Part 2In this Part:Federal award means an award within the meaning of the Workplace Relations Act 1996 of the Commonwealth.
State award means:
(a) an award made, or taken to be made, by the Commission under this Act, and(b) any order of the Commission under this Act that sets conditions of employment (but not including a dispute order, an order under Part 6 or a stand-down order under section 126), and(c) a determination under section 63 of the Public Sector Management Act 1988, or any similar determination relating to employment in the public sector (including employment with an area health service), and(d) a public sector industrial agreement, and(e) a former industrial agreement, and(f) any other instrument made under this Act, or made under any other Act, relating to conditions of employment that is declared by the regulations to be a State award for the purposes of this Part.
29 Making of enterprise agreements
An enterprise agreement may be made in accordance with this Act setting conditions of employment for employees.
30 Coverage of enterprise agreement
(1) An enterprise agreement may (subject to this Part) be made for any relevant group of employees, including the following:(a) employees of a single employer (whether all employees or a group or category of employees),(b) employees of 2 or more associated employers (whether associated because they are related corporations, because they are engaged in a joint or common venture or because they undertake similar work),(c) employees engaged in a project (including a proposed project),(d) public sector employees (whether employees of all or of one or more authorities or whether all or some of the employees of an authority).(2) An enterprise agreement cannot be made for a group of employees if that group is limited by the agreement only to members of an industrial organisation.
31 Parties to an enterprise agreement
(1) An enterprise agreement may be made between:(a) the employer or employers of the employees for whom it is made, and(b) one or more industrial organisations representing any of those employees.An industrial organisation may represent only employees who are, or are eligible to be, members of the organisation.
(2) An enterprise agreement may also be made between:(a) the employer or employers of the employees for whom it is made, and(b) the employees at the time the agreement is made.Note. Section 36 (4) provides that the agreement must be approved by at least 65% of the employees at a secret ballot. Section 36 (5A) provides that an industrial organisation can become a party to the agreement.(3) A State peak council or an industrial organisation of employers may sign an enterprise agreement on behalf of industrial organisations or of employers and may apply for approval for the agreement. In that case, the industrial organisations or employers on whose behalf the agreement is signed are taken to be parties to the agreement and not the State peak council or the industrial organisation of employers.(4) An industrial organisation of employers may so sign an enterprise agreement on behalf of any employers (whether or not named in the agreement) who may in future employ persons in the project, venture or other industry for which the agreement is made.(5) In the case of an enterprise agreement made under subsection (2), the group of employees from time to time covered by the agreement is taken to be one of the parties to the agreement for the purposes of this Part.
Division 2 Approval of enterprise agreements
32 Enterprise agreement required to be approved
(1) An enterprise agreement does not have any effect unless it is approved by the Commission under this Part.(2) This section extends to an enterprise agreement that varies an earlier agreement.
33 Principles for approval of enterprise agreements
(1) A Full Bench of the Commission is required to set principles to be followed by the Commission in determining whether to approve enterprise agreements.(2) In determining those principles, the Full Bench is to have regard, in particular, to the following:(a) the objects of this Act and the public interest,(b) the relevant criteria for approval imposed by this Part,(c) the need for an appropriate process for approving agreements to be followed by the Commission,(d) the need for an appropriate process for ensuring sufficient information about the effect of the agreement is provided to employees who are to be covered by the agreement,(e) the need for an appropriate negotiating process for the agreement.(3) A Full Bench of the Commission is to review the principles for approval at least once every 3 years.(4) Principles for approval may be set or reviewed on the application of any party that can apply for approval of an enterprise agreement or on the Commission’s own initiative.(5) Industrial organisations are entitled to be notified of any proceedings of a Full Bench under this section and to make submissions on the setting or review of the principles for approval.(6) The Industrial Registrar is to publish the principles for approval on the NSW industrial relations website.(7) Principles for approval are to be set and published under this section within 6 months after the commencement of this Act.
34 Application for approval of enterprise agreement
(1) Application for approval of an enterprise agreement may be made by lodging the agreement with the Industrial Registrar in accordance with this Part and the rules of the Commission.(2) At proceedings of the Commission relating to any such application for approval, the following may appear or be represented:(a) any party to the agreement,(b) an industrial organisation, if its members or persons eligible to become members are affected by the agreement,(c) a State peak council (but only with leave of the Commission),(d) the President of the Anti-Discrimination Board (but only with leave of the Commission).(3) The Commission is to deal with any such application for approval within 28 days, unless it requires additional time to do so because of the special circumstances of the case.
35 Approval of enterprise agreement by Commission
(1) The Commission is to approve each enterprise agreement lodged for approval, but only if the Commission is satisfied that:(a) the agreement complies with all relevant statutory requirements (including the requirements of this Part and of the Anti-Discrimination Act 1977), and(b) 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(b1) 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(b2) 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, and(c) the parties understand the effect of the agreement, and(d) the parties did not enter the agreement under duress.(2) This subsection applies to an enterprise agreement that applies to some but not all the employees of an employer, unless the employees to whom it applies comprise a distinct geographic, operational or organisational unit. The Commission is not to approve such an enterprise agreement if it is satisfied that:(a) the agreement fails to cover employees who would reasonably be expected to be covered, given the nature of the work performed under the agreement and the organisational and operational relationships between the employees covered by the agreement and the remainder of the employees, and(b) it is unfair not to cover the employees excluded from the agreement.(3) The Commission is to follow the principles for approval set under section 33 when deciding whether to approve an enterprise agreement, unless satisfied that any departure from those principles would not prejudice the interests of any of the parties to the agreement.(4) (Repealed)
36 Special requirements relating to enterprise agreements to which employees are parties
(1) An enterprise agreement under which employees are a party is not to be approved unless the requirements of this section have been complied with.(2) Before or at the time the employer first undertakes formal negotiations with the employees for the purposes of an agreement, the employer is to advise the Industrial Registrar in writing of the following:(a) that an enterprise agreement is proposed or under negotiation,(b) the State or Federal awards or enterprise agreements that then apply to the employees.(3) The Industrial Registrar is to advise such persons or bodies as are prescribed by the regulations of the proposed enterprise agreement.(4) The enterprise agreement must be approved in a secret ballot by not less than 65% of the employees who are to be covered by the agreement at the time the ballot is conducted.(5) The Industrial Registrar must, after the enterprise agreement is lodged for approval, prepare a report for the Commission comparing the conditions of employment under the agreement and the conditions of employment that would otherwise apply to the employees under relevant State or Federal awards. If there are no relevant State or Federal awards, the report is to outline any relevant employment conditions of the employees.(5A) The Commission must, by its order, make an industrial organisation a party to the enterprise agreement if it is satisfied that:(a) the industrial organisation represents any of the employees covered by the enterprise agreement, and(b) the industrial organisation has notified the Commission of its intention to become a party to the agreement by lodging a notice to that effect with the Industrial Registrar at any time before the Commission approves of the agreement under this Part, and(c) an employee covered by the agreement is a member of the industrial organisation and has requested the industrial organisation to become a party to the agreement.The Commission may direct that the name of an employee who made that request is not to be disclosed to the employer or other person.
(6) (Repealed)
36A Determination of comparable award for purposes of approval of agreement for employees without award coverage
(1) This section applies to an enterprise agreement that is in the process of being negotiated and that will cover employees to whom no State or Federal award would otherwise apply.(2) A party to any such enterprise agreement may, before making an application for approval of the enterprise agreement under this Part, make a written application to the Industrial Registrar for a determination of the relevant State or Federal award against which the enterprise agreement will be compared for the purposes of the application of the “no net detriment” test in section 35 (1) (b2).(3) The Industrial Registrar must:(a) advise any person or body entitled to be advised of the proposed enterprise agreement under section 36 (3) of the application made under this section, and(b) advise the applicant, any such person or body and the Commission of the relevant State or Federal award determined by the Industrial Registrar.(4) If a determination is made by the Industrial Registrar under this section, the determination applies for the purposes of the application of the “no net detriment” test in section 35 (1) (b2), subject to the result of any appeal under this Act to the Commission against the determination of the Industrial Registrar.(5) If a determination is not made by the Industrial Registrar under this section, the determination of the matter is to be made by the Commission at the time of the application of the “no net detriment” test under section 35 (1) (b2).
37 Secret ballots under this Part
(1) Except as provided by subsection (2), a secret ballot under this Part must be conducted by a person (other than the employer or a person selected by that employer) on behalf of the employees entitled to vote in the ballot, being a person who meets any other requirement that may be imposed by the regulations or the principles established by the Commission.(2) If, within 14 days next following the holding of such a ballot, the Industrial Registrar receives a written complaint from at least 20% of the persons entitled to vote in the ballot alleging specified irregularities in the conduct of the ballot and requesting that a further secret ballot be conducted by an independent person, the Industrial Registrar may (if of the opinion that such action is justified) arrange with the persons concerned:(a) for the conduct of such a further secret ballot, and(b) for evidence of the result of the further ballot to be supplied to the Industrial Registrar.(3) The Commission may adjourn proceedings for the approval of an enterprise agreement if a request is made for a further ballot.(4) The Industrial Registrar may, in any special case, extend the time for receiving a request for a further ballot.(5) The result of a further ballot is to be disregarded if the Industrial Registrar is not satisfied that it has been conducted in accordance with the Industrial Registrar’s directions.
38 Form and content of enterprise agreement
(1) An enterprise agreement is required to be in writing and signed by or on behalf of the parties to it.(2) An enterprise agreement must:(a) identify the parties to the agreement and describe the employees for whom it is made, and(b) set all or some conditions of employment for those employees.(3) If an enterprise agreement does not specify the place or places of employment to which it applies, the agreement applies:(a) to any place of employment at which those employees were employed at the time the agreement was made, and(b) to any other place at which those employees could reasonably be expected to be employed during the currency of the agreement.
39 Mandatory dispute resolution procedures in enterprise agreements
(1) An enterprise agreement is not to be approved unless it contains procedures for the resolution of industrial disputes under the enterprise agreement (dispute resolution procedures).(2) However, an enterprise agreement need not contain dispute resolution procedures if the Commission is satisfied that another relevant agreement or award already does so.(3) Dispute resolution procedures may (but need not) be included in an enterprise agreement if the employer employs fewer than 20 employees.
40 Persons bound by enterprise agreement
An enterprise agreement is binding on:(a) the parties to the agreement, and(b) each employee for whom the agreement is made (whether or not such an employee at the time the agreement was made).
41 Enterprise agreements prevail over State awards
(1) The provisions of an enterprise agreement prevail over the provisions of any State award of the Commission that deal with the same matters in so far as the provisions of the State award apply to a person bound by the enterprise agreement. This subsection is subject to the terms of the enterprise agreement.(2) Nothing in this Part limits the application to an employee bound by an enterprise agreement of any conditions of employment that apply to employees generally under this Act or any other Act.(3) (Repealed)Note. Section 152 of the Workplace Relations Act 1996 of the Commonwealth sets out the circumstances in which the provisions of an enterprise agreement made under this Act will prevail over the provisions of a Federal award that deal with the same matters.
42 Term of enterprise agreement
(1) An enterprise agreement applies for the period specified in it as its nominal term and, after that period, until terminated in accordance with this Part.(2) The nominal term of an enterprise agreement must not be more than 3 years.(3) However, an enterprise agreement made for a project may have a specified nominal term not exceeding the expected duration of the project.(4) An enterprise agreement varying an earlier agreement applies for the residue of the term of the agreement it varies.
43 Variation of an enterprise agreement
(1) An enterprise agreement may be varied at any time by a further enterprise agreement made and approved in accordance with this Part.(2) The parties to the further agreement need not be the same as the parties to the earlier agreement.Note. Section 169 also enables an enterprise agreement to be varied at any time to remove unlawful discrimination.
44 Termination of enterprise agreement
(1) An enterprise agreement can be terminated only in accordance with this section.(2) An enterprise agreement can be terminated at any time with the approval of all the parties to it, whether during or after its nominal term.(3) An enterprise agreement can also be terminated at or after the end of its nominal term by any one of the parties giving at least 3 months’ written notice of intention to terminate to each other party. The notice may be served before the end of the nominal term.(4) In the case of an enterprise agreement in which the employees are a party, the proposed termination of the agreement by the employees must be approved in a secret ballot by not less than 65% of the employees covered by the agreement at the time the ballot is conducted.(5) Termination of the enterprise agreement is not effective until the Industrial Registrar has been given written notice of the approval to terminate or of service of the notice of intention to terminate.
45 Register and publication of enterprise agreements
(1) The Industrial Registrar is to keep a register of all enterprise agreements that have been approved by the Commission, approvals or notices to terminate enterprise agreements, and such other particulars as the Industrial Registrar considers appropriate.(2) The Industrial Registrar is to publish the following details on the NSW industrial relations website of each enterprise agreement as soon as practicable after the agreement is approved:(a) the identity of the parties to the agreement and the description of the employees covered by the agreement,(b) the commencement and the nominal term of the agreement,(c) a statement of whether the agreement is a new agreement or the variation of an earlier agreement.(3) The register of enterprise agreements is to be open for public inspection during ordinary office hours.(4) A person may make copies of any document kept in the register of enterprise agreements on payment of such fee, if any, as is prescribed by the regulations.
46 Notification of enterprise agreements to new employees
Before an employer bound by an enterprise agreement employs a person who will be bound by conditions of employment set by the agreement, the employer must give the person notice of the existence of the agreement and access to a copy or to a summary of the agreement, for perusal by the person, in a language the person understands.Maximum penalty: 10 penalty units.
47 Enterprise agreement conditions—flow-on
When making awards or exercising its other arbitral functions under this Act, the Commission is not to regard conditions of employment set by enterprise agreements as standard conditions of employment for other employees.