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Enterprise Bargaining in NSW: Step 7

Step 7 - Completing the application form

General Information

Two forms need to be completed in order to lodge an enterprise agreement. They are:

• Form 14 - Application for approval of enterprise agreement;
• Form 43 - General Form of Affidavit.

The format for both forms (and Form 15 "Notification of Proposed Enterprise Agreement") can be found at the back of the guide (see Appendix 5).

How to complete Form 14 - Application for approval of Enterprise Agreement

One of the parties to the enterprise agreement should complete this form and lodge it at the NSW Industrial Registry at the address shown above.

Who will be responsible for completing the application should be discussed by the parties at the time of negotiating agreement. As a general rule, the party who initiated negotiations, or has the most experience with applications before the Commission will be the party responsible for completing the paperwork.

For example, if an employer was negotiating an agreement with a trade union representing the employees, the union would usually have more experience with filing applications before the Commission.

However, if the agreement is between the employer and his/her individual employees, it is likely that the employer would be better placed to lodge the application than the employees.

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Statement of Particulars

Form 14 requires that a statement of particulars, outlining the details of the agreement be completed. Below is an explanation of what should be contained in that statement.

1. State the nominal term of the agreement.
2. If the agreement varies an earlier enterprise agreement, supply the agreement number and the expiry date.
3. Set out the names, in full, of the awards, former industrial agreements or other instruments that currently apply to the work covered by the proposed agreement.
   You should be familiar with the relevant awards by now. If not, please contact the Award Enquiries Service Centre on telephone 13 16 28.
   
4. State whether the agreement covers:
   
   1. employees of a single employer;
   2. employees of two or more associated employers ( if so, give details of association)
   3. employees engaged in a project ( if so, give details of the project, including its expected life)
   4. public sector employees.
5. State whether the agreement covers all or some of the employees at the enterprise.
6. If the agreement is with individual employees, provide the following information:
   
   1. When notice was given to the Industrial Registrar that an agreement was proposed or under negotiation. Give the registration number, if known.
   2. Details of the secret ballot to approve the agreement, including the date of the ballot, the method of voting, the name and address of the returning officer and the results of the ballot.
7. The following information is collected for statistical purposes. Please provide details of:
   
   1. the percentage of female employees covered by the enterprise agreement;
   2. the percentage of employees from a non-English speaking background covered by the enterprise agreement;

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How to complete Form 43 - General Form of Affidavit

This form can be completed by the same party who completed Form 14.

If the individual employees are the applicant, a selected representative of the individual employees should complete the affidavit.

Comparison and Compliance Statement - Rule 41 of the Industrial Relations Act 1996

A sworn statement should accompany the affidavit containing the following information:

1. the award or awards (if any) which the agreement will prevail over if approved, or any enterprise agreement which will be rescinded and replaced by the agreement if approved;
2. information regarding how:
   
   1. the agreement complies with relevant statutory requirements, including the Anti-Discrimination Act 1977, and
   2. a comparison of the agreement with the relevant awards, showing that the agreement does not, on balance, provide a net detriment to employees covered by the agreement when compared with the aggregate package of conditions of employment under the applicable awards, and
   3. the parties understand the effect of the agreement, and
   4. the parties did not enter into the agreement under duress, and
   5. the agreement complies with any principles set by the Commission under section 33.
   
   If the agreement does not meet the requirements of the Principles it must be shown how departure from the principles does not prejudice the interest of any of the parties to the agreement; and
3. a comparison of conditions of employment under the agreement and those under relevant awards, or if there are no such awards, under the relevant employment conditions.
4. Where an agreement does not cover all employees of the employer, the affidavit must also state the basis on which it is contended that the Commission may approve the agreement.

The Industrial Relations Act 1996 also requires the Industrial Registrar, after an enterprise agreement is lodged for approval, to prepare a report for the Commission comparing the conditions of employment under the agreement and the conditions that would other wise apply to the employees under a relevant state or federal award.

Determination of a Comparable Award for the purpose of approving an enterprise agreement for employees without any award coverage.

If an enterprise agreement is being negotiated with employees that are not covered by any relevant state or federal award, any party to the proposed agreement, prior to an application being made to approve the agreement, can make a written application to the Industrial Registrar to make a determination for a comparable award for the purpose of the "No Net Detriment" test.

Once a decision is made and a comparable award is identified, the Industrial Registrar must notify all relevant parties of the decision. If the Registrar does not make a determination, then this is reported back to the parties, and the final decision will then be with the Commission at the time of the application of the "No Net Detriment" test.

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Lodgment

The forms, together with the signed enterprise agreement should be lodged at the Industrial Registry at:
50 Phillip Street, SYDNEY NSW 2000.

Option 1 - the union/s Option 2 - the employees Please proceed to Step 8.