Ballina Shire Council Enterprise Agreement "Long Service Leave" Enterprise Agreement [2011] NSWIRComm 101

Industrial Relations Commission New South Wales Medium Neutral Citation: Ballina Shire Council Enterprise Agreement "Long Service Leave" Enterprise Agreement [2011] NSWIRComm 101 Hearing dates: 28 July 2011 Decision date: 29 July 2011 Jurisdiction: Industrial Relations Commission Before: Harrison DP Decision: Agreement approved Catchwords: Enterprise Agreement - Ability to cash out portion of long service leave in excess of entitlement under Long Service Leave Act 1955 at election of employee subject to approval of management Legislation Cited: Industrial Relations Act 1996 Long Service Leave Act 1955 Category: Principal judgment Parties: Ballina Shire Council The Development and Environmental Professional Association (DEPA) The New South Wales Local Government, Clerical, Administrative, Energy, Airlines & Utilities Union (USU) The Local Government Engineers' Association of New South Wales (LGEA) Representation: Ms N Salameh, Local Government Association of NSW (Applicant) Ms C Young, USU Ms A Vasilangos, LGEA File Number(s): IRC 1256 of 2011

DECISION 1The purpose of the Ballina Shire Council Enterprise Agreement Long Service Leave 2011-2014 ("the Agreement") is to allow the cashing out of a proportion of long service leave by arrangement between the employee and the employer. 2Clause 6 of the Agreement provides a schedule detailing the cashing out component and that amount of long service leave which the employee must retain. 3The Long service leave entitlement is that provided by the Local Government (State) Award 2010 370 IG 648 ("the Award") as amended, which is an industrial instrument providing a greater entitlement than that prescribed by the Long Service Leave Act 1955 ("the Long Service Leave Act "). 4Section 7 of the Long Service Act prohibits contracting out of it; s4 prescribes the amount of leave in ss4(2); ss4(8) prohibits the employer from making payment to a worker in lieu of any long service leave or part thereof to which the worker is entitled under the Long Service Leave Act , and further prohibits the worker from accepting any such payment. 5The schedule of leave entitlements to be retained by the employee after any cashing out detailed in clause 6 of the Agreement is in excess of the entitlement prescribed by the Long Service Leave Act and as such does not offend the prohibition to contracting out of the Long Service Leave Act . 6The Agreement is supported by the necessary Statement of Particulars and an affidavit signed by Mr Paul Hickey (Exhibit 1) in his capacity of General Manager, testifying that the agreement complies with the relevant statutory requirements and the no net detriment test; was not entered into under duress; and complies with the principles for approval determined by the Commission. Mr Hickey was not required for cross examination. 7I am satisfied that the material presented to the Commission adequately demonstrates that the Agreement submitted for approval complies with all necessary tests. 8The Ballina Shire Council Enterprise Agreement Long Service Leave 2011-2014 is approved in terms of the application to apply from the first pay period on or after 28 July 2011 and remain in force for a period of three years. 9Matter No IRC 1256 of 2011 is so concluded.