Industrial Relations Commission New South Wales Medium Neutral Citation: MidCoast Council Water Services Enterprise Agreement 2022 [2022] NSWIRComm 1074 Hearing dates: 13 September 2022 Date of orders: 14 September 2022 Decision date: 14 September 2022 Jurisdiction: Industrial Relations Commission Before: Commissioner Muir Decision: Agreement Approved Catchwords: EMPLOYMENT AND INDUSTRIAL LAW — Awards and enterprise agreements — Approval and creation Legislation Cited: Industrial Relations Act 1996 (NSW) Anti-Discrimination Act 1977 (NSW) Cases Cited: Review of the Principles for Approval of Enterprise Agreements 2015 [2015] NSWIRComm 24 Review of the Principles for Approval of Enterprise Agreements 2022 [2022] NSWIRComm 1005 Category: Principal judgment Parties: MidCoast Council (Council) New South Wales Local Government, Clerical, Administrative, Energy, Airline and Utilities Union (USU) Local Government Engineers Association of NSW (LGEA) Electrical Trades Union of Australia, New South Wales Branch (ETU) Representation: Mr P Bell for Council Mr N Martin for USU Mr P Mazarto for LGEA Mr B McDougall for ETU File Number(s): 2022/260627 Publication restriction: Nil Decision 1. This is an application made by consent on 6 September 2022 pursuant to s 32 of the Industrial Relations Act 1996 (NSW) ("the Act") by the MidCoast Council (Council), seeking approval of an enterprise agreement between Council, New South Wales Local Government, Clerical, Administrative, Energy, Airlines & Utilities Union (USU), the Local Government Engineers' Association of NSW (LGEA) and Electrical Trades Union of Australia, New South Wales Branch (ETU), (collectively, the Parties). 2. The enterprise agreement is to be known as the MidCoast Council Water Services Enterprise Agreement 2022 (the Agreement). 3. Mr P Bell appeared for the Council, Mr N Martin for the USU, Mr P Mazarto for the LGEA and Mr B McDougall for the ETU. 4. The application was supported by a Statement of Particulars authorised by Adrian Pryke, Acting Manager Human Resources of the Council on 27 June 2022, and an affidavit of Adrian Panuccio, General Manager of the Council, sworn on 27 June 2022. 5. In his affidavit, Mr Panuccio deposed that: 1. The Agreement will replace the MidCoast Council Water Services Enterprise Agreement 2019, made by this Commission on 20 May 2019; 2. The Agreement is between the Council, the USU, the LGEA and the ETU; 3. The terms of the Agreement will prevail over the Local Government (State) Award 2020 (the Award) to the extent of any inconsistency with the Award; 4. The Agreement complies with all relevant statutory requirements, including the Anti-Discrimination Act 1977 (NSW), and provides for equal remuneration for men and women doing work of equal or comparable value; 5. The Agreement does not on balance provide a net detriment to the employees when compared with the aggregate package of conditions of employment under the Award; 6. The Parties understand the effect of the Agreement; 7. The Parties did not enter the Agreement under duress; and 8. The Agreement complies with the Commission's Principles for Approval of Enterprise Agreements. 9. The Agreement is proposed to take effect from 24 May 2022 and remain in force for a period of three years. 1. During the hearing of the application to approve the Agreement, each of Mr Martin for the USU, Mr P Mazarto for the LGEA and Mr B McDougall for the ETU confirmed the support of their respective organisations for the approval of the Agreement and of the matters deposed by Mr Panuccio. 2. During the hearing, each of the Parties agreed that as the Act and the Principles for Approval of Enterprise Agreements (Principles) were silent on the question of a retrospective start for the Agreement, it was open to the Commission to order a retrospective start date for the Agreement. This would give effect to the general primacy of the wishes of the parties to such agreements in decisions of the Commission. 3. The Parties also agreed that references in Mr Panuccio's affidavit to the Principles from 2015, from Review of the Principles for Approval of Enterprise Agreements 2015 [2015] NSWIRComm 24, which had been re-made by a Full Bench of the Commission since then, should not prevent the Commission approving the Agreement. This was based on the agreement from all of the Parties that the differences in the Principles between 2015, and those made by a Full Bench of the Commission in 2022 did not meaningfully alter the requirements as they applied to the Agreement. 4. I am satisfied on the material presented to the Commission the Agreement complies with all necessary statutory tests pursuant to s 35 of the Act, including the principles set by the Commission pursuant to s 33 of the Act in Review of the Principles for Approval of Enterprise Agreements 2022 [2022] NSWIRComm 1005. 5. The MidCoast Council Water Services Enterprise Agreement 2022 is approved in accordance with s 35 of the Act. In accordance with its terms, the Agreement will operate from 24 May 2022 for a period of three years. Chris Muir Commissioner ********** 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: 14 September 2022