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Enterprise Bargaining in NSW: Step 3

Step 3 - Drafting the Enterprise Agreement

General Information

Once the parties have completed their negotiations (Step 2) and have an understanding of the statutory requirements of the Industrial Relations Act 1996, it is time to draft the enterprise agreement.

(Note: as many negotiations are formally initiated by one party providing the other with a draft enterprise agreement, the information contained in this step can also be used to review the draft document.)

Drafting the agreement

This should not be a difficult task if the parties have kept appropriate documentation during the negotiation process. It should just be a matter of transferring that information into a document that is easily understood by the parties and the employees to be covered by the agreement. It may be merely agreeing to changes to an original draft agreement prepared by one party or another.

A short guide to plain English writing and an outline of clauses required in an enterprise agreement is contained in this step to assist the parties in drafting their document.

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What is "plain English"?

"Plain English is clear straight-forward expression, using only as many words as are necessary. It is language that avoids obscurity, inflated vocabulary and convoluted sentence construction. It is not baby-talk or a simplified version of English language. Writers of plain English let their audience concentrate on the message instead of being distracted by complicated language. They make sure their audience understands the message easily. This means that writers of plain English must vary the way they write their documents according the composition of their audience. For instance, a document can contain a number of technical words and still be plain." Eagleson, RD., Hassall, S., & Jones G., Writing in Plain English, AGPS, 1990.

Please use the checklist provided on the next page, which should assist in ensuring that the draft agreement is in plain English and easily understood by readers.

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A plain English checklist

Principles	_
Is the language used targeting the audience/users?
Is the content and context of the document easily understood?
Are simple words and short sentences used?
Is the meaning/the intention of the document easily understood?
Is the language used in the document consistent in style?
Strategies
Is the document structured in a logical order?
Is the document divided into manageable sections?
Does the document cover the issues? (identify, prioritise, order, focus)
Has the document been distributed to the parties for feedback?
Has the document been checked, tested and reviewed?
Layout
Are the headings used consistent in style?
Are the clauses/paragraphs numbered?
Is the text size consistent in size, font, colour etc
Is the layout consistent?
Remember.....
the audience the document is targeting. to get feedback on the draft document. to test the document (check and revise). that technical terms can be used, provided that they are explained. plain English may not mean fewer words.

Based on Eagleson, RD., Hassall, S., & Jones G., Writing in Plain English, AGPS, 1990

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Form and content of an enterprise agreement

To comply with the Industrial Relations Act 1996, an enterprise agreement must:

• be in writing and signed by or on behalf of the parties to it;
• identify the parties to the agreement;
• identify the enterprise for which the agreement is made;
• identify the employees to be covered by the agreement to which it relates;
• declare that the agreement was not entered into under duress by any party;
• describe the dispute resolution procedures to apply under the enterprise agreement (employers with fewer than 20 employees do not have to include these procedures in their agreement); and,
• specify a term, which may be not more than three years.
• comply with statutory requirements under the Anti-Discrimination Act 1977

Signatories

An enterprise agreement must be in writing and be signed by or on behalf of all parties to the enterprise agreement. (Step 6 in this guide covers how the parties should sign the enterprise agreement).

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Title

It is also usual for an agreement to have a title. Careful consideration should be given to the title. If the agreement covers all employees at an enterprise, it will usually name the enterprise in the title eg. "The Acme Pty Ltd Enterprise Agreement".

If the agreement covers only some employees, it is probably easier if the title also identifies the occupations to be covered eg. "The Acme Pty Ltd Clerical Employees Enterprise Agreement".

Vocational Training

Generally, where the relevant award contains provisions for competency based vocational training and vocational training is provided for by the enterprise agreement, the provisions should be in accordance with the appropriate award conditions.

However, the Commission may approve training provisions which do not accord with the award provisions if these provisions are necessary to meet the operational requirements of the enterprise or any other good reason.

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Possible Contents of an Enterprise Agreement

Hours

• Spread of hours
  
• Shift work
  
• Overtime
  
• Meal breaks
  
• Rest pauses
  
• Weekend work
  
• Public holiday work
  
• Flexible working hours
  
• Rostered days off
  
• Call out
  

• Company philosophy
  
• Productivity and efficiency
  
• Total quality management
  
• Grievance procedures
  
• Counselling & disciplinary procedures
  
• Consultative committee
  
• Introduction of change
  
• Health and safety, first aid
  
• Protective equipment and clothing
  
• Company policy on promotion
  
• Appraisal scheme
  
• Performance contract
  
• Confidentiality of information
  

• Payment of wages
  
• Annualization of wages
  
• Definitions
  
• Classifications/occupations
  
• Part time employees
  
• Casual employees
  
• Rates of pay
  
• Penalty rates
  
• Adjustment of wages
  
• Other payments
  
• Salary packaging
  

• Annual leave
  
• Public holidays
  
• Sick leave
  
• Long service leave
  
• Bereavement leave
  
• Compassionate leave
  
• Jury service
  
• Paid Parental leave
  

• Car
  
• Occupational superannuation
  
• Fringe benefits
  
• Performance pay
  
• Insurance
  

• Career break schemes
  
• Job rotation
  
• Changes to classification structures
  
• Job redesign
  
• Skills analysis/audit
  
• Review of delegations
  
• Competency-based training
  
• Identification of career paths
  
• Training & education
  
• Team work
  
• Working arrangements
  
• Accreditation
  

• Child care facilities
  
• "Working at home" program
  
• Career break scheme
  
• Changes to work patterns
  
• School term work only

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A sample enterprise agreement

Set out below are examples of key clauses that should be included an enterprise agreement. Where possible these clauses have been written so that they can be directly inserted into enterprise agreements.

The XXXX Enterprise Agreement

1. Title of Agreement

The title of this agreement is the {name of business, undertaking or project} Enterprise Agreement.

2. Parties to the Agreement

The enterprise agreement is made in accordance with:

1. the provisions of sections 32 - 47 of the Industrial Relations Act 1996; and,
2. the Principles for approving enterprise agreements as provided by section 33(1) of the Act.

The parties to this enterprise agreement are {name of enterprise employer/s OR employer organisation of behalf of the employer/s} and:

1. {name of the unions/s}.
2. the employees OR representatives of the employees employed by {name of enterprise employer}; OR

3. The Enterprise

The Enterprise for which the agreement was made is {the name of the enterprise/project, location if necessary}

4. Intention

This agreement shall only apply to employees in the {name trades/occupations} identified, situated at the following location/s {name location/s}:

5. Duress

This agreement was not entered into under duress by any party to it.

6. Incidence

The agreement shall regulate {totally/partially} the terms and conditions of employment previously regulated by the {name Award/s} State Award/s.

{Insert for partial coverage ONLY} Apart from clauses specified in this agreement all other clauses of the {Award(s)}shall apply.

7. Dispute Resolution Procedure

Employers with more than 20 employees must include provisions outlining dispute resolution procedures in the agreement. The steps contained in the disputes procedure should be negotiated between the parties. Below is a suggested outline of the steps that could be included in the disputes procedure:

• that reasonable time limits be set for discussion at each stage;
• that normal work continue while the procedure is being followed;
• that if the matter has not been resolved at the conclusion of the discussion, the employer must provide a response to the employees' grievance, including reasons for not implementing any proposed remedy;
• that in a dispute between employers and their employees each party may be represented by their respective industrial organisations; and,
• that if the dispute cannot be resolved by the parties, the NSW Industrial Relations Commission is notified as required by the Industrial Relations Act 1996.

8. Term

This agreement shall operate from the date of registration and shall remain in force for a period of {months/years} unless varied or terminated earlier by the provisions provided by the Industrial Relations Act 1996.

9. Consultative Mechanisms

If it is appropriate, an enterprise agreement should contain mechanisms to facilitate the establishment of consultative mechanisms and procedures appropriate to the size, structure and needs of the enterprise of consultation on matters affecting their efficiency and productivity. In this clause, these mechanisms could be outlined.

10. Anti-Discrimination

1. It is the intention of the parties to this agreement to seek to achieve the object in s 3(f) of the Industrial Relations Act 1996 to prevent and eliminate discrimination in the workplace. This includes discrimination on the grounds of race, sex, marital status, disability, homosexuality, transgender identity, age and responsibilities as a carer.
2. It follows that in fulfilling their obligations under the dispute resolution procedure prescribed by this agreement the parties have obligations to take all reasonable steps to ensure that the operation of the provisions of this agreement are not directly or indirectly discriminatory in their effects. It will be consistent with the fulfilment of these obligations for the parties to make application to vary any provision of the agreement which, by its terms or operation, has a direct or indirect discriminatory effect.
3. Under the Anti-Discrimination Act 1977, it is unlawful to victimise an employee because the employee has made or may make or has been involved in a complaint of unlawful discrimination or harassment.
4. Nothing in this clause is to be taken to affect:
   (a) any conduct or act which is specifically exempted from anti-discrimination legislation;
   (b) offering or providing junior rates of pay to persons under 21 years of age;
   (c) any act or practice of a body established to propagate religion which is exempted under s 56(d) of the Anti-Discrimination Act 1977;
   (d) a party to this agreement from pursuing matters of unlawful discrimination in any State or federal jurisdiction.
5. This clause does not create legal rights or obligations in addition to those imposed upon the parties by the legislation referred to in this clause.

   NOTES
   (a) Employers and employees may also be subject to Commonwealth anti-discrimination legislation.
   (b) Section 56(d) of the Anti-Discrimination Act 1977 provides:

   "Nothing in the Act affects ... any other act or practice of a body established to propagate religion that conforms to the doctrines of that religion or is necessary to avoid injury to the religious susceptibilities of the adherents of that religion."

6. Enterprise Agreement - Possible Contents

   The chart on page 15 contains examples of the types of issues which could be covered by an enterprise agreement. The conditions of employment covered by an actual enterprise agreement will obviously be determined in negotiations at the particular workplace. (It should be noted however, that the enterprise bargaining principles also require that the parties consider matters such as workplace reform, productivity and efficiency in their negotiations).

   Signatories to the Agreement
   Signed for and on behalf of {Name of Business, Undertaking or Project}
   Signature
   Printed Name and Occupation
   Common Seal of Company (if applicable)
   Date

   and,

   Signed for and on behalf of the {Name(s) of Union(s)}
   Signature
   Printed Name and Occupation
   Date

   or

   Signed by {list of employees}
   Signature
   Printed Name and Occupation
   Date
   

   or,

   Signed for and on behalf of employees by the {nominated employees/employees or Consultative Committee}
   Signature
   Printed Name and Occupation
   Date

   Please refer to Step 6 to find more about the signatories to the enterprise agreement.

   Option 1 - the union/s Option 2 - the employees Please proceed to Step 4.