneration offer" which may be enhanced by the identification of "system changes, productivity outcomes or savings" through a "collaborative approach to negotiation and bargaining" between agencies and unions.
In response, the PSA sought: (a) an increase in remuneration of at least 12 per cent over three years, excluding the legislated increases to superannuation, which approximates to a claim that is about 2.5 per cent greater over three years; or (b) in the alternative, an increase of at least 4 per cent, excluding superannuation for one year by way of a variation to the Salaries Award or by the making of a new award.
The PSA subsequently adjusted its position such that it is now seeking, as its primary remedy, an increase of at least 4 per cent, excluding superannuation for one year by way of a variation to the Salaries Award (the PSA's claim).
The initial position of the Combined Transport Unions was for an increase in remuneration of 8 per cent per annum for three years plus the cost of living adjustment, which was later modified to an increase of 8 per cent for one year by way of a variation to the Transport Awards (the CTU's claim). I understand that the extent to which the position of the Combined Transport Unions extends beyond the PSA's claim, if any, is to be confirmed.
In addition to remuneration, the parties are also in dispute over the content of the 'no extra claims' clause proposed by the Secretaries to be inserted into the relevant awards. The clause, as proposed, would allow for mutual gains bargaining during the life of the awards but would not allow the unions to obtain any changes in conditions other than by consent. Nor does it, on the Secretaries' view, permit the parties to seek any such changes by consensually submitting any differences between them for determination by way of arbitration. Despite this difference, it seems that all parties embrace, as a matter of principle, the need to seek to achieve collaborative industrial relations during the life of the awards. This measure of common ground is to be commended.
One point of contention is the effect of the Secretaries' offer on real wages. The NSW Government has characterised the Secretaries' offer as providing "three years of real wages growth that will help attract, reward and retain essential workers". [2] The PSA claims that, having regard to the May 2024 Sydney CPI figure, the Secretaries' offer "is below inflation and will result in the fourth year in row that employees covered by the Salaries Award would receive a wage increase below inflation". [3]
The disputes came before me for conciliation on 17, 23 and 25 July, and 9, 13 and 14 August 2024. In respect of the Salaries Award dispute, on 25 July, I directed senior representatives of the PSA and the IR Secretary to meet urgently to discuss the issue of remuneration, taking into account a preliminary Statement and Recommendation proposed by the Commission. Following these discussions, the parties engaged in further conciliation, and there are presently two more dates reserved for conciliation in respect of the Salaries Award and the SASS Award (21 and 22 August 2024).
Although the parties have been conferring and have identified issues of dispute, they remain at odds in respect of the key issues of remuneration and the proposed 'no extra claims' clause. In the course of conferring about these disputes, including in the context of conciliation before me, the parties do not appear to have been prepared to travel very far from their initial positions on remuneration. The Secretaries' offer remains unchanged, and the parties have reached an impasse.
At this point, the parties have jointly approached the Commission with a request for their disputes to be resolved by arbitration.
The repeal of s 146C of the Industrial Relations Act 1996 (NSW) (the Act) has restored the capacity of the Commission to arbitrate disputes about fair and reasonable salaries. The "wages cap" formerly imposed by s 146C was to "be replaced by a resumption of genuine, meaningful, public sector bargaining in New South Wales"; with the NSW Government's Fair Pay and Bargaining Policy 2023 (the Fair Pay Policy) enabling "public sector employees and unions to engage effectively with government agencies through a co-operative approach to bargaining, departing from the traditional adversarial approach to industrial relations". [4] In this context, and in the context of this dispute, the PSA has also promoted a collaborative approach to bargaining. [5]
Consistent with the views of the parties, the Commission is mindful of the value of encouraging the parties, during the life of any award or agreement, to continue collaborative and co-operative bargaining and to give effect to any resulting consensual outcomes involving additional enhancements for employees and improved Government services to the public. Such a collaborative approach can make use of mutual gains bargaining, which is a means by which changes that bring about productivity improvements can be identified and implemented. While the intent of such a process is to bring about change by consent, it is conceivable that the parties may get to a point in respect of an issue that is the focus of collaborative bargaining, where they agree the most efficient way to finalise it would be to ask an independent decision-maker to make a determination.
The Commission's task in setting fair and reasonable salary rates can include the consideration of the changing value of money over time and the value of employees' real wages. This consideration is consistent with the Government's contention that the Secretaries' offer provides for real wage growth.
Any variations of the relevant awards by a process of arbitration may apply retrospectively to the date on which the disputes giving rise to the awards were notified. Although this may result in backpay, the Commission is mindful that delaying an increase in wages after the expiry of the relevant awards results in a reduced income of affected employees in the meantime. In that respect, it is important to note that there is one matter on which there appears to be firm agreement between the parties: that public sector workers should receive some increase in wages effective from 1 July 2024. A continuation of this bargaining impasse will preclude the parties from giving effect to this consensus, to the detriment of public sector workers and the public interest.
Having regard to these considerations and with the aim of fostering consensus in negotiations that ensure that agreed salary increases are awarded to public sector workers in a timely manner, the Commission makes the following recommendation.
[2]
Recommendation
I recommend that the parties resolve their disputes by a combination of consent variations and arbitration. That is, that they consent to vary the Salaries Award, the SASS Award and the Transport Awards to:
1. provide for interim increases to salaries and salary related allowances for a period of one year from 1 July 2024, of 3.5 per cent in respect of workers who have not received structural adjustment in the past 12 months and, for other workers who have received such adjustments, 3 per cent, exclusive of superannuation; and
2. replace the 'no extra claims clause' with a clause that:
1. permits the Commission to resolve the balance of the disputes as to increases to remuneration and the term of any new Awards by arbitration, within the bounds of the parties' respective positions;
2. permits the parties to engage in collaborative discussions ─ including by means of mutual gains bargaining under Chapter 2A of the Act ─ during the life of the awards that can deliver changes in conditions by consent, including additional enhancements for employees and improved Government services to the public; and
3. does not prevent the parties, where they do so by consent, to seek changes in conditions by arbitration during the life of the award.
I also recommend that the parties agree to submit the balance of the PSA's claim and the CTU's claim to the Commission for arbitration as soon as possible.
[3]
Directions
To assist the parties with ongoing collaborative and efficient negotiations, the Commission makes the following directions:
1. Senior representatives of the PSA and the Secretaries are to meet on an urgent basis to discuss the issue of remuneration under the Salaries Award, the Education Award and the Transport Awards, taking into account this Statement and Recommendation.
2. The PSA and the Secretaries report on the result of those discussions before me at 10.00am on 21 August 2024, at which time, the Commission will consider any consent arrangement, or alternatively, the appropriate programming of the matter.
[4]
Endnotes
Namely: Australian Services Union (ASU), Electrical Trades Union (ETU), Professionals Australia, Maritime Union of Australia (MUA), Australian Maritime Officers Union (AMOU), Rail, Tram, and Bus Union (RTBU), and Australian Institute of Marine and Power Engineers (AIMPE).
Parliament of New South Wales, Budget Statement (Budget Paper No 01, June 2024) 5-4.
Notification of an Industrial Dispute filed by the PSA on 27 June 2024, IRC No 2024/237120, 3 14(iii).
New South Wales, Parliamentary Debates, Legislative Council, 30 November 2023, 40 (Daniel Mookhey, Treasurer).
Notification of an Industrial Dispute filed by the PSA on 27 June 2024, IRC No 2024/237120, 3 14.
[5]
Amendments
15 August 2024 - Case name edited.
15 August 2024 - Case name edited.
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Decision last updated: 15 August 2024
Parties
Applicant/Plaintiff:
Public Service Association and Professional Officers' Association Amalgamated Union of NSW