State Super Enterprise Agreement 2024-2027 [2024] NSWIRComm 8

Industrial Relations Commission (NSW)|2024-10-14|Before: Taylor J

Background

While conditions of employment for public sector and local government employees in New South Wales are ordinarily set by awards made by the NSW Industrial Relations Commission, the Industrial Relations Act 1996 also contemplates that they can be set by enterprise agreement.
The statutory regime requires various matters to be established before an enterprise agreement can be approved by the Commission and take legal effect, including that there is overall no net detriment to the employees compared to the relevant State award. In respect of enterprise agreements made directly with employees there are additional requirements to ensure that employees have a proper opportunity to understand and negotiate the terms of the proposed enterprise agreement, to require at least 65% to approve of the agreement in a secret ballot, and to ensure the integrity of the ballot process.
It is surprisingly common for the material filed with an application for approval of an enterprise agreement to fail to establish one or more of the necessary requirements, as occurred in this case. Even if the defect can be cured, this slows down the approval process and adds to costs. To assist both applicants and Commission members considering future applications for approval this decision contains a checklist of the requirements.

The application for approval of an enterprise agreement

Compliance with the Industrial Relations Act and the Relevant Principles

Approval of an enterprise agreement by the Commission is governed by Division 2 in Part 2 of Chapter 2 of the Industrial Relations Act.
The Commission needs to satisfy itself that: 1. the requirements of s 35 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: s 35(1)(b); 2. the agreement can be approved consistent with the Principles for Approval of Enterprise Agreements ("Principles"), which have been set pursuant to s 33, unless the Commission is satisfied that any departure from those Principles would not prejudice the interests of any of the parties to the agreement: s 35(3). The Full Bench last reviewed the Principles on 23 February 2022 in Review of the Principles for Approval of Enterprise Agreements 2021/2022 [2022] NSWIRComm 1005. The current Principles set by the Full Bench are in Annexure A to that decision; 3. in circumstances where employees are parties to the Agreement the special requirements of s 36 are met; and 4. the provisions of s 37 which addresses the process of conducting secret ballots for the approval of enterprise agreements have been met.

The Application

Section 34 provides for the making of an application for the approval of an enterprise agreement: 34 Application for approval of enterprise agreement (1) Application for approval of an enterprise agreement may be made by lodging the agreement with the Industrial Registrar in accordance with this Part and the rules of the Commission. (2) At proceedings of the Commission relating to any such application for approval, the following may appear or be represented - (a) any party to the agreement, (b) an industrial organisation, if its members or persons eligible to become members are affected by the agreement, (c) a State peak council (but only with leave of the Commission), (d) the President of the Anti-Discrimination Board (but only with leave of the Commission). (3) The Commission is to deal with any such application for approval within 28 days, unless it requires additional time to do so because of the special circumstances of the case.
The application for approval was filed on 21 August 2024. The named applicant and respondent were the Industrial Relations Secretary (on behalf of SAS Trustee Corporation Staff Agency) and the non-executive employees of SAS Trustee Corporation Staff Agency respectively.

Issues that were identified with the Application

The Application as filed suffered from two defects.

Issue one

The first issue was that the enterprise agreement filed with the Application that was sought to be approved was not the agreement that was approved by the employees in a secret ballot.
That came about because, subsequent to the vote, the applicant identified two "errors" in the agreement that, if not corrected, could have resulted in the Agreement not meeting the "no net detriment" test under s 35(1)(b) of the Industrial Relations Act and thus prevented its approval.
By affidavit, filed with the Application, Ms Sobha Nair, Head of People and Culture at State Super, informed the Commission that the lower end of the remuneration ranges for the Administration and Analyst/ Advisor classifications in the proposed Agreement put to the vote were incorrect. This was apparently due to an error by Mercer during a benchmarking process to compare the remuneration payable under the Crown Employees (Administrative and Clerical Officers - Salaries) Award ("A&C Award") to the remuneration ranges in the proposed agreement.
Ms Nair told the Commission that once the error was identified, State Super notified employees by email dated 12 August 2024 that the minimum rates for the two classifications would be increased, and that these increases would be applied in the agreement to be filed with the Commission for approval. Employees were asked to raise any concerns to that proposal with Ms Nair by 11.00 a.m. on 14 August 2024. No concerns were received. In circumstances where the proposed change was to increase minimum rates in an agreement that had otherwise been the subject of a successful vote, this is perhaps unsurprising.
The Applicant then proceeded to file for approval the proposed agreement with the amended (higher) minimum rates for the two affected classifications. The Applicant accepted that the enterprise agreement was in a different form than that approved by employees but submitted that the amendments would not detrimentally affect any employee.
Section 36 sets out the requirements relating to enterprise agreements to which employees are parties: 36 Special requirements relating to enterprise agreements to which employees are parties (1) An enterprise agreement under which employees are a party is not to be approved unless the requirements of this section have been complied with. (2) Before or at the time the employer first undertakes formal negotiations with the employees for the purposes of an agreement, the employer is to advise the Industrial Registrar in writing of the following - (a) that an enterprise agreement is proposed or under negotiation, (b) the State or Federal awards or enterprise agreements that then apply to the employees. (3) The Industrial Registrar is to advise such persons or bodies as are prescribed by the regulations of the proposed enterprise agreement. (4) The enterprise agreement must be approved in a secret ballot by not less than 65% of the employees who are to be covered by the agreement at the time the ballot is conducted. (5) The Industrial Registrar must, after the enterprise agreement is lodged for approval, prepare a report for the Commission comparing the conditions of employment under the agreement and the conditions of employment that would otherwise apply to the employees under relevant State or Federal awards. If there are no relevant State or Federal awards, the report is to outline any relevant employment conditions of the employees. (5A) The Commission must, by its order, make an industrial organisation a party to the enterprise agreement if it is satisfied that - (a) the industrial organisation represents any of the employees covered by the enterprise agreement, and (b) the industrial organisation has notified the Commission of its intention to become a party to the agreement by lodging a notice to that effect with the Industrial Registrar at any time before the Commission approves of the agreement under this Part, and (c) an employee covered by the agreement is a member of the industrial organisation and has requested the industrial organisation to become a party to the agreement. The Commission may direct that the name of an employee who made that request is not to be disclosed to the employer or other person.
As can be seen, subsection 36(4) requires "the enterprise agreement" that is the subject of the Application to be approved by a secret ballot before it can be approved by the Commission. The Commission has no legislative capacity to approve an enterprise agreement that is different to the one that was the subject of the secret ballot.

Issue two

The second issue concerned a failure by the returning officer to accurately advise employees of the date and time the votes would be counted so that employees could scrutinise the count (if they had so chosen).
Principle 2.3 of the Principles for Approval of Enterprise Agreements [1] provides: 2. Criteria for approval of enterprise agreements … 2.3 Where a secret ballot is required pursuant to sub-s 36(4) of the Act, the conditions of the ballot must require that: (a) pursuant to sub-s 37(1) of the Act, a returning officer be a person who is not the employer or a person selected by the employer; (b) to be eligible to vote, the person must be an employee who is to be covered by the agreement at the time the ballot is conducted; (c) each eligible employee is able to vote only once in a ballot; (d) the employees must be able to vote in secret; (e) time/times fixed for the ballot will enable all eligible employees the opportunity to vote where practicable; (f) the ballots must be secure until counting commences; (g) the returning officer must count and declare the result of the ballot; and (h) ballots must be retained until after the agreement is processed by the Commission. Unless the Commission gives leave, the conditions of the ballot must include that: (a) each ballot form must be initialled by the returning officer; (b) counting must not commence until the ballot has closed; and (c) scrutineers may observe the count of the ballot papers; and (d) the Commission may inspect the ballot papers.
As can be seen, principle 2.3 requires that scrutineers be able to observe and count the ballot papers. Ms Jessika Riordan, as the returning officer, gave evidence that she notified the employees of the secret ballot by email dated 10 July 2024. [2] The email confirmed that voting would open at "12.00 noon on Wednesday 10 July and close at 12.00 noon on Monday 15 July". It went on to say that she proposed to count the votes at her desk in the Sydney office at 10.00 am on Tuesday 15 July 2024 and that anyone interested could attend and scrutinise the counting. 15 July was a Monday. The votes were counted on Tuesday 16 July. This was a procedural failing that may have been of significance had it in fact resulted in employees being prevented from scrutineering the outcome of the ballot.

Subsequent steps

At the initial directions hearing on 5 September 2024, I identified the two concerns with the application set out above.
In respect of the first issue I enquired whether the Applicant might file an amended Application seeking approval of the Enterprise Agreement in the form that was approved at the ballot, along with an undertaking given to the Commission that if approved it would not in fact apply that Agreement in a manner that would result in any employee being paid less than the corrected (ie, higher) minimum rates in respect of the two classifications that contained "errors".
In respect of the second issue, I invited the applicant to file further submissions on the matter, to assist me to determine whether I should exercise the discretion in s 35(3) to approve the Agreement, notwithstanding the difficulty.
An amended application was filed on 13 September 2024 enclosing the amended Agreement in the form that was put to the vote, along with a signed undertaking dated 12 September 2024 that it would not in fact pay less than certain stated minimum amounts.
Upon a review of the undertaking, I identified and raised with the Applicant two concerns with it.
First, it appeared to contain a typographical error in the minimum remuneration rate for the classification of Analyst/ Advisor as at 1 July 2024.
Second, the undertaking addressed only minimum remuneration as at 1 July 2024 (providing a 3.5% increase), but did not extend to an undertaking as to the minimum rates applicable from 1 July 2025 (3.5% increase) and 1 July 2026 (3.0% increase).
I granted leave to file any further submissions and any amended undertaking or application.
An amended undertaking dated 24 September 2024 ("Undertaking") was filed on 25 September 2024 which adequately addressed the two concerns that had been raised with it.
At the directions hearing on 14 October 2024, I communicated my intention to approve the Agreement and to issue a decision to that effect. I subsequently requested the applicant file a signed copy of the proposed Agreement. That signed copy was filed on 30 October 2024.

Evidence in Support of the Application

In support of the application, the applicant filed the following: 1. an Affidavit of Ms Sobha Nair, head of People and Culture, sworn on 20 August 2024 including annexures; 2. an Affidavit of Ms Jessika Riordan, Executive Assistant, sworn on 20 August 2024 including annexures; 3. an Affidavit of Ms Jessika Riordan, Executive Assistant, sworn on 12 September 2024; and 4. an Undertaking given by Mr John Livanas, Chief Executive Officer of State Super on behalf of State Super dated 24 September 2024.
Also provided to the Commission was a Report by the Industrial Registrar dated 3 September 2024 pursuant to s 36(5) of the Industrial Relations Act, comparing the conditions of employment under the agreement and the conditions of employment that would otherwise apply to the employees under relevant State awards.
Rule 6.9 of the Industrial Relations Commission Rules 2022 provides that an application for the approval of an enterprise agreement must be accompanied by an affidavit identifying the awards or contract determinations, if any, over which the agreement will prevail, and the enterprise agreement that will be rescinded or replaced by the proposed agreement. Further, the affidavit needs to compare the conditions of employment or engagement under the agreement with the comparative conditions of employment.
The Affidavit of Ms Sobha Nair, sworn on 20 August 2024 addressed the requirements of rule 6.9. The affidavit also identified the changes and outcomes provided by the Agreement.
The Affidavits sworn by Ms Jessika Riordan set out in detail matters pertaining to the secret ballot.
The Agreement is to be read together with the Undertaking dated 24 September 2024.

The Agreement

While it is unnecessary to set out in detail all the changes and outcomes proposed by the Agreement, the primary changes to the pre-existing enterprise agreement entail: 1. Increases to remuneration consistent with the Government's general wages offer; 2. Compensation for additional hours and overtime, 3. More flexible working from home arrangements, 4. Parental leave provisions consistent with provisions introduced across the public sector, 5. Paid domestic and family violence leave consistent with Premier's Memorandum M2022-13, 6. Removal of positions within each employment classification to permit new positions to be created; and 7. Rewording of the 'no extra claims' clause using Government-approved wording. The clause is now titled 'Ability to vary agreement'.

Consideration

In light of the evidence, I am satisfied that the provisions of the Industrial Relations Act and rule 6.9 of the Industrial Relations Commission Rules have been met, and that having had regard to the relevant Principles the Agreement can be approved, despite any departure from those Principles. I address below only those matters which require explanation for why I have come to that conclusion.

No net detriment

Subsection 35(1)(b) of the Industrial Relations Act and subprinciple 2.4(a) of the Principles require that the Commission be satisfied that, in the case of an agreement that covers employees to whom State awards would otherwise apply, 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.
Principle 2.5 of the Principles guides the Commission to have regard to the following when determining the 'no net detriment' test: (a) the benefits and conditions applying under the proposed enterprise agreement in comparison to those applying under the relevant award/s; (b) the conditions in the proposed enterprise agreement being considered as an aggregate package; (c) provisions in the Work Health and Safety Act 2011 (NSW) and regulations directly relevant to the change in work patterns to be performed under the agreement; (d) the needs and circumstances of the enterprise; (e) the wishes of the parties to the agreement; (f) any other matters the Commission considers relevant; (g) test case decisions of the Commission; (h) State decisions setting principles or provisions pursuant to s 51 of the Act; (i) minimum sick leave provisions for awards as prescribed under s 26 of the Act; where such provisions or principles are found in the relevant award/s or which apply to awards generally.
For the purpose of the 'no net detriment test' provided by s 35(1)(b) of the Industrial Relations Act, the relevant comparator awards are the Crown Employees (Public Service Conditions of Employment) Reviewed Award 2009 ("Conditions Award") and the A&C Award.
For the purpose of conducting the comparison, it is to be noted that the Agreement together with the Undertaking, have been taken to form the final conditions applicable to the State Super non-executive employees.
Even if that were not permitted, I would have in any event approved the Agreement, given the evidence that no employees are currently employed or intended to be employed at the two entry level rates in question, such that the Agreement would not, on balance, provide a net detriment to the employees to whom it will apply.
Clause 7.4 of the Agreement which sets out the remuneration increases inclusive of superannuation and leave loading reads: 7.4 Remuneration and Levels a. An employee's annual total remuneration package will be maintained in full on entering into this Agreement. b. The ranges of the total remuneration packages for the employees covered by this Agreement, as well as the employment classifications for all employees are specified in Appendix A. c. The increases to the total remuneration packages for all employees during the period of the Agreement are as follows: Year 1: • 3.5% on 1 July 2024 (inclusive of 0.5% for superannuation); and a further 0.5% increase to salary and salary related allowances as a structural adjustment, provided when the agreement is approved by the NSW Industrial Relations Commission Year 2: • 3.5% on 1 July 2025 (inclusive of 0.5% for superannuation). Year 3: • 3% on 1 July 2026. d. If the NSW Government agrees to sector-wide pay increases at rates that are higher than the rates of increase set out above, then the higher rates will be passed on in full to all employees covered by this Agreement in accordance with the Government's Wages Policy. e. Cost of Living Adjustment - in addition to the rates of increase set out in sub-clause 7c, there may be an extra annual $1,000.00 (gross) lump sum payment plus superannuation available, starting from 1 July 2025. The payment of this amount will be conditional on the 12-month annual average Sydney CPI exceeding 4.5% in the March quarter of the relevant year. i. This lump sum payment will be: • pro-rated for part-time employees; • paid in July of the relevant year. f. The total remuneration packages contained in Appendix A are inclusive of: i. base salary; ii. superannuation; iii. annual leave loading.
The evidence of Ms Sobha Nair sworn in her Affidavit dated 20 August 2024 compares the minimum and maximum remuneration under the Agreement against the A&C Award. I note that the comparison has been undertaken on the basis of a 3% increase to salaries and salary-related allowances under the A&C Award (expressed exclusive of superannuation) and a 3.5% increase to salaries and salary-related allowances under the Agreement (which is expressed inclusive of superannuation). The table below summarises that employees of State Super will receive salaries that are not less than, and may be higher than, the relevant rates under the A&C Award: Remuneration under Proposed Agreement, including a 3.5% increase from 1 July 2024 (inclusive of superannuation and 17.5% leave loading) Remuneration under A&C Award including a 3% increase from 1 July 2024, 11.5% superannuation and 17.5% leave loading Proposed Agreement Classifications Minimum Maximum Equivalent A&C Award classifications Minimum Maximum Administration $94,795 $110,349 Clerk Grade 3/4 $94,794 $100,759 Analyst/Advisor $112,052 $140,165 Clerk Grade 5/6 $112,051 $119,856 Senior Analyst/Advisor $140,167 $155,090 Clerk Grade 7/8 $127,137 $136,648 Senior Specialist/Manager $155,093 $181,694 Clerk Grade 9/10 $144,676 $155,067 Senior Manager $181,695 $213,397 Clerk Grade 11/12 $169,656 $188,227

Increases under the A&C Award for the relevant period had not been determined at the time the Affidavit of Ms Sobha Nair was filed. Clause 7.4d of the Agreement however, provides that any further sector-wide increases that are approved for the Government will be passed onto employees who are covered by the Agreement, ensuring that they will remain at rates of pay not less than the comparator award.
As per clause 7.4(c) of the Agreement, State Super employees will also receive a further 0.5% increase in remuneration from the date on which the Agreement is approved by this Commission.
Turning to a comparison of conditions in the Agreement with those of the comparator awards, Ms Sobha Nair's Affidavit deposed that since the SAS Trustee Staff Agency is a public service agency listed in Schedule 1 of the Government Sector Employment Act 2013 (NSW), the Conditions Award would have applied to the non-executive employees of State Super but for the operation of s 41 of the Industrial Relations Act which provides that enterprise agreements prevail over State awards.
The Report by the Industrial Registrar identified key conditions of the Conditions Award that have been included in the Agreement, which align with public sector conditions generally: "12.1 Overtime: is addressed at Clause 7.6. There is also greater access to time in lieu arrangements in Clause 7.2. Overtime was not a feature of the 2020-2022 Agreement. Clause 7.6 of the Agreement specifies that the Award provisions clauses 90, 93-96 and 98-99 in the Conditions Award apply to overtime. 12.2 Hours of Work: The hours of work are 35 hours per week as outlined in Clause 7.1 which can be standard or flexible. 12.3 Parental leave: The Agreement updates new parental leave provisions applicable across the public sector in determinations made by the Industrial Relations Secretary and under the Premier's Memoranda. These are not yet reflected in the Conditions Award. 12.4 Family Violence leave: The Agreement updates new parental leave provisions applicable across the public sector. This provides 20 days paid domestic and family violence leave consistent with the Premier's Memorandum M2022-13. These are not yet reflected in the Conditions Award. 12.5 No extra claims: The Agreement includes new wording "Ability To Vary Agreement", providing parties may enter into collaborative discussions for further changes during the term of the Agreement."
I note that there are entitlements contained in the Conditions Award that are not provided for under the Agreement, including on-call allowances. However, I accept the applicant's submissions that such entitlements are not applicable to the State Super Employees.
On the evidence and a review of the clauses of the Agreement, and relying on the Report of the Industrial Registrar, I am satisfied 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 A&C Award and the Conditions Award.

Secret ballot

Subsection 36(4) of the Industrial Relations Act imposes, as a condition for the approval for an enterprise agreement under which employees are a party, that the agreement has to be approved by not less than 65% of the employees who are to be covered by the agreement at the time that the ballot is conducted.
Ms Sobha Nair and Ms Jessika Riordan gave evidence as to the secret ballot. In summary their evidence was: 1. On 1 July 2024, Ms Jessika Riordan volunteered to be nominated as the returning officer, which was communicated to the rest of the employees on 8 July 2024. It was also communicated on this day that the ballot would be conducted electronically through a platform called SurveyMonkey. No employees expressed any objection to the appointment and to the proposed conduct of the secret ballot through SurveyMonkey. 2. Pursuant to s 37(1) of the Industrial Relations Act, Ms Jessika Riordan sent an email informing all employees that voting would open at 12.00 p.m. on Wednesday 10 July 2024 and would close at 12.00 p.m. on Monday 15 July 2024. 3. Ms Jessika Riordan set up a SurveyMonkey account and ran various tests to ensure the secret ballot could be effectively conducted. 4. On 10 July 2024 an email was sent to all non-executive employees with information about the secret ballot and instructions on voting. The email confirmed once again the opening and closing times for voting. The employees were informed that the returning officer proposed to count the votes "at her desk in the Sydney office at 10.00 a.m. on Tuesday 15 (sic) July 2024" and that anyone interested could attend to scrutinise the counting. 5. On 10 July 2024 at 12.00 p.m. an email was sent from SurveyMonkey to all employees entitled to vote with a link to complete the survey. 6. On Tuesday 16 July 2024, the returning officer counted the results of the ballot at her desk in the Sydney office where no scrutineers attended. 7. The results of the vote indicated that 30 employees voted "yes" and 3 voted "no" (out of the 41 employees who were eligible to vote) regarding the approval of the Agreement. 8. Each anonymous response in the ballot was downloaded and initialled by the returning officer. 9. On Tuesday 16 July 2024 at 1.02 p.m. the returning officer emailed all non-executive employees informing them of the results of the secret ballot. 10. On 25 July 2024 Ms Sobha Nair became aware that Mercer's error during the benchmarking process to compare the remuneration payable under the A&C Award to the remuneration ranges proposed by the Agreement had resulted in an undervaluation of the lower end of the remuneration ranges for the Administration and Analyst/ Advisor classifications in the Agreement voted on in the secret ballot. 11. On 12 August 2024 this error was communicated to all employees via email and the employees were notified that the lower ends of the ranges needed to be increased. The employees were advised that these increases would be applied in the Agreement to be filed with the Commission. 12. In circumstances where no employee would be detrimentally affected by this increase and considering that no concerns were raised by any employee, it was not proposed that the employees vote again.
Given that evidence I am satisfied that the Agreement was approved in a secret ballot by more than 65% of the employees covered by it.
Principle 2.3 includes required conditions for the secret ballot. Unless the Commission gives leave: (a) each ballot form must be initialled by the returning officer; (b) counting must not commence until the ballot has closed; and (c) scrutineers may observe the count of the ballot papers; and (d) the Commission may inspect the ballot papers.
These subprinciples appear to assume that the vote will be conducted by paper ballot, although the Principles do not require such a process. This is a matter that might be the subject of a future review of the Principles: s 33(3).
Neither the statute nor the Principles prohibit electronic voting. Provided that the returning officer adopts a method that allows the returning officer to ensure that only eligible voters can vote, that a person can only vote once, that every voter has access to the voting method, and that the votes remain anonymous, there is no reason why an electronic means cannot be used.
In this case the electronic platform chosen by the returning officer was SurveyMonkey.
To satisfy the condition that only employees covered by the Agreement would be eligible to vote, Ms Jessika Riordan deposed that she sent an email on 8 July 2024 to all non-executive employees at State Super (who are the totality of employees covered by the Agreement) informing them of the specifics of the secret ballot. This was followed by another email on 10 July 2024 to all non-executive employees of State Super, with the link to complete the survey. Both emails were annexed to her Affidavit.
To satisfy the condition that each eligible employee must only vote once and in secret, Ms Riordan confirmed that she undertook research about SurveyMonkey to satisfy herself that voting could be done anonymously, and employees would only be able to submit one vote each. She also affirmed that the ballot she created permitted the responses of "yes" or "no" only once per person.
To satisfy the requirement that the times and date fixed for the ballot enabled all employees to vote where practicable, Ms Riordan stated that she chose to conduct the vote electronically rather than in person, to avoid the risk that any employee who worked from home or at the State Super office in Wollongong or was absent from work during that period would miss out on the opportunity to vote.
To satisfy the requirement that the ballots must be secure until counting commences, Ms Riordan satisfied herself that the ballots could not have been accessed by any person prior to her counting the vote because only she had access to the SurveyMonkey account.
To satisfy the requirement for the returning officer to count and declare the results of the ballot, Ms Riordan deposed that on 16 July 2024 she counted the results of the ballot at her desk and then emailed all non-executive employees and informed them that 30 out of 41 State Super employees eligible to vote had voted in favour of the Agreement. This email was Annexure H to her Affidavit dated 20 August 2024.
As to subprinciple 2.3(a), this requirement is redundant in respect of an electronic voting system.
As to subprinciple 2.3(b), the evidence of Ms Riordan was that her "counting" of the ballots commenced on 16 July 2024 at 10.00 a.m. after the ballot closed. In the case of an electronic ballot the returning officer still needs to ensure that each of the votes cast are properly counted. The graph generated by SurveyMonkey of the results of the ballot and the copies of the anonymous votes which were Annexures to her Affidavit dated 20 August 2024 satisfies me that she did that.
The requirement at subprinciple 2.3(c) gave rise to issue two, identified earlier. I was concerned that there had been a failure to accurately notify employees of the date the votes were to be counted, combined with evidence that no employees in fact observed the count.
The applicant submitted that I should nevertheless exercise the discretion provided by s 35(3) to approve the agreement, submitting: "a. The Discretionary nature of cl2.3(c) which does not create a positive requirement for scrutineers to attend the counting of the vote. Rather, it provides that scrutineers may observe the count of the secret ballot papers. In this regard, eligible employees were invited to scrutinise the counting of the vote; b. In circumstances where 30 of the 41 eligible employees voted to approve the EA (far in excess of the 65% approval rating required), the Commission may be comforted that the non-attendance of scrutineers is unlikely to call into question, or have had any impact upon, the result of the vote; and c. Ms Riordan's evidence that: i. no employee of State Super raised the typographical error with her; ii. no employee of State Super advised Ms Riordan that they wished to attend to scrutinise the vote; iii. no employee of State Super sought to scrutinise the vote on either Monday 15 July 2024 or Tuesday 16 July 2024; and iv. no employee of State Super has advised Ms Riordan that they would have scrutinised the vote but, due to the error, were unable to do so"
I accept those submissions and add that given the electronic nature of the vote and the safeguards that ensured that only one vote could be cast per voter, I am satisfied that there is no reasonable likelihood that a scrutineer could have identified an irregularity that could have affected the outcome.

Negotiation process

For the Agreement to be approved there must have been an appropriate negotiating process involving the parties or their representatives, pursuant to subsections 35(1)(c) and (d) of the Industrial Relations Act and subprinciples 2.1(a), (b) and (c) and principle 5 of the Principles.
These provisions seek to ensure that the parties understood the effect of the Agreement and did not enter the Agreement under duress. I am satisfied that those requirements were met, given that on the evidence: 1. The consultation process commenced on 17 May 2024 and ended on 8 July 2024. 2. During this time, Ms Sobha Nair regularly sent emails to all employees which included information regarding the nature of the Agreement, status of consultation, status of government approval, nature of the voting process, nature of the approval process through the Commission and any changes to the Agreement as a result of employee or Government feedback. 3. Regular meetings were held to provide information regarding the Agreement and to obtain employees' feedback and clarify questions raised by them. 4. All questions and feedback by the employees were responded to. 5. All employees covered by the Agreement were invited to the meetings, which were held in person and via Microsoft Teams to enable employees to participate remotely. 6. Ms Sobha Nair presented a PowerPoint presentation to all employees which answered any questions or concerns raised by employees. Feedback and amendments from the employees were incorporated into the Agreement. [3] 7. The effect of the error in the Mercer data contained in the Agreement voted on by the employees was communicated to employees. The employees did not raise any concerns about the error or the proposal to rectify the error. 8. There is nothing on the evidence to suggest that any employee was threatened or coerced to enter into the Agreement.

Anti-discrimination

Subsection 35(1)(a) of the Industrial Relations Act requires the Commission to be satisfied that the Agreement complies with, inter alia, requirements of the Anti-Discrimination Act 1977 (NSW).
The Principles require the Commission to have regard to whether a proposed agreement contains an anti-discrimination clause in the form of the model clause within Attachment 1 to the Principles.
Clause 20 of the Agreement contains an anti-discrimination clause in relevantly the same terms as the model clause.
I am satisfied that the Agreement is not inconsistent with the provisions of the Anti-Discrimination Act.

Dispute resolution

Section 39 of the Industrial Relations Act prohibits an enterprise agreement from being approved unless it contains an appropriate dispute resolution process, subject to certain exceptions.
Principle 2.7 of the Principles echoes this requirement and provides that the Commission should have regard to whether those dispute resolution procedures facilitate the resolution of industrial disputes in a manner consistent with the objects of the Industrial Relations Act.
Clause 19 of the Agreement provides: 19 DISPUTE PREVENTION AND RESOLUTION a. The parties to this Agreement will ensure that employees have access to fair and effective grievance, conflict and dispute resolution processes. Issues that cannot be resolved informally and promptly at the local level will be addressed via the following process: i. where appropriate, the employee will first seek to discuss the matter with their manager and can be represented by a person of their choice or a representative of the Association; ii. if the issue remains unresolved, or is of a confidential nature, the employee can discuss the issue with a State Super HR representative or the Chief Executive Officer; iii. if the issue remains unresolved, it will be referred to a mutually agreed independent third party for mediation; iv. if internal processes have been exhausted and the issue remains unresolved, either party can refer the matter to the NSW Industrial Relations Commission for resolution.
The clause satisfies the requirement under s 39 and principle 2.7 of the Principles. The process is clear and provides an appropriate means for the efficient resolution of disputes, including access to the Commission in a manner that is consistent with the Industrial Relations Act.

Conclusion

I am satisfied on the material presented to the Commission that the no net detriment test has been met, the conditions of the secret ballot have been complied with and that the Agreement submitted for approval otherwise complies with all the necessary statutory provisions and the Principles.

General guidance for approval of enterprise agreements

The application in this matter suffered from certain basic defects. A review of recent authorities suggests it is not uncommon for applications for approval of enterprise agreements to require rectification. This slows down the approval process and adds to costs.
In New South Wales Institute of Sport Enterprise Agreement 2023-2024 [2023] NSWIRComm 1030, Commissioner McDonald at [30] reiterated the importance of complying with the prerequisites for the approval of an enterprise agreements, stating: "…parties seeking approval of an Enterprise Agreement must pay due regard to the various requirements for approval prior to filing an application, in order that the Commission may attend to its task with alacrity."
The relevant requirements for approval of enterprise agreements are to be found in Division 2 in Part 2 of Chapter 2 of the Industrial Relations Act, rule 6.9 of the Industrial Relations Commission Rules 2022 and the Principles.
To assist parties to meet those requirements, and for the benefit of Commission members considering applications for approval of enterprise agreements I set out below a checklist of the required steps.
Applications for approval will ordinarily be listed for first mention before a Registrar for a compliance check.
Upon an application for approval of an enterprise agreement being filed to which employees are a party (as opposed to where one or more industrial organisations representing employees are a party), the Industrial Registrar will prepare a report for the Commission comparing the conditions of employment under the agreement and the conditions of employment that would otherwise apply to the employees under relevant awards: s 36(5) of the Act.
Where any such report identifies no matters of concern, no person appears at the compliance check to oppose approval, and where the following checklist has been strictly complied with, a member of the Commission may then proceed to deal with the application on the papers.

Checklist

The following is a checklist of steps that parties need to take to have an enterprise agreement approved under the Industrial Relations Act. Prior to negotiations 1. Where the agreement is not one to be made with one or more industrial organisations, then before or at the time of commencing formal negotiations with the employees, the employer must advise the Industrial Registrar in writing using Form 15, "Notification of Proposed Enterprise Agreement" that an enterprise agreement is proposed or under negotiation and the award(s) or enterprise agreements that apply to those employees: s 36(2). The negotiation process 1. The parties must carry out a negotiation process that involves all the parties and/or their representatives: subprinciple 2.1(a). 2. Consultative processes are to be structured to encourage participation of all groups and categories of employees: principle 4.1; with reasonable steps taken to consult with all employees who are to be covered by the agreement: subprinciple 4.2(a). 3. Parties are to attend agreed meetings, provide agreed documentation and comply with reasonable negotiating procedures: principle 5. 4. Employees are to be given access to the proposed agreement and the relevant awards and reasonable time to seek independent advice: subprinciples 4.2(d) and (e). 5. Employees are to be informed of the intention to have the agreement approved by the Commission and the consequences of the Commission's approval: subprinciple 4.2(c). 6. Employees and any relevant union are to be given information that allows them to understand the nature and effect of the agreement: s 35(1)(c) of the Industrial Relations Act and subprinciple 2.1(b). 7. Nothing is to occur that would coerce employees to enter into the agreement: s 35(1)(d) and subprinciple 2.1(c). The text of the draft proposed agreement 1. The Agreement is to comply with requirements of the Anti-Discrimination Act: s 35(1)(a) of the Industrial Relations Act. The Principles annex a model clause anti-discrimination clause that can be adopted. However inclusion of the clause alone does not mean the agreement will comply with the Anti-Discrimination Act and parties should ensure that nothing in the agreement has a direct or indirect discriminatory effect. 2. The Agreement is to state if it is an agreement made with one or more industrial organisations or with employees: s 31(1) and s 31(2) of the Industrial Relations Act. 3. The Agreement is to identify the parties to the agreement and describe the employees for whom it is made: s 38(2) of the Industrial Relations Act. 4. The Agreement is to cover all employees of the employer that would reasonably be expected to be covered, unless the employees to which it does apply comprise a distinct geographic, operational or organisational unit, or it is not unfair, having regard to the matters set out in principle 2.2, for it not to cover the employees who are excluded: s 35(2) of the Industrial Relations Act and principles 2.1(d) and 2.2. 5. The Agreement is to contain terms that facilitate the establishment of consultative mechanisms and procedures appropriate to the size, structure and needs of the enterprise for consultation on matters affecting their efficiency and productivity: principle 2.6. 6. The Agreement is to have a nominal term and that term is not to be more than three years: s 42 of the Industrial Relations Act. 7. The Agreement is to contain procedures for dispute resolution or identify another relevant agreement or award that contains relevant provisions that apply (unless the employer employs fewer than 20 employees): s 39 of the Industrial Relations Act. 8. On balance, and having regard to the matters set out in principle 2.5, the Agreement is to provide no net detriment to the employees when compared to the aggregate package of conditions of employment under relevant award(s): s 35(1)(b) of the Industrial Relations Act and subprinciple 2.4(a); or if there are no relevant awards, it is not to, on balance, provide a net detriment to the employees when compared to the aggregate package of conditions of employment under an award that covers employees performing similar work: s 35(1)(b2) of the Act and subprinciple 2.4(b). If the parties are uncertain as to which award may be appropriate for the purposes of the comparison required by s 35(1)(b2) of the Act, the parties may consider applying to the Industrial Registrar pursuant to s 36A(2), for a determination of the relevant award against which the agreement will be compared for the purposes of the application of the 'no net detriment' test in s 35(1)(b2). Following negotiations for an agreement that is not with one or more industrial organisations 1. A returning officer who is a person other than the employer or a person selected by the employer is to be appointed to conduct the secret ballot on behalf of employees: s 37(1) of the Act and subprinciple 2.3(a). 2. The returning officer is to ensure: 1. all employees covered under the proposed agreement are given the opportunity to vote: subprinciple 2.3(e); 2. the method of voting adopted ensures that each employee can only vote once, that only employees entitled to vote are able to vote and their votes are secret: subprinciples 2.3(b), (c) and (d); 3. the date and time fixed for voting provides a practicable means for all employees to vote: subprinciple 2.3(e); 4. details of how the ballot will be conducted (mode, instructions, date, time) are provided to all employees in advance; 5. if using a paper ballot method, the ballots are each initialled by the returning officer before distribution to confirm their authenticity: subprinciple 2.3(a); 6. once cast, the ballots are kept securely until counting commences: subprinciple 2.3(f); 7. counting of the ballots does not commence until the ballot has closed: subprinciple 2.3(b); 8. scrutineers are invited to observe the counting of the ballot (with the date and time for counting communicated in advance): subprinciple 2.3(c); 9. that he or she counts the ballots cast and declares the result of the secret ballot: subprinciple 2.3(g); and 10. the ballots are retained until the agreement is processed by the Commission: subprinciple 2.3(h). Before filing the agreement with the Commission 1. The agreement must be signed by or on behalf of the parties to it. A duly signed copy should be provided to the Commission for approval: s 38(1) of the Act. Where an agreement has been approved by a secret ballot pursuant to s 36(4), one or more employees may be nominated by the employees to sign the agreement on behalf of all the employees covered by the agreement: principle 3.3. 2. The applicant must prepare a Comparison and Compliance Statement to be filed with the application for approval of an enterprise agreement in the form of an affidavit: rule 6.9 of the Industrial Relations Commission Rules 2022 and principle 3.4. A mere assertion that there will be "no net detriment" will not suffice. It is necessary to provide a comparison of rates of pay and total remuneration along with a comparison of conditions (to the extent the agreement does not simply adopt existing award conditions). Any detrimental differences should be clearly identified along with an explanation as to why, despite such differences, it is contended that the agreement will not result in a net detriment to employees. The Statement should also address any other matters listed at principle 2.5 that the applicant considers relevant. 3. Where a secret ballot occurred, there is to be a report or affidavit from the returning officer attesting to the matters above and confirming that at least 65% of the employees to be covered by the agreement at the time the ballot was conducted voted to approve the agreement. Note, the required percentage is 65% of those eligible to vote, not just of those who voted: s 36(4) of the Act. 4. The agreement filed for approval by the Commission is to be in the exact same terms as the one voted on by the employees in any secret ballot: s 36(4) of the Act. 5. There are to be one or more affidavits filed with the application that address each of the matters in this checklist and annexes the signed proposed agreement. The affidavits must cover all of the matters listed in rules 6.9(2), (3) and (4) and should attest that each of the requirements for approval, as set out in the Act and the Principles (as summarised in this checklist), have been met. The basis upon which it is contended that the requirements for approval are satisfied must be set out. Bald assertions of compliance will not be sufficient.

Orders

I make the following orders: 1. The State Super Enterprise Agreement 2024-2027 is approved in accordance with s 35 of the Industrial Relations Act 1996 (NSW) and will commence operation in accordance with clause 5 of the Agreement and will remain in force until 30 June 2027, unless otherwise varied or rescinded. 2. The Industrial Registrar is directed to annex a copy of the Undertaking given by Mr John Livanas, Chief Executive Officer of State Super on behalf of State Super dated 24 September 2024, to the copy of the State Super Enterprise Agreement 2024-2027, and to enter the State Super Enterprise Agreement 2024-2027, complete with the annexed Undertaking in the register of approved enterprise agreements.

Endnotes

The Principles were most recently set out in Annexure A to Review of the Principles for Approval of Enterprise Agreements 2021/2022 [2022] NSWIRComm 1005.
Marked as Annexure C to Ms Jessika Riordan's affidavit dated 20 August 2024
The presentation slides are annexed to Ms Sobha Nair's Affidavit and marked "B". DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 07 November 2024

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Judgment (22 paragraphs)

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