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Enterprise Bargaining in NSW: Step 6

Step 6 - Signing the Agreement

General Information

For an enterprise agreement to have legal force it must be signed by or on behalf of all parties.

This sometimes presents difficulties to the parties. For example, who signs the agreement if the employer party is a large corporation?

Who signs the agreement if an industrial organisation is representing the employees? If children of the employer work at the enterprise are they employees and should they sign the agreement?

This section will answer questions like these.

How to identify an "employee"

An employee is defined in Section 5 of the Act as "a person employed in any industry whether on salary or wages or piece rates".

This definition includes:

• part-time, casual and temporary employees, as well as apprentices;
• a person working under a contract for labour only (or substantially for labour only;
• a person who is a lessee of any tools or other implements of production;
• an outworker;
• a person paid wholly or partly by commission (eg. salesperson, insurance agent).

Close family members such as wives employed by husbands or children employed by parents are not considered to be employees under the Industrial Relations Act 1996.

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How to identify the "employer"

An employer is defined in the Act as " a person who employs an employee within the meaning of the Act:

1. whether the person is an individual, a corporation, an incorporated body or the State;
2. whether the person does so on the person's own behalf or on behalf of some other person."

What is an industrial organisation of employees?

Under the Industrial Relations Act 1996 organisations known as trade unions are called "industrial organisations of employees". For an industrial organisation to be a party to an enterprise agreement it must be registered under the Industrial Relations Act 1996.

Legal Entities - Who can sign

It is important to ensure that the agreement is executed properly. Applicants should make sure the legal entity which is a party to the enterprise agreement is accurately described. Under the enterprise agreement legislation, legal entities may be:

• the employees to be covered by the agreement;
• one or more trade unions representing the employees
• an individual employer;
• a group of two or more associated employers;
• a group of employers engaged on a project;
• an employer association acting on behalf of the employer.

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Individual Employees

The Principles for approving an enterprise agreement state that where an enterprise agreement has been approved by individual employees in a secret ballot, one or more employees may be nominated by the employees to sign the agreement on behalf of all the employees covered by the agreement.

Industrial Organisations

Only NSW registered industrial organisations may be party to NSW enterprise agreements. Industrial organisations should sign in accordance with their registered rules.

Where an enterprise agreement is signed by a State peak council or an industrial organisation of employers on behalf of the enterprise employer(s), the parties to the enterprise agreement is the enterprise employer(s) not the peak council or the industrial organisation.

Option 1 - the union/s Option 2 - the employees Please proceed to Step 7.