New South Wales Local Government, Clerical, Administrative, Energy, Airlines & Utilities Union (obo De Vera) v Georges River Council [2021] NSWIRComm 1029

Industrial Relations Commission New South Wales Medium Neutral Citation: New South Wales Local Government, Clerical, Administrative, Energy, Airlines & Utilities Union (obo De Vera) v Georges River Council [2021] NSWIRComm 1029 Hearing dates: Conciliation conducted 11 March 2021 Date of orders: 29 March 2021 Decision date: 29 March 2021 Jurisdiction: Industrial Relations Commission Before: Commissioner Sloan Decision: Orders made by consent Catchwords: EMPLOYMENT AND INDUSTRIAL LAW – Industrial dispute – decision giving effect to agreement reached at conciliation Legislation Cited: Industrial Relations Act 1996 s 3, 130, 146 Category: Principal judgment Parties: New South Wales Local Government, Clerical, Administrative, Energy, Airlines & Utilities Union (Notifier)

Georges River Council (Respondent) Representation: D Papps (Notifier)

A Dansie (Respondent) File Number(s): 2021/60476 Publication restriction: No

DECISION 1. On 3 March 2021 the New South Wales Local Government, Clerical, Administrative, Energy, Airlines and Utilities Union ("Union") notified the Industrial Registrar of a dispute pursuant to s 130 of the Industrial Relations Act 1996 ("Act"). The dispute alleged that Georges River Council ("Council") had unilaterally and improperly changed the hours of work of an employee, Rodrigo De Vera, a member of the Union. The change was said to have had the effect of removing Mr De Vera's entitlement to work ordinary hours of work on weekends causing a loss of weekend penalty rates. 2. The matter was listed for compulsory conference before me on 11 March 2021. Mr D Papps, the Union's Manager of Industrial, Rules, Governance and Compliance, appeared for the Union. Mr A Dansie, the Senior Manager Workplace Relations for Local Government NSW, appeared for the Council. 3. In the course of the compulsory conference the parties agreed on terms to resolve the dispute. This decision is made as a result of, and to give effect to, that agreement. To the extent that this decision traverses matters discussed and agreed during private conference, it is done at the request or with the consent of the parties. 4. The context to this decision is set out below. The matters to which I refer are drawn in large part from a document prepared by the parties for the purpose of inclusion in this decision. That document was sent to the Registry via email from Mr Dansie, with Mr Papps' consent, on 25 March 2021: 1. Mr De Vera is a part-time employee of the Council, employed as an Operator. He has regularly worked ordinary hours of work on weekends since commencing employment with the Council in 2006. 2. A central issue in the dispute was whether Mr De Vera is entitled, as a condition of his employment, to work ordinary hours of work on weekends. If Mr De Vera is so entitled, he would also be entitled to payment of weekend penalty rates in accordance with cl 19(B) of the Local Government (State) Award 2020 ("Award"). This equates to approximately $300 gross in additional take-home pay per week. 3. Mr Papps referred the Commission to cl 26(ii)(a) of the Award, which provides: "(ii) Prior to commencing part-time work the employer and the employee shall agree upon the conditions under which the work is to be performed including: (a) The hours to be worked by the employee, the days upon which they shall be worked and the commencing times for the work…" 1. Mr Papps also referred the Commission to cl 26(iv) of the Award, which provides that the conditions under which part-time work is to be performed "may be varied by consent". It was submitted that in the absence of agreement from Mr De Vera to change the days upon which his hours are to be worked, he was entitled to continue to perform his ordinary hours of work on weekends. 2. The Council contended that Mr De Vera is not entitled, as a condition of his employment, to work ordinary hours of work on weekends. Further, arising from recent operational changes, the Council no longer requires Mr De Vera to work ordinary hours on weekends and he is instead required to work his ordinary hours of work on weekdays. 3. Mr Dansie referred the Commission to the offer of employment letters Mr De Vera received during his employment which indicate that "the spread of working days are from Monday to Sunday and a roster will be developed covering your 29 hours per week…". It was submitted that Mr De Vera's working days could include any or all of the seven calendar days of the week, however, there was no guarantee that his rostered ordinary hours of work would fall on weekends. 4. Mr Dansie also submitted that Mr De Vera's position remains in the Council's organisation structure and his duties need to be performed by someone, albeit not on weekends. 5. A further issue that arose during the proceedings is whether the operational changes which led to Council no longer requiring Mr De Vera to work ordinary hours on weekends constitutes a workplace change that has "significant effects" on Mr De Vera's employment, and if so, what if any implications that has under clauses 41 [Workplace Change] and 42 [Termination of Employment and Redeployment Due To Redundancy] of the Award. 6. Following opening submissions, I adjourned into private conference and discussed the issues in dispute with the parties both jointly and separately. Arising from the conference an in-principle agreement ("Agreement") was reached to resolve the dispute by way of consent orders. 7. The Agreement involves the application of cl 42 of the Award. Clause 42(iii) provides for severance pay to be paid to an employee whose employment is terminated due to redundancy, subject to certain caveats. Clause 42(xii) provides: "(xii) Subject to an application by the employer and further order of the Industrial Relations Commission of New South Wales, the employer may pay a lesser amount (or no amount) of severance pay than that contained in subclause (iii) above if the employer obtains acceptable alternative employment for the employee." 1. The Agreement anticipated the Council making an application to the Commission under cl 42(xii) to substitute the severance payments that would usually apply to Mr De Vera (if his employment were to be terminated due to redundancy) with a lesser amount of severance pay on the basis that the Council has obtained acceptable alternate employment for him ("Application"). 2. The Application was made by the Council, through Mr Dansie, during the proceedings on 11 March 2021. Specifically, the Application seeks an order that Mr De Vera's entitlement to severance pay be reduced from 34 weeks to 17 weeks severance pay. 3. The parties are in agreement that: 1. Mr De Vera is entitled, as a condition of his employment, to work ordinary hours of work on weekends. 2. The operational changes which led to the Council no longer requiring Mr De Vera to work ordinary hours of work on weekends constituted a workplace change that had "significant effects" on Mr De Vera's employment. 3. The Council obtained and offered Mr De Vera acceptable alternative employment. 1. I am satisfied that the Application is properly made in accordance with cl 42(xii) of the Award. Having regard to the agreed position of the parties, the terms of the Award and ss 3 and 146 of the Act, I am persuaded that in circumstances where Mr De Vera has been offered acceptable alternative employment it is appropriate that his entitlement to severance pay be reduced from 34 weeks to 17 weeks.