South Australian Consolidated Acts South Australian Consolidated Acts79—Approval of enterprise agreement
(1) Except as
otherwise provided, the Commission must approve an enterprise agreement if,
and must not approve an enterprise agreement unless, it is satisfied
that—
(a)
before the application for approval was made, reasonable steps were
taken—
(i)
to inform the employees who are covered by the agreement
about the terms of the agreement and the intention to apply to the Commission
for approval of the agreement; and
(ii)
to explain to those employees, the effect the agreement
will have if approved and, in particular—
• to identify
the terms of an industrial instrument (if any) that currently apply to the
employees and will, if the agreement is approved, be excluded by the
agreement; and
• if the
agreement supersedes an earlier enterprise agreement, to identify the
differences in the terms of the agreements; and
• to explain the
procedures for preventing and settling industrial disputes as prescribed by
the agreement; and
• to inform the
employees of their right to representation in the negotiation, and proceedings
for approval, of the agreement and, in particular, that an employee may be
represented by the Employee Ombudsman, an agent of an employee's choice, or an
association of employees; and
(b) the
agreement has been negotiated without coercion and a majority of the employees
covered by the agreement have genuinely agreed to be bound by it; and
(c) if
the agreement is entered into by a registered association as representative of
1 or more employees bound by the agreement—the Commission is
satisfied (in such manner as it thinks fit) that the association is authorised
to act in accordance with the provisions of this Act; and
(d) the
agreement provides for consultation between the employer and the employees
bound by the agreement about changes to the organisation and performance of
work or the parties have agreed that it is not appropriate for the agreement
to contain provision for such consultation; and
(i)
is, on balance, in the best interests of the employees
covered by the agreement (taking into account the interests of all employees);
and
(ii)
does not provide for remuneration or other conditions of
employment that are inferior to the standards that apply under Part 1 Division
2; and
(iii)
does not provide for remuneration or conditions of
employment that are (considered as a whole) inferior to remuneration or
conditions of employment (considered as a whole) prescribed by an award under
this Act that applies to the employees at the time of the application for
approval; and
(f) the
agreement is consistent with the objects of this Part; and
(g) the
agreement complies with the other requirements of this Act.
(1a) The agreement of
employees to be bound by a proposed enterprise agreement may be indicated by
ballot or in some other way.
(1b) If a ballot of
employees is taken—
(a) the
Commission must be satisfied that—
(i)
all employees were given a reasonable opportunity to
participate in the ballot; and
(ii)
the ballot was conducted in accordance with the rules for
the conduct of ballots (if any) laid down by regulation; and
(iii)
a majority of the employees casting valid votes at the
ballot voted in favour of the proposal; and
(b) if
the Commission is so satisfied, it will be presumed that a majority of the
total number of the employees (including those who did not vote at the ballot)
is in favour of the proposal.
(1c) In deciding
whether an agreement is in the best interests of an employee with a
disability, the Commission must have regard to the Supported Wage System of
the Commonwealth (or any system that replaces it), and any other relevant
national disability standard identified by or under the regulations.
(2) The Commission
must refuse to approve an enterprise agreement if a provision of the agreement
discriminates against an employee because of, or for reasons including, race,
colour, sex, sexual preference, physical or mental disability, marital status,
family responsibilities, pregnancy, religion, political opinion, national
extraction or social origin.
(3) The Commission
must not approve an enterprise agreement if the agreement applies to part of a
single business or a distinct operational or organisational part of a business
and the Commission considers that—
(a) the
agreement does not cover employees who should be covered having regard
to—
(i)
the nature of the work performed by the employees whom
the agreement does cover; and
(ii)
the relationship between that part of the business and
the rest of the business; and
(b) it
is unfair that the agreement does not cover those employees.
(4) In deciding
whether to approve an enterprise agreement, the Commission must identify the
employees (if any) who are covered by the agreement but whose interests may
not have been sufficiently taken into account in the course of negotiations
and must do whatever is necessary to ensure that those employees understand
the effect of the agreement and their interests are properly taken into
account.
(5) Despite
subsection (1)(e)(ii) and (iii), the Full Commission may, on referral of
an enterprise agreement by a member of the Commission who considered the
agreement in the first instance, approve the agreement if the Full Commission
is satisfied that—
(a) a
majority of at least two-thirds of the total number of employees to be covered
by the agreement is in favour of making the agreement; and
(b) the
enterprise is suffering significant economic difficulties; and
(c) the
agreement would make a material contribution to the alleviation of those
difficulties; and
(d)
there are reasonable prospects of the economic circumstances of the enterprise
improving within the term of the agreement; and
(e)
having regard to any relevant award under this Act (which should be considered
as a whole) the agreement does not substantially disadvantage the employees
covered by the agreement.
(6) An
enterprise agreement must also be referred to the Full Commission for approval
if the member of the Commission before whom the question of approval comes in
the first instance is in serious doubt about whether the agreement should be
approved.
(7) If an
enterprise agreement is to be entered into on a provisional basis—
(a) the
prescribed provisions do not apply to its approval under this section; but
(b) the
agreement may only be approved on condition that—
(i)
the agreement is to be renegotiated between the employer
and the group of employees within a period (not exceeding 6 months) the
Commission considers appropriate in the circumstances and fixes on approving
it; and
(ii)
if, in the course of the renegotiation, the employer and
the group 1 reach agreement (either in the same or on different terms), the
agreement is, on its approval under this Part, to take the place of the
provisional agreement and, if agreement is not reached, the provisional
agreement lapses at the end of the period fixed for its renegotiation.
Explanatory note—
The "prescribed provisions" are subsection (1)(a), (b), (c) and
subsections (4) and (5).
(8) If—
(a) the
Employee Ombudsman enters into a provisional enterprise agreement; and
(b) no
registered association is a party to the agreement,
the United Trades and Labor Council may (despite any other provision of this
Act) intervene in proceedings before the Commission relating to the approval
of the agreement if the Commission is satisfied that the United Trades and
Labor Council has a proper interest in the matter.
(9) If the Commission
is of the opinion that grounds may exist for withholding approval of an
enterprise agreement but—
(a) an
undertaking is given to the Commission by one or more of the persons who are
to be bound by the agreement (or by a duly authorised representative on their
behalf) about how the agreement is to be interpreted or applied; and
(b) the
Commission is satisfied that the undertaking adequately deals with the aspects
of the agreement that might otherwise lead the Commission to withhold its
approval,
the Commission may incorporate the undertaking as part of the agreement, or
amend the agreement to conform with the undertaking, and approve the agreement
in its modified form.
(10) Before the
Commission rejects an application for approval for an enterprise agreement on
the ground that its provisions do not meet the criteria for approval, it
should identify the aspects of the agreement that are of concern to the
Commission and allow a reasonable opportunity for the renegotiation of those
aspects of the agreement.
(11) The Commission
may approve an enterprise agreement without proceeding to a formal hearing if
the Commission—
(a) is
satisfied on the basis of documentary material submitted in support of the
application that the agreement should be approved; and
(b) has
given public notice of its intention to approve the agreement in accordance
with the rules.
Note—
1 The group may, if the appropriate authorisation
exists, be represented in the negotiations by an association or associations
of employees—See section 75.