Industrial Relations Commission New South Wales Medium Neutral Citation: Teachers' (NSW Health Early Childhood Service Centres) Salaries and Miscellaneous Conditions Award 2023 – Award Variation [2024] NSWIRComm 1076 Hearing dates: Matter determined in chambers Date of orders: 11 December 2024 Decision date: 11 December 2024 Jurisdiction: Industrial Relations Commission Before: Commissioner McDonald Decision: (1) Pursuant to s 17 of the Industrial Relations Act 1996 (NSW), the Teachers' (NSW Health Early Childhood Service Centres) Salaries and Miscellaneous Conditions Award 2023 is varied by consent in the terms set out in Schedule 1 of the application filed on 26 November 2024. (2) By consent the variation will apply from 1 July 2024, with the increase in Monetary Rates provided by the variation to apply from the first full pay period on or after 1 July 2024. Catchwords: EMPLOYMENT AND INDUSTRIAL LAW — Awards and enterprise agreements — Variation Legislation Cited: Industrial Relations Act 1996 (NSW), ss 15, 17 Category: Principal judgment Parties: Health Secretary, NSW Ministry of Health Independent Education Union of Australia NSW/ACT Branch Health Services Union NSW File Number(s): 2024/00441107 Publication restriction: None DECISION 1. This decision concerns an application filed on 26 November 2024 by the Health Secretary, NSW Ministry of Health, to vary the Teachers' (NSW Health Early Childhood Service Centres) Salaries and Miscellaneous Conditions Award 2023, to provide for an increase of 3% to salaries and salary-related allowances in the Award. 2. The Independent Education Union of Australia NSW/ACT Branch (IEU) and the Health Services Union NSW (HSU) are parties to the making of the Award, along with the Health Secretary, and have been named as respondents. 3. All parties to the Award consent to the application. Background 1. The Award applies to teachers who are employed by the Health Secretary in early childhood centres attached to hospitals and other facilities. 2. On 1 July 2024 the Heath Secretary filed an application (IRC No. 2024/242526) seeking to have the Commission make a new award to be known as the Teachers' (NSW Health Early Childhood Service Centres) Salaries and Miscellaneous Conditions Award 2024, with a three-year term and providing increases to existing salaries and salary-related allowances of: 3% from the first full pay period on or after 1 July 2024; 3% from the first full pay period on or after 1 July 2025; and 3% from the first full pay period on or after 1 July 2026. 1. The Unions maintain that the teachers covered by the Award should enjoy the same salaries as teachers employed by the Department of Education and covered by the Crown Employees (Teachers in Schools and Related Employees) Salaries and Conditions Award 2022, and that the proposed increase to salaries and salary-related allowances is inadequate. There is also a proposal that the Award be reformed in various respects. 2. The parties are continuing to have discussions with a view to reaching a consent position in respect of the proposed 2024 Award. However, in the meantime the parties have agreed, on a without prejudice basis, to vary by consent the 2023 Award to provide an increase of 3% to salaries and salary-related allowances. The Variation Application 1. Section 17 of the Industrial Relations Act 1996 (NSW) provides: 17 Variation or rescission of award (1) The Commission may vary or rescind an award. (2) Sections 11, 13 and 15 apply to any such variation or rescission. The other provisions of this Division continue to apply to the award as varied. (3) An award may be varied or rescinded in any of the following circumstances only— (a) at any time with the mutual consent of all the parties to the making of the original award, (b) at any time to give effect to a decision of the Full Bench of the Commission under section 50 or 51 (National and State decisions), (c) during its nominal term if the Commission considers that it is not contrary to the public interest to do so and that there is a substantial reason to do so, (d) after its nominal term if the Commission considers that it is not contrary to the public interest to do so. (4) This section extends to a variation or rescission of an award in the course of an arbitration by the Commission under Chapter 3 to resolve an industrial dispute. 1. In satisfaction of s 17(3)(a), the parties to the Award have consented to the application, noting that the variations do not alter the date of the existing "No Extra Claims" commitment, and accordingly the variation does not preclude arbitration of the issues that remain in dispute between the parties. 2. In support of the application the Health Secretary filed an affidavit affirmed by Melissa Collins, Executive Director, Workplace Relations Branch, dated 25 November 2024. 3. Ms Collins opines that the varied Award provides equal remuneration and other conditions of employment for men and women doing work of equal or comparable value. Ms Collins also confirms that the variation "does not prevent further consideration/claims for the period 1 July 2024 to 30 June 2025, including by the Industrial Relations Commission" (which I understand to mean that further claims may be made by the parties and determined by the Commission) and that the proposed Award variations comply with all other requirements of the Industrial Relations Act. 4. Pursuant to s 17(2), s 15 of the Industrial Relations Act is applicable to a variation of an award. Section 15 provides: 15 Commencement of award (1) An award comes into force on the date specified by the Commission. (2) However, legal proceedings relating to the enforcement of the award cannot be commenced until the expiration of 7 days after the day on which it is published on the NSW industrial relations website. (3) An award may be expressed to apply retrospectively, but not earlier than the date on which— (a) application for the award was lodged with the Industrial Registrar, or (b) the Commission itself initiated proceedings for the award, or (c) the industrial dispute giving rise to the award was notified to the Commission. (4) Despite subsection (3), the following awards may, with the consent of the parties to the making of the award, apply retrospectively from a date, specified in the award, that is earlier than any date referred to in that subsection— (a) an award that sets conditions of employment in connection with a project, (b) an award that sets conditions of employment for employees of a single employer or for employees of two or more associated employers. 1. Given the variation is made by consent and the award sets conditions of employment for employees of a single employer, namely the Health Secretary, s 15(4)(b) permits the variation to be backdated to 1 July 2024. 2. Paying due regard to the fact this is a consent application, providing for an immediate increase to the remuneration of employees pending the resolution of the parties' claims, in circumstances where it is generally acknowledged that Australia is experiencing a 'costs of living crisis', I am satisfied that it is in the public interest to vary the Award in the manner sought by the application. 3. As the consent application is to vary the existing Award, the name of the Award, including the year 2023, will remain unchanged. Orders and Directions 1. I order that: 1. Pursuant to s 17 of the Industrial Relations Act 1996 (NSW), the Teachers' (NSW Health Early Childhood Service Centres) Salaries and Miscellaneous Conditions Award 2023 is varied by consent in the terms set out in Schedule 1 of the application filed on 26 November 2024. 2. By consent the variation will apply from 1 July 2024, with the increase in Monetary Rates provided by the variation to apply from the first full pay period on or after 1 July 2024. 3. The Health Secretary is to file a soft copy in Word of the varied Award in the form filed with the application by 4.00pm on Thursday, 12 December 2024. 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: 11 December 2024