The applicant union filed an application with the Commission under s 80BH of the Industrial Relations Act 1979 (IR Act), to be named as a party to a New State Instrument, the Local Government Industry Award 2020 Industrial Agreement (LGIA). A question arose about the interpretation of s 80BB of the IR Act which sets out provisions about New State Instruments.

New State Instruments were created under the IR Act when local governments transitioned to the State industrial relations system in 2023.

Upon the transition, federal instruments that had applied previously - including the Local Government Industry Award 2020 (LGIA) - become ‘New State Instruments’ and apply to declared employers with the same terms as the previous federal instruments.

The central issue considered by the Commission was whether s 80BB creates one collective New State Instrument applying to all local governments covered by the LGIA or creates separate New State Instruments for each individual local government employer.

The applicant argued that s 80BB creates a single multi-employer New State Instrument, termed the "Local Government Industry Award 2020 Industrial Agreement," collectively applying to all relevant local governments. The applicant relied on the coverage clause of the LGIA, which states it covers employers throughout Australia in the local government industry, to support this collective approach.

Conversely, several local government respondents argued that s 80BB results in separate New State Instruments for each individual employer, each with the same terms as the LGIA. The respondents argued that the singular use of "declared employer” and the objects of the IR Act, which promotes enterprise-level collective bargaining, supported this approach.

The Minister for Industrial Relations intervened to support the respondent’s position.

Senior Commissioner Cosentino found that the legislative context, including references to individual employers in the IR Act and the Fair Work Act 2009, supported the creation of separate new State instruments for each declared employer. The Senior Commissioner concluded that s 80BB refers to a New State Instrument that applies to an individual declared employer and not a collection of multiple declared employers, and that accordingly, a separate New State Instrument is created for each individual local government to whom the LGIA applied immediately to the local government transition.  The Senior Commissioner also concluded that as a consequence of the interpretation of s 80BB, the applicant’s request to be named as a party to a single multi-employer New State Instrument could not proceed, as no such State instrument exists.

The decision can be read here.