Industrial Relations Commission New South Wales Medium Neutral Citation: Local Government and Shires Association of New South Wales v New South Wales Local Government, Clerical, Administrative, Energy, Airlines and Utilities Union [2017] NSWIRComm 1073 Hearing dates: 3 and 4 October 2017 Date of orders: 05 December 2017 Decision date: 05 December 2017 Jurisdiction: Industrial Relations Commission Before: Chief Commissioner Kite SC Decision: The application for primary relief is dismissed. Recommendation made. Catchwords: INDUSTRIAL LAW –New South Wales –awards and agreements – proper construction of clauses – whether employer has a limited discretion to determine pay cycle – whether agreement of employees required STATUTES – acts of parliament – interpretation – Local Government Act 1993 s 354D Legislation Cited: Industrial Relations Act 1996 (NSW) Local Government Act 1993 (NSW) Cases Cited: Amcor Ltd v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241; [2005] HCA 10 George A Bond & Co Ltd (In Liq) v McKenzie 1929 AR (NSW) 498 Goldman Sachs JBWere Services Pty Ltd v Nikolich [2007] FCAFC 120 Kucks v CSR Ltd (1996) 66 IR 182 The Australian Tramway Employees Association v The Prahran and Malvern Tramway Trust and Ors (the Union Badge case) (1913) 17 CLR 680 Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165; [2004] HCA 52 Category: Principal judgment Parties: Local Government and Shires Association of New South Wales (Notifier) New South Wales Local Government, Clerical, Administrative, Energy, Airlines and Utilities Union (Respondent) Representation: Counsel: D Mahendra (Notifier/ Council) A Howell (Respondent) Solicitors: Sparke Helmore Lawyers (Notifier) File Number(s): 2017/00191128 Judgment 1. On 26 June 2017 the Local Government and Shires Association of New South Wales ("notifier") notified an industrial dispute pursuant to s 130 of the Industrial Relations Act 1996 (NSW) ("the Act"). The dispute concerned the proposed transition of some employees of Georges River Council ("the Council") to a fortnightly pay cycle from the weekly cycle they had experienced for many years. The New South Wales Local Government, Clerical, Administrative, Energy, Airlines and Utilities Union ("respondent") represents the interests of council's employees and was named as an interested party to the dispute. 2. A compulsory conference was convened and conciliation took place. The matter was adjourned to the following week to allow the parties to consider the matters raised in conciliation. At the report back on 7 July 2017 it was evident that a conciliated solution could not be achieved. I made directions to prepare the matter for arbitration which was scheduled for 3 and 4 October 2017. The directions included an obligation on the respondent to file a document specifying the relief it sought in the proceedings. The respondent complied with that direction by filing a document entitled "Application for Directions" ("the application"). 3. In the application the respondent sought: "directions/orders that: i. Georges River Council ("the Applicant") maintain a weekly in advance pay cycle and a weekly in arrears pay cycle for all former employees of the former City of Kogarah council who are currently employed by the Applicant ("the relevant employees"); ii. Any other orders, directions, or recommendations that the Commission considers appropriate." 1. A change of appearance was filed on behalf of Georges River Council ("the Council"). Solicitors and counsel now appeared on behalf of the Council in place of the notifier. 2. On 15 September 2017 the Council filed a motion seeking to have the application dismissed and a summons to produce issued by the respondent set aside. The motion alleged that the Commission lacked jurisdiction to make the orders sought in the application. The motion was heard and dismissed on 20 September 2017. 3. The form of the application was subsequently varied by adding at the end of the first paragraph the words "and who do not agree to change that pay cycle". Background 1. On 12 May 2016 the Governor of New South Wales made the Local Government (Council Amalgamations) Proclamation 2016 (the Proclamation), amalgamating the former Local Government Areas of the City of Hurstville and the City of Kogarah to become the Council . 2. As part of the amalgamation, the staff of the two former councils transferred to the Council. Part six of the Local Government Act 1993 (NSW) regulates the arrangements for staff transferred pursuant to an amalgamation. Of particular importance in the current context is section 354D. It provides: 354D Preservation of entitlements of staff members (1) If a staff transfer occurs, the employment of: (a) a transferred staff member, and (b) in the case of a boundary alteration: (i) a remaining staff member of the transferor council, and (ii) an existing staff member of the transferee council, other than a senior staff member, continues on the same terms and conditions that applied to the staff member immediately before the transfer day, subject to section 354E. (2) Subsection (1) applies until other provision is duly made under any Act or law. (3) Neither the contract of employment nor the period of employment of a transferred staff member is taken to have been broken by the transfer for the purposes of any law, award or agreement relating to the employment of that staff member. (4) A transferred staff member is not entitled to receive any payment or other benefit merely because the staff member ceases to be a staff member of the former council. (5) The transfer of a transferred staff member does not affect any accrued rights the staff member had immediately before the transfer, including in relation to recreation leave, sick leave, long service leave and superannuation, but does not entitle the staff member to claim dual benefits of the same kind for the same period of service. (Emphasis added) 1. The terms of section 354E are not relevant in the present context. 2. As the respondent submitted: "It is not in dispute that as a matter of fact, immediately prior to the amalgamation day (and for decades prior to the amalgamation day), Kogarah Council employed certain groups within its workforce (described in the LGSA's dispute notice as outdoor employees and indoor employees) on weekly pay cycles (either weekly in arrears or weekly in advance). The evidence of the union describes employees of Kogarah council having terms and conditions affording a weekly pay cycle going back to 1985." 1. Following the amalgamation the council found itself with three different pay cycles. It sought as a matter of efficiency, to reduce that to a single common fortnightly pay cycle. In pursuit of that purpose Council consulted with staff through a variety of meetings and information sessions. The detail of that consultation need not be set out. It was detailed in the evidence of Ms Fiona Campbell and was not in dispute. 2. The Council also made a number of offers to staff with a view to mitigating any adverse effects of the change of pay cycle. As the council submitted based on the evidence of Ms Campbell: "staff have been offered ways to mitigate any perceived adverse effects of the change (which some staff have accepted) by way of: (i) assisted savings plans whereby Council will facilitate weekly deductions from net pay for the period from 6 July 2017 to 9 November 2017 and then return the money to the relevant employees on 9 November 2017; (ii) interest free loans that may be repaid over 10 fortnights from 15 February 2018 to 21June 2018; (iii) interest free loans that may be repaid over 12 months; and (iv) double pay long service leave whereby an employee may take 1 week of long service leave any be paid for 2 weeks." Issues 1. The respondent contended that the pay cycle was a term or condition of employment. The Council, in response, submitted that, although it may be a term or condition of employment it is prescribed by the Local Government State Award ("the Award") and the Award permits Council to elect either a weekly or fortnightly pay cycle. 2. The respondents reply to the Council's submission had two aspects: 1. the Award allowed the employer to make a once only election whether to adopt a weekly or fortnightly pay cycle and that had already been exercised: and/or 2. for some or all of the relevant employees there was an over award contractual right to a weekly pay cycle. 1. In either case, the respondent submitted, the relevant employees were entitled to preservation of the term or condition of employment in accordance with s 354D The Evidence 1. The Council, as I have already indicated, called Ms Campbell to give evidence. It also relied on an affidavit of Lillian Tiddy, Director – Member Services in the employ of the notifier. Ms Tiddy's evidence was directed to the award history and, in particular, the development of cl 11 – "Payment of Employees" as it presently exists. Ms Tiddy was not required for cross-examination. 2. The respondent called the following witnesses: 1. Daniel John Papps – Legal Special Projects Officer in the employ of the respondent; 2. Irene Nair – Organiser in the employ of the respondent; 3. Ian Leslie Steven Mason – former employee of Kogarah Council (from 2015) and now employed by the Council; 4. David Hanshaw - former employee of Kogarah Council (from 1990) and now employed by the Council; and 5. Craig Stephen Wilson - former employee of Kogarah Council (from 1989) and now employed by the Council 1. Annexed to Ms Nair's statement were a number of items of correspondence including form letters and emails in which employees recorded their beliefs and desires in relation to retaining a weekly pay cycle. Annexed to Mr Wilson's statement was a document entitled "USU Grievance Notification" signed by about 36 employees expressing similar views. 2. Although there is always a question of weight to be attributed to this form of evidence I am prepared to accept that it is evidence at least that a significant number of employees would prefer to retain a weekly pay cycle. I don't doubt the sincerity of view of any of the witnesses called. Their desires are not, however, decisive in this context. 3. As I have earlier noted the Council is desirous of achieving efficiencies and savings. Those efficiencies and savings would allow it to provide a wider array of payroll services to its employees. Ms Campbell was cross-examined about the subject and made clear that she was aiming to provide more pro-active services to staff. The following extract from her cross-examination is indicative of the type of service she had in mind: "Q. What proactive payroll service‑‑ A. At a previous Council, it was common practice for payroll staff to go to the depot every fortnight, and on the other fortnight, to actually go to one of the largest libraries. Staff loved it, they could talk to the payroll team, have a look at their entitlements, any long‑service leave calculations, look at their superannuation, we'd also make sure they had access to a computer down there as well. The other thing that I'd like to see them do is come up with ‑ at the moment with salary sacrificing, we have salary sacrificing arrangements our staff can have options with. We don't provide that proactive information to our staff. It can be going out and visiting with the superannuation people as well, having those one‑on‑one visits, it's doing more of the financial planning workshops or the budget planning workshops and the other thing, part of Georges River Council looking at culture is coming up with a whole remuneration and benefits programme. That's something we don't have at the moment, that's not in existence, that's something we'd be looking at providing with our staff. We currently have self‑service which means staff can log‑on and access what their current leave entitlements are, and accruals. We're not out there showing our employees how you can actually use that system, what benefit is it to you, how could you change your bank details, how do you apply for leave on‑line. The capacity in the current payroll team we're not actually going out there and doing it." 1. While there may be room to argue about the precise calculation of the savings involved I am satisfied that there will be considerable savings to the Council from the introduction of a single pay cycle. 2. The significant feature of the employees' concerns about a change to the pay cycle related to their capacity to budget and plan their expenditure. The genuineness of that concern was corroborated by the various means of mitigating the adverse impact of a change in the pay cycle. Apart from the matters mentioned in paragraph [12] above the Council arranged educational courses on budgeting and financial management. Regrettably those who chose not to take advantage of those offers do not now have the advantage of them. 3. The fundamental question to be determined is whether the "weekly pay cycle" is a term or condition of employment within the meaning of s 354D of the Local Government Act. Term or condition within the meaning of s 354D 1. The respondent submitted that: 1. the terms of s 354D were intended to be and are remedial legislation intended to afford material protections to those employees of a council who are affected by a staff transfer; 2. the expression "terms and conditions" is not defined in the Local Government Act and has no fixed meaning at law; 3. courts and tribunals in Australia (and England) have tended to give the phrase a wide meaning in the context of employment; 4. the phrase ought be understood in the present context as "having a broad extensive meaning, encompassing not only legal rights but additionally the stipulations agreed to or otherwise existing, or that affect the employment of a transferred staff member, that 'applied' to 'the employment' immediately prior to the transfer": picking up the language of Issacs and Rich JJ in The Australian Tramway Employees Association v The Prahran and Malvern Tramway Trust and Ors (the Union Badge case) (1913) 17 CLR 680; 5. an award or contractual entitlement would undoubtedly be a term or condition within the meaning of the section; 6. "the protection afforded by the provision is specifically directed to the state of affairs (ie the terms and conditions) that 'applied' to a particular staff member's employment 'immediately before the transfer day'"; and 7. the "state of affairs" would include awards, contracts and policies in place or applied immediately before the transfer day. 1. This last submission appeared to draw heavily on the Macquarie Dictionary definition of "applied". It was submitted it meant "put to practical use" and "to put to use; employ". I am doubtful that is the correct usage in this context. In my opinion the usage here is the eighth identified by the Macquarie Dictionary of the cognate "apply" i.e. "to have a bearing or reference; be pertinent". 2. If that be correct, "terms and conditions" would have the more restricted meaning of legal rights and obligations. I certainly accept the argument that a contractual or award right would be preserved. 3. In response the Council submitted: 1. the respondent's reliance on s.354D of the Local Government Act is misplaced; 2. the respondent's submissions ignore the fact that the terms and conditions of employment for each of the relevant employees includes the provisions of the Award; 3. the respondent has sought to "cherry-pick" which terms and conditions are caught by s.354D of the Local Government Act , which has caused it to misconstrue the legislation; 4. it is clear that one of the "terms and conditions that applied to the staff member" was the Council's right to change the pay cycle of its employees from weekly to fortnightly (or the reverse); 5. where a council had the right to change a term or condition that applied to a transferred staff member, that right for the council remains because it is part of the "terms and conditions that applied to the staff member". 6. it would be improper to construe s.354D of the Local Government Act as being limited to only those terms and conditions of employment that confer benefits on employees; 7. the rights an employer has under the terms and conditions of employment must also carry through following amalgamation; 8. that is consistent with the respondent's submission that the phrase should be given a broad meaning and, in any event, to read s.354D otherwise would lead to absurd outcomes. 1. I accept the Council's (and the respondent's) submission that the terms and conditions preserved include all of the Award conditions. So the resolution of this issue will turn upon the proper construction of the Award. Before dealing with that it is necessary to consider the contractual position. The respondent correctly observed that awards, at least generally, prescribe minimum conditions of employment and do not proscribe over award contractual conditions. A contractual term? 1. In seeking to establish that employees had the benefit of contractual terms and conditions to a weekly pay cycle, the union tendered a bundle of documents produced under summons by the Council. The summons sought copies of all letters of offer and all contracts of employment of employees of the Council who currently receive their salary or wages on a weekly basis. 2. The respondent relied upon these documents to establish that the weekly pay cycle was indeed a contractual term. Mr Howell, counsel for the respondent, provided a helpful note on the voluminous documents. He noted the bundle was not exhaustive but was illustrative of the relatively standard form of contracts used by the Kogarah Council since about 2002. The note took examples from each year from 2002 to 2016 (except 2005) and secondly extracted quotes from the documents relating to the signatories to the grievance attached to Mr Wilson's statement. 3. Mr Howell went on to submit that: "a reasonable person would understand that by the language of the communications referred to in the above table (the language of offer and acceptance of employment on identified terms), the surrounding circumstances (reflected in the language of the letters themselves, dealing with the appointment to a particular identified position and the terms of that appointment), and the purpose and object of the transaction (confirming the offer and acceptance of employment on identified terms), that the parties intended these documents to create legally enforceable rights and obligations." 1. It will suffice to extract some examples of the language used: 1. First, letters offering employment: • "Congratulations ...Your conditions of employment with Kogarah City Council are in accordance with the Local Government (State) Award 2010. They are as follows ... Salary and Position Grading...The position of XXX is at a rate of XXX gross per week... Payment of Wages All employees are paid on a weekly basis directly into a nominated bank or credit union account. Advice slips are distributed on Thursdays ... Would you please sign the attached letter to acknowledge your acceptance of this offer of employment and the above conditions ..." • "The position is placed at Band 1, Level 2 of the Local Government State Award at an entry rate of $415.60 per week" • "Congratulations ...Your conditions of employment with the Kogarah Council are in accordance with the Local Government (State) Award 2007. They are as follows: ... Salary and Position Grading...The position ... is at a rate of $706.90 gross per week... Payment of Wages All employees are paid on a weekly basis directly into a nominated bank or credit union account. Advice slips are distributed on Thursdays ... Would you please sign the attached Jetter to acknowledge your acceptance of this offer of employment and the above conditions ..." 1. Second, letters of variation; Congratulations ... Your conditions of employment are in accordance with the Local Government (State) Award 2010. They are as follows .... Salary and Position Grading The position of XXX is at a rate of $XXX gross per week ... All other conditions of employment are unchanged and as outlined in your original appointment letter .... Would you please sign the attached letter to acknowledge your acceptance of this offer of employment and the above conditions ..." 1. In each case in which there is express reference to "conditions" it will be observed the opening words refer specifically to the conditions being in accordance with the Award. There then follows a description of key conditions including weekly pay (either in terms such as "all employees are paid on a weekly basis" or by a reference to the rate of wages or salary "per week"). In many cases employees are asked to sign to acknowledge acceptance of the offer of employment and the conditions. 2. Mr Mahendra also provided a note on the bundle of documents. In summary he submitted that : 1. the reference to a rate per week was no more than a description of salary in accordance with the Award which prescribes rates on a weekly basis; 2. such references do not make any promise about a pay cycle; 3. similarly the reference to "all employees are paid on a weekly basis" is merely a description of Council's practice, at the relevant time, adopted in conformity with the Award; 4. the phrases relied upon by the respondent are governed by the clear statement that the employees "conditions of employment with Kogarah City Council are in accordance with the Local Government State Award"; and 5. an analysis of the documents indicate that a total of 39 of 193 employees affected by the change of pay cycle have objected to the change and have done so on the basis of a preference rather than a need. 1. Mr Mahendra cited the decision of the Full Court of the Federal Court of Australia in Goldman Sachs JBWere Services Pty Ltd v Nikolich [2007] FCAFC 120 as authority for the proper approach to contractual construction. In that case Black CJ cited the decision of the High Court in Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165; [2004] HCA 52 at [40]. In the latter case the Court said: [40] This Court, in Pacific Carriers Ltd v BNP Paribas, has recently reaffirmed the principle of objectivity by which the rights and liabilities of the parties to a contract are determined. It is not the subjective beliefs or understandings of the parties about their rights and liabilities that govern their contractual relations. What matters is what each party by words and conduct would have led a reasonable person in the position of the other party to believe. References to the common intention of the parties to a contract are to be understood as referring to what a reasonable person would understand by the language in which the parties have expressed their agreement. The meaning of the terms of a contractual document is to be determined by what a reasonable person would have understood them to mean. That, normally, requires consideration not only of the text, but also of the surrounding circumstances known to the parties, and the purpose and object of the transaction. 1. In my view the reasonable person would have understood these terms, in the context in which they are found, as doing no more than drawing attention to aspects of the Award conditions likely to be of significance to a potential employee. An important aspect of that context is the reference to the Award as providing the conditions of employment. That conclusion is strengthened by the opening words of the next sentence: "They are as follows". The word "They" in this sentence refers to the conditions prescribed by the Award. 2. The sometime requirement to "sign the attached letter to acknowledge your acceptance of this offer of employment and the above conditions" in my opinion does little more than signify that the employee is accepting employment on the Award conditions. One may even debate (as I did briefly with Mr Howell) whether the conjunction "and" connects to the verb "acknowledge" or to the noun "acceptance" i.e. the employee is asked to signify acceptance of the employment and acknowledge the conditions under which it is offered. I don't find it necessary to decide that interesting question of grammar. 3. The respondent's submission that the documents evidence the pay cycle as a condition of employment has even less force when reliance is restricted to the statement of a rate of pay per week. That is the way in which the Award prescribes rates. It does not refer directly to the pay cycle. Nor should such an inference be drawn from the words used. 4. Mr Howell also pointed to the Award requirement, prior to the 1995 change, for agreement as to the pay cycle. He submitted that such an agreement would be expected by the parties to have legal effect. That may be accepted but it does not make that agreement an individual contractual term. The Award is a collective instrument. Agreement was an award requirement. It is an award, not a contractual, obligation. 5. I do not accept that the pay cycle was a term or condition of employment otherwise than in accordance with the terms of the Award. In any event there was a trade-off of that condition for increased rates of pay in 1995 as will be seen. The Award construction 1. Mr Howell submitted that the Award should be construed so as to allow councils to have a once only election as to which pay cycle, weekly or fortnightly, they would adopt. Thereafter a council wishing to change the pay cycle would need to reach agreement with its employees. He pointed to two aspects of the clause in support of this submission. The clause, so far as relevant, provides: 11. Payment of Employees (i) Employees shall be paid either weekly or fortnightly, or any other period by agreement, on a fixed regular pay day. (ii) The employer shall fix a regular payday, between Monday and Friday inclusive. The employer may alter the payday if there is prior agreement with the employees affected and the employees shall not unreasonably withhold their agreement. 1. The first proposition is that the words, read literally, would allow the Council to vacillate between weekly and fortnightly pay cycles. Such a construction would be absurd submitted the respondent. It follows, it submitted, that the election, must be a once only exercise of discretion. I agree the concept of regular or whimsical changes in pay cycles is absurd. It follows that the literal construction is unlikely to be correct. It does not follow that the construction for which the respondent contended is correct. 2. The evidence of Ms Tiddy, which I accept, points to the introduction of the discretion as an offset which, at least in part, justified an increase in rates of pay to employees covered by the Award. In other words the employers paid for the right to have a limited discretion. As The Environmental Health and Building Surveyors Association of New South Wales (HABSA), one of the unions party to the making of the Award by consent, expressed it to their members: "Offsets where certain conditions currently enjoyed are 'handed back' in return for money." 1. Annexure "D" to the affidavit of Ms Tiddy is the decision of the Commission on the making of the Award in 1995. At page 2 of the decision the Commission noted: "with one single award the Application is intended to provide increases in pay which are based on a range of negotiated offsets, common conditions, productivity improvements and Local Government Reform" (Emphasis added) 1. Other annexures to Ms Tiddy's affidavit, being publications by the various employer and employee union parties to the making of the award including HABSA, list the negotiated offsets to include the granting of a discretion to councils to elect to pay weekly or fortnightly. 2. The respondent accepted that current employees continue to benefit from that pay increase. The following exchange took place between the Commission and counsel during submissions: HIS HONOUR: Was that an offset? HOWELL: Yes. As compared to the‑‑ HIS HONOUR: So it's an ongoing advantage to employees. HOWELL: Yes ‑ well, sorry, it is a structural reform that was introduced back in 1995, amongst a wide range of others, which led to‑‑ HIS HONOUR: Salary increases. HOWELL: Yes. And that structural‑‑ HIS HONOUR: And those salary increases still benefit[ed] employees. HOWELL: The structural reform that was reflected in the award, specifically about this issue, has continued thereafter. So to the extent‑‑ HIS HONOUR: And the salary increase had included a component to compensate for that concession by employees through the offset. HOWELL: Yes, I would accept that proposition, but one still has to be cautious about what that offset was. 1. Mr Howell submitted that the construction for which he contended, requiring agreement after the first election by a council, would be subject to the implied requirement that the agreement of the employees would not be unreasonably withheld. It is not explained why that requirement is expressly stated in paragraph (ii) of the clause but must be inferred in paragraph (i), other than implicitly by the respondent's linkage argument discussed below. In my view such a construction would deprive councils of a benefit for which they have paid, and continue to pay. 2. Having regard to the circumstances in which the discretion was granted the better approach is, in my view, to construe the discretion as one which must be exercised reasonably and for the purpose for which it was granted. Thus it does not allow councils, to take an extreme example, to chop and change the pay cycle to annoy employees or their representatives. That would not be a proper exercise of the discretion. Nor would such behaviour promote productivity and efficiency in the operation of councils. The evidence of Ms Campbell illustrates the transitional costs, in time and money, of changing a pay cycle. 3. Such a construction is consistent with the authorities on the construction of awards such as George A Bond & Co Ltd (In Liq) v McKenzie 1929 AR (NSW) 498 at 503-4; Amcor Ltd v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241; [2005] HCA 10 at [96] Kucks v CSR Ltd (1996) 66 IR 182 at 184. Each of those authorities speaks of construing industrial instruments to give effect to their purpose, taking a practical approach and eschewing legal niceties and infelicities of expression. 4. I do not accept that the absurdity suggested by Mr Howell exists on the proper construction of the clause. 5. The second proposition was based upon the second paragraph of cl 11. The respondent linked the obligations in paragraph (i) to pay "on a fixed regular day" and paragraph (ii) "to fix a regular payday" and only alter it with the agreement of employees. That linkage, the respondent submitted, supported the construction that the pay cycle once set could only be changed with the agreement of the employees. 6. I do not accept this construction. First, because, as I have just discussed, it fails to give effect to the evident intention of the parties in agreeing to the discretion. 7. Second, because there is no necessary correlation between the payday and the pay cycle. The payday does not necessarily have to coincide with the beginning or end of a pay cycle. The evidence in this case illustrated that some employees were paid fortnightly, some weekly in advance and some weekly in arrears. 8. Third, the prescriptions have different purposes and different impacts for the employers and employees and therefore different considerations apply to a decision to change one as opposed to the other. One can readily imagine that changing a payday would not be as great or costly an exercise as changing a pay cycle. In this regard it is interesting to note that those awards which preceded the 1995 Award and prescribed a requirement for setting a payday required that it be set by mutual agreement. That obligation was varied in 1995 to require employers, initially, to fix the payday. The change did not, however, rate a mention in any of the union summaries of offsets. It was not even noted as an "other change". 9. Paragraph (ii) requires that employers fix a day between Monday and Friday, so Saturday and Sunday can't be nominated as a payday. No such restriction applies to the pay cycle. The paragraph requires that the payday be regular. No doubt so employees will know when their payday will be and be able to plan accordingly. Once "fixed" the payday can only be changed with the agreement of the employees which agreement is not to be unreasonably withheld. This aspect recognises the different levels of constraint on employers changing pay cycles as opposed to paydays. 10. The obligations in paragraphs (i) and (ii) of cl 11 are independent of each other. 11. I conclude the Award does not, on its proper construction, require the agreement of employees to the adoption of either a weekly or fortnightly pay cycle. 12. It follows that the terms and conditions which applied immediately prior to the transfer day included the right of the Council to choose either a weekly or fortnightly pay cycle. 13. For these reasons, I will not grant the primary relief sought by the respondent. The application for primary relief is dismissed. Jurisdictional Limitations 1. The Council continued to press the jurisdictional arguments raised on its strike out motion. In summary they were: 1. The primary relief sought by the respondent was in the nature of a mandatory injunction and the powers to make orders under ss 136 and 137 of the Act did not extend that far; 2. There is no industrial action taking place so there is no basis to make orders pursuant to s 137. 1. As I have decided, as a matter of merit, to refuse the relief sought by the respondent it is unnecessary for me to decide the jurisdictional arguments. Other relief 1. The secondary aspect of the application sought: "Any other orders, directions, or recommendations that the Commission considers appropriate". 1. In this regard I developed a concern during the evidence that some among the affected employees might be in need of some assistance by way of financial or budgeting courses of the kind earlier arranged by the Council. That concern prompted me to ask some of the witnesses a question as to whether they would be interested in such assistance. Those questions prompted the following: MAHENDRA: Your Honour, I have got a question. I am seeking leave to ask this question. It is something I intended to ask in examination‑in‑chief, and I have no issue with my learned friend cross‑examining in respect of any answer given. It arises from the question that your Honour asked the witness this morning about whether counsel would be prepared to offer ‑ sorry, whether the employee would attend further financial management courses if it was offered, and I just wanted to ask. HIS HONOUR: I will grant you leave to ask it. MAHENDRA: Thank you. HIS HONOUR: You also. HOWELL: Thank you, Chief Commissioner. Q. Ms Campbell, you heard some evidence this morning in respect of whether employees had attended the courses that were offered by council in respect of financial management. Would you please indicate whether or not council would be prepared to offer further courses of a similar nature in respect to financial management? A. Depending on what the recommendation is, we would go back and actually revisit with any employee that had actually elected no financial assistance required and clarify with them that that is still their current circumstance. Additionally to that too we would further offer further budget planning sessions which we ran and financial management sessions, and also assist with any employee that now then put up their hand for some sort of financial assistance to assist with the transition. 1. I regard Council's attitude, reflected in Ms Campbell's answer, as a very proper and fair approach. My assessment of the employees who gave evidence was that they genuinely believed they had a right to maintain their weekly pay and that was significant to them because of the way they approached domestic budgeting. 2. I therefore recommend that Council adopt the approach outlined by Ms Campbell with a view to minimising any financial or emotional stress that may emerge for employees from this change. Costs 1. The parties sought to reserve their position on costs. As presently advised, I do not propose to make any order as to costs. If any party wishes to contend otherwise they are to file a written submission within 7 days of the date of this decision. ********** 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: 05 December 2017