Industrial Relations Commission New South Wales Medium Neutral Citation: State Wage Case 2020 [2021] NSWIRComm 1015 Hearing dates: Directions Hearings before the Full Bench 26 November 2020, 9 February 2021 and 22 February 2021, final consent orders received 26 February 2021 Date of orders: 2 March 2021 Decision date: 02 March 2021 Jurisdiction: Industrial Relations Commission Before: Chief Commissioner Constant, Commissioner Murphy and Commissioner Sloan Decision: Orders by consent as to variations to relevant awards as recorded in the Decision. Wage Fixing Principles to be reviewed separately. Catchwords: STATE WAGE CASE – adoption of National decision - consent arrangements – orders made to vary relevant awards Legislation Cited: Industrial Relations Commission Rules 2009, cl 6 Industrial Relations Act 1996 (NSW) Ch 2 Pt 3, ss 50, 51 Cases Cited: Annual Wage Review 2019-20 [2020] FWCFB 3500 State Wage Case 2015 [2015] NSWIRComm 31 State Wage Case 2016 [2016] NSWIRComm 12 State Wage Case 2019 [2019] NSWIRComm 1065 Category: Principal judgment Parties: Unions NSW Industrial Relations Secretary Local Government and Shires Association of New South Wales Police Association of New South Wales The Australian Workers' Union, New South Wales New South Wales Nurses and Midwives' Association Australian Paramedics Association (NSW) Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales Transport Workers' Union of New South Wales New South Wales Local Government, Clerical, Administrative, Energy, Airlines & Utilities Union Health Services Union The Seamens' Union of Australia, New South Wales Branch Electrical Trades Union of Australia, New South Wales Branch Media, Entertainment and Arts Alliance New South Wales Australian Federation of Employers and Industries Shop Assistants and Warehouse Employees' Federation of Australia, Newcastle and Northern, New South Wales Shop, Distributive and Allied Employees Association, New South Wales United Voice, New South Wales Branch Aged and Community Services Australia The Australian Industry Group New South Wales Branch Representation: Counsel: Ms J McDonald (Industrial Relations Secretary) Solicitors: Ms K Smith, Crown Solicitor (Industrial Relations Secretary) Ms E Leverington, Mr T Costa (Unions NSW, Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales, The Australian Workers' Union, New South Wales, Transport Workers' Union of New South Wales, New South Wales Local Government, Clerical, Administrative, Energy, Airlines & Utilities Union, New South Wales Nurses and Midwives Association) Ms S Mohammad (Local Government and Shires Association of New South Wales) Mr T Kiat (Australian Paramedics Association (NSW)) File Number(s): 2020/00184245 decision 1. Following the publication of the decision of the Minimum Wage Panel of the Fair Work Commission in Annual Wage Review 2019-20 [2020] FWCFB 3500 on 19 June 2020, the Commission directed the Acting Industrial Registrar, Mr Brendan Bellach, to issue a Summons to Show Cause to various industrial parties. The Summons, dated 22 June 2020, called upon the parties to show cause why the Commission should not take such action as it thought proper pursuant to Pt 3 of Ch 2 of the Industrial Relations Act 1996 (NSW) ("the Act") and cl 4 of the Wage Fixing Principles as determined in the State Wage Case 2019 [2019] NSWIRComm 1065 ("2019 SWC"). Parties 1. Given the consent positions ultimately put to, and substantially adopted by, the Full Bench which are set out in this decision, it is useful to identify the relevant parties. 2. The following industrial parties filed notices of appearances in relation to the Summons: 1. Local Government and Shires Association of New South Wales ("Local Government NSW"); 2. Unions NSW; 3. NSW Industrial Relations Secretary ("IR Secretary"); 4. Police Association of New South Wales; 5. The Australian Workers' Union, New South Wales ("AWU"); 6. New South Wales Nurses and Midwives' Association ("NAMA"); and 7. Aged & Community Services Australia. 1. On 26 November 2020, the matter was listed before the Full Bench for directions. The following appearances were announced: 1. Ms Ellen Leverington for Unions NSW, the Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales ("PSA"), AWU, Transport Workers' Union of New South Wales ("TWU"), the New South Wales Local Government, Clerical, Administrative, Energy, Airlines & Utilities Union ("USU"), and NAMA; 2. Ms Janet McDonald of counsel for the IR Secretary; 3. Ms Shareeza Mohammad for Local Government NSW; and 4. Mr Tom Kiat for the Australian Paramedics Association (NSW) ("APA"). 1. In addition, the following industrial parties who did not file a notice of appearance, provided written consent or other correspondence in relation to the variations to the relevant awards which are set out below at [6]: 1. Health Services Union NSW; 2. The Seamens' Union of Australia, New South Wales Branch; 3. Electrical Trades Union of Australia, New South Wales Branch; 4. Media, Entertainment and Arts Alliance New South Wales; 5. Australian Federation of Employers and Industries ("AFEI"); 6. Shop Assistants and Warehouse Employees' Federation of Australia, Newcastle and Northern, New South Wales; 7. Shop, Distributive and Allied Employees Association, New South Wales; 8. United Voice, New South Wales Branch; and 9. The Australian Industry Group New South Wales Branch ("AIG") [1] . Variations to relevant awards and a review of the Wage Fixing Principles 1. The matter proceeded initially by way of a series of directions hearings before the Chief Commissioner and other directions made by consent in chambers. In the course of which: 1. the awards which are relevant to the Summons and subject to the Public Sector Wages Policy 2011 ("PSWP") were identified as: 1. Security Industry (State) Award ("Security Industry Award"); 2. Motels, Accommodation and Resorts, &c. (State) Award; 3. Restaurants &c., Employees (State) Award; 4. Shop Employees (State) Award; 5. Miscellaneous Workers – Kindergartens and Child Care Centres, &c. (State) Award ("Kindergartens and Childcare Award"); 6. Health, Fitness and Indoor Sports Centres (State) Award ("Health and Fitness Award") [2] ; 7. Transport Industry (State) Award ("Transport Industry Award"); 8. Miscellaneous Home Care Industry (State) Award ("Home Care Industry Award"); and 9. Clerical and Administrative (State) Award ("Clerks Award"); ("PSWP Awards") 1. the relevant parties agreed that the awards which are relevant to the Summons and which are not subject to the PSWP are: 1. Marine Charter Vessels (State) Award; 2. Local Government (Electricians) (State) Award; 3. Nursing Homes, &c., Nurses' (State) Award; 4. Entertainment and Broadcasting Industry – Live Theatre and Concert (State) Award; 5. Local Government Aged Disability and Homecare (State) Award; and 6. Nurses' (Private Sector) Training Wage (State) Award; ("Non-PSWP Awards") 1. the IR Secretary made applications pursuant to cl 6.9(7) of the Industrial Relations Commission Rules 2009 to be removed from the party card for the Motels, Accommodation and Resorts, &c. (State) Award, the Marine Charter Vessels (State) Award and the Entertainment and Broadcasting Industry – Live Theatre and Concert (State) Award. The granting of which resulted in the IR Secretary being noted as having an interest on the party cards for the Clerks Award and the Security Industry Award only [3] ; 2. a consent position was reached in respect of variations to all Non-PSWP Awards and a purported consent position was reached in respect of variations to all PSWP Awards with the exception of the Clerks Award; and 3. Unions NSW expressed a view that a review of the Wage Fixing Principles should be undertaken separately from the award variations. 1. On 16 October 2020, Unions NSW provided proposed consent orders to the Commission for all Non-PSWP Awards. The parties agreed that the rates of pay and work-related allowances in the Non-PSWP Awards would be increased by 1.75% from the first full pay period on or after 28 October 2020. 2. On 25 November 2020, Unions NSW provided proposed consent orders to the Commission for all PSWP Awards with the exception of the Clerks Award ("Proposed PSWP Consent Orders"). The parties agreed that the PSWP Awards would be treated as follows: 1. Group A - Security Industry (State) Award; Motels, Accommodation and Resorts, &c. (State) Award; Restaurants &c., Employees (State) Award; and Shop Employees (State) Award - rates of pay and work-related allowances to be increased by 1.75% from the first full pay period on or after 16 April 2021; 2. Group B - the Kindergartens and Childcare Award; and the Health and Fitness Award [4] : 1. rates of pay and work-related allowances to be increased by 2.5% (pursuant to State Wage Case 2019 [2019] NSWIRComm 1065) from the first full pay period on or after 16 December 2020; and 2. rates of pay and work-related allowances to be increased by 1.75% from the first full pay period on or after 16 June 2021; 1. Transport Industry Award - rates of pay and work-related allowances to be increased by 1.75% from the first full pay period on or after 1 March 2021; 2. Home Care Award - rates of pay and work related allowances to be increased by 1.75% from the first full pay period on or after 16 December 2020; and 3. Clerks Award – no consent position. Directions hearing before the Full Bench on 26 November 2020 1. In order for the Full Bench to determine whether it is empowered to, and should, make the proposed variations to the awards and then program the Clerks Award and matters relating to a review of the Wage Fixing Principles for a contested hearing at a later date, the parties were asked to address the following matters at the directions hearing before the Full Bench on 26 November 2020: The language of s 52(1) of the Industrial Relations Act 1996 (NSW) suggests that any order to make or vary an award can only be made in [sic] after a decision is made to adopt the principles or provisions of a National decision or after a State decision is made. In that context: 1. Do the parties agree with the interpretation of s 52(1) set out above? 2. Does the Act permit the Commission to separate the proceedings in the manner anticipated: that is, to firstly (and presumably immediately), make orders to give effect to any consent position regarding variations to awards; secondly, to hear the relevant parties on the award in respect of which there is no consent; and, thirdly, conduct a review of the wage fixing principles? 3. Further in respect of question 2: (a) does the Act require the Commission to make the State decision, including conducting the proposed review of the wage fixing principles, prior to making any orders to make or vary an award; or (b) could the Commission invoke its powers under ss 50 and 52 of the Act to adopt the National decision to the extent it awarded wage increases and apply those to the relevant awards; and (c) could the Commission then proceed to determine the remaining matters in dispute, either under s 50 or s 51? 1. In response to these questions both Unions NSW and the IR Secretary submitted that the provisions in Pt 3 of Ch 2 of the Act are directed to two separate matters. 2. The first of these matters is the adoption of the National decision in accordance with s 50 of the Act. Section 50 provides: 50 Adoption of National decisions (1) As soon as practicable after the making of a National decision, a Full Bench of the Commission must give consideration to the decision and, unless satisfied that it is not consistent with the objects of this Act or that there are other good reasons for not doing so, must adopt the principles or provisions of the National decision for the purposes of awards and other matters under this Act. (2) A Full Bench of the Commission is to give consideration to the National decision either on application or on its own initiative. (3) The principles or provisions of a National decision may be adopted— (a) wholly or partly and with or without modification, and (b) generally for all awards or other matters under this Act or only for particular awards or other matters under this Act. (4) The principles or provisions of a National decision so adopted may be varied by a Full Bench of the Commission, whether or not another National decision is made. 1. The IR Secretary submitted that, the Act is clear that the principles can be adopted wholly or in part, and with or without modification. Consequently, the Commission can adopt the principles generally, for all awards or other matters under this Act, or only for particular awards or other matters under the Act. 2. The second matter is the making of State decisions pursuant to s 51 of the Act. Section 51 provides: 51 Making of State decisions (1) A Full Bench of the Commission may, if satisfied that it is consistent with the objects of this Act and that there are good reasons for doing so, make a State decision setting principles or provisions for the purposes of awards and other matters under this Act. (2) A Full Bench of the Commission may make a State decision only on the application of a State peak council or on its own initiative. (3) A State decision may apply generally to all awards or other matters under this Act or only to particular awards or other matters under this Act. (4) The principles or provisions of a State decision may be varied by a Full Bench of the Commission. 1. A State decision can have significant impacts, including setting the rates of wages which will apply on a state-wide basis to awards. In recent times, the State decision has involved the determination of the Wage Fixing Principles and the State Wage Case has conflated the adoption of the National decision and the making of a State decision. This conflation is evident in the Summons issued on 19 June 2020. 2. The IR Secretary submitted, and the Union parties agreed, that, in these proceedings, the Full Bench could adopt the provisions of the National decision insofar as it provided for a 1.75% increase to those awards where a consent position had been reached. It could then adjourn the State decision to consider the Wage Fixing Principles and the adoption of the provision of the National decision in respect of the Clerks Award. 3. Ultimately, all of the parties agreed that any review of the Wage Fixing Principles can be properly separated from the award variations. 4. On 18 December 2020, Ms Leverington informed the Commission in writing that the relevant Union parties "determined to accept the position of the IR Secretary in respect of [the Clerks] Award" being to increase wage and wage-related allowances by 0.3%. In the same correspondence Unions NSW filed an application for variation of the Clerks Award in the form agreed by the parties. Directions hearings before the Full Bench on 16 February 2021 and 22 February 2021 1. The Full Bench listed the proceedings for directions on 16 February 2021: 1. to establish whether the IR Secretary is an employer, for the purposes of these proceedings, of employees whose terms and conditions of employment are determined by reference to the Group B PSWP Awards (the Kindergartens and Childcare Award and the Health and Fitness Awards); and if so 2. to ask the parties about the application of cl 6 of the Industrial Relations (Public Sector Conditions of Employment) Regulation 2014 to the purported consent position as set out at [8(b)] in relation to the Group B PSWP Awards. 1. At the directions hearing on 16 February 2021: 1. the IR Secretary informed the Commission that: he is the employer, for the purposes of these proceedings, of employees whose terms and conditions of employment are determined by reference to the Kindergartens and Childcare Award and the Health and Fitness Awards; he did not consent to the purported consent position set out at [8(b)]; and, he would need time to determine his position in relation to any increases to the Group B PSWP Awards; and 2. the IR Secretary submitted that the Full Bench should make the variation to the Clerks Award at that time despite the outstanding matters in relation to the Group B PSWP Awards. Unions NSW objected to this course and submitted that all award variations arising from the State Wage Case should be made at the time. The Full Bench determined to accept the approach urged by Unions NSW. 1. On 16 February 2021, the IR Secretary wrote to Unions NSW and provided a copy of this correspondence to the Commission. This letter included the following statement: "4. It is the Secretary's view that, on a proper interpretation of Wage Fixing Principles 2.1(c), 4.1 and 4.2, for an award to be made or varied to adjust wages for the State Wage Case 2019, post facto, there needs to be an extant general order of the Commission pursuant to s. 52 of the Industrial Relations Act 1996 pursuant to which all awards were varied, rather than orders being made on an award by award basis: see State Wage Case 2010 [2010] NSWIR Comm 183 at [57] - [59] and the general order made pursuant to s. 52 in that case. The Full Bench at [3] of the State Wage Case 2019 refers, somewhat contradictorily, to the Short Minutes of Order filed in that case providing for 'general orders under s 52 varying awards listed in Annexures Band C to the proposed orders'; however no general order, that is, one that has application to all State awards, is made. Rather, orders are made that reference individual awards. The Awards currently being considered are not listed in either Annexure B or C." 1. At the directions hearing on 22 February 2021: 1. the parties notified the Full Bench that a consent position had been reached to increase the rates of pay and allowance in the Group B PSWP Awards by 2.5% effective from the first full pay period commencing on or after 16 December 2020; and 2. the IR Secretary made no submissions as to whether a general order pursuant to s 52 of the Act, as referred to in the correspondence to Unions NSW of 16 February 2021 as set out at [20], was required or whether orders that reference individual awards were within the Commission's powers. 1. On 26 February 2021, Unions NSW filed signed consent orders reflecting the agreement referred to in [21(1)]. 2. On 26 February 2021, the IR Secretary filed signed consent orders reflecting the agreement referred to in [17]. Determination in respect of whether variations to relevant awards and review of the Wage Fixing Principles can be undertaken separately 1. Consistent with earlier decisions (see State Wage Case 2015 [2015] NSWIRComm 31 at [1] and State Wage Case 2016 at [4]) and the consent position of the parties, the Full Bench considers the Annual Wage Review 2019-20 to be a "National decision" as provided under s 48 of the Act. 2. The Full Bench accepts that pursuant to s 50(3) of the Act, the Commission may make separate decisions in relation to the adoption of the National decision for different awards. The Full Bench accepts it may, and does: 1. adopt the provisions of the National decision insofar as it provided for a 1.75% increase to those awards where a consent position had been reached; and 2. make a different determination by consent in respect of the Clerks Award of an increase of 0.3%; 3. make a different determination by consent in respect of the Kindergartens and Childcare Award and the Health and Fitness Award of an increase of 2.5%; and 4. adjourn the State decision for the consideration of the Wage Fixing Principles pursuant to s 51 of the Act. 1. The Full Bench is satisfied that the proposed consent orders for: 1. the Non-PSWP Awards filed 16 October 2020; 2. the Group A PSWP Awards, the Transport Industry Award and the Home Care Award filed 25 November 2020; and 3. the Group B PSWP Awards and the Clerks Award filed 26 February 2021 comply with the requirements of the Act including those of s 146C. Accordingly, the Full Bench makes the Orders set out below. 1. The existing Wage Fixing Principles are contained in Annexure A of Annexure 1 to the 2019 SWC. Consistent with the approach submitted by Unions NSW, the Wage Fixing Principles will be reviewed by the Full Bench at a later date. 2. We delegate to the Chief Commissioner any remaining functions in relation to the award variations subject to the Orders. Orders 1. The Full Bench makes the following orders by consent: 1. The Industrial Relations Commission adopts the Annual Wage Review 2019–20 [2020] FWCFB 3500 as a National decision in relation to the Awards contained in these Orders. 2. Pursuant to s 52 of the Industrial Relations Act 1996 the Commission orders that the rates of pay and work-related allowances prescribed in the awards listed in Annexure A are increased by 1.75% provided that any increases resulting from this Order may be offset against: 1. any equivalent over award payments; and/or 2. award wage increases other than State Wage Case adjustments. 1. Order 2 will take effect on and from the first full pay period commencing on or after 16 April 2021. 2. Pursuant to s 52 of the Industrial Relations Act 1996, the Commission orders that the rates of pay and work-related allowances prescribed in the awards listed in Annexure B are increased by 2.5% provided that any increases resulting from this order may be offset against: 1. any equivalent over award payments; and/or 2. award wage increases other than State Wage Case adjustments. 1. Order 4 takes effect on and from the first full pay period commencing on or after 16 December 2020. 2. Pursuant to s 52 of the Industrial Relations Act 1996, the Commission orders that the rates of pay and work-related allowances prescribed in the Transport Industry (State) Award are increased by 1.75% provided that any increases resulting from this order may be offset against: 1. any equivalent over award payments; and/or 2. award wage increases other than State Wage Case adjustments. 1. Order 6 will take effect on and from the first full pay period commencing on or after 1 April 2021. 2. Pursuant to s 52 of the Industrial Relations Act 1996, the Commission orders that the rates of pay and work-related allowances prescribed in the Miscellaneous Workers Home Care Industry (State) Award are increased by 1.75% provided that any increases resulting from this order may be offset against: 1. any equivalent over award payments; and/or 2. award wage increases other than State Wage Case adjustments. 1. Order 8 takes effect on and from the first full pay period commencing on or after 16 December 2020. 2. Pursuant to s 52 of the Industrial Relations Act 1996 the Commission orders that the rates of pay and work-related allowances prescribed in the awards listed in Annexure C are increased by 1.75% provided that any increases resulting from this order may be offset against: 1. any equivalent over award payments; and/or 2. award wage increases other than State Wage Case adjustments. 1. Order 10 takes effect on and from the first full pay period commencing on or after 28 October 2020. 2. Pursuant to s 52 of the Industrial Relations Act 1996, the Commission orders that the rates of pay and work-related allowances prescribed in the Clerical and Administrative (State) Award are increased by 0.3% provided that any increases resulting from this order may be offset against: 1. any equivalent over award payments; and/or 2. award wage increases other than State Wage Case adjustments. 1. Order 12 takes effect on and from the first full pay period commencing on or after 16 December 2020. ANNEXURE A INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES STATE WAGE CASE 2020 218 Security Industry (State) Award 550 Motels, Accommodation and Resorts, &c. (State) Award 577 Restaurants &c., Employees (State) Award 601 Shop Employees (State) Award ANNEXURE B INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES STATE WAGE CASE 2020 482 Miscellaneous Workers – Kindergartens and Child Care Centres, &c. (State) Award; 950 Health, Fitness and Indoor Sports Centres (State) Award ANNEXURE C INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES STATE WAGE CASE 2020 007 Marine Charter Vessels (State) Award 494 Local Government (Electricians) (State) Award 759 Nursing Homes, &c., Nurses' (State) Award 1361 Entertainment and Broadcasting Industry – Live Theatre and Concert (State) Award 1925 Local Government Aged Disability and Homecare (State) Award 4229 Nurses' (Private Sector) Training Wage (State) Award Endnotes 1. Consent orders signed on behalf of AIG were provided to the Commission but Ms Leverington of Unions NSW informed the Commission that she was informed by AIG that it did not consent but that it did not oppose the consent orders. 2. The Kindergartens and Childcare Award and the Health and Fitness Award were not subject to orders in the 2019 SWC. 3. On 22 February 2021, the Registrar received a request from the IR Secretary to amend the party cards for the Kindergartens and Childcare Award and the Health and Fitness Award to reflect his interest in these awards. 4. The proposed consent orders for the Kindergartens and Childcare Award and the Health and Fitness Award were not signed by any representative of the Crown. Amendments 02 March 2021 - Amendment to paragraph [29] to reflect the consent position of the parties. 22 March 2021 - Order 1 corrected pursuant to sub-cl 36.17 of the Uniform Civil Procedure Rules 2005 to include the correct citation of the Annual Wage Review 2019–20 [2020] FWCFB 3500. 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: 22 March 2021