State Wage Case 2024 �e" Review of Minimum Rates Awards (No 2) [2025] NSWIRComm 1059 | Case summary

State Wage Case 2024 �e" Review of Minimum Rates Awards (No 2) [2025] NSWIRComm 1059 | Case summary | Zoe

[139]

9. Category 1 are awards covering employees in service of the Crown, where the Industrial Relations Secretary is the statutory employer and where such employees were previously subject to the Industrial Relations (Public Sector Conditions of Employment) Regulation 2014 (Regulation) (and its 2011 predecessor) and the now superseded Public Sector Wages Policy, which together imposed what was commonly referred to as the "wages cap". As has been well published (sic) [publicised] , the "wages cap' was abolished on 1 September 2023 when the Regulation was repealed.

...

15. Despite being given the opportunity to do so, no party filed any evidence in respect of the first stage of the State Wage Case 2024. Only Unions NSW, Local Government NSW and the Industrial Relations Secretary filed submissions_._ Those submissions gave rise to two concerns: first, that some of the Relevant Awards may be obsolete, as there may be no current employees covered by one or more of the awards and no current intention by the relevant employer to employ persons in positions covered by such awards; and second, that the rates prescribed in the Relevant Awards, even after the uplift awarded in State Wage Case 2024 (No 2), may not represent fair and reasonable wages in conformity with the Commission's obligation, pursuant to s 10 of the IR Act, to make awards setting fair and reasonable conditions of employment for employees. The Full Bench found, at [25], that at least over the last five years, the increases awarded to the minimum rates in the Category 1 Awards have been insufficient to keep pace with inflation, such that they have decreased in real terms, and to a degree greater than the reduction in the real value of rates under federal modern awards. The Full Bench expressed a concern that the wages for Category 1 awards may have fallen behind federal modern award minimum rates in real terms, including most concerningly, the National Minimum Wage Order as determined by the FWC, possibly due to the wages cap.

16. In the circumstances, the Full Bench considered that a comprehensive review of the rates in the Relevant Awards is warranted, explaining, at [31] - [32]:

[177]

The party card for the Miscellaneous Workers - Kindergartens and Child Care Centres, &c. (State) Award (Child Care Award) records that the persons affected by the Award are the Industrial Relations Secretary, Unions NSW (as the State peak council) and the United Workers' Union, New South Wales Branch (previously known as United Voice).
Unions NSW and the United Workers' Union, New South Wales Branch seek an increase to the rates of pay and an increase and/or variation to allowances payable to employees covered by the Child Care Award to align with the federal Children's Services Award 2010 (Modern Children's Services Award). The Industrial Relations Secretary, as employer, does not object to the proposed increase in rates of pay, but does object to the proposed variation to allowances.
Ms Knevitt gave evidence in the Third Knevitt Statement that there are six employees employed under the Child Care Award at a short-term childminding service connected to the Sporting Club of Sydney, which is operated by Venues NSW. One employee works under the Award as an Advanced Child Care Worker Qualified (ACCWQ) Step 4, while the remainder are engaged as Child Care Workers (CCW) Step 4. The Industrial Relations Secretary advised in correspondence sent to the Commission by his solicitor dated 5 June 2025, that all of the current employees covered by the Child Care Award are women.
The lowest rate of pay under the Child Care Award is for employees under the classification of Support Worker. Following the increase made by the Full Bench in State Wage Case 2024 (No 2) the rate of pay for these workers is $915.90 per week which equates exactly to the National Minimum Wage Order, calculated on the basis of a week of 38 ordinary hours. Clause 6A(i) of the Child Care Award provides that the ordinary hours of work must not exceed an average of 38 per week.
The parties agree that the Modern Children's Services Award is the appropriate federal comparator award. Initially the parties were at odds as to the correct mapping of the Child Care Award to Modern Children's Services Award. However, following the conciliation on 9 May 2025 the Industrial Relations Secretary agreed with the classification comparison proposed by Unions NSW and by correspondence to the Commission dated 30 May 2025, indicated that he does not oppose the increase of pay rates to align with the rates of pay provided for in the Modern Children's Services Award, but maintained that varying the allowances under the Award is unnecessary.
Upon my review of the Child Care Award, I identified as an issue whether the Award, and in particular the classification structure provided for in cl 8 of the Award, complied with the Education and Care Services, National Quality Framework as established by the Children (Education and Care Services) National Law (NSW) (National Law). Following my raising this with the parties, the solicitor for the Industrial Relations Secretary advised that the six employees employed under the Award provide 'ad hoc' services within the meaning of reg 5(2)(c) of the Education and Care Services National Regulations, specifically a creche in a fitness centre, which is not an "education and care service" within the meaning of the National Law. Regulation 5(2)(c) provides:

[182]

By correspondence to the Commission dated 13 June 2025, Unions NSW indicated that it did not cavil with the Industrial Relations Secretary's submission. In those circumstances I am satisfied that there is no need for any adjustment at this time, to the classification structure provided for in the Child Care Award.
The Unions' classification mapping, as set out in the Second Yap Statement, revealed that there are numerous classifications in the Child Care Award that are paid less than the pay range provided for in the equivalent classification in the Children's Services Award, or less than the top of the pay range provided for in the equivalent classification in the Children's Services Award. It should be noted however, that each of the classifications under which there are employees currently employed, provide for pay rates which exceed their equivalent in the Children's Services Award.
The Unions also provided a comparison of the allowances provided for in the Child Care Award with those provided for the Children's Services Award. In summary that comparison revealed that the allowances payable under the Child Care Award are slightly less than those payable under the Children's Services Award or were not payable at all. Of most significance is a first aid allowance of $11.66 per day and a first aid out-of-school hours care allowance of $1.55 per hour, which is payable under the Modern Children's Services Award, but not under the Child Care Award.
The First Knevitt Statement annexed a table comparing the terms of the Child Care Award with the National Employment Standards (NES). That table revealed that the Award was similar or more favourable to the NES in a number of aspects, with the most significant discrepancy which was less favourable to employees under the Child Care Award being the loading paid to casual employees. Casual employees under the Child Care Award are paid a loading of 15%, compared to 23.3% under the NES, in lieu of paid leave, save for their leave entitlements under the Annual Holidays Act 1944, for which they receive an additional one-twelfth (8.3%) loading: Cl 9(iv)(a).
I consider that if the rates of pay were varied so that they align to those applicable to equivalent classifications in the Modern Children's Services Award, and that where the Children's Services Award provides for a range of rates for a classification the highest rate provided within the range should apply, this will result in fair and reasonable remuneration without the need to vary the allowance rates and the casual loading rate,. The only exception is the rates for pre-school child care workers steps 2 - 5, which require additional adjustment to maintain relativities. In arriving at this view, I have had regard to:

[197]

The federal Metal Industry Award has been replaced by the Manufacturing and Associates Industries and Occupations Award 2020.
The Manufacturing and Associates Industries and Occupations Award 2020 prior to 1 July 2025 prescribed a weekly minimum rate of $1,032.30 for classification C10. Applying the relativities set out in cl 2(a) of the Fitness Award to that rate would result in Levels 1 - 3A of the Fitness Award all having a weekly wage rate below the 2024 National Minimum Wage Order which provided for $915.90 per week.
Further, Level 1 of the Modern Fitness Industry Award (prior to 1 July 2025) prescribed a minimum weekly rate of pay of $891.50, which was also below the National Minimum Wage Order.
Following the State Wage Case 2023 [2023] NSWIRComm 1121 the weekly rate for Level 1 in the Fitness Award was lifted so that it was the same as the rate then prescribed by the National Minimum Wage Order ($882.80). The effect of this was that the pay rate for Level 1 and 2 in the Fitness Award were the same. In other words, the relativities between the two levels had entirely collapsed.
The Unions propose that Level 1 should be pegged to the National Minimum Wage Order, with the pay rates for the other levels being adjusted in line with the relativities previously provided for by reference to the Federal Metal Industry Award. The Industrial Relations Secretary agreed to this proposal, but also proposed that the reference to relativities in cl 2 be deleted as no longer being required. Unions NSW on behalf of the two affected Unions agreed to this proposal.
The following table sets out the weekly rates of pay after the 3.75% uplift awarded by the Full Bench in October 2024 (effective from 1 July 2024) which shows the collapse in relativities; the pay rate for the equivalent classification under the Modern Fitness Industry Award (prior to 1 July 2025); and the rate of pay proposed by the Unions to address the issue with relativities, to which the Industrial Relations Secretary does not object:

[212]

The Commission was not informed of the classifications of the employees.
Ms Knevitt stated in the Second Knevitt Statement that representatives of the Industrial Relations Secretary are exploring options for transferring the employees covered by the Transport Award to another industrial instrument, including the possibility of making an Industrial Relations Secretary Determination under s 52 of the Government Sector Employment Act 2013 and that if this were to occur, an application for rescission of the Transport Award would be made. At the time of writing no such application has been made.
The parties are agreed that the federal Road Transport and Distribution Award 2020 (Modern RTD Award) is the appropriate federal comparator award by which to measure the fairness and reasonableness of the pay rates and other conditions of employment and are agreed as to the appropriate mapping of the classifications in the Transport Award to the Modern RTD Award. Every classification under the Transport Award is paid more than its equivalent under the Modern RTD Award. The lowest classification is paid more than the National Minimum Wage Order.
The only issue between the parties concerned an allowance paid to "leading hands" being employees who are "in charge" of a number of other employees. The extant Transport Award provided a flat allowance for a leading hand of $52.10 per week. The Modern RTS Award provides for an allowance of $46.04 per week for leading hands in charge of 3 to 10 employees; $68.58 per week for leadings hands in charge of 11 to 20 employees; and $87.11 per week for leading hands in charge of more than 20 employees. The Unions pressed for the Leading Hand allowance to be amended to the maximum payable under the Modern RTD Award, that is, $87.11. Ultimately the parties agreed to vary the Leading Hand allowance so that it reflected the same amounts paid under the Modern RTD Award.
In my review of the Transport Award I considered that the following clauses of the Award also required amendment, as indicated, to which the parties agreed:

[222]

The party card for the Local Government (Electricians) (State) Award (LG Electricians Award) records that the persons affected by the Award are the Local Government NSW, the Electrical Trades Unions of Australia, New South Wales Branch (ETU), the New South Wales Local Government, Clerical, Administrative, Energy, Airlines & Utilities Union (USU) and Unions NSW.
According to Mr Nassif of LG NSW, based on a survey conducted by LGNSW in February 2025, there are at least 54 electricians covered by the LG Electricians Award. In the circumstances the Award still has work to do and is not obsolete.
Mr Nassif compared the terms and conditions in the LG Electricians Award with the National Employment Standards (NES). That comparison revealed that while most of the terms and conditions under the LG Electricians Award are consistent with, or better than the NES, the LG Electricians Award does not provide for 10 days paid family and domestic violence leave, which, since 9 June 2024, is a requirement for both state and national system employers pursuant to Division 2A of Pt 6-3 of the Fair Work Act 2009 (Cth). While strictly the entitlement is not required to be expressed in the Award, as the entitlement will apply to employees regardless of whether it is in the Award or not, inclusion of the right in the Award will assist employees to understand their entitlements. Unions NSW on behalf of the ETU and the USU supported the inclusion of such a clause in the Award and LGNSW advised by correspondence to the Commission dated 11 June 2025 that it would be content to insert a new (compliant) clause relating to Family and Domestic violence leave in the LG Electricians Award in similar terms to the one that current exists in the Local Government (State) Award.
Mr Nassif noted in his affidavit that the lowest rate of pay for an adult under the LG Electricians Award is $1,121.51 per week, which is more than the National Minimum Wage Order of $915.90 per week (prior to 1 July 2025).
Mr Nassif then compared the pay rates provided for in the LG Electricians Award with the rates provided for in the federal, Electrical, Electronic, and Communications Contracting Award 2020 (Modern Electrical Award), which he considered to be a suitable comparator. That comparison revealed the LG Electrical Award provides for better rates of pay at every level than the Modern Electrical Award, except in relation to apprentices.
Mr Aghazarian, legal officer for the ETU, set out the following table in his affidavit, matching the apprentice classifications in the LG Electrical Award against the apprentice classifications in the Modern Electrical Award and which showed that the adult apprentice rate for second and third year apprentices were below that provided for in the Modern Electrical Award:

[237]

"1. The LG Electricians State Award already includes industry-specific allowances that are varied each year (by consent) in line with any State Wage Case increases, and provide generous rates of pay well in excess of the federal comparator awards as already established in the email of yesterday and in the affidavit of Mr Nassif of 6 March 2025;

2. More specifically, the Leading Hands Allowance (which Mr Aghazarian has recommended for inclusion) is already contemplated by and accounted for in the LG Electricians State Award through the Skill Descriptors at Clause 4, as it is a skills-based allowance. This is further reflected in each Council's salary system rates of pay. Indeed, Clause 25 of the Award acknowledges that employees may be required to supervise or oversee "3 to 10 employees," "11 to 20 employees," or "more than 20 employees", with higher rates of pay applying in accordance with the skills and knowledge exercised in their roles;

3. Again, more specifically, the Electrician's Licence Allowance (which Mr Aghazarian has also recommended for inclusion) is paid to electrical workers who hold and may be required to use an unrestricted electrical licence, which in LGNSW's view is akin to a qualification. If such a qualification is required in a particular role, LGNSW again contends that it is already accounted for by the Skill Descriptors at Clause 4, and subsequently reflected in each Council's salary system rate of pay;

4. Furthermore, the Electrical distribution line maintenance and tree clearing allowance (which Mr Aghazarian has also recommended for inclusion) is paid to employees engaged in clearing trees associated with undertaking maintenance work on electrical distribution lines. LGNSW submits that this is an obsolete allowance as councils in NSW do not perform nor undertake such work in their respective local government areas, hence, there would be no need to include this allowance in the LG Electricians State Award;

5. Mr Aghazarian has recommended the inclusion of the above allowances from the Federal Electrical, Electronic, and Communications Contracting Award 2020 ("EECC Award"). However, this award was selected purely for comparative purposes and does not have any industrial applicability or coverage within the NSW local government sector;

6. As a corollary to point [5], consenting to the inclusion of these allowances could set a precedent that risks "leapfrogging" - opening the door to further claims for allowances from other comparator awards, which would be of significant concern to our members;

7. The inclusion of these allowances would also represent a major departure from established practice in our sector. Historically, changes to awards or variations have only occurred by consent following consultation with our members. In this instance, our members have not been consulted, and it would be highly inappropriate for LGNSW to agree to such inclusions without their input or approval in the first instance;

8. Finally, the scope or ambit of this review, as outlined in paragraph 3(c)(iii) of the Notice of Orders Made on 10 February 2025, was confined to comparing the rates of pay in the relevant award with those in a comparable federal modern award or awards, with a brief rationale for the choice of comparator. The review was limited to rates of pay, not pay-related allowances, and this comparison has already been addressed in detail by the parties."

[245]

"22. Subclause 47(i) of the Local Government (State) Award 2023 (the Award) provides that the Award applies to all employees and employers in local government in NSW. However, subclause 47(iii)(i), specifically states that the coverage of the Award does not extend to the employees of Newcastle City Council who are covered by the Entertainment and Broadcasting Industry - Live Theatre and Concert (State) Award.

23. As such, the City of Newcastle is the only council in NSW that could possibly apply the provisions of the Entertainment and Broadcasting Award to employees engaged in Entertainment, Events, Theatres, and Hospitality.

24. On 12 August 2024, the Industrial Relations Lead at the City of Newcastle emailed LGNSW industrial officers about the continued application of the Entertainment and Broadcasting Award. A copy of the email of 12 August 2024 is attached and marked as Annexure MN-2.

25. It is evident from Annexure MN-2 that prior to January 2023 the Entertainment and Broadcasting Award applied to 127 employees of the City of Newcastle. In the period between the first pay period on or after 1 January 2023 and mid-December 2024, City of Newcastle employees engaged in Entertainment, Events, Theatres and Hospitality venues operated by the Council were covered by the terms and conditions of employment outlined in Schedule 6 of the City of Newcastle Enterprise Agreement 2023 (393 IG 1022). A copy of Schedule 6 of the City of Newcastle Enterprise Agreement 2023 is annexed and marked as Annexure MN-3.

26. In December 2024, pursuant to clause 46 of the City of Newcastle Enterprise Agreement 2023 the Council along with the Local Government, Clerical, Administrative, Energy, Airlines & Utilities Union (the Union), entered into a Council Agreement that applies to Entertainment, Events, Theatres and Hospitality employees previously covered by Schedule 6 of the City of Newcastle Enterprise Agreement 2023. Annexed and marked as Annexure MN-4 is a copy of the City of Newcastle Enterprise Agreement 2023 & Schedule 6 Amendments Agreement 2024.

27. I am of the view that the provisions of the Entertainment and Broadcasting Award do not currently apply to City of Newcastle employees engaged at Entertainment, Events, Theatres and Hospitality venues operated by the Council. That is not to say that the City of Newcastle employees are not covered by the Entertainment and Broadcasting Award.

28. If the Commission were to rescind the Entertainment and Broadcasting Industry - Live Theatre and Concert (State) Award because it does not have application to any employees in local government, then I am of the view that at the same time an amendment would need to be made to remove subclause 47(iii)(i) of the Local Government (State) Award 2023."

State Wage Case 2024 �e" Review of Minimum Rates Awards (No 2) [2025] NSWIRComm 1059 (4 August 2025)

At a glance

Court

Decision date

Before

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Judgment (264 paragraphs)

Legislation Cited (7)

Cases Cited (2)