New South Wales Local Government, Clerical, Administrative, Energy, Airlines & Utilities Union (obo Pereira) v City of Sydney Council [2021] NSWIRComm 1008

Industrial Relations Commission New South Wales Medium Neutral Citation: New South Wales Local Government, Clerical, Administrative, Energy, Airlines & Utilities Union (obo Pereira) v City of Sydney Council [2021] NSWIRComm 1008 Hearing dates: 14 and 15 September 2020 Date of orders: 5 February 2021 Decision date: 05 February 2021 Jurisdiction: Industrial Relations Commission Before: Commissioner Sloan Decision: The proceedings are dismissed Catchwords: EMPLOYMENT AND INDUSTRIAL LAW – Industrial disputes – decision by employer not to award discretionary salary increase to employee – whether employee's performance was due to matters outside his control – whether Commission should direct employer to pass on increase with back-pay Legislation Cited: Industrial Relations Act 1996 (NSW) ss 130, 136 Cases Cited: Re: Ambulance Service of New South Wales and Broken Hill Town Employees' Union [2004] NSWIRComm 73 Category: Principal judgment Parties: New South Wales Local Government, Clerical, Administrative, Energy, Airlines & Utilities Union (Notifier) City of Sydney Council (Respondent) Representation: S Szabo (Notifier) J Mattson (Respondent) File Number(s): 2020/60899 Publication restriction: No

DECISION

Introduction 1. Sanderson Pereira has been employed by the City of Sydney Council ("Council") as a parking ranger since September 2001. He is a member of the New South Wales Local Government, Clerical, Administrative, Energy, Airlines & Utilities Union ("USU"). 2. Mr Pereira's employment is covered by The City of Sydney Wages/Salary Award 2017 ("Award"). The Award establishes, amongst other things, his annual rate of pay. 3. The Council has a Performance and Development Management Policy ("PDM Policy"). The PDM Policy establishes a performance-based salary progression scheme, under which employees have an opportunity to obtain a salary increase above any provided under the Award depending on their level of performance. 4. Mr Pereira received salary increases pursuant to the PDM Policy in each year from 2014 until 2017. He did not receive such an increase in 2018 due to perceived deficiencies in his performance. 5. In early 2019 Mr Pereira lodged a grievance with the Council challenging the decision not to award him a salary increase in 2018. He and the USU corresponded with the Council on the issue throughout 2019. The parties were unable to resolve their differences. 6. On 20 February 2020 the USU filed with the Office of the Industrial Registrar a notification of an industrial dispute pursuant to s 130 of the Industrial Relations Act 1996 (NSW) ("Act"). The USU contended in the notification that there was either no basis for the Council to suggest there were deficiencies in Mr Pereira's performance or, to the extent that he had failed to meet particular targets, this was for reasons beyond his control and for which he should not be held accountable. 7. At the hearing of this matter the USU sought directions from the Commission pursuant to s 136(1)(a) of the Act to the effect that Mr Pereira be awarded a salary increase of 1.5% effective from 1 July 2018, being the increase that would have been awarded to him at the end of the 2017/2018 assessment year had the Council not denied his progression, with back pay. In the alternative, to the extent that the Commission was unable or unwilling to make those directions, the USU sought recommendations from the Commission pursuant to s 136(1)(a) of the Act to the same effect.