State Wage Case 2023 [2023] NSWIRComm 1121

DECISION

1. On 27 June 2023, following the publication of the decision of the Minimum Wage Panel of the Fair Work Commission ("FWC") in Annual Wage Review 2022-23 [2023] FWCFB 3500 ("AWR 2023"), the Commission directed the Industrial Registrar, Ms Elizabeth Robinson, to issue to relevant industrial parties a Summons to Show Cause. The Summons called upon the parties to show cause why, after considering the AWR 2023, the Commission should not take such action pursuant to Pt 3 of Ch 2 of the Industrial Relations Act 1996 (NSW) ("Act") and cl 4 of the Wage Fixing Principles as determined in the State Wage Case 2022 [2022] NSWIRComm 1081 ("SWC 2022") as it considered appropriate ("Summons").
2. Consistent with State Wage Case 2020 [2021] NSWIRComm 1015 ("SWC 2020") at [24] and earlier decisions, the Commission considers the AWR 2023 to be a "National Decision" as provided under s 50 of the Act.
3. Pursuant to s 50(3) of the Act and consistent SWC 2020 [1] , the Commission may make separate decisions in relation to the adoption of the National decision for different awards.
4. The SWC 2022: 1. varied the Wage Fixing Principles ("WFP") and set out the revised WFP at Annexure A to that decision; and 2. set out at sub-cl 4.2 of the WFP, the nine awards relevant to the Commission's consideration as to the making of one or more orders of the Commission pursuant to s 52 of the Act at that time: 1. Security Industry (State) Award; 2. Miscellaneous Workers - Kindergartens and Child Care Centres, &c. (State) Award; 3. Health, Fitness and Indoor Sports Centres (State) Award; 4. Transport Industry (State) Award; 5. Clerical and Administrative Employees (State) Award; 6. Local Government (Electricians) (State) Award; 7. Entertainment and Broadcasting Industry - Live Theatre and Concert (State) Award; 8. Local Government Aged Disability and Home Care (State) Award; and 9. Nurses' (Local Government) Residential Aged Care Consolidated (State) Award 2021 (collectively "Relevant Awards").
5. At the directions hearing on 25 July 2023, Mr Ed Yap, with the consent of the other parties, save for Aged and Community Care Providers Association ("ACCPA"), informed the Commission that the Relevant Awards could be dealt with in three tranches: 1. Tranche 1 - awards in respect of which the parties had agreed that the rates of pay and allowances should be increased consistent with the AWR 2023: 1. Local Government (Electricians) (State) Award; 2. Entertainment and Broadcasting Industry - Live Theatre and Concert (State) Award; 1. Tranche 2 - awards in respect of which the relevant parties were considering the impact of the Aged Care Award 2010 [2023] FWCFB 45 and Aged Care Award 2010 [2022] FWCFB 200 (collectively "FWC Aged Care Award Decisions"), namely: 1. Local Government Aged Disability and Home Care (State) Award; and 2. Nurses' (Local Government) Residential Aged Care Consolidated (State) Award 2021; and whether and how the FWC Aged Care Award Decisions should be taken into account in this State Wage Case; and 1. Tranche 3 - awards about which the Crown and the relevant unions were in discussions regarding the increases to rates of pay and allowances in the awards impacting employees of the Crown in the Right of New South Wales who were, at that time, subject to the Industrial Relations (Public Sector Conditions of Employment) Regulation 2014 ("Regulation") being: 1. Security Industry (State) Award; 2. Miscellaneous Workers' - Kindergartens and Child Care Centres, &c. (State) Award; 3. Health, Fitness and Indoor Sports Centres (State) Award; 4. Transport Industry (State) Award; and 5. Clerical and Administrative Employees (State) Award.
6. ACCPA, previously Aged and Community Services Australia, did not enter an appearance in the State Wage Case but was served with the Summons and notified of all directions hearings on the basis that it has an interest in the following awards: 1. Local Government Aged Disability and Home Care (State) Award; and 2. Nurses' (Local Government) Residential Aged Care Consolidated (State) Award 2021.
7. At the directions hearing on 17 August 2023, Mr Yap informed the Commission of the following: 1. proposed consent orders had been filed for the Tranche 1 awards; 2. with respect to the Tranche 2 awards, the parties to those awards who had entered an appearance agreed that the FWC Aged Care Award Decisions are National decisions pursuant to s 48 of the Act but the FWC Aged Care Award Decisions do not affect any awards other than the Tranche 2 awards. The parties requested conciliation in respect of the Tranche 2 awards; 3. there was no consent position in respect of the Tranche 3 awards at that time but the relevant parties remained in discussions; and 4. the parties did not seek any changes to the WFP at that time, but reserved their positions on the issue subject to any changes to the Act.
8. On 21 August 2023, the Full Bench considered the short minutes of order filed by the parties in respect of the Tranche 1 awards referred to in [7(1)]. The Full Bench was satisfied that the proposed short minutes of order in relation to variations to the Tranche 1 awards complied with the requirements of the Act. Consequently, the Full Bench made orders consistent with the proposed short minutes of order increasing the rate of pay for the "Theatrical Employee Level 1" classification as described in clause 4(i)(a) of the Entertainment and Broadcasting Industry - Live Theatre and Concert (State) Award to the National Minimum Wage, being $882.80 per week, and increasing all other rates of pay and allowances in the Entertainment and Broadcasting Industry - Live Theatre and Concert (State) Award by 5.75% and increasing the rates of pay and allowances in the Local Government (Electricians) (State) Award by 5.75%.
9. At the directions hearing on 29 August 2023: 1. Mr Yap stated that the parties intended to provide proposed short minutes of order for the Tranche 3 awards containing agreed increases to rates of pay and allowances which were not consistent with the increases contained in the AWR 2023; and 2. the Commission reminded the parties that once the Regulation lapsed, the Act requires the Commission to adopt the National decision unless the Commission is satisfied there was good reason not to do so.
10. At the directions hearing on 6 September 2023, Mr Yap informed the Commission that the relevant parties had agreed that in respect of the Tranche 3 awards, the principles and provisions of the AWR 2023 should be adopted fully, and the pay and pay related allowances should be increased to at least the national minimum wage or by 5.75% upon the expiry of the nominal term of the awards and short minutes of order to that effect would be filed.
11. At the directions hearing on 12 September 2023 Mr Yap informed the Commission that the relevant parties had finalised their positions regarding the Tranche 2 awards and had agreed, amongst other things, to: 1. file consent applications pursuant to s 17 of the Act to increase by percentages agreed between the parties the rates of pay for classifications that are direct care classifications in aged care in: 1. the Local Government, Aged, Disability and Home Care (State) Award, within the range from 5.75% to 16.00%; and 2. the Nurses' (Local Government) Residential Aged Care Consolidated (State) Award 2021, within the range from 9.05% to 17.83%; and 1. increase the pay and pay-related allowances of the classifications that are not direct care work classifications in aged care in the Local Government, Aged, Disability and Home Care (State) Award for trainees in the Nurses' (Local Government) Residential Aged Care Consolidated (State) Award 2021 by 5.75%.
12. On 1 November 2023, the Full Bench considered the short minutes of order in relation to variations to the Tranche 2 awards referred to in [11]. The Full Bench was satisfied that the orders sought complied with the requirements of the Act and made the orders sought.
13. On 15 November 2023, the Full Bench considered the short minutes of order in relation to variations to the Tranche 3 awards referred to in [10]. The Full Bench was satisfied that the orders sought complied with the requirements of the Act and made the orders sought.
14. At the directions hearing before the Chief Commissioner on 26 October 2023 the parties confirmed that they did not seek any substantive changes to the WFP. Consequently, we have made no changes to the WFP at Annexure A to the State Wage Case 2022 [2022] NSWIRComm 1081.

Orders

1. On 21 August 2023, the Full Bench made the following orders in respect of the Entertainment and Broadcasting Industry - Live Theatre and Concert (State) Award: 1. The Commission adopts the AWR 2023 as a National decision in relation to the Entertainment and Broadcasting Industry - Live Theatre and Concert (State) Award. 2. Pursuant to s 52 of the Act, the rates of pay and pay-related allowances prescribed in the Entertainment and Broadcasting Industry - Live Theatre and Concert (State) Award be increased as follows: 1. The rate of pay for the 'Theatrical Employee Level 1' classification as described in clause 4(i)(a) of the award be increased to the National Minimum Wage, being $882.80 per week; and 2. All other rates of pay and pay-related allowances be increased by 5.75%. 1. Any increases resulting from Order 2 may be offset against any or both of: 1. Any equivalent over award payment; and 2. Award wage increases other than State Wage Case adjustments. 1. Order 2 takes effect on and from the first full pay period commencing on or after 1 September 2023. 2. To give effect to Orders 1 to 4, the Entertainment and Broadcasting Industry - Live Theatre and Concert (State) Award shall be varied in the terms stated in Annexure A to this order.
2. On 21 August 2023, the Full Bench made the following orders in respect of the Local Government (Electricians) (State) Award: 1. The Commission adopts the AWR 2023 as a National decision in relation to the Local Government (Electricians) (State) Award. 2. Pursuant to s 52 of the Act, the rates of pay and pay-related allowances prescribed in the Local Government (Electricians) (State) Award be increased by 5.75% provided that any increases resulting from this order may be offset against any or both of: 1. Any equivalent over award payment; and 2. Award wage increases other than State Wage Case adjustments. 1. Order 2 takes effect on and from the first full pay period commencing on or after 1 September 2023. 2. To give effect to Orders 1 to 3, the Local Government (Electricians) (State) Award shall be varied in the terms stated in Annexure A to this order.
3. On 1 November 2023, the Full Bench made the following orders in respect of the Nurses' (Local Government) Residential Aged Care Consolidated (State) Award 2021: 1. Pursuant to s 17 of the Act, the rates of pay for classifications in the Nurses' (Local Government) Residential Aged Care Consolidated (State) Award 2021 for all classifications other than trainee classification are increased by percentages agreed between the parties, which range from 9.05% to 17.83%. 2. Pursuant to s 50 of the Act, the Commission adopts the AWR 2023 as a National decision in relation to the Nurses' (Local Government) Residential Aged Care Consolidated (State) Award 2021 for purposes other than the rates of pay for direct care classifications in aged care. 3. Pursuant to s 52 of the Act, the rates of pay for trainees and pay-related allowances are increased by 5.75%. 4. Orders 1 and 3 takes effect on and from the first full pay period commencing on or after 1 September 2023. 5. To give effect to Orders 1 to 4, the Nurses' (Local Government) Residential Aged Care Consolidated (State) Award 2021 is varied in the terms stated in Annexure A to this order.
4. On 1 November 2023, the Full Bench made the following orders in respect of the Local Government Aged Disability and Home Care (State) Award: 1. Pursuant to s 17 of the Act: 1. the rates of pay for classification in the Local Government, Aged, Disability and Home Care (State) Award that are direct care classifications in aged care are increased by percentages agreed between the parties, which range from 5.75% to 16.00%; 2. the classification of Care Services Employee New Entrant is deleted. 1. Pursuant to s 50 of the Act, the Commission adopts the AWR 2023 as a National decision in relation to the Local Government Aged Disability and Home Care (State) Award for purposes other than the rates of pay for direct care classifications in aged care. 2. Pursuant to s 52 of the Act, the pay of the classifications that are not direct care work classifications in aged care in the award and pay-related allowances be increased by 5.75%. 3. Orders 1 and 3 take effect on and from the first full pay period commencing on or after 1 September 2023. 4. To give effect to Orders 1 to 4, the Local Government, Aged, Disability and Home Care (State) Award is varied in the terms stated in Annexure A to this order.
5. On 15 and 17 November 2023, the Full Bench made orders consistent with the short minutes of order proposed by the parties in respect of the following awards: 1. Security Industry (State) Award; 2. Miscellaneous Workers' - Kindergartens and Child Care Centres, &c. (State) Award; 3. Health, Fitness and Indoor Sports Centres (State) Award; 4. Transport Industry (State) Award; and 5. Clerical and Administrative Employees (State) Award (collectively "Tranche 3 Awards").
6. The Orders in respect of the Awards in [19] had the following effect: 1. the Commission adopted the AWR 2023 as a National decision in relation to the Tranche 3 Awards; 2. pursuant to s 52 of the Act the following rates of pay were increased to the National Minimum Wage, being $882.80 1. the rate of pay for Grade 1 as described in cl 8.1 of the Clerical and Administrative Employees (State) Award; 2. the rate of pay for Support Worker in the Miscellaneous Workers' - Kindergartens and Child Care Centres, &c. (State) Award; and 3. the rate of pay for Levels 1 and 2, as described in clause 3 of the Health, Fitness and Indoor Sports Centres (State) Award. 1. pursuant to s 52 of the Act all other rates of pay and pay-related allowances prescribed in the award be increased by 5.75% 2. any increases may be offset against any or both of 1. Any equivalent over award payment; and 2. Award wage increases other than State Wage Case adjustments. Chief Commissioner Constant, Commissioner Sloan and Commissioner Webster

Amendments 19 December 2023 - 1. Correction made in coversheet to the case numbers. 2. Minor correction made at paragraph 4. 3. Formatting fixed at paragraph 5. 4. Inserted the word 'to' after 'changes' in paragraph [14]. 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: 19 December 2023