Industrial Relations Commission New South Wales Medium Neutral Citation: Tweed Shire Council Preserved Sick Leave Enterprise Agreement 2020 [2020] NSWIRComm 1032 Hearing dates: 21 April 2020 Date of orders: 21 April 2020 Decision date: 23 April 2020 Jurisdiction: Industrial Relations Commission Before: Commissioner Webster Decision: The Tweed Shire Council Preserved Sick Leave Enterprise Agreement 2020 is approved. The previous enterprise agreement between the parties EA 17/02 is rescinded. Catchwords: EMPLOYMENT AND INDUSTRIAL LAW – awards and agreements – application for approval of enterprise agreement – preserved sick leave payout entitlements – flexibility to use sick leave before retirement – inclusion of clause to enable leave to be taken in unusual circumstances, such as major floods, pandemics or operational close downs – previous enterprise agreement rescinded - enterprise agreement approved Legislation Cited: Anti-Discrimination Act 1977 (NSW) Industrial Relations Act 1996 (NSW) Cases Cited: Re Review of the Principles of Approval of Enterprise Agreements 2015 [2015] NSWIRComm 24 Review of the Principles for Approval of Enterprise Agreements 2018 [2018] NSWIRComm 1064 Category: Principal judgment Parties: Local Government New South Wales (LGNSW)(Applicant) Tweed Shire Council (party to agreement) The New South Wales Local Government, Clerical, Administrative, Energy, Airlines & Utilities Union (party to agreement) Development and Environmental Professionals' Association (party to agreement) Representation: R Nassif, Local Government and Shires Association of NSW S Richmond, Tweed Shire Council N Martin, New South Wales Government, Clerical, Administrative, Energy, Airlines & Utilities Union A Vasilangos, Local Government Engineers Association (also appearing on behalf of the Development and Environmental Professionals' Association) File Number(s): 2020/112378 Publication restriction: Nil Judgment 1. This is an application by Local Government New South Wales (LGNSW) as an Industrial Organisation for Employers, pursuant to s 34 of the Industrial Relations Act 1996 (NSW) (Act) seeking approval of an enterprise agreement made under Pt 2 Div 1 of the Act between Tweed Shire Council on the one hand and the New South Wales Local Government, Clerical, Administrative, Energy, Airlines & Utilities Union (USU), Development and Environmental Professionals' Association (depa) and the Local Government Engineers Association (LGEA) on the other (Enterprise Agreement). 2. The hearing of the application took place on 21 April 2020. Mr Nassif appeared on behalf of Tweed Shire Council and although unable to appear due to videolink technical issues, Ms Suzanne Richmond, Executive Manager People, Communication and Governance of the Tweed Shire Council was available to assist the Commission with the application. 3. Mr Martin appeared for the USU and Ms Vasilangos for the LGEA and also on behalf of depa. 4. According to cl 1.1 of its terms, the Enterprise Agreement is to be known as the Tweed Shire Council Preserved Sick Leave Enterprise Agreement 2020. Clause 4.1 provides that the Enterprise Agreement shall apply to employees employed prior to 15 February 1993, with continuous service of employment since that date, who have a preserved entitlement under Council Policy for the payout of untaken sick leave upon age of retirement. 5. The Enterprise Agreement provides at clause 8.1 that the intent of the Enterprise Agreement is to "create flexibility in the options available to staff, whilst at the same time assisting to manage Council's leave liability reserves." Clause 8.2 provides that the flexibility contemplated by the Enterprise Agreement enables Council to offer eligible employee the opportunity to buyout preserved sick leave in advance or retirement; or to take all or some preserved sick leave as a weekly salary in unexpected or unusual circumstances such as major floods, pandemics or operational close downs. 6. The Enterprise Agreement will come into operation from the first pay period after 21 April 2020 and has a nominal term of 3 years. 7. The Enterprise Agreement is signed by Mr Troy Green, General Manager of the Tweed Shire Council, Mr Graeme Kelly, General Secretary of the USU, Mr Ian Robertson, Secretary of depa and Ms Alycia Vasilangos, Principal Industrial Officer of the LGEA. 8. The application is supported by the necessary Statement of Particulars and a document titled "A Comparison Statement" analysing the Local Government (State) Award 2017 (the Award) against the Enterprise Agreement. 9. In support of the application, LGNSW read an affidavit sworn by Mr Troy Green, General Manager of Tweed Shire Council dated 14 April 2020. In his affidavit Mr Green deposed as follows: 1. the Enterprise Agreement will prevail over the provisions of the Award to the extent of any inconsistency; 2. the Enterprise Agreement complies with all relevant statutory requirements, including section 27 of the Act (Prohibition on cashing-in of accumulated sick leave); 3. the Enterprise Agreement complies with all relevant statutory requirements, including the Anti-Discrimination Act 1977 (NSW); 4. the Enterprise Agreement does not, on balance, provide a net detriment to employees covered by it when compared with the aggregate package of conditions of employment which would otherwise apply under the Award; 5. the parties understand the effect of the Enterprise Agreement; 6. the parties did not enter into the Enterprise Agreement under duress; 7. the Enterprise Agreement complies with the Commission's Principles for Approval of Enterprise Agreements (Re Review of the Principles of Approval of Enterprise Agreements 2015 [2015] NSWIRComm 24). 1. Mr Nolan and Ms Vasilangos confirmed the support of the USU, depa and LGEA for the application for approval of the Enterprise Agreement. 2. I am satisfied on the material presented to the Commission that the Enterprise Agreement submitted for approval complies with all necessary statutory tests and the principles set by the Commission pursuant to s 33 of the Act in Review of the Principles for Approval of Enterprise Agreements 2018 [2018] NSWIRComm 1064. 3. After the hearing of the application to approve the Enterprise Agreement, the parties requested, by consent, that the Commission order that the previous enterprise agreement relating to preserved sick leave entitlements between the parties be rescinded. I have decided that it is appropriate that the previous agreement, identified as EA 17/02 is rescinded and I so order. 4. The Tweed Shire Council Preserved Sick Leave Enterprise Agreement 2020 is approved in accordance with s 35 of the Act. In accordance with its terms the Enterprise Agreement will operate from the first pay period after 21 April 2020 and will remain in force for a period of 3 years. Janine Webster Commissioner ********** Amendments 23 April 2020 - Complete decision uploaded 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: 23 April 2020