Australia, Aug. 21 -- New South Wales Land and Environment Court issued text of the following judgement on July 21:

1. This is an application filed on 25 June 2025 pursuant to s 34 of the Industrial Relations Act 1996 (NSW) ("Act") by Port Stephens Council ("Council") seeking approval of an enterprise agreement between the Council, the New South Wales Local Government, Clerical Administrative, Energy Airlines and Utilities Union ("USU"), the Local Government Engineers Association of New South Wales ("LGEA"), and Development and Environment Professionals Association ("depa") (collectively, "the parties") which will replace the Port Stephens Council Enterprise Agreement 2022-2025 and prevail over the provisions of the Local Government (State) Award 2023 ("Application").

2. On 11 October 2024, the parties filed a Notification of Intention to Commence Mutual Gains Bargaining pursuant to s 129N of the Act seeking that the Commission act as facilitator for the mutual gains bargaining.

3. The parties are well-experienced in interest based bargaining. The first enterprise agreement between the parties that was made as a result of successful interest-based bargaining was approved by the Commission in 2008. If approved, the enterprise agreement the subject of the Application will be the sixth enterprise agreement made since the parties first engaged in interest based bargaining and, the first made between the parties using mutual gains bargaining in the terms of the Act. The experience and knowledge of the participants and the respect between the parties was obvious in the meetings, which I attended in the capacity of facilitator, and in the manner in which broader negotiations and interactions took place between the parties.

4. After a period of approximately six months of mutual gains bargaining, the parties reached agreement as to the terms of the proposed new enterprise agreement to be known as the Port Stephens Council Enterprise Agreement 2025-2028 ("Agreement").

5. The matter was listed for hearing before me on 17 July 2025. Following the hearing, an amended affidavit, the original of which was not tendered on 17 July 2025, was filed by the USU on 21 July 2025. There being no objection from any of the other parties by 4pm on 21 July 2025, a time having previously been agreed by the parties on 17 July 2025 for any such objection to be made, I accepted the amended affidavit as evidence in support of the Application, in chambers. Having considered all of the material filed by the parties and the information and clarification provided at the hearing, I am satisfied that the material presented to the Commission adequately demonstrates that the Agreement complies with all relevant statutory requirements, including the Anti-Discrimination Act 1977 (NSW) and s 33 of the Act, and the principles set by the Commission in Review of the Principles for Approval of Enterprise Agreements 2021/2022 [2022] NSWIRComm 1005, for the reasons set out below.

Requirements for approval

6. Part 2 of Ch 2 of the Act provides for the making and approval of enterprise agreements. The relevant legislative provisions and principles in respect of Div 2 of Pt 2 of Ch 2 were set out by the President of the Commission, his Honour Justice Taylor, in State Super Enterprise Agreement 2024-2027 [2024] NSWIRComm 8. At [8], his Honour stated:

"8. The Commission needs to satisfy itself that:

(1) the requirements of s 35 have been met, principally, 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: s 35(1)(b);

(2) the agreement can be approved consistent with the Principles for Approval of Enterprise Agreements ("Principles"), which have been set pursuant to s 33, unless the Commission is satisfied that any departure from those Principles would not prejudice the interests of any of the parties to the agreement: s 35(3). The Full Bench last reviewed the Principles on 23 February 2022 in Review of the Principles for Approval of Enterprise Agreements 2021/2022 [2022] NSWIRComm 1005. The current Principles set by the Full Bench are in Annexure A to that decision;

(3) in circumstances where employees are parties to the Agreement the special requirements of s 36 are met; and

(4) the provisions of s 37 which addresses the process of conducting secret ballots for the approval of enterprise agreements have been met."

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/1982b8091dc9dacf349e5bdc)

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