LOCAL GOVERNMENT (COVID-19) SPLINTER (INTERIM)
AWARD 2020
INDUSTRIAL RELATIONS
COMMISSION OF NEW SOUTH WALES
Application by Local
Government and Shires Association of New South Wales, Industrial Organisation
of Employers.
(Case No. 107788 of 2020)
Before Commissioner Murphy
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14 April 2020
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AWARD
PART A
1. Arrangement
Clause No. Subject Matter
Part 1 - Application and Operation
1. Title
2. Commencement
and Duration
3. Coverage
4. Industrial
Parties
5. Definitions
and Interpretation
6. Relationship
with the LG (State) Award
Part 2 - Statement of Intent
7. Intention
Part 3 - Dispute Resolution Procedure
8. Grievance
and Dispute Procedure
Part 4 - Anti-Discrimination
9. Anti-Discrimination
Part 5 - Conditions of Employment (General)
10. Operational
Flexibility
11. Employees
Working from Home
Part 6 - Close Down
12. Duty to
Explore Suitable Alternative Duties
13. No Useful
Work
Part 7 - Savings and Transitional
Part 8 - Leave Reserved
Schedule A - Employers covered by this Award
Part 1
APPLICATION
AND OPERATION
1. Title
1.1 This Award shall be known as the Local Government (COVID-19)
Splinter (Interim) Award 2020 ("Award").
2. Commencement and Duration
2.1 This Award commences operation on and from 8 April 2020 and
shall remain in force until 7 April 2021 (12 months).
2.2 This Award ceases to operate on 8 April 2021.
3. Coverage
3.1 This Award shall apply to all employers named in Schedule A and
to all their employees, except for employees whose positions are identified as
senior staff positions pursuant to sections 332 and 334 of the Local Government Act 1993 (NSW).
4. Industrial Parties
4.1 The industrial parties to this Award are:
(a) Local Government NSW;
(b) New South Wales Local Government, Clerical, Administrative,
Energy, Airlines and Utilities Union;
(c) Local Government Engineers’ Association of New South Wales;
(d) Development and Environmental Professionals’ Association; and
(e) Nurses’ and Midwives Association of New South Wales.
5. Definitions and Interpretation
5.1 In this Award, unless the context requires otherwise:
Award means the Local
Government (COVID-19) Splinter (Interim) Award 2020.
COVID-19 means the
coronavirus named "COVID-19" by the World Health Organisation
(previously known as "2019 novel coronavirus") and the disease it
causes.
Job Retention
Allowance means the Job Retention Allowance referred to in clause 13 of this
Award and which is based on the Band 1/Level 2 rate of pay under the LG (State)
Award. The allowance may be a weekly amount or an hourly amount depending on
the context. The hourly amount is either
1/35th or 1/38th of the weekly amount depending on the ordinary hours of work
for the relevant work function at clause 18A of the LG (State) Award for the
employee’s substantive position.
LG (State) Award
means:
(i) the
Local Government (State) Award 2017, as varied from time to time, and any award
that succeeds the Local Government (State) Award 2017;
(ii) the Broken Hill City
Council Consent Award 2015 as varied from time to time, and any award that
succeeds the Broken Hill City Council Consent Award 2015;
(iii) the Goldenfields
Water County Council Enterprise Award 2017 as varied from time to time, and any
award that succeeds the Goldenfields Water County
Council Enterprise Award 2017;
(iv) the Riverina Water
Council Enterprise Award 2019 as varied from time to time, and any award that
succeeds the Riverina Water Council Enterprise Award 2019;
(v) the South Sydney City
Council Salaried Officers Award 2017 as varied from time to time, and any award
that succeeds the South Sydney City Council Salaries Officers Award 2017;
(vi) the South Sydney City
Council Wages Staff Award 2017 as varied from time to time, and any award that
succeeds the South Sydney City Council Wages Staff Award 2017;
(vii) the City of Sydney
Wages/Salary Award 2017 as varied from time to time, and any award that
succeeds The City of Sydney Wages/Salary Award 2017;
(viii) any enterprise agreement
or council agreement made in relation to the abovementioned awards; and/or
(ix) the Wollongong City
Council Enterprise Agreement 2018 - 2021.
Ordinary pay has the
same meaning as under the LG (State) Award.
Salary system rate of pay
means the rate of pay an employee is entitled to receive under their employer’s
salary system in recognition of the skills the employee is required to apply on
the job.
Senior staff has the
same meaning as under the Local Government Act 1993 (NSW) and includes the
general manager of the Council and the holder of all other positions identified
in the employer’s organisation structure as senior staff positions.
Suitable alternative duties include:
duties that are within the limits of an
employee’s skill, competence and training; and/or
duties, whether the same or different,
that have a different span of ordinary hours, different spread of ordinary
hours, or different commencement and/or finishing times that are reasonable and
which take into consideration carers or family responsibilities, provided that
employees make genuine efforts to make themselves available; and/or
duties that involve working a different
number of hours per day or week; and/or
training, including training in areas
unrelated to an employee’s substantive role.
Union means any one or
more of the following organisations:
New South Wales
Local Government, Clerical, Administrative, Energy, Airlines and Utilities
Union ("USU");
Local Government
Engineers’ Association of New South Wales ("LGEA");
Development and Environmental Professionals’
Association ("DEPA"); and
Nurses’ and Midwives Association of New South
Wales.
6. Relationship with the LG (State) Award
6.1 This Award is to be read and interpreted in conjunction with the
LG (State) Award.
6.2 Where there is any inconsistency between this Award and the LG
(State) Award, this Award shall prevail to the extent of the inconsistency.
6.3 Where this Award is silent, the LG (State) Award shall apply
(where applicable).
Part 2
STATEMENT OF INTENT
7. Intention
7.1 This Award puts in place
special interim arrangements in response to the COVID-19 pandemic.
7.2 Where this Award provides
an employer with additional rights which, if exercised by the employer, would
result in employees being worse off under this Award than they would be under
the LG (State) Award or another applicable industrial instrument(s), those
rights may only be exercised as a result of an Order from the State or
Commonwealth Government related to COVID-19 responses and for no other reason.
7.3 Nothing in this Award
prevents changes to working arrangements provided elsewhere under the LG
(State) Award (in accordance with the relevant award provisions), including but
not limited to the following clauses which are currently identified in the
Local Government (State) Award 2017 as subclause 15(x) [Travelling Allowance];
clause 18D [Facilitative Provisions]; clause 22 [Flexibility for Work and
Family Responsibilities]; clause 23 [Phased Retirement]; and clause 27 [Job
Share Employment].
7.4 This Award shall not set
any precedent in relation to award entitlements after its expiry.
Part 3
DISPUTE RESOLUTION PROCEUDRE
8. Grievance and Dispute Procedure
8.1 Clause 35 [Grievance and Dispute Procedures] of the LG (State)
Award shall apply.
Part 4
ANTI-DISCRIMINATION
9. Anti-Discrimination
9.1 Clause 3
(Anti-Discrimination)of the LG (State) Award shall
apply.
Part 5
CONDITIONS
OF EMPLOYMENT (GENERAL)
10.
Operational Flexibility
10.1 The
employer may, due to COVID-19, direct an employee to carry out suitable
alternative duties, provided that such a direction shall not be unreasonable
having regard to the employee’s personal circumstances including any family and
carer responsibilities.
10.2 Where,
due to COVID-19, an employee is directed to perform
suitable alternative duties, the employee, when performing the suitable
alternative duties:
(a) shall
be paid the salary system rate of pay that recognises the skills the employee
is required to apply to those duties, provided that the employee shall not
suffer a reduction in the salary system rate of pay for their substantive
position;
(b) shall
be entitled to allowances, weekend penalties and shift penalties under the LG
(State) Award which are applicable to the suitable alternative duties; and
(c) is
not entitled to allowances, weekend penalties and shift penalties under the LG
(State) Award which are not applicable to the suitable alternative duties.
10.3 An
employer and an employee may agree to the employee taking their accrued annual
leave at half pay through a combination of paid annual leave and leave without
pay. Agreement to a combination of paid annual leave and leave without pay
shall not be unreasonably refused.
10.4 An
employee (other than a casual) with less than five (5) years’ service may, with
the consent of the employer, take long service leave in advance.
11. Employees Working from Home
Spread of Ordinary Hours
11.1 Where working from home under this Award, an
employee shall not be entitled to shift or weekend penalties, unless directed
to work outside their ordinary spread or span of hours.
11.2 Ordinary hours of work shall not exceed
twelve (12) hours in any one day exclusive of unpaid meal breaks.
Home Internet
and Home Computer Related Expenses
11.3 Employees working from home (due to
COVID-19) shall not be entitled to a reimbursement of home
internet and/or home computer related expenses, provided that an employer
shall not unreasonably refuse to reimburse an employee for such expenses where
exceptional circumstances exist and the employee obtains the employer’s prior
approval before incurring the expense.
11.4 Claims for other out-of-pocket expenses
(e.g. stationery) shall be processed in accordance with subclause 15(viii)
[Expenses] of the LG (State) Award and applicable policies of the employer.
11.5 The employer may require proof to justify
payments under this clause.
Part 6
CLOSE DOWN
12.
Duty to Explore Suitable Alternative Duties
12.1 Where,
due to COVID-19, employees are unable to perform their normal duties at their
normal place of work, the employer shall:
(a) explore
opportunities for the affected employees to work from home or from another
location; and/or
(b) provide
the employees with suitable alternative duties where available; and
(c) regularly
review these arrangements.
12.2 Where
an employee can perform their work
duties from home or from another location and/or suitable alternative duties
are available,
and the employee unreasonably refuses to perform such duties, the employee
shall not be entitled to the paid COVID-19 special leave and Job Retention
Allowance provided at clause 13 of this Award. For this subclause to apply, the employee
must have received prior written notice of the consequences of unreasonably
refusing to perform their work duties from home or from another location and/or
from performing suitable alternative duties.
13. No Useful Work
13.1 This
clause applies to permanent full-time employees and permanent part-time
employees only.
13.2 Where,
due to COVID-19, the employer has no useful work for employees, the employer
may temporarily stand down (or partially stand down) the employees, subject to
the following:
Stage 1 - Paid COVID-19 Special Leave, up to
four (4) weeks
13.3 Subject to subclause 13.4, an employee who
is stood down (or partially stood down) under subclause 13.2 shall be entitled
to paid COVID-19 special leave at their salary system rate of pay for four (4)
weeks or until the employer is able to provide the employee with useful work,
whichever occurs first.
13.4 Effective from the operative date applying
to the employer as indicated in Schedule A of the Award, the amount of paid
COVID-19 special leave that an employee is entitled to receive under subclause
13.3 may be absorbed by up to two (2) weeks of paid special leave already
received by the employee from the employer in relation to COVID-19.
Example:
Susan is a
swimming school instructor.
Arising from Public
Health (COVID-19 Restrictions on Gathering and Movement) Order 2020, the pool
where Susan works was required to close.
As a result, Susan’s employer was unable to provide her with useful
work and provided her with two (2) weeks paid special leave.
No suitable
alternative duties are available, and the employer has now decided to
temporarily stand Susan down.
As Susan has
already received two (2) weeks paid special leave in relation to COVID-19,
she is entitled to two (2) weeks paid COVID-19 special leave (instead of four
(4) weeks paid COVID-19 special leave).
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13.5 Paid COVID-19 special leave under subclauses
13.3 and 13.4 may be taken:
(a) in one continuous period; or
(b) two or more separate periods.
13.6 Where an employee is only partially stood
down (i.e. working reduced hours or reduced days) paid COVID-19 special leave
shall be calculated on a pro-rata basis and is only payable on the hours that
the employee is stood down from work.
13.7 Employees may be recalled back to work by
the employer during paid COVID-19 special leave by the giving 24 hours’ notice
or such shorter period of notice as may be agreed.
13.8 Part-time employees shall
be entitled to paid COVID-19 special leave on a pro-rata basis according to the
regular number of hours worked.
13.9 Paid COVID-19 special
leave shall be regarded as service for the purposes of computing entitlements
under the LG (State) Award. Paid
COVID-19 special leave shall also be regarded as ordinary time earnings (OTE)
for the purposes of superannuation guarantee contributions.
Stage 2 -
Job Retention Allowance, up to 13 weeks (3 months)
13.10 An employee who remains stood down (or
partially stood down) under subclause 13.2 and who has exhausted their
entitlement to paid COVID-19 special leave under subclauses 13.3 or 13.4 shall
be paid a Job Retention Allowance at the Band 1 / Level 2 rate of pay under the
LG (State) Award for thirteen (13) weeks or until the employer is able to
provide the employee with useful work, whichever occurs first.
13.11 The Job Retention Allowance under subclause
13.10 may be taken:
(a) in one continuous period; or
(b) two or more periods that together are not
more than thirteen (13) weeks in the aggregate.
13.12 Employees may supplement payment of the Job
Retention Allowance under this Award by applying to take accrued annual leave
or long service leave (including long service leave under 10.4 with the consent
of the employer) at the same time.
Example:
Anthony earns
approximately $2,000/week ($400/day).
Anthony is
entitled to the Job Retention Allowance ($858.20/week as at 8 April 2020) and
has accrued annual and long service leave available for use.
In addition
to receiving the Job Retention Allowance ($858.20/week as at 8 April 2020),
Anthony can apply to take 3 days accrued leave per week, which would bring
his weekly earnings to approximately $2,058.20/week.
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13.13 Where an employee is only partially stood down
(i.e. working reduced hours or reduced days) the Job Retention Allowance shall
be calculated on a pro-rata basis and is only payable on the hours that the
employee is stood down from work.
13.14
(a) Employees may be recalled back to work by
the employer during the period that they are receiving the Job Retention Allowance
by the giving of 24 hours’ notice or such shorter period of notice as may be
agreed.
(b) An employee that is temporarily recalled
back to work under this subclause to perform their normal duties shall be paid
in accordance with the LG (State) Award for the time so recalled.
(c) An employee that is temporarily recalled
back to work under this subclause to perform suitable alternative duties shall
be paid in accordance with subclause 10.2 of this Award for the time so
recalled.
13.15 Part-time employees shall receive the Job
Retention Allowance on a pro-rata basis according to the regular number of
hours worked.
13.16 An employee who is directed to take excess
accrued annual leave and/or long service leave pursuant to the LG (State) Award
shall not be entitled to the Job Retention Allowance whilst on such directed
leave.
13.17 Subject to subclause 13.18, where an employee
is receiving the Job Retention Allowance and is not working, such period shall
not be regarded as service for the purposes of computing entitlements under the
LG (State) Award.
13.18 Periods of paid annual leave and long service
leave count as service for the purposes of computing leave entitlements under
the LG (State) Award and as ordinary time earnings (OTE) for the purposes of
superannuation guarantee contributions.
13.19 The Job Retention Allowance is not ordinary
time earnings (OTE) for the purposes of superannuation guarantee contributions.
Stage 3 - Leave without pay
13.20 An employee who remains stood down under subclause
13.2 and who has exhausted their entitlements to paid COVID-19 special leave
under subclauses 13.3 or 13.4 and the Job Retention Allowance under subclause
13.10 shall be placed on leave without pay until the employer is able to
provide the employee with useful work, provided that if the employee has
accrued annual leave or long service leave available they may take that leave
(including long service leave under subclause 10.4, with the consent of the
employer).
Part 7
SAVINGS AND TRANSITIONAL
14.1 Nothing
in this Award limits the employer’s right to direct employees to take accrued
annual leave and/or long service leave in accordance with the provisions of the
LG (State) Award.
14.2 Nothing in this Award prevents
the employer from providing additional benefits to employees to help mitigate
the adverse effects of COVID-19 on employees.
14.3 If, after the commencement of this Award, an
employer receives new or additional State and/or Commonwealth Government
funding in relation to COVID-19, the employer shall take such funding into
consideration when deciding whether to extend the benefits provided by this
Award or to provide additional benefits to mitigate the adverse effects
of COVID-19 on employees.
Part 8
LEAVE
RESERVED
Leave Reserved
15.1 Nothing in this Award limits the employer’s
right to direct employees to take accrued annual leave and/or long service
leave in accordance with the provisions of the LG (State) Award.
15.2 Leave is reserved for the Parties to the
Award to apply to vary this Award and/or access the Industrial Relations
Commission of New South Wales should a State or Commonwealth Government
assistance/funding package related to COVID 19 be provided to Employers and/or
Employees.
SCHEDULE A
Employers
covered by this Award
A.1 The employers
listed in Table 1 below are the employers covered by this Award, as provided by
clause 3.
A.2 For employers
listed in Column A of Table 1, subclause 13.4 of the Award operates on and from
8 April 2020.
Table 1 - Employers covered by the Award, and operative
date of subclause 13.4
Column A
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(Subclause 13.4
operates on and from 8 April 2020)
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Tweed Shire Council
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Lane Cove Municipal Council
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Albury City Council
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Ballina Shire Council
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Bathurst Regional Council
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Bayside Council
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Bega Valley Shire Council
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Bellingen Shire Council
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Berrigan Shire Council
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Blacktown City Council
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Bland Shire Council
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Blue Mountains City Council
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Bogan Shire Council
|
Bourke Shire Council
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Brewarrina Shire Council
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Burwood Council
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Byron Shire Council
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Cabonne Council
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Camden Council
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Campbelltown City Council
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Canada Bay Council, City of
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Canterbury-Bankstown Council
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Central Tablelands Water County Council
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Cessnock City Council
|
Clarence Valley Council
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Cobar Shire Council
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Coffs Harbour City Council
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Coolamon Shire Council
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Coonamble Shire Council
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Cootamundra-Gundagai Regional Council
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Cowra Shire Council
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Cumberland City Council
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Dubbo Regional Council
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Dungog Shire Council
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Fairfield City Council
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Federation Council
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Gilgandra Shire Council
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Greater Hume Shire Council
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Griffith City Council
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Gunnedah Shire Council
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Gwydir Shire Council
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Hawkesbury City Council
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Hay Shire Council
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Hilltops Council
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Hornsby Shire Council
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Hunters Hill Council
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Inner West Council
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Kempsey Shire Council
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Kiama Municipal Council
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Ku-ring-gai Council
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Lachlan Shire Council
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Leeton Shire Council
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Lithgow City Council
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Liverpool City Council
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Liverpool Plains Shire Council
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Lockhart Shire Council
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MidCoast Council
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Moree Plains Shire Council
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Moree Artesian Aquatic Centre
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Mosman Municipal Council
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Murrumbidgee Shire Council
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Muswellbrook Shire Council
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Nambucca Shire Council
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Narrabri Shire Council
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Narrandera Shire Council
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Narromine Shire Council
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North Sydney Council
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Oberon Shire Council
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Parkes Shire Council
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Parramatta Council, City of
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Penrith City Council
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Port Macquarie-Hastings Council
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Port Stephens Council
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Queanbeyan-Palerang Regional
Council
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Riverina Water County Council
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Rous County Council
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Ryde Council, City of
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Shellharbour City Council
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Shoalhaven City Council
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Singleton Council
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Snowy Monaro Regional Council
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Snowy Valleys Council
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Sutherland Shire Council
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Sydney Council, City of
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Tamworth Regional Council
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Temora Shire Council
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Tenterfield Shire Council
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The Hills Shire Council
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Uralla Shire Council
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Wagga Wagga City Council
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Walcha Shire Council
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Walgett Shire Council
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Warren Shire Council
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Warrumbungle Shire Council
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Waverley Council
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Weddin Shire Council
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Wentworth Shire Council
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Willoughby City Council
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Wingecarribee Shire Council
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Wollondilly Shire Council
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Woollahra Municipal Council
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Yass Valley Council
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J.V. MURPHY, Commissioner
____________________
Printed by the
authority of the Industrial Registrar.