Industrial Relations Commission New South Wales Medium Neutral Citation: Application for Nurses' (Local Government) Residential Aged Care Consolidated (State) Award 2021 [2021] NSWIRComm 1091 Hearing dates: 1 November 2021 Date of orders: 23 November 2021 Decision date: 23 November 2021 Jurisdiction: Industrial Relations Commission Before: Commissioner Sloan Decision: Pursuant to s 10 of the Industrial Relations Act 1996, I make an award to be known as the Nurses' (Local Government) Residential Aged Care Consolidated (State) Award 2021, in the terms of the document sent by the NSWNMA to the Commission on 10 November 2021, subject to the change proposed by the Commission the same day. The Award will be taken to have come into force on 8 October 2021. Pursuant to s 17 of the Industrial Relations Act 1996 the following awards are rescinded: (1) Nurses (Private Sector) Redundancy (State) Award; (2) Nurses (Private Sector) Superannuation (State) Award; (3) Nurses (Private Sector) Training Wage (State) Award; and (4) Nursing Homes, &c., Nurses' State Award. Catchwords: EMPLOYMENT AND INDUSTRIAL LAW – Awards and enterprise agreements – Approval and creation – making of Nurses' (Local Government) Residential Aged Care Consolidated (State) Award 2021 – rescission of existing awards Legislation Cited: Industrial Relations Act 1996 ss 10, 11, 14, 15, 17, 19, 23 Cases Cited: Nil Texts Cited: Nil Category: Principal judgment Parties: New South Wales Nurses and Midwives' Association Local Government and Shires Association of New South Wales Aged and Community Services Australia Unions NSW Representation: B Morwitzer (NSWNMA) I Mann (LGNSW) A Wade (ACSA) File Number(s): 2021/125202, 2021/125312, 2021/125412, 2021/126407 and 2021/302623 Publication restriction: No decision 1. On 14 May 2021 the Industrial Registrar issued Notices of Award Review ("Notices"), giving notice of the Commission's intention to review the following awards pursuant to s 19 of the Industrial Relations Act 1996 ("Act"): 1. Nurses (Private Sector) Redundancy (State) Award; 2. Nurses (Private Sector) Superannuation (State) Award; 3. Nurses (Private Sector) Training Wage (State) Award; and 4. Nursing Homes, &c., Nurses' State Award. ("Existing Awards") 1. In respect of each of the Existing Awards, the Notices were issued to the organisations which had been identified by the Registrar, from records kept by the Industrial Registry, as having an industrial interest in the Existing Awards. They were: 1. Aged & Community Services Association of NSW & ACT Incorporated ("ACSA"); 2. Australian Federation of Employers and Industries; 3. Australian Nursing and Midwifery Federation New South Wales Branch; 4. Local Government and Shires Association of New South Wales ("LGNSW"); 5. New South Wales Nurses and Midwives' Association ("NSWNMA"); 6. NSW Business Chamber Limited; and 7. The Australian Industry Group New South Wales Branch. 1. The Notices in respect of the Nursing Homes, &c., Nurses' (State) Award and the Nurses (Private Sector) Training Wage (State) Award were also issued to Unions NSW. 2. In the proceedings which resulted from the issuing of the Notices ("Section 19 Proceedings"), only the NSWNMA and LGNSW appeared. 3. The Section 19 Proceedings were listed for mention on 6 July 2021. On that occasion Ms S Davis appeared for the NSWNMA. Mr I Mann appeared for LGNSW and ACSA. At that mention Ms Davis stated: [1] "It's the parties' intention to rescind the four awards, subject to those proceedings and to present a consolidated award to the Commission to replace those instruments…To that end, a draft has been circulated to other interested parties and I note that Mr Mann and I and Ms Wade from the Aged and Community Services Australia briefly conferred and they are broadly supportive of that approach." 1. Mr Mann informed the Commission that LGNSW "definitely supports that approach". [2] 2. At further mentions of the Section 19 Proceedings on 11 August 2021, 24 September 2021 and 19 October 2021 Mr Mann continued his appearance for LGNSW. Mr Benjamin Morwitzer appeared on each occasion for the NSWNMA. At these mentions, the NSWNMA and LGNSW maintained that it was their intention to consolidate the Existing Awards into a single award. 3. On 21 October 2021 the NSWNMA filed an application pursuant to ss 10 and 11 of the Act ("Application") seeking: 1. the making of a new award to be known as the Nurses' (Local Government) Residential Aged Care Consolidated (State) Award 2021 ("Proposed Award"); and 2. the rescission of the Existing Awards. 1. The Application identified the following organisations as respondents: ACSA, AFEI, LGNSW, the Chamber, Ai Group and Unions NSW. Each of these parties, and the NSWNMA, were informed that the proceedings were listed for directions on 1 November 2021. 2. At that directions hearing, Mr Worwitzer appeared for the NSWNMA and Mr Mann appeared for LGNSW. There was no appearance by any other party. Mr Worwitzer confirmed that the Application had been served on each of the parties who had been identified as respondents. Mr Mann confirmed that the Application was made with the consent of LGNSW. I observed that the Application had not been accompanied by the affidavit required by cl 4 of the Commission's Practice Note 6. The proceedings were adjourned to allow Mr Worwitzer to attend to the filing and service of the necessary affidavit on the basis that once that affidavit was received, the Application would be dealt with in Chambers. 3. On 2 November 2021 the NSWNMA filed an affidavit of Mr Worwitzer in which he deposed, amongst other things, that: 1. the Proposed Award satisfies the requirements of s 23 of the Act in that it provides for equal remuneration and other conditions of employment for male and female employees doing work of equal or comparable value; 2. the Proposed Award "complies with all other requirements" of the Act; and 3. the Application was made with the consent of LGNSW and ACSA. 1. Having reviewed the Proposed Award I observed some minor matters in the "Area, Incidence and Duration" clause requiring attention. On 4 November 2021 I arranged for correspondence to be sent to the NSWNMA and each of the respondents referred to at [9] above, suggesting that the clause be amended. 2. On 10 November 2021 the Commission received an email from Mr Worwitzer attaching an amended version of the Proposed Award. In his email Mr Worwitzer informed the Commission that consent to the changes had been obtained from ACSA, LGNSW and Unions NSW but that no response had been received from the other interested parties. 3. I observed that there remained one further error in the Area, Incidence and Duration clause. On 10 November 2021 I again arranged for the Registry to write to all interested parties proposing an amendment to the clause. Each of the NSWNMA, Unions NSW, ACSA and LGNSW wrote to the Commission confirming their consent to the change. There was no response from any of the other interested parties. 4. Having considered the material filed in these proceedings I am satisfied that the Proposed Award would set fair and reasonable conditions of employment for the employees to whom it applies. The Proposed Award contains (at cl 46) procedures for the resolution of industrial disputes, satisfying the requirements of s 14 of the Act. The parties seek that the Proposed Award commence on 8 October 2021, which I consider to be permissible under s 15(4)(b) of the Act. 5. I am also satisfied, including from having regard to the Section 19 Proceedings, that the Existing Awards ought to be rescinded concurrently with the making of the Proposed Award. Orders 1. Pursuant to s 10 of the Industrial Relations Act 1996, I make an award to be known as the Nurses' (Local Government) Residential Aged Care Consolidated (State) Award 2021, in the terms of the document sent by the NSWNMA to the Commission on 10 November 2021, subject to the change proposed by the Commission the same day.. 2. The Award will be taken to have come into force on 8 October 2021. 3. Pursuant to s 17 of the Industrial Relations Act 1996 the following awards are rescinded: 1. Nurses (Private Sector) Redundancy (State) Award; 2. Nurses (Private Sector) Superannuation (State) Award; 3. Nurses (Private Sector) Training Wage (State) Award; and 4. Nursing Homes, &c., Nurses' State Award. Damian Sloan Commissioner ********** Endnotes 1. Tcpt, 6 July 2021, p 1(37-43) 2. ibid., p 2(17) Amendments 25 November 2021 - Name of Representative for NSWNMA amended on Coversheet 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: 25 November 2021