Taronga Conservation Society Australia Retail and Restaurant Employees' Award 2022 âe" 2023 âe" Award Variation [2025] NSWIRComm 1038 (26 June 2025)

The Award applies to and is binding on the parties to the Award and all ongoing, temporary, casual and apprentice employees, employed by the Department of Climate Change, Energy, the Environment and Water at Taronga in the classifications of: Retail Sales Assistant, Retail Sales Supervisor, Retail Sales Coordinator, Wait Staff, Kitchen Hand, Cook, Apprentice Chef, Chef, Senior Chef and Duty Officer.

1. According to Ms Parry the Taronga Award covers approximately 10 full time equivalent employees.
2. The variation application arises from a decision of the Full Bench in Industrial Secretary v Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales (No 2) [2024] NSWIRComm 21. That decision concerned 17 awards that were the subject of applications for new awards, pursuant to s 10 of the IR Act, lodged by the Industrial Relations Secretary and the Transport Secretary. Relevantly, it concerned the application lodged by the Industrial Relations Secretary on 1 July 2024 (proceeding no 2024/243257) seeking the making of a new award to be known as the Taronga Conservation Society Australia Retail and Restaurant Employees' Award 2024 - 2026, with a three-year term and providing increases to existing salaries and salary-related allowances of:

(1) 3% from the first full pay period on or after 1 July 2024;

(2) 3% from the first full pay period on or after 1 July 2025; and

(3) 3% from the first full pay period on or after 1 July 2026.

1. Other than the change to salaries and salary-related allowances, the proposed new Award represented a 'rollover' of the existing Taronga Award, save that references in that Award to the "Department of Planning and Environment" were to be varied to read "Department of Climate Change, Energy, the Environment and Water".
2. The UWU and Unions NSW opposed the application. On 10 October 2024 Unions NSW on behalf of the UWU, filed an application for variation of the existing Taronga Award (proceeding no. 2024/384861) seeking that the Commission vary the Taronga Award to achieve an increase to pay and pay-related allowances by 5.2% from the first full pay period on or after 1 July 2024. This variation application was also the subject of the Full Bench's decision in Industrial Secretary v Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales (No 2).
3. The Full Bench determined that the Taronga Award, (as well as the other awards referred to in the decision), should be varied to provide an interim increase to pay and pay-related allowances of 3.5% and directed the parties to confer and file a draft award to give effect to its decision.
4. The proposed variation was filed on 20 December 2024 and on that day the Full Bench made the following orders:

1. Pursuant to s 17 of the Industrial Relations Act 1996 (NSW), the Taronga Conservation Society Australia Retail and Restaurant Employees' Award 2022-2023 ("the Award") is varied in the terms set out in the Variation Schedule filed on 20 December 2024, giving effect to an increase to salaries and salary-related allowances of 3.5% from the first full pay period on or after 1 July 2024.

2. The variations to the Award are to take effect on and from 1 July 2024.

1. Since December 2024 the application for the new award (2024/243257) and Unions NSW's application for a variation (2024/2024/384861) (together the Related Proceedings) have been case managed for hearing by Vice President Chin J. The proceedings were referred to me by the Vice President for determination and review in April 2025. Since then, the parties have reached an agreement that the Taronga Award should be varied once more, without prejudice to their ongoing applications, as the variations arising from the Full Bench's decision resulted in the collapse of wage relativities between the classifications of Retail Sales Supervisor, Kitchen Hand, Wait Staff and Cook, and the relativities for other classifications being constricted. Accordingly, the present consent Application was filed on 4 June 2025 to restore the classification relativities. The Application is expressly made without prejudice to the parties' positions in the Related Proceedings.
2. The Application states:

a. provides for the restoration of the relativities between the classification levels under the Award.

b. is made with the mutual consent of all parties to the Award, in accordance with s 17(3)(a) of the Act;

c. is not contrary to the public interest (and in the public interest), in accordance with s 17(3)(d) of the Act, for the reasons which will be set out in the forthcoming affidavit in support;

d. provides for equal remuneration and other conditions of employment for men and women doing work of equal or comparable value, for the reasons which will be set out in the forthcoming affidavit in support; and

e. is to take effect from the first full pay period on or after the date the variation is made."

1. Annexed to the Application were copies of the proposed varied Taronga Award in clean copy and mark-up, together with a consent order annexing a variation schedule. The marked-up copy of the Award included a variation to cl 5.1 - Area, Incidence and Duration - which was not included in the variation schedule and was in a form I did not consider to be appropriate. Further, the variation schedule and the marked-up variations indicated that the varied pay rates were to apply from 1 July 2024, whereas the Application indicated that the variations were to take effect from the first full pay period on or after the date the variation is made.
2. The Commission wrote to the parties on 16 June 2025 to clarify the date the variations are to apply and to clarify the agreed wording for cl 5.1. On 23 June 2025, the Commission received correspondence from the Crown Solicitor's Office, on behalf of the Industrial Relations Secretary, confirming that the parties agree that the variations to the Taronga Award should apply from the first pay period on or after 1 July 2024 and that no change was required from the current version of cl 5.1 of the Award.
3. Ms Parry gave the following evidence by which the Commission would be satisfied that the variations provide for equal remuneration and other conditions of employment for men and women doing work of equal or comparable value:

"7. ln each case, the proposed variations do not disturb that the Awards provided for equal remuneration and other conditions of employment for men and women under the Awards who are performing work of equal or comparable value.

8. To the best of my knowledge, the Awards provide:

a. Equal rates of pay and allowances for men and women;

b. The same eligibility criteria for employment for men and women for each job classification;

c. The same duties for men and women under each job classification; and

d. Conditions of employment which promote equal access to employment for men and women.

9. Further and to the best of my knowledge, the proposed variations provide equal remuneration and other conditions of employment for men and women doing work of equal or comparable value because:

a. No distinction is drawn on the basis of gender between the remuneration and conditions of employment which apply; and

b. There are no cohorts of employees under the proposed varied Awards who would be unequally remunerated for work of equal or comparable value."

1. Ms Parry also opined that the proposed variations are in the public interest "having regard to the factors in ss 3 and 146(2) of the lR Act, as well as that the parties to the Awards have negotiated and seek the proposed variations by consent." She deposed:

"Objects of the lR Act

11 . The proposed variations accord with the objects in s 3 of the lR Act, as in my opinion the restoration of the relativities between the various classifications:

a. would be fair and just, given the differences in the work carried out by employees under those classifications;

b. promotes efficiency and productivity at a local level by encouraging employees to improve on their skill sets and take on more responsibility, which in turn contributes to the economy of the State; and

c. will support the attraction and retention of more skilled staff, who may otherwise not be inclined to take on more responsibility without any increase in pay.

Economy of New South Wales

12. With respect to each of the Awards, it is not expected that the variation to restore the relativities will have an adverse effect on the state of the economy of New South Wales, as the Awards apply to relatively small numbers of employees. ... the Taronga Award [covers] approximately 10 FTE employees.

Fiscal position and outlook of the Government

13. lt is expected that the proposed variations to the Awards will have a minimal effect on the fiscal position and outlook of the Government. Given the Awards apply to a relatively small number of employees, this impact will not be significant, and the Government has consented to the proposed variations."

17 Variation or rescission of award

(1) The Commission may vary or rescind an award.

(2) Sections 11, 13 and 15 apply to any such variation or rescission. The other provisions of this Division continue to apply to the award as varied.

(3) An award may be varied or rescinded in any of the following circumstances only -

(a) at any time with the mutual consent of all the parties to the making of the original award,

(b) at any time to give effect to a decision of the Full Bench of the Commission under section 50 or 51 (National and State decisions),

(c) during its nominal term if the Commission considers that it is not contrary to the public interest to do so and that there is a substantial reason to do so,

(d) after its nominal term if the Commission considers that it is not contrary to the public interest to do so.

(4) This section extends to a variation or rescission of an award in the course of an arbitration by the Commission under Chapter 3 to resolve an industrial dispute.

1. Further, pursuant to sub-principle 3.1(6) of the 2024-2025 Award Making Principles: State Wage Case 2024 (No 4) [2024] NSWIRComm 25; 337 IR 182, an award may be varied without the application needing to be considered as an Arbitrated Case under Principle 9, where the application is consented to by the parties, and where the award otherwise complies with the requirements of the IR Act.
2. As already stated above, the variations are to apply from 1 July 2024, being some 11 months earlier than the date of the Application. Pursuant to s 15(4) (as applied by s 17(2) of the IR Act) the Commission may order that a variation is to apply retrospectively from a date, specified in the award, that is earlier than any date referred to in sub-s 15(3), if the parties consent and if the award sets conditions of employment for employees of a single employer or for employees of two or more associated employers. I am satisfied that that those conditions are met in this case.
3. It is important to note that the parties' consent is given in circumstances where they have agreed that their consent to the application is without prejudice to the parties' positions in the Related Proceedings and does not preclude the Commission from determining the balance of the parties' claims in these matters.
4. On the basis of the evidence given by Ms Parry, and in light of the consent of the parties I am satisfied that it is in the public interest that the variation be made. I am also satisfied that the proposed varied Taronga Award provides equal remuneration and other conditions of employment for men and women doing work of equal or comparable value.
5. I note that the nominal term of the Taronga Award expired on 30 June 2024. As the consent Application is to vary the existing Award, pending the resolution of the new award application, the name of the Taraonga Award, will remain unchanged.
6. It is my understanding that the parties have now requested that the Related Proceedings return to the Vice President for the making of a new consent award. In those circumstances I propose to direct that those matters be returned to the Vice President for determination.
7. Finally, in the course of preparing this decision I have noticed that neither the Industrial Relations Secretary nor the UWU are not recorded on the party card of the Taronga Award (maintained by the Registrar pursuant to r 6.7 of the Industrial Relation Commission Rules 2022). I propose to order that they be so recorded.
8. I make the following orders:

(1) Pursuant to s 17 of the Industrial Relations Act 1996, the Taronga Conservation Society Australia Retail and Restaurant Employees' Award 2022 - 2023 is varied by consent as follows:

Delete Schedule 1 to the Award, as varied on 20 December 2024 and published on 25 June 2025 (397 I.G. 3108), and insert in lieu thereof Schedule 1, as set out in the variation schedule (schedules of changes document) filed with the Application on 4 June 2025.

(2) The variations shall take effect from the first full pay period commencing on and from 1 July 2024.

(3) The parties are directed to file a Word version of the consolidated Award as varied, by 2 July 2025.

(4) The Registrar is directed to include the Industrial Relations Secretary and the United Workers Union, New South Wales Branch, being parties to the Taronga Conservation Society Australia Retail and Restaurant Employees' Award 2022 - 2023, on the party card for that Award.

(1) This matter relates to proceedings nos. 2024/243257 and 2024/384861 (Related Proceedings).

(2) The consent of the parties to this variation Application is without prejudice to the parties' positions in the Related Proceedings and does not preclude the Commission from determining the balance of the parties' claims in these matters.