Re Sutherland Shire Council and Transport Workers Union, Recycling and Waste Employees Enterprise Agreement 2026 - 2029 [2026] NSWIRComm 1005 (27 January 2026)

"The provisions of an enterprise agreement prevail over the provisions of any State award of the Commission that deal with the same matters in so far as the provisions of the State award apply to a person bound by the enterprise agreement. This subsection is subject to the terms of the enterprise agreement".

1. In many respects, the Agreement (by cl 5) applies the provisions of the Award. In some other respects, the terms of the Agreement apply and operate to supplement provisions of the Award: for example, cl 9, Casual Employment). In others, the Agreement will apply (for example, but not limited to, the scheme of Hours of Work (cl 10), Saturday and Sunday Work (cl 11), Rostered Days Off (cl 14), a local Job and Finish arrangement (cl 13), Rates of Pay (cl 15) and Overtime (cl 16). I note the Agreement contains a grievance and disputes procedure at cl 25 (cf s 39 of the IR Act), and otherwise provides (amongst others) a bespoke Workplace Change procedure (cl 24) and Disciplinary Procedures (cl 26).
2. In support of the application the Council relies upon:

(1) An affidavit of Peter Bell, a Senior Industrial Officer in the employ of Local Government NSW (LGNSW). That affidavit (the content of which I note, without criticism, is in some respects in the nature of a submission) complies with rule 6.9 of the Industrial Relations Commission Rules 2022 and deals with some of the statutory requirements for the approval of the Agreement, including annexing a helpful and detailed Table comparing the terms of the Agreement to the underlying Award.

(2) An affidavit of Grant Willoughby, the Senior Manager Recycling and Waste, for the Council. That affidavit describes some of the relevant industrial history by way of context (noting the Agreement will rescind and replace the Sutherland Shire Council Waste Services (Domestic Waste Collection) Agreement 2012, which nominally expired in July 2014), and the process of negotiation between the Council, its employees and the TWU, that led to the making of the Agreement, and the making of the Agreement itself.

(3) An affidavit of Ho Lau, Legal Officer employed by the TWU, who similarly described the process of negotiation that led to the making of the Agreement, and the making of the Agreement itself.

1. Historically, the waste and recycling services delivered to the constituency of the Council were provided by an external contractor. When services were provided by an external contactor, the persons employed by that contractor in delivering the waste and recycling services were represented by the TWU. At a point in time some years ago, the Council decided to terminate the contract with the external contractor and directly employ workers to deliver waste and recycling services to the community. At that time, at the request of the employees, the TWU and the New South Wales Local Government, Clerical, Administrative, Airlines and Utilities Union (which I will refer to as the USU), which generally represents employees who work for a local council, came to a sensible arrangement whereby the TWU would continue to have the right to represent the relevant employees (Lau at [4] - [7]).
2. The evidence demonstrates the Agreement is the product a concerted and prolonged effort by Council to build "constructive relationships with employee delegates and the official" from the TWU, including having held initial workshops regarding updating the terms and conditions for recycling and waste employees, with the TWU and employee delegates in mid to late 2024 (Willoughby [2] - [5]). A Waste Consultative Committee met bi-monthly until formal bargaining for a new enterprise agreement commenced in August 2025. From that time on, representatives of the Council and the TWU held bargaining meetings fortnightly, the last meeting having been held in mid-December 2025 (Willoughby [7] - [12]; Lau [8] - [10]).
3. The bargaining meetings resulted in the development of a document described by the TWU as one that "represented the interest[s] of our members as an Enterprise Agreement on which the TWU members and employees of the service could vote" (Lau at [11]).
4. On 19 December 2025, the Council circulated the draft enterprise agreement and some explanatory information (about the terms of the proposed agreement and the voting process) to employees (Willoughby at [13]). A yard meeting was held by the TWU to consult with its membership (and affected employees) on the proposed agreement and the voting process, timed to ensure different shift starting times could be accommodated (Willoughby at [14]).
5. A vote (secret ballot) was conducted on 23 December 2025, resulting in overwhelming support for the Agreement: of the 62 eligible voters, 50 votes were counted with 46 employees voting in favour of the Agreement and only 4 against. No-one appeared to oppose the approval of the Agreement when listed before me on 27 January 2026, or has otherwise advised the Commission the Agreement ought not be approved.
6. Having regard to s 35 of the IR Act, on the evidence in the affidavits of Bell, Willoughby and Lau, I am satisfied:

(a) the Agreement complies with all relevant statutory requirements. As to principles of the Anti-Discrimination Act 1977, the terms and conditions do not in terms differ based on gender. I note the parties committed to apply cl 4 of the Award, Anti-Discrimination, to seek to achieve the object of preventing and eliminating discrimination in the workplace.

(b) the Agreement does not, on balance, provide a net detriment to the employees covered by it when compared with the aggregate package of conditions of engagement under the Award. In that connection, I note:

(i) the Agreement applies many of the provisions of the Award;

(ii) whilst some terms and conditions are different in the Agreement when compared to the Award, there are no terms I would describe as materially disadvantageous to employees when compared to the Award; and

(iii) the base rates of pay are materially higher (said to be 25% higher[1]) than those provided by the Award. I note the rates of pay are to "increase in line with percentage increases provided for in the Award" over the Agreement's nominal term: cl 15; and

(iv) the Agreement otherwise provides for materially higher penalty rates for ordinary hours on Saturday and Sunday.

(c) the parties understand the effect of the agreement, and

(d) the parties did not enter the agreement under duress.

1. The Agreement does not cover all the employees of the Respondent. On the evidence of Bell (at [12]), Willoughby (generally) and Lau (at [4] - [7]), I am satisfied that the recycling and waste collection employees covered by the Agreement are an operationally distinct unit within the Council's operations, and it is not unfair for the Agreement to not cover other employees (cf s 35(2) of the IR Act).
2. I have had regard to the Principles for Approval of Enterprise Agreements as reviewed by the Full Bench in Review of the Principles for Approval of Enterprise Agreements 2021/2022 [2022] NSWIRComm 1005 (and the helpful elaboration by the President, Taylor J in State Super Enterprise Agreement 2024-2027 [2024] NSWIRComm 8), and the provisions of Part 2 of Chapter 2 of the IR Act. I am satisfied that the Agreement meets all the statutory requirements and that in the circumstances the Commission "is to approve" it (s 35(1) of the IR Act).

(1) The enterprise agreement titled Sutherland Shire Council and Transport Workers Union, Recycling and Waste Employees Enterprise Agreement 2026 - 2029 is approved in accordance with s 35 of the Industrial Relations Act 1996 (NSW), to operate on and from the first full pay period on or after 27 January 2026 with a nominal expiry of 3 years.

(2) The Industrial Registrar is directed to enter the Sutherland Shire Council and Transport Workers Union, Recycling and Waste Employees Enterprise Agreement 2026 - 2029 in the register of approved enterprise agreements.

[1] This notation is contained in the comparison table annexed to the affidavit of Peter Bell. I note no issue is taken in that connection by the TWU.