Local Government Engineers’ Association of New South Wales v MidCoast Council (No 2) [2022] NSWIRComm 1069

Local Government Engineers’ Association of New South Wales v MidCoast Council (No 2) [2022] NSWIRComm 1069

The Full Bench held that cl 33.1.a of the Enterprise Agreement did not authorise the Commission to make an order under s 136(1)(d), because the authority required by that provision must be found in legislation and parties cannot confer jurisdiction on the Commission by agreement. The Commission's powers under s 136(1) may be used concurrently but are not interchangeable; an order setting superannuation conditions would in substance be an award and could not be made as an order or direction to bypass the statutory requirements applicable to awards. The Commission also lacked power under s 136(1)(a) to issue a substantive direction setting terms and conditions of employment of the kind...

Jurisdiction
Australia
Judgment Date
23 August 2022
Procedural Posture
Appeal From Decision of Commissioner Muir in an Industrial Dispute Concerning Arbitration Powers Under S 136 of the Industrial Relations Act 1996 / Application for Leave to Appeal and Appeal to Full Bench; Leave Granted; Appeal Dismissed
Outcome
Leave to appeal granted; appeal dismissed.
Legal Topics
['industrial Relations Commission Powers on Arbitration of Industrial Disputes' 'enterprise Agreement Dispute Resolution' 'superannuation Absorbability' 'orders Under S 136(1)(d) of the Industrial Relations Act 1996' 'directions Under S 136(1)(a) of the Industrial Relations Act 1996' 'statutory Construction']
['employment and Industrial Law' 'industrial Relations'] ['industrial Relations Commission Powers on Arbitration of Industrial Disputes' 'enterprise Agreement Dispute Resolution' 'superannuation Absorbability' 'orders Under S 136(1)(d) of the Industrial Relations Act 1996' 'directions Under S 136(1)(a) of the Industrial Relations Act 1996' 'statutory Construction']

Case Brief

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Procedural Posture

Appeal From Decision of Commissioner Muir in an Industrial Dispute Concerning Arbitration Powers Under S 136 of the Industrial Relations Act 1996 / Application for Leave to Appeal and Appeal to Full Bench; Leave Granted; Appeal Dismissed

Legal Issues

  1. 1 ['Whether cl 33.1.a of the MidCoast Council Water Services Enterprise Agreement 2019, referring the matter of superannuation absorbability to the Commission to be dealt with by arbitration, authorised the Commission to make an order for the purposes of s 136(1)(d) of the Industrial Relations Act 1996.' 'Whether the Commission, in arbitrating an industrial dispute, could give a direction under s 136(1)(a) resolving the substantive superannuation issue by setting terms and conditions of employment.' 'Whether Commissioner Muir erred in concluding that the only option open to the Commission in arbitrating the superannuation dispute was to make an award under s 136(1)(b).']

Ratio Decidendi

The Full Bench held that cl 33.1.a of the Enterprise Agreement did not authorise the Commission to make an order under s 136(1)(d), because the authority required by that provision must be found in legislation and parties cannot confer jurisdiction on the Commission by agreement. The Commission's powers under s 136(1) may be used concurrently but are not interchangeable; an order setting superannuation conditions would in substance be an award and could not be made as an order or direction to bypass the statutory requirements applicable to awards. The Commission also lacked power under s 136(1)(a) to issue a substantive direction setting terms and conditions of employment of the kind...

Court Disposition

Leave to appeal granted; appeal dismissed.

Orders

  • ['The Appeal is dismissed.']