Industrial Relations Commission New South Wales Medium Neutral Citation: Natural Resources Commission (Staff Agency) Enterprise Agreement 1 July 2022 – 30 June 2024 [2023] NSWIRComm 1007 Hearing dates: 14 December 2022 Date of orders: 31 January 2023 Decision date: 31 January 2023 Jurisdiction: Industrial Relations Commission Before: Commissioner McDonald Decision: (1) The Natural Resources Commission (Staff Agency) Enterprise Agreement 1 July 2022 – 30 June 2024 is approved in accordance with s 35 of the Industrial Relations Act 1996 (NSW) and will apply, in accordance with cl 41.1 of the Agreement, from 1 July 2022 and will remain in force until 30 June 2024 unless otherwise varied or rescinded. (2) The Industrial Registrar is directed to annex a copy of the Undertaking given by Professor Hugh Durrant-Whyte, Commissioner of the Natural Resources Commission dated 12 December 2022, to the copy of the Natural Resources Commission (Staff Agency) Enterprise Agreement 1 July 2022 – 30 June 2024 forming Exhibit A6 in these proceedings and to enter the Natural Resources Commission (Staff Agency) Enterprise Agreement 1 July 2022 – 30 June 2024, together with the undertaking, in the register of approved enterprise agreements. Catchwords: EMPLOYMENT AND INDUSTRIAL LAW — Awards and enterprise agreements — Approval and creation — employees parties to the enterprise agreement — net detriment test – application of State awards — Principles for approval of enterprise agreements - undertaking given by employer to comply with certain provisions of State award - enterprise agreement approved Legislation Cited: Anti-Discrimination Act 1977 (NSW) Fair Work Act 2009 (Cth), s 190 Government Sector Employment Act 2013, ss 3, 20, 22, 31, 50, 59 and Sch 1 Government Sector Employment Regulation 2014 Industrial Relations Act 1996 (NSW), ss 32, 33, 34, 35, 36, 37, 38, 39, 45 and 169(1) Industrial Relations Commission Rules 2009, r 7.1 Industrial Relations Commission Rules 2022, r 6.9 Industrial Relations (General) Regulation 2020, reg 4 Natural Resources Commission Act 2003 (NSW), s 10 Cases Cited: Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Industrial Relations Secretary [2020] NSWIRComm 1001 Review of the Principles for Approval of Enterprise Agreements 2021/2022 [2022] NSWIRComm 1005 Category: Principal judgment Parties: Industrial Relations Secretary on behalf of the Natural Resources Commission Staff Agency (applicant) Alex Benecke (first respondent) Alice Woodford (second respondent) Anna Bisset (third respondent) Asif Parpia (fourth respondent) Avtar Singh (fifth respondent) Brigette Keeble (sixth respondent) Bryce Gorham (seven respondent) Eddie Harris (eighth respondent) Emma Collins (ninth respondent) Felicity Muller (tenth respondent) Hannah Urwin (eleventh respondent) Jeff Bell (twelfth respondent) Kylie Pfeiffer (thirteen respondent) Louise Askew (fourteen respondent) Michael Parsons (fifteenth respondent) Mina Bassarova (sixteenth respondent) Neusa Soares (seventeenth respondent) Sofya Kuzniatsova (eighteenth respondent) Sophia Cloke (nineteenth respondent) Stefanie Schulte (twentieth respondent) Public Service Association of New South Wales (interested party) Representation: Solicitors: Crown Solicitor for NSW (applicant) McNally Jones Staff Lawyers (interested party) File Number(s): 2022/330761 Publication restriction: Nil DECISION 1. This is an application pursuant to s 32 of the Industrial Relations Act 1996 (NSW) by the Industrial Relations Secretary on behalf of the Natural Resources Commission Staff Agency (NRCSA) for approval of an enterprise agreement between NRCSA and 20 staff members. 2. The enterprise agreement is to be known as the Natural Resources Commission (Staff Agency) Enterprise Agreement 2022 – 2024 (Agreement) and is to replace the Natural Resources Commission (Staff Agency) Enterprise Agreement 1 July 2018 – 30 June 2022. 3. Clause 41.1 of the Agreement provides that it "shall apply to all Staff as defined in Clause 2, Definitions and whose names are listed in Clause 3.1 and all defined Staff who are employed subsequent to the commencement date of this Agreement. It will commence to operate from 01 July 2022 and will remain in force until 30 June 2024 unless otherwise varied or rescinded." 4. 'Staff' is defined in cl 2 as follows: Staff means and includes all persons who are permanently or temporarily employed by the NRC under Part 4 of the GSE Act, and shall include staff who are engaged on a part-time basis to regularly work less than the weekly hours worked by a staff member engaged in ongoing employment. Staff engaged on a part-time basis shall receive all the entitlements of this agreement on a pro-rata basis. This definition has no application to the Commissioner or Executive Director, or any members of the Senior Executive Service, or Managerial Staff transitioned to the New South Wales Public Service Executive pursuant to the provisions of the GSE Act and the GSE Regulation. The NRC does not employ casual staff. 1. Clause 2 also provides that "GSE Act" means the Government Sector Employment Act 2013 or its successor and "GSW Regulation" means the Government Sector Employment Regulation 2014. 2. The staff listed in cl 3.1 of the Agreement are those named in this proceeding as the first to twentieth respondents. The staff, some or all of whom were persons who were eligible to be members of the Public Service Association of New South Wales (PSA), were not represented at the hearing of the application, although Mr Michael Burns, solicitor, instructed by the PSA, appeared as an interested party and while ostensibly he assumed the role of contradictor, as he was permitted to do pursuant to s 34(2)(2)(b) of the Industrial Relations Act, in reality he performed a role more akin to an amicus curiae, for which I am grateful. Mr Thomas Poberezny, solicitor, from the Office of the Crown Solicitor, appeared on behalf of the applicant. 3. Pursuant to s 32(1) of the Industrial Relations Act an enterprise agreement does not have any effect unless it is approved by the Commission under Part 2 of the Act. Following approval, the enterprise agreement is entered into a register kept by the Industrial Registrar and published on the NSW industrial relations website: s 45 of the Industrial Relations Act. The Application and Name of the Applicant 1. Section 34 provides for the making of an application for approval: 34 Application for approval of enterprise agreement (1) Application for approval of an enterprise agreement may be made by lodging the agreement with the Industrial Registrar in accordance with this Part and the rules of the Commission. (2) At proceedings of the Commission relating to any such application for approval, the following may appear or be represented— (a) any party to the agreement, (b) an industrial organisation, if its members or persons eligible to become members are affected by the agreement, (c) a State peak council (but only with leave of the Commission), (d) the President of the Anti-Discrimination Board (but only with leave of the Commission). (3) The Commission is to deal with any such application for approval within 28 days, unless it requires additional time to do so because of the special circumstances of the case. 1. The application for approval of the Agreement was filed on 4 November 2022. The named applicant was "Natural Resources Commission, on behalf of the Government of New South Wales.' At directions hearings held on 24 November and 9 December 2022, I raised a question as to whether the name of the applicant was correct, given that cl 3.1 of the Agreement stated that the parties to the Agreement were the 'NRC' and the listed staff and 'NRC' was defined in cl 2 to the 'Natural Resources Commission Staff Agency'. At the hearing of the matter on 14 December 2022 Mr Proberezney sought leave to amend the name of the applicant to 'Industrial Relations Secretary on behalf of the Natural Resources Commission Staff Agency'. I granted leave, in light of the following matters. 2. Section 10 of the Natural Resources Commission Act 2003 (NSW) provides as follows: Persons may be employed in the Public Service under the Government Sector Employment Act 2013 to enable the Commission to exercise its functions. Note - Section 59 of the Government Sector Employment Act 2013 provides that the persons so employed (or whose services the Commission makes use of) may be referred to as officers or employees, or members of staff, of the Commission. Section 47A of the Constitution Act 1902 precludes the Commission from employing staff. 1. Section 20 of the Government Sector Employment Act (GSE Act) provides: The Public Service of New South Wales consists of those persons who are employed under this Part by the Government of New South Wales in the service of the Crown. Note - See section 47A of the Constitution Act 1902. 1. Section 22 of the GSE Act provides: (1) Public Service employees are employed in— (a) Departments (listed in Part 1 of Schedule 1), or (b) Public Service executive agencies related to Departments (listed in Part 2 of Schedule 1), or (c) separate Public Service agencies (listed in Part 3 of Schedule 1). (2) A Department or other Public Service agency may comprise such branches or other groups of employees as the Secretary of the Department or the head of the other agency determines from time to time. (3) Part 7 of the Constitution Act 1902 authorises the amendment of Schedule 1 by an administrative arrangements order under that Part. Any such order may also amend Schedule 1 to specify, change or remove the Department to which a Public Service agency is related. Note—An administrative arrangements order may create, abolish or change the name of Departments and other Public Service agencies and transfer employees between agencies. 1. The NRCSA is a 'Public Service agency' as it is listed in Part 2 of Schedule 1 of the GSE Act as a 'Public Service executive agency': s 3 of the GSE Act. 2. Section 31 of the GSE Act provides as follows: (1) The head of a Public Service agency (other than a Department) may, subject to this and any other Act or law, exercise on behalf of the Government of New South Wales the employer functions of the Government in relation to the employees of the agency (other than Public Service senior executives of an agency that is related to a Department). (2) The employer functions of the Government are all the functions of an employer in respect of employees, including (without limitation) the power to employ persons, to assign their roles and to terminate their employment. Note - The Secretary of the relevant Department exercises employer functions in relation to Public Service senior executives of an agency that is related to the Department. Division 6 confers on the Industrial Relations Secretary employer functions relating to the determination of the conditions of employment of, and other industrial matters relating to, Public Service employees. 1. Section 50 of the GSE Act provides as follows: The Industrial Relations Secretary is, for the purposes of any proceedings relating to Public Service employees held before a competent tribunal having jurisdiction to deal with industrial matters, taken to be the employer of Public Service employees. 1. Section 59 of the GSE Act relevantly provides: (1) In any other Act, in any statutory or other instrument, or in any contract or agreement (whether enacted, made or executed before or after the commencement of this section)— … (b) a reference to a statutory body or statutory officer in the capacity of an employer of persons is, to the extent that the persons concerned comprise persons employed in the Public Service to enable the statutory body or statutory officer to exercise functions, to be read as including a reference to the Government of New South Wales or, as the case requires, to the head of the Public Service agency in which the persons are employed. … 1. In the premises I am satisfied that Agreement appropriately names NRCSA as the employer, that is, the Government of New South Wales, and that the appropriate applicant for approval of the Agreement, given the terms of s 50 of the GSE Act, is the Industrial Relations Secretary on behalf of NRCSA. In this decision I have used the abbreviations NRC and NRCSA interchangeably. 2. The application for approval was otherwise in accordance with the approved form and included a Statement of Particulars. Evidence in Support of the Application 1. In support of the application, the applicant relied on the following evidence: 1. an affidavit of Maree Leonard, Director Corporate Services NRC, sworn on 2 November 2022 including annexures: 2. an affidavit of Sofya Kuzniatsova, Project Officer at NRC, sworn on 2 November 2022 including annexures; 3. an affidavit of Neusa Soares, Executive Assistant at NRC, sworn on 2 November 2022 including annexures: 4. an affidavit of Maree Leonard, sworn on 30 November 2022, including annexures; 5. an affidavit of Maree Leonard, sworn on 8 December 2022; 6. an undertaking given by Professor Hugh Durrant-Whyte, Commissioner of the Natural Resources Commission, dated 12 December 2022. 1. Also tendered in evidence was: 1. a report of the Industrial Registrar regarding the Agreement, dated 6 December 2022; and 2. the Agreement, dated 6 October 2022 and signed by Neusa Soares, 'on behalf of the employees' and by Maree Leonard on behalf of the employer. 1. The affidavits sworn by Ms Leonard, together, purported to set out the matters required, by r 7.1 of the Industrial Relations Commission Rules 2009, to be provided with an application for approval of an enterprise agreement. The 2009 rules were repealed and replaced by the Industrial Relations Commission Rules 2022 on 2 December 2022, that is, just prior to the hearing of this application. Rule 7.1 has been replaced by r 6.9 of the Industrial Relations Commission Rules 2022. While there are some minor changes in wording, the requirements stipulated in the two rules are, for all intents and purposes, the same and reflect the requirements of s 35(1) of the Industrial Relations Act. I have had regard to rule 6.9 of the Industrial Relations Commission Rules 2022 when considering the evidence in support of the application. 2. Annexed to Ms Leonard's affidavit of 30 November 2022 was a 'Comparison table' which, pursuant to r 6.9(2)(b), compared the conditions of employment under the Agreement with those that applied prior to 2008 pursuant to individual contracts and which were set out in a document entitled 'Natural Resources Commission, Employment Conditions Policy Document'; and with the conditions set out in the Crown Employees (Public Service Conditions of Employment) Reviewed Award 2009. The appropriateness of these two documents as comparators is discussed below. 3. Ms Leonard also deposed that: 1. (as required by r 6.9(2)(a)) – the Agreement will replace the Natural Resources Commission (Staff Agency) Enterprise Agreement 2018-20; 2. (as required by r 6.9(3)(a)) - the basis on which it is contended that the conditions of employment under the Agreement, if compared with the comparative conditions of employment, do not, considered as a whole, result in a net detriment to the employees covered by the Agreement (as to which, see further below); 3. (as required by r 6.9(3)(b)) – the basis on which it is contended that the Agreement complies with relevant statutory requirements, including the Anti-Discrimination Act 1977 (NSW) (as to which, see further below); 4. (as required by r 6.9(3)(c) and (d)) – in her capacity as the employer representative, that the NRC understands the effect of the Agreement and freely agreed to it; and the basis on which she contends that the employees understand the agreement and did not enter into it under duress (I return to this matter further below); 5. (as required by r 6.9(3)(e)) – based on the information set out in her affidavit of 2 November 2022 and the affidavits of Ms Soares and Ms Kuzniatsova, she believed that the Agreement "complies with the Principles set by the Commission under section 33 of the Industrial Relations Act 1996 [being the principles for approval of enterprise agreements as determined by the Full Bench in the Review of the Principles for Approval of Enterprise Agreements 2021/2022 [2022] NSWIRComm 1005]. 1. Ms Kuzniatsova, Ms Soares and Ms Leonard all gave evidence regarding a ballot of employees that was held regarding the Agreement. In summary their evidence was: 1. In early August 2022, Ms Leonard sent an email, followed by a message containing a link, via the software program Microsoft Teams, to the 20 NRC employees covered by the proposed Agreement inviting them to vote, using a voting facility I understand is a function within Microsoft Teams, on the following questions: (a) Whether the ballot for the proposed EA should be conducted electronically; and (b) Whether Neusa Soares and Sofya Kuzniatsova should be approved to conduct the ballot for the proposed EA. 1. Sixteen people responded affirmatively to both questions. There were no negative responses. 2. On 18 August 2022, Ms Soares created a digital questionnaire using the services of a website known as 'SurveyMonkey'. The questionnaire allowed a single anonymous response to be submitted, per person. The questionnaire asked one question, namely: "Natural Resources Commission (Staff Agency) Enterprise Agreement 2022-2024. Do you approve of the terms of the Enterprise Agreement? 1. On 12 September 2022, Ms Leonard sent an electronic calendar invite to all NRC employees advising that a separate email would be distributed containing a SurveyMonkey link to the electronic ballot. 2. On 15 September 2022, Ms Kuzniatsova sent an email to all NRC employees covered by the proposed Agreement, providing a SurveyMonkey link for the ballot. 3. On 16 September 2022, Ms Soares and Ms Kuzniatsova analysed the results of the ballot via the SurveyMonkey website, which revealed that all 20 employees had voted to approve the Agreement. 4. On 29 September 2022, Ms Leonard became aware that cl 6.2 of the proposed Agreement, being the provision providing for a pay increase with effect from the first full pay period on or after 1 July 2022, contained an error, specifically that pay would be increased by 2.534%, rather than 2.53%. 5. On 4 October 2022, Ms Leonard sent a message in the NRC Teams chat informing the NRC's employees of the nature of the error and that as a result of the error, it would be necessary to vote upon an amended proposed Agreement on 6 October 2022. The message attached an amended version of the Agreement and staff were requested to "review the amendment on page 4 …." 6. On 5 October 2022, Ms Leonard sent a calendar invite to the NRC employees covered by the proposed Agreement, stating that Ms Kuzniatsova would provide the voting link from 8.30am to 9.30am on 6 October 2022. She also sent an email to two employees who were on leave informing them of the need to vote on the amended Agreement. 7. On 6 October 2022, at 8.27am Ms Kuzniatsova sent an email to all NRC employees covered by the proposed Agreement informing them that voting would be open between 8.30am and 9.30am and including a SurveyMonkey link to the electronic ballot. 8. On 6 October 2022, Ms Soares and Ms Kuzniatsova, via Microsoft Teams using the "share screen" function, analysed the results of the ballot via the SurveyMonkey website, which revealed that 18 employees had voted to approve the Agreement. Two staff members who were on leave at the time failed to vote, however I am satisfied from the evidence of Ms Leonard that they had notice of the vote and had voted to approve the earlier version of the Agreement which was substantively identical to the amended version of the Agreement. 1. In light of the above evidence, I am satisfied that the provisions of s 37(1) of the Industrial Relations Act have been complied with, namely, that a secret ballot was conducted by a person, other than the employer or a person selected by that employer, on behalf of the employees entitled to vote in the ballot. Compliance with s 36 of the Industrial Relations Act 1. The employees of NRCSA are parties to the Agreement, not an industrial organisation representing those employees. Consequently, the provisions of s 36 of the Industrial Relations Act applies. Section 36 provides: 36 Special Requirements Relating to Enterprise Agreements to which Employees are Parties (1) An enterprise agreement under which employees are a party is not to be approved unless the requirements of this section have been complied with. (2) Before or at the time the employer first undertakes formal negotiations with the employees for the purposes of an agreement, the employer is to advise the Industrial Registrar in writing of the following-- (a) that an enterprise agreement is proposed or under negotiation, (b) the State or Federal awards or enterprise agreements that then apply to the employees. (3) The Industrial Registrar is to advise such persons or bodies as are prescribed by the regulations of the proposed enterprise agreement. (4) The enterprise agreement must be approved in a secret ballot by not less than 65% of the employees who are to be covered by the agreement at the time the ballot is conducted. (5) The Industrial Registrar must, after the enterprise agreement is lodged for approval, prepare a report for the Commission comparing the conditions of employment under the agreement and the conditions of employment that would otherwise apply to the employees under relevant State or Federal awards. If there are no relevant State or Federal awards, the report is to outline any relevant employment conditions of the employees. (5A) The Commission must, by its order, make an industrial organisation a party to the enterprise agreement if it is satisfied that-- (a) the industrial organisation represents any of the employees covered by the enterprise agreement, and (b) the industrial organisation has notified the Commission of its intention to become a party to the agreement by lodging a notice to that effect with the Industrial Registrar at any time before the Commission approves of the agreement under this Part, and (c) an employee covered by the agreement is a member of the industrial organisation and has requested the industrial organisation to become a party to the agreement. The Commission may direct that the name of an employee who made that request is not to be disclosed to the employer or other person. 1. Pursuant to sub-s 36(2) Ms Leonard, wrote to the Industrial Registrar on 10 August 2022 advising that the NRC proposed to commence negotiations with its staff for a new enterprise agreement, which would replace the existing Natural Resources Commission Staff Agency Enterprise Agreement 2018-2020 – EA 18/08. 2. Pursuant to sub-s 36(3) and reg 4 of the Industrial Relations (General) Regulation 2020, the Industrial Registrar, by letter dated 25 November 2022, a copy of which is on the Commission's file, advised the secretary of Unions NSW, being the relevant State peak council, of the proposed Agreement. 3. As confirmed by the evidence of Ms Leonard, Ms Soares and Ms Kuzniatsova, the Agreement was approved in a secret ballot by not less than 65% of the employees who are to be covered by the Agreement at the time the ballot was conducted, as required by sub-s 36(4). 4. On 6 December 2022 the Industrial Registrar provided me with a report pursuant to sub-s 36(5). In summary, the report raised questions as to whether the awards identified by Ms Leonard as comparator awards for the purposes of r 6.9(3)(a) and s 35(1)(b) – (b2) were appropriate and whether, based on the material provided, the Commission could be satisfied that 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 awards that cover employees performing similar work to that performed by the employees covered by the Agreement. The report also raised some questions in relation to specific provisions in the Agreement. I return to these issues below. 5. There was no application to make an industrial organisation a party to the Agreement and as I am otherwise not satisfied of the matters set out in sub-s 36(5A), I do not propose to order that an industrial organisation be made a party to the Agreement. The Agreement 1. It is unnecessary to set out in any detail the changes that will occur to the terms and conditions of employment of NRCSA's employees by the introduction of the Agreement. Essentially the Agreement is not materially different to the Natural Resources Commission (Staff Agency) Enterprise Agreement 1 July 2018 – 30 June 2022. The key changes include: 1. an increase in the rate of pay of 2.53% with effect from the first full pay period to commence on or after 1 July 2022 and a further 2.53% pay increase from the first full pay period to commence on or after 1 July 2023; 2. clarification that where a staff member is directed or assigned a role to perform the duties of a higher role for a period of at least 5 consecutive working days, they will be paid a "temporary assignment allowance"; 3. a new provision to the effect that staff members will be entitled to current and future sector wide leave enhancements as set out in sector wide policies; Premier's Memorandums; or Secretary directives from time to time; and 4. a new provision to the effect that the NRC will reimburse a staff member, through an expense claim, for the use of a private motor vehicle or damage to a private motor vehicle in line with Government policy. Relevant Principles 1. Section 35(1) of the Industrial Relations Act provides that the Commission may only approve an enterprise agreement if it is satisfied that: (a) the agreement complies with all relevant statutory requirements (including the requirements of this Part and of the Anti-Discrimination Act 1977), and (b) in the case of an agreement that covers employees to whom State awards would otherwise apply--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 State awards, and (b1) in the case of an agreement that covers employees to whom Federal awards would otherwise apply--the employees are not disadvantaged in comparison to their entitlements under the Federal awards, and (b2) in the case of an agreement that covers employees to whom no State or Federal award would otherwise apply--the agreement does not, on balance, provide a net detriment to the employees when compared with the aggregate package of conditions of employment under a State or Federal award that covers employees performing similar work to that performed by the employees covered by the agreement, and (c) the parties understand the effect of the agreement, and (d) the parties did not enter the agreement under duress. 1. Rule 6.9(3) of the Industrial Relations Commission Rules stipulates that the affidavit to be filed with the application for approval must set out, inter alia, the basis on which it is contended that the requirements of s 35(1) have been made. 2. Section 35(3) of the Industrial Relations Act provides: The Commission is to follow the principles for approval set under section 33 when deciding whether to approve an enterprise agreement, unless satisfied that any departure from those principles would not prejudice the interests of any of the parties to the agreement. 1. Section 33 of the Industrial Relations Act provides that the Full Bench of the Commission is required to set principles to be followed by the Commission in determining whether to approve enterprise agreements and provides guidance as to the content of the principles and the procedures to be following in relation to their review and publication. 2. The Full Bench last reviewed the 'Principles for Approval of Enterprise Agreements' (Principles) on 23 February 2022 in Review of the Principles for Approval of Enterprise Agreements 2021/2022 [2022] NSWIRComm 1005. Annexure A to that decision are the current Principles set by the Full Bench, to which I have had regard when considering the present application. 3. Part 2 of the Principles set outs the criteria for approval of enterprise agreements. 4. Clause 2.1, which largely reflects the matters required by s 35(1) of the Industrial Relations Act, provides as follows: Parties must demonstrate to the satisfaction of the Commission that they have followed all the requirements for approval, including: (a) involvement of the parties and/or their representatives in negotiation processes; (b) the parties understand the nature and effect of the agreement; (c) the parties did not enter the agreement under duress; (d) that all relevant employees are covered by the agreement; and (e) that the agreement does not breach relevant statutory requirements, including the requirements of Ch 2, Pt 2 (Enterprise Agreements) of the Act and the Anti-Discrimination Act 1977. 1. Of particular importance in this matter are cll 2.4 and 2.5 of the Principles, which provide as follows: 2.4 The Commission, in accordance with sub-s 35(1) of the Act, is to satisfy itself that: (a) in the case of an agreement that covers employees to whom State awards would otherwise apply, that 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 State awards, and (b) in the case of an agreement that covers employees to whom no award would otherwise apply, that the agreement does not, on balance, provide a net detriment to the employees when compared with the aggregate package of conditions of employment under an award that covers employees performing similar work to that performed by the employees covered by the agreement. 2.5 In determining the "no net detriment" test, in accordance with sub-ss 35(1)(b) and (b2), the Commission will have regard to: (a) the benefits and conditions applying under the proposed enterprise agreement in comparison to those applying under the relevant award/s; (b) the conditions in the proposed enterprise agreement being considered as an aggregate package; (c) provisions in the Work Health and Safety Act 2011 (NSW) and regulations directly relevant to the change in work patterns to be performed under the agreement; (d) the needs and circumstances of the enterprise; (e) the wishes of the parties to the agreement; (f) any other matters the Commission considers relevant; (g) test case decisions of the Commission; (h) State decisions setting principles or provisions pursuant to s 51 of the Act; (i) minimum sick leave provisions for awards as prescribed under s 26 of the Act; where such provisions or principles are found in the relevant award/s or which apply to awards generally. 1. Lastly, ss 38 and 39 of the Industrial Relations Act prescribe certain mandatory requirements as to the form and content of enterprise agreements. Consideration 1. The evidence filed by the applicant gave me cause to reflect carefully as to whether the requirements of cl 2.1 of the Principles had been met, in particular sub-cll 2.1 (a), (b) and (c). 2. Ms Leonard's affidavit of 2 November 2022 contained conclusory statements that these requirements had been met. She stated that "based on discussions with the NRC's staff" she believed that they all understand the effect of the proposed Agreement and did not enter the Agreement under duress, however, she also deposed to the fact that the majority of employees work remotely, giving rise to a question in my mind how, and to what extent, she engaged in discussions with staff regarding the Agreement. 3. I raised my concern as to the evidence that the employees understood the Agreement, and did not enter into it under duress, with the solicitor for the applicant during the hearing, with the result that I granted leave to the applicant to adduce further oral evidence from Ms Leonard. Ms Leonard explained that the staff attended offices at their work locations, but also engaged with each other via Microsoft Teams. She stated: "We have formal Teams [meetings] every Monday morning where I have briefed on the enterprise agreement since August the nature of what is occurring. We have conversations. We have team meetings, formal entire organisation team meetings every month where we discuss the enterprise agreement. We have private enterprise agreements discussions where the team who are parties to the agreement, and not the executive, attend so they can talk about the agreement, raise questions. We have a private Teams channel … where I would say, "Have a look at this. Here's the information back from the IRC. Here's the listing date. Here's the advice," that kind of thing…[the] employees' are all over every detail." 1. While I am conscious that Ms Leonard was a witness for the applicant, on balance I am satisfied that the parties have followed the requirements of cl 2.1(a) – (d) of the Principles and that the requirements of s 35(1) (c) and (d) have been met. 2. The Agreement contains, at cl 38.1, an anti-discrimination clause substantially in the form of Attachment 1 to the Principles and I have had regard to the principles of the Anti-Discrimination Act 1977 when considering this application, as I am also required to do by virtue of s 169(1) of the Industrial Relations Act and cl 3.1 of the Principles. In circumstances where the Agreement contains a suitable anti-discrimination clause; 90% of the employees have approved the Agreement (100% if the initial ballot is counted, noting that the amended Agreement made no substantive change to the first version of the Agreement) and otherwise the employees have not sought to be heard at the hearing; and Ms Leonard has deposed that the agreement complies with all relevant statutory requirements, including those in the Anti-Discrimination Act 1977, I am satisfied that the requirements of cll 2.1(e) and 3.1 of the Principles and the requirements of s 35(1)(a) of the Industrial Relations Act, have been met. 3. I am satisfied that the secret ballot conducted by Ms Soares and Ms Kuzniatsova, as required pursuant to s 36(4) of the Industrial Relations Act, met the requirements of cl 2.3 of the Principles; 4. Clause 2.6 of the Principles stipulates that an enterprise agreement should, where appropriate, facilitate the establishment of consultative mechanisms and procedures appropriate to the size, structure and needs of the enterprise for consultation on matters affecting their efficiency and productively. There is no provision in the Agreement which directly addresses this Principle, however I note that cl 5.1(c) of the Agreement provides that "NRC is committed to enhancing and maintaining a professional work environment that … supports harmonious team relationships built on cooperation, dialogue, mutual respect and trust." Further, cl 5.2 of the Agreement provides: In consultation with its staff, the NRC will develop strategies aimed at achieving and maintaining an accident-free and healthy workplace in accordance with the Work Health and Safety Act 2011 (NSW) and the Work Health and Safety Regulation 2011 (NSW). 1. These provisions go at least part of the way to meeting the aspiration set out in cl 2.6 of the Principles. To the extent the Agreement falls short, I note that pursuant to s 35(3) of the Industrial Relations Act, the Commission may decide to depart from the Principles if such departure would not prejudice the interests of any of the parties to the agreement. In circumstances where the employees have voted overwhelmingly in favour of the Agreement, I do not consider that the failure of the Agreement to include formal consultative mechanisms and procedures for consultation on matters affecting efficiency and productivity to be a reason not to approve the Agreement. 2. Clause 35 of the Agreement – 'Grievance and dispute settling procedures' - meets the requirements of criterion 2.7 of the Principles and ss 3(g) and 39(2) of the Industrial Relations Act. 3. The Agreement is in writing and signed by or on behalf of the parties to it and otherwise meets the requirements of s 38 of the Industrial Relations Act. 4. The biggest issue arising in respect of this application for approval of an enterprise agreement is whether the Agreement complies with the 'net-detriment test' being the criterion stipulated in cl 2.4 of the Principles and the requirement stipulated in s 35(1)(b) or (b2), (whichever is applicable). Net Detriment 1. The starting point when considering the net detriment test is to determine whether a State or Federal award would otherwise apply to the employees and if not, what award or awards should be used by way of a comparator, to ensure that the enterprise agreement does not, on balance provide a net detriment to the employees when compared with the aggregate package of conditions of employment of employees performing similar work to that performed by the employees covered by the enterprise agreement. 2. The applicant contended that there was no State or Federal award that otherwise applied to the employees. According to the applicant this was because from the time the NRC was established in 2004, until 2008, staff were employed under contracts which incorporated terms set out in the 'Natural Resources Commission, Employment Conditions Policy Document'. In 2008 the individual contracts were replaced by the 'Natural Resources Commission (Division of Government Service NSW) Enterprise Agreement 2008'. 3. Despite the assertion by the applicant that no awards apply to the employees, there are at least two State awards that potentially could apply. The first is the Crown Employees (Public Service Conditions of Employment) Reviewed Award 2009 (Conditions Award) and the other is the Crown Employees (Administrative and Clerical Officers - Salaries) Award (A & CO Award). 4. Clause 6 of the Conditions Award provides as follows: 6. Coverage (a) The provisions of this award shall, subject to cl 6(b) below, apply to all non-executive public service employees as defined in the Government Sector Employment Act, 2013 employed in Departments, Public Service executive agencies related to Departments, and separate Public Service agencies, listed in Schedule 1 to the Government Sector Employment Act, 2013. (b) Where another industrial instrument or arrangement applies to a group of employees covered by this Award the following interaction rules apply: (i) If the other industrial instrument or arrangement expressly displaces the entirety of this Award then this Award shall have no application to those employees; (ii) If the other industrial instrument or arrangement expressly displaces one or more provisions of this Award then: (a) this Award shall not apply to those employees covered by the other instrument or arrangement in relation to those provisions, (b) but the balance of this Award shall apply to those employees; and (iii) If the other industrial instrument or arrangement comprehensively determines conditions of employment for a group of employees then this Award shall have no application in relation to that group of employees; (iv) If the other industrial instrument or arrangement comprehensively determines a particular class of conditions of employment for a group of employees, then this Award shall have no application in relation to that group of employees in relation to that class of conditions; (v) If none of subclauses 6(b)(i)-(iv) apply, and the other industrial instrument or arrangement is silent as to its interaction with this Award, then: a. if the application of the other industrial instrument or arrangement is inconsistent with the application of this Award, the other industrial instrument or arrangement applies to the extent of the inconsistency; otherwise b. this Award applies. (c) Any officer, Departmental temporary employee and casual employee who, as at 23 February 2014, was employed in a Department listed in Schedule 1, Part 1, of the Public Sector Employment and Management Act, 2002 and who was covered by this award on that date will continue to be covered by this award. NOTATION: This clause was amended in 2014 and again in 2017 with the agreed intention of the parties to maintain the status quo of industrial coverage, by award, other industrial instrument or arrangement, following the commencement of the Government Sector Employment Act 2013 on 24 February 2014. 1. The applicant submitted that the Agreement comprehensively determines the conditions of employment for the NRC staff and consequently pursuant to cl 6(b)(iii) of the Conditions Award, the Conditions Award has no application to the employees. The applicant also submitted that cl 6(c) did not apply as the conditions of that provision were not met. 2. I am prepared to accept that the provisions of cl 6(c) are not met in respect of the NRC's non-executive staff, however the evidence was not sufficient for me to make a determination that the Agreement, or its immediate predecessor, comprehensively determines conditions of employment of the staff, such that, pursuant to cl 6(b)(iii), the Conditions Award has no application. This is a question of some complexity – see Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Industrial Relations Secretary [2020] NSWIRComm 1001 and the evidence and submissions did not address the question with any particularity. It is, however, ultimately not a determination that I need to make, as the applicant agreed that the Conditions Award nevertheless should be one of the comparator awards for the purposes of the net detriment test. In these circumstances, whether I apply the test in s 35(1)(b), on the basis that the Conditions Award actually applies to the employees; or the test in s 35(1)(b2), on the basis that the Conditions Award does not apply, but is a suitable comparator, the result is the same. The applicant's solicitor agreed with this proposition during the course of oral submissions. 3. The applicant also submitted that the NRC employees were not covered by the A & CO Award because they were not appointed to a role classified under the A & CO Award. That assertion also requires some investigation. 4. Clause 9 of the A & CO Award states the award applies to employees defined in clause 2, Definitions. Clause 2 defines 'Employee" to mean "a person employed in ongoing, term, temporary, casual or other employment, or on secondment, in a Public Service agency under the provisions of the Government Sector Employment Act 2013, who is appointed to a role classified under this award." 5. Ms Leonard gave evidence as to the roles (positions) of the NRC staff. The roles identified did not correlate to the role classifications set out in Part B, Table 1 of the A & CO Award. Again however, the applicant proposed that the A & CO Award should be applied as a comparator award and consequently, for the reason explained in paragraph [58] above, I do not need to make a final determination as to whether the A & CO Award applies to the NRC staff or not, when undertaking the net detriment test. 6. The applicability of the A & CO Award as a suitable comparator, in circumstances where there was not an obvious relationship with the classified roles was not fully explored in evidence, however Ms Leonard gave evidence that in April 2022 she retained, on behalf of NRC, a workplace consulting firm called 'Mercer' to undertake a remuneration benchmarking review of the roles performed by the NRC employees. A copy of the outcome of the review was annexed to Ms Leonard's affidavit of 2 November 2022. In conducting the review Mercer apparently: 1. gained an understanding of the NRC roles' responsibilities and accountabilities through reviewing the position and organisation documentation; 2. held separate interviews with the relevant job experts in order to gain a better understanding of the roles and the context in which they operate; 3. analysed the positions under the 'MCED Job Evaluation System', ensuring relatively with positions of similar work value in the broader market; and 4. provided remuneration ranges from the 'relevant Industrial Instruments'. 1. The A & CO Award was the 'relevant Industrial Instrument' identified in the Mercer report, although why this was regarded as the relevant instrument was not explained. Nevertheless, given the nature of the other activities Mercer undertook and noting that the 'MCED Job Evaluation System' involved examining 'the complexity of job demands of individual positions in a way that allows a systemic and analytical comparison of positions', I accept that the A & CO Award was and is a suitable reference with which to compare the value of NRC positions under the Agreement. 2. Under cl 3(g) of A & CO Award the salary rates set out in Part B, Table 1 of the Award are subject to the rates set by the Crown Employees (Public Sector – Salaries 2021) Award or any award replacing it. Consequently, any comparison of salaries under the Agreement must be done by reference to the salaries provided in the Crown Employees (Public Sector – Salaries 2022) Award. 3. Clause 6 of the Agreement sets out how the employees are to be remunerated. It is useful, for the analysis that follows, to set out the relevant parts of that clause in full. 6. Renumeration Basis for calculating remuneration a) The Salary Package is the basis for calculating a staff members' remuneration. The salary package is expressed as base pay, plus the 10% all incidents allowance (see 6.4 (sic) below). b) The Compulsory Superannuation Guarantee Contribution and the additional superannuation contributions prescribed by the State Authorities Non-contributory Superannuation Act 2013 No 69 (sic) and the Regulations made pursuant to sections 2A and 2B of that Act (sic) and 17.5% annual leave loading paid on 4 weeks annual leave are calculated on the total of the salary package and are in addition to this package. 6.1 Remuneration salary points a) This Enterprise Agreement prescribes the salary points for NRC staff are (sic) listed in Part A Remuneration salary points. 6.2 Variations to remuneration salary points The remuneration bands prescribed in Part A will be varied during the life of this Enterprise Agreement as follows: a) a pay increase of 2.53% with effect from the first full pay period to commence on or after 1 July 2022 b) a further 2.53% pay increase with effect from the first full pay period to commence on or after 1 July 2023. 6.3 All incidents allowance Staff receive a 10% all incidents allowance as a loading to their base salary. This allowance covers all reasonable requests made of the staff member relating to additional hours, travel time, and work outside business hours, and is paid lieu of any other allowances. 6.4 Appointment a) New staff may be assigned at any salary point within the remuneration bands relevant to the employee's role, depending on their experience, skills and qualifications. b) New staff will be appointed, in the first instance, on a probationary basis for a period not exceeding 6 months. The probation period may be varied, waived or extended at the discretion of the Commissioner or delegate. 6.5 Salary progression a) Each staff member's performance will be formally appraised using the NRC's Performance Excellence Process (PEP) and the results of this appraisal will be used to determinate their incremental progression to the next salary point within the relevant remuneration band (shown on Table 1). b) Incremental progression to the next salary point will occur if the formal appraisal finds that the staff member's performance and value to the NRC over the previous 12 months was higher than their existing salary. c) The salary and performance of each staff member will be reviewed at least annually. d) Additional formal performance appraisals may be completed within the annual cycle. e) Where a formal appraisal finds that a staff member's performance is exceptional, their incremental progression through the salary points within the relevant remuneration band may be accelerated. The Commissioner or delegate must approve all salary progressions. 6.6 Salary sacrifice and packaging The Commissioner or delegate may enter into agreements with staff members for salary sacrifice for superannuation and/or other agreed benefits within NSW Government Policy. 1. Clause 6 contains a number of obvious typographical errors however, I consider that the meaning of the clauses is sufficiently clear for the purposes of considering whether the Agreement should be approved. 2. 'Salary Package' is defined in cl 2 of the Agreement to mean: "the base salary, plus the 10% all incidents allowance. The salary package excludes the Superannuation Guarantee component and the annual leave loading." 'Base Salary' is defined in cl 2 of the Agreement to mean: "the ordinary time rate of pay for the staff member excluding the all incidents allowance." The base salary, the all incidents allowance and the salary packages for some 22 'salary points' are listed on the last page of the Agreement under the heading 'Part A Remuneration Points'. 3. The applicant submitted that: "To assess the net detriment test, it is the salary package which must by compared with the salaries contained in the [A & CO Award] because as provided for by the proposed EA, the salary package is the basis of a staff member's remuneration." 1. I do not accept this submission. Employees employed under the A & CO Award are also the beneficiaries of entitlements under the Conditions Award. Clause 9 of the A & CO Award provides, inter alia: Employees are entitled to the conditions of employment provided by this award and by the Government Sector Employment Act 2013, the Government Sector Employment Regulation 2014 and the Government Sector Employment Rules 2014. The provisions of the Crown Employees (Public Service Conditions of Employment) Reviewed Award 2009 and Crown Employees (Public Sector - Salaries 2021) Award or any replacement awards, also apply to employees covered by this award, except where specifically varied by this award. 1. The Conditions Award contains a number of provisions pursuant to which employees receive remuneration or other benefits, in additional to their salary, which need to be considered when determining whether the Agreement, on balance, provides a net detriment to the employees or not. Without being exhaustive two items are of particular concern. 2. The first item of concern is the arrangements regarding work undertaken over and above 'standard hours'. Clause 3 of the Conditions Award defines 'full-time contract hours' to be mean "the standard weekly hours, that is, 35 or 38 hours per week, depending on the classification, required to be worked as at the date of this award." Clause 7.1 of the Agreement provides that the "standard hours of work for full time ongoing staff members are an average of 38 hours per week". However, cl 7.3 provides that staff members "may be required to perform reasonable additional hours of work necessary to meet the NRC's operation commitments." Clause 7.4 provides that the Commissioner or delegate may grant a staff member time off in lieu where the staff member has worked extended approved additional hours, or where the staff member has requested time off in lieu to meet immediate personal needs and taking this time off will not affect the productively of the NRC team. 3. Clauses 88 – 90 of the Conditions Award in the other hand, provide for the payment of additional remuneration for overtime, that is for "time worked, whether before or after the ordinary daily hours of duty, at the direction of the Department Head, which, due to its character or special circumstances, cannot be performed during the employee's ordinary hours of duty." 4. The second item of concern is travel time. Clause 27 of the Conditions Award provides for a payment to be made where an "employee [is] directed by the Department Head to travel on official business outside the usual hours of duty to perform duty at a location other than normal headquarters" at the discretion of the Department Head. 5. As noted above, pursuant to cl 6.3 of the Agreement, the 10% 'all incidents allowance', which comprises part of the 'Salary Package' paid to NRC employees under the Agreement, covers "all reasonable requests made of the staff member relating to additional hours, travel time, and work outside business hours, and is paid in lieu of any other allowances." Therefore, to do a proper comparison for the purposes of the net detriment test one would need to work out how much the NRC employees would receive, by way of salary under the A & CO Award, and add to that the amounts they would receive over a typical year if the provisions of the Conditions Award applied and then compare that amount, with their 'Salary Package' payable under the Agreement. 6. The applicant had not undertaken that comparison and it is not one I can do without evidence. Instead, the applicant relies on sub-cl 6.5 of the Agreement – 'Salary Progression' and submitted, in essence, that the operation of this clause, which is not replicated in either the Conditions Award or the A & CO Award, results in the Agreement providing "a substantially more beneficial salary package to the employees than what the employees would receive under the A & CO Aw`ard" (which in turn applies the Conditions Award). The applicant also submitted that the operation of this clause also meant that "comparing the salaries under the proposed EA with the salaries of the [A& CO Award] is not a simple or easy task." 7. According to the applicant the effect of cl 6.5 of the Agreement "is that each year an NRC staff member may progress to the next salary point in the proposed EA if their "performance and value to the NRC over the previous 12 months was higher than their existing salary."" By contrast, under the A & CO Award "an employee cannot, unless they are prompted to a higher-grade position, progress to a salary of higher grade". Pursuant to cl 5 of the A & CO Award, promotion to a grade and from grade to grade is also subject to the occurrence of a vacancy in such grade. 8. To make good the proposition that NRC employees can and do progress to salary points greater than they would under the A & CO Award, Ms Leonard gave evidence that sixteen of the twenty NRC employees currently receive a salary greater than the salary which the Mercer review assessed to be the 'work value worth' of their positions. The remaining NRC employees receive a salary which reflect the assessed worth of their positions. This evidence is summarised in the table below: Position A&CO Grade Equivalent Salary Point under Agreement A&CO Salary* Salary Package under Agreement^ Salary to be received by incumbent under the Agreement^ (As per Mercer Review) (As per Mercer Review) Administrative Officer 3 - 4 Level 1, 3 - 4 $75,992 -$83,211 $76,846 - $80,727 N/A Executive Assistant 3 - 4 Level 1, 4 - 5 $75,992 - $83,211 $80,727 $85,075 $107,048 (Level 2, 3) (Junior) Project Officer 3 - 4 Level 1, 4 - 5 $75,992 - $83,211 $80,727 $85,075 $102,462 (Level 2, 2) (Senior) Project Officer 5 – 6 Level 2, 1 - 2 $89,707 - $98,982 $98,114 - $102,462 $131,640 (Level 3, 2) Advisor 7 – 8 Level 2, 4 - 5 $101,947 - $112,849 $112,836 - $118,621 $112,836 - $118,621 (Level 2, 4 to Level 2, 5) Financial Reporting & Business Advisor 9 – 10 Level 2, 5 - 6 $116, 211 - $128,061 $118,621- $124,408 $118,621 (Level 2, 5) Senior Advisor 9 – 10 Level 2, 5 - 6 $116, 211 - $128,061 $118,621 – $131,640 - $166,748 $124,408 (Level 3, 2 to Level 3, 8) Principal Advisor 11 – 12 Level 3, 6 - 7 $134,411 - $155,885 $153,058 - $159,126 $166,748- $176,415 (Level 3, 8 to Level 3, 10) Associate Director 11 – 12 Level 3, 6 - 7 $134,411 - $155,885 $153,058 - $159, 126 N/A * Not including other allowances that may be payable under the Conditions Award. As per the A & CO Award from 1 July 2021/ Crown Employees (Public Sector - Salaries 2021) Award. ^ As at 1 July 2022. 1. The evidence showed that the following employees of NRC will receive more under the Agreement than the maximum salary paid to a worker in a comparable position under the A & CO Award (but not including entitlements under the Conditions Award): 1. the Executive Assistant will receive $23,837 more under the Agreement; 2. the (Junior) Project Officer will receive $19,251 more under the Agreement; 3. the (Senior) Project Officer will receive $32,658 more under the Agreement; 4. one advisor will receive $5,772 more under the Agreement; 5. two Senior Advisors will receive $3,579 more under the Agreement; 6. one Senior Advisor will receive $13,705 more under the Agreement; 7. one Senior Advisor will receive $19,352 more under the Agreement; 8. two Senior Advisors will receive $24,997 more under the Agreement; 9. one Senior Advisor will receive $38,687 more under the Agreement; 10. three Principal Advisors will receive $10,863 more under the Agreement than the maximum salary paid to a worker in a comparable position under the A & CO Award; 11. one Principal Advisor will receive $16,452 more under the Agreement; 12. two Principal Advisors will receive $20,530; 13. no position under the Agreement will receives a salary less than the minimum salary paid to the comparable position under the A & CO Award. 1. In short, the evidence showed that the nominal 'salary package' range for each employee covered by the Agreement based on the A & CO grade assigned to the roles of those employees by Mercer, (noting that those roles are not specifically mentioned or defined in the Agreement) is higher at both ends of the range under the Agreement than under the A & CO Award (save for those employed as a 'Financial Reporting & Business Advisor' or as a 'Senior Advisor' who have a nominal maximum salary below that provided for under the A & CO Award), but in reality, due to the salary progression structure provided under the Agreement, the majority of employees covered by the Agreement (although not all) receive a salary package which exceeds, in some cases by some many thousands of dollars, the salary that they would otherwise receive under the A & CO Award, not including any additional allowances that might otherwise by payable under the Conditions Award. 2. Without any evidence as to the extent to which NRC employees work hours over and above 38 hours a week for which they do not receive time in lieu, or travel outside the usual hours of duty, it is impossible to form a definite view as to whether the salary package to be received by the employees under the Agreement will provide them with a 'net detriment' when compared with the aggregate package of conditions of employment they would otherwise receive under the A & CO Award and the Conditions Award. Given the significant extent to which the salary package that most NRC employees will receive, exceeds the salary provided for in the A & CO Award, it would seem more likely than not that the Agreement does not, on balance, provide a net detriment to the employees. 3. If the quantum by which the nominal or actual salary packages exceed the salaries provided for by the A & CO Award were the only matter the applicant relied upon to satisfy the Commission that the Agreement does not provide a net detriment to the employees, in circumstances where no evidence was led as to the value of overtime, travel time or other allowances the employees might otherwise be entitled to, I perhaps would not be sufficiently satisfied of that fact to approve the Agreement. However, ultimately, I accept the applicant's submission that the existence and operation of clause 6.5 itself provides a significant benefit over and above the package of conditions prescribed under the Conditions Award and the A & CO Award, which must be considered for the purpose of the net detriment test. 4. As discussed above, under the A & CO Award employees must formally be promoted to a higher grade, in circumstances where there must also be a vacancy at that higher grade, in order to receive a higher salary (beyond their first year of service in a particular grade). Employees under the Agreement may progress to a higher salary (in theory, through to the maximum amount payable under the Agreement), without changing their role or receiving a formal promotion, if a formal appraisal finds that the staff member's performance and value to the NRC over the previous 12 months was higher than their existing salary. It is important to note that the evidence established that clause 6.5 of the Natural Resources Commission (Staff Agency) Enterprise Agreement 1 July 2018 – 30 June 2022, which is identical to cl 6.5 in the Agreement, has been utilised to pay NRC staff salary packages over and above the nominal salary package for their role, as determined by Mercer. 5. In the circumstances, and subject to the further matters discussed below, I am satisfied that the Agreement does not, on balance, provide a net detriment to the NRC employees covered by the Agreement, when compared with the aggregate package of conditions of employment provide for under the A & CO Award and the Conditions Award. In coming to this view, I have also taken into account, as I am permitted to do pursuant to cl 2.5(e) of the Principles, that the employees have overwhelmingly indicated that they are happy with the Agreement and no employee appeared at the hearing of the approval application to voice any opposition to the approval. I also stress that the evidence that cl 6.5 had in fact been utilised to pay staff salary packages higher than they might otherwise be paid under the A & CO Award, in most cases significantly higher, was a significant factor in my reaching the required level of satisfaction in respect of the net detriment test. The mere existence of a clause such as cl 6.5 in the absence of evidence of staff actually being paid over and above their 'pay grade', and in the absence of evidence as to the quantum of the benefits staff would otherwise receive under the Conditions Award, is unlikely to satisfy the net detriment test. Other Conditions 1. The Industrial Registrar, in her report prepared pursuant to sub-s 36(5), compared a number of provisions in the Agreement with provisions in the Conditions Award and noted the absence in the Agreement of certain provisions otherwise found in the Conditions Award. The following is a compendium of those matters. 2. Pursuant to cll 9.2 and 9.3 of the Agreement, NRC will meet all reasonable expenses associated with authorised, official travel and wherever possible will arrange direct payment for travel expenses. This is in line with cl 26.1 of the Conditions Award which provides that any "authorised official travel and associated expenses, properly and reasonably incurred by an employee required to perform duty at a location other than their normal headquarters shall be met by the Department." 3. Clause 11 of the Agreement provides for recreation leave at the rate of 20 working days per year, in line with cl 77 of the Conditions Award. 4. Clause 15 of the Agreement provides for Family and Community Services Leave, in line with cl 71 of the Conditions Award. 5. Clause 13.1 of the Agreement provides for the payment of annual leave loading of 17.5% of the monetary value of any recreation leave accrued in a leave year, in line with cl 78.1 of the Conditions Award. 6. 'Sick leave' is defined in clause 14.1 of the Agreement the same way as it is defined in cl 79.1 of the Conditions Award and the sick leave provisions in the Agreement are substantially in line with the provisions in the Conditions Award. 7. Clause 16 of the Agreement provides for leave without pay, in line with cl 72 of the Conditions Award. 8. Clause 19 of the proposed Agreement provides for parental leave, in line with cl 75 of the Conditions Award. 9. Clause 23.2 of the Agreement provides for study leave, in line with cl 86.2.3 of the Conditions Award. 10. On the other hand, cl 29 of the Agreement entitles staff to enter a job-sharing arrangement, whereas the Conditions Award is silent on this matter. 11. As identified by the Industrial Registrar, the Agreement does not provide for: 1. lactation breaks, as provided for in cl 15A of the Conditions Award; or 2. leave for matters arising from domestic violence, as provided for in cl 94A of the Conditions Award. 1. The Agreement also does not provide for morning and afternoon tea breaks, as provided for in the cl 14 of the Conditions Award. In light of this the NRC Commissioner provided an undertaking with respect to the Agreement, a copy of which was tendered in evidence. The undertaking relevantly provides: 1. Notwithstanding the Enterprise Agreement, staff may take a 10 minute morning break, provided that the discharge of public business is not affected and, where practicable, they do so out of the view of the public contact areas. 2. The Natural Resources Commission Staff Agency undertakes to abide by clause 15A of the Crown Employees (Public Service Conditions of Employment) Reviewed Award 2009 as reviewed in October 2022, as amended from time to time, as though it were a clause in the Enterprise Agreement. 3. The Natural Resources Commission Staff Agency undertakes to abide by clause 84A of the Crown Employees (Public Service Conditions of Employment) Reviewed Award 2009 as reviewed in October 2022, as amended from time to time, as though it were a clause in the Enterprise Agreement. 1. The solicitor for the applicant drew my attention to s 190 of the Fair Work Act 2009 (Cth) which provides an express power to the Fair Work Commission to approve an enterprise agreement with undertakings. While there is no equivalent provision in the Industrial Relations Act, given the terms of the undertakings given by the Commissioner, I am prepared to regard the undertakings as if they formed part of the Agreement for the purposes of reaching the requite state of satisfaction regarding the matters set out in s 35(1) of the Act. To that end, and with the agreement of the applicant, the undertakings are to be annexed to the version of the Agreement to be entered in the register of approved enterprise agreements. 2. There may well be other provisions of the Conditions Award that would, prima facie, have application to the NRC employees, but for the Agreement. On balance however, I am satisfied that the most important provisions of the comparator awards have been identified and for the reasons set out above, that the Agreement does not, on balance, provide a net detriment to the NRC employees covered by the Agreement, when compared with the aggregate package of conditions of employment provided for under the A & CO Award and the Conditions Award. Orders 1. I am satisfied that the material presented to the Commission adequately demonstrates that the Agreement submitted for approval complies with all the necessary statutory tests and the Principles. I make the following orders: 1. The Natural Resources Commission (Staff Agency) Enterprise Agreement 1 July 2022 – 30 June 2024 is approved in accordance with s 35 of the Industrial Relations Act 1996 (NSW) and will apply, in accordance with cl 41.1 of the Agreement, from 1 July 2022 and will remain in force until 30 June 2024 unless otherwise varied or rescinded. 2. The Industrial Registrar is directed to annex a copy of the Undertaking given by Professor Hugh Durrant-Whyte, Commissioner of the Natural Resources Commission dated 12 December 2022, to the copy of the Natural Resources Commission (Staff Agency) Enterprise Agreement 1 July 2022 – 30 June 2024 forming Exhibit A6 in these proceedings and to enter the Natural Resources Commission (Staff Agency) Enterprise Agreement 1 July 2022 – 30 June 2024, complete with the annexed undertaking in the register of approved enterprise agreements. Janet McDonald 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: 31 January 2023