A Full Bench of the NSW Industrial Relations Commission handed down its review of the principles for approval of NSW Enterprise Agreements (the Principles). In essence, the modifications made by the Commission represent a relatively slight adjustment to the form and language of the Principles established in Re Principles for Approval of Enterprise Agreements (1996) 94 IR 363. The more substantive changes include the incorporation of:

• a standard anti-discrimination clause similar to that found in awards as a result of the general order made by the Commission in State Wage Case 1999;
• dispute resolution procedures;
• reference to "equal remuneration for men and women doing work of equal or comparable value under the agreement" in the preamble.

The Principles also clarify:

• What the Commission might examine if the agreement does not cover all relevant employees in an enterprise;
• The 'no net detriment test' operates in accordance with s35(1) of NSW Industrial Relations Act 1996; and
• The conditions that apply for a secret ballot to occur.

The new Principles operate on and from 22 December 2000 until further order of the Commission. A copy of the Principles is attached. The decision Re Review of the Principles for Approval of Enterprise Agreements 2000 is available www.austlii.edu.au.

Reviewed Awards

 A number of sector-wide awards have been reviewed by the NSW Industrial Relations Commission in accordance with the provisions of section 19 of the Industrial Relations Act 1996. Sector-wide award reviews that have been finalised are :

Crown Employees (Scientific Officers - Various Agencies) Award
Crown Employees (Administrative and Clerical Officers - Salaries 2000) Award.
Crown Employees (Skilled Tradesmen) Award. (See Premier's Department PSMO Circular 2000-78.)
Crown Employees (Veterinary Officers) Award
Crown Employees (Transport Drivers) Award
Crown Employees (Security & General Services) Award
Crown Employees (Storemen) Award
Crown Employees (Wages Staff) Rates of Pay Award 1998. Arising from the review of this award the Crown Employees (Common Wage Points) Award was rescinded as an award in its own right and attached as a schedule to the Crown Employees Wages Staff (Rates of Pay) Award
The Crown Employees (Common Salary Points) Award has also been rescinded as an award in its own right and the Crown Employees (Public Service Salaries January 2000) Award has been varied to include the Common Salary Points Award as a schedule to this award.

Copies of these awards can be obtained from the Public Sector Management Office.

C Gellatly
Director General

Issued: Employee Relations, PSMO
Contact: Julieanne Mahony
Telephone: (02) 9228 3597
Email: [email protected] 
Date: 7 February 2001
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Partly superseded by C2002-73
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ANNEXURE A

Re Review of the Principles for Approval of Enterprise Agreements 2000 [2000] NSW IRComm 250

PRINCIPLES

1. Preamble
1.1 The following principles are to be applied by the Commission pursuant to s33(1) of the Industrial Relations Act 1996 ("the Act"), in determining whether to approve enterprise agreements unless it is satisfied, in accordance with s35(3) that any departure from these principles would not prejudice the interest of any parties to the agreement.

1.2 These Principles take effect from the date of this decision and remain in force until varied by the Commission in accordance with the Act.

1.3 In deciding whether to approve an enterprise agreement, the Commission, in accordance with s146(2) of the Act, must take into account the objects of the Act, including whether the enterprise agreement provides equal remuneration for men and women doing work of equal or comparable value under the agreement.

1.4 The Principles embody matters related to the negotiation and processing of agreements, criteria for approval and seek to ensure that agreements and the processes which lead to agreements are appropriate and, having regard to the particular circumstances and needs of the employees to be covered by the agreement, the agreement complies with the Anti-Discrimination Act 1977.

1.5 In particular, the terms and conditions of employment in a proposed agreement must not unlawfully discriminate, either directly or indirectly, on the grounds of sex, race, marital status, homosexuality, age, disability or transgender identity.

2 Criteria for approval of enterprise agreements
2.1 Parties must demonstrate to the satisfaction of the Commission that they have followed all the requirements for approval, including:

(a) involvement of the parties and/or their representatives in negotiation processes;
(b) the parties understand the nature and effect of the agreement;
(c) the parties did not enter the agreement under duress;
(d) that all relevant employees are covered by the agreement; and
(e) that the agreement does not breach relevant statutory requirements, including the requirements of Ch 2, Pt 2 (Enterprise Agreements) of the Act and the Anti-Discrimination Act 1977.

2.2 When the Commission is considering an enterprise agreement under s35(2) of the Act, the Commission may also have regard to:

(a) the wishes of the parties;
(b) the award coverage of employees not covered by the proposed agreement;
(c) the history of industrial regulation at the enterprise or workplace; and
(d) other matters the Commission considers relevant.

2.3 Where a secret ballot is required pursuant to s36(4) of the Act, the conditions of the ballot shall require that:

(a) a returning officer be a person who is not the employer or a person selected by the employer;
(b) to be eligible to vote, the person must be an employee who is to be covered by the agreement at the time the ballot is conducted;
(c) each eligible employee is able to vote only once in a ballot;
(d) the employees were able to vote in secret;
(e) time/times were fixed for the ballot which enabled all eligible employees the opportunity to vote where practicable;
(f) the ballots were secure until counting commenced;
(g) the returning officer count and declare the result of the ballot; and
(h) ballots be retained until after the agreement is processed by the Commission.

The conditions of the ballot should usually include that:

(i) each ballot form be initialled by the returning officer;
(j) counting not commence until the ballot closed; and
(k) scrutineers may observe the count of the ballot papers.
In addition, the Commission may inspect the ballot papers.

2.4 The Commission, in accordance with s35(1) of the Act, is to satisfy itself that:

(a) in the case of an agreement that covers employees to whom State awards would otherwise apply 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, and
(b) in the case of an agreement that covers employees to whom Federal awards would otherwise apply the employees are not disadvantaged in comparison to their entitlements under the Federal awards, and
(c) in the case of an agreement that covers employees to whom no State or Federal award would otherwise apply the agreement does not, on balance, provide a net detriment to the employees when compared with the aggregate package of conditions of employment under a State or Federal award that covers employees performing similar work to that performed by the employees covered by the agreement.

In determining the 'no net detriment' test, in accordance with s35(1)(b), the Commission should have regard to:

(a) the benefits and conditions applying under the proposed enterprise agreement in comparison to those applying under the relevant award/s;
(b) the conditions in the proposed enterprise agreement being considered as an aggregate package;
(c) provisions in the Occupational Health and Safety Act 1983 and regulations directly relevant to the change in work patterns to be performed under the agreement;
(d) the needs and circumstances of the enterprise;
(e) the wishes of the parties to the agreement;
(f) any other matters the Commission considers relevant. 
Furthermore, in determining the 'no net detriment' test, in accordance with s35(1)(b), and without derogating from the above, the Commission shall have special regard to:
(g) test case decisions of the NSW Industrial Relations Commission;
(h) State decisions setting principles or provisions pursuant to s51 of the Act;
(i) minimum sick leave provisions for awards as prescribed under s26 of the Act; where such provisions or principles are found in the relevant award/s or which apply to awards generally.

2.5 An enterprise agreement should, where appropriate, facilitate the establishment of consultative mechanisms and procedures appropriate to the size, structure and needs of the enterprise for consultation on matters affecting their efficiency and productivity.

2.6 In accordance with s39 of the Act, an enterprise agreement may be required to contain dispute resolution procedures. The Commission is to have regard to whether those dispute resolution procedures facilitate the resolution of industrial disputes concerning discrimination in employment on a ground to which the Anti-Discrimination Act, 1977 applies.

2.7 (a) Where the relevant award contains provisions for competency based vocational training, and vocational training is provided for in an enterprise agreement, it shall be in accordance with those provisions.
(b) Notwithstanding the terms of Principle 2.7(a), the Commission may approve training provisions which do not accord with the award provisions to meet the operational requirements of the enterprise or for any other good reason.

3 Process for approving agreements to be followed by the Commission
3.1 The Commission, in accordance with s169(1) of the Act, must take into account the principles of the Anti-Discrimination Act 1977 when exercising its functions under these Principles including having regard to whether the enterprise agreement contains an anti-discrimination clause as referred to in Re Review of the Principles for the Approval of Enterprise Agreements 2000 [2000] NSW IRComm 250 at [11].

3.2 In approving enterprise agreements in accordance with the Act and Principles, the Commission may approve an agreement by way of an informal process. However, parties may be required to address the Commission on all matters required under the Act and Principles.

3.3 For the purpose of s38(1) of the Act, where an enterprise agreement has been approved by a secret ballot pursuant to s36(4) of the Act, one or more employees may be nominated by the employees to sign the agreement on behalf of all the employees to be covered by the agreement.

3.4 The responsibility for lodging the Comparison and Compliance Statement, pursuant to Rule 41 of the Industrial Relations Commission Rules 1996, rests with the applicant, provided that where individual employees are the applicant, it shall be sufficient that a selected representative of the employees files the required statement.

4 Process ensuring sufficient information
4.1 During the negotiation of the agreement, consultative processes should be structured such that they encourage participation of all groups and categories of employees, which may include part-time and casual employees.
The negotiation process should therefore ensure that:

(a) reasonable steps are taken to consult all employees who are to be covered by the agreement about the agreement;
(b) reasonable steps are taken so that employees who are to be covered by the agreement have an understanding of the agreement and its effect;
(c) employees are informed of the intention to have the agreement approved by the Commission and the consequences of the Commission's approval;
(d) employees have access to the proposed agreement and the relevant award/s; and
(e) employees have had reasonable time to seek advice independent from the employer eg. including relevant industrial organisations of employees.

5 Appropriate negotiating process
5.1 Where the parties have agreed to negotiate an agreement, they should attend meetings they have agreed to attend, provide documentation they have agreed to provide, and comply with agreed or reasonable negotiating procedures.

5.2 In negotiations for a proposed enterprise agreement, the parties will consider matters such as workplace reform, productivity and efficiency.