Rules of the Australian Industrial Relations Commission (Amendment) (Cth)

No judgment structure available for this case.

Statutory Rules 1995

No. 284 1

__________________

Rules of the Australian Industrial Relations Commission 2(Amendment)

I, deirdre frances o’connor, President of the Australian Industrial Relations Commission, make the following Rules under the Industrial Relations Act 1988.

Dated 28 September 1995.

DEIDRE O’CONNOR

President

____________

1.Commencement

1.1 These Rules commence on 2 October 1995.

2.Amendment

2.1 The Rules of the Australian Industrial Relations Commission are amended as set out in these Rules.

3.Rule 30A (Application for certification of agreement)

3.1 Omit the rule, substitute:

RULE 30A APPLICATION FOR CERTIFICATION OF AGREEMENT THAT APPLIES ONLY TO A SINGLE BUSINESS, PART OF A SINGLE BUSINESS OR A SINGLE PLACE OF WORK
“(1)
An application to the Commission under subsection 170MA (4) of the Act for the certification of an agreement that applies only to a single business, part of a single business or a single place of work must be:
(a)
in accordance with Form R6; and
(b)
accompanied by a copy of the memorandum of agreement signed by the parties to the agreement.
“(2)Each party to the agreement must lodge with the application a statutory declaration in accordance with Form R6AA made by a person authorised by the party to do so.
“(3)On the Commission fixing the time and place for hearing of the application, a Registrar must give notice, as directed by the Commission, of the time and place so fixed to:
(a)
the parties to the agreement; and
(b)
other interested persons and organisations of employees as the Commission may direct.
RULE 30AA APPLICATION FOR CERTIFICATION OF AGREEMENT THAT DOES NOT ONLY APPLY TO A SINGLE BUSINESS, PART OF A SINGLE BUSINESS OR A SINGLE PLACE OF WORK
“(1)
An application to the Commission under subsection 170MA (4) of the Act for the certification of an agreement that does not only apply to a single business, part of a single business or a single place of work must be:
(a)
in accordance with Form R6AB; and
(b)
accompanied by a copy of the memorandum of agreement signed by the parties to the agreement.
“(2)
Each party to the agreement must lodge with the application a statutory declaration made by a person authorised by the party to do so.
“(3)
The statutory declaration must:
(a)
either:
(i)
identify the dispute in settlement, part settlement or prevention of which the agreement is made, and the matters that are being settled by the terms agreed; or
(ii)
identify the facts on which it is asserted that the agreement is between parties to an industrial situation and is for preventing the situation from giving rise to an industrial dispute between them; and
(b)
indicate whether each of the requirements of section 170MC of the Act necessary for certification of the agreement has been met (including whether circumstances exist that result in one or more of the requirements in subsection 170MC (1) of the Act not having been met) and the facts on which that opinion is based; and
(c)
deal with each of the requirements of section 170MC of the Act in a separate numbered paragraph that identifies the part of the section to which the opinion and facts referred to in that paragraph relate; and
(d)
identify each award referred to in paragraph 170MC (1) (a) of the Act (including each State award) that:
(i)
regulates the wages and conditions of employment of the employees covered by the agreement; and
(ii)
binds their employer, or their respective employers; and
(e)
state the number of employees covered by the agreement; and
(f)
state the number of employees covered by the agreement who are included in each of the following classes:
(i)
women; or
(ii)
persons whose first language is not English; or
(iii)
persons under the age of 21 years; or
(iv)
Aboriginal or Torres Strait Islanders; or
(v)
disabled persons; or
(vi)
part-time employees; or
(vii)
casual employees; and
(g)
state whether any employees covered by the agreement (other than employees referred to in paragraph (f)) may be relevant employees for the purposes of subsection 170MG (2) of the Act; and
(h)
state the number and category of employees identified for the purposes of paragraph (g); and
(i)
state whether the employees referred to in paragraphs (f) and (g) were:
(i)
consulted about the agreement; and
(ii)
informed about the matters referred to in subsection 170MG (3) of the Act;
and, if so, by what means; and
(j)
identify any employees whose interests may not have been taken into account in the negotiations; and
(k)
state whether the agreement provides for any of its terms to be varied during the period of operation specified in the agreement; and
(l)
state whether the agreement constitutes a closed agreement, in that the agreement provides for no further wage or salary increases during the period of operation specified in the agreement, including increases from sources such as award variations or decisions of the Commission, other than increases that are consistent with the terms of the agreement.
“(4)
On the Commission fixing the time and place for hearing of the application, a Registrar must, as directed by the Commission, give notice of the time and place so fixed to:
(a)
the parties to the agreement; and
(b)
other interested persons and organisations of employees as the Commission may direct.”.

4.Rule 30G (Application for approval of implementation or variation of enterprise flexibility agreement)

4.1 Paragraph 30G (1) (a):

Omit the paragraph, substitute:

“(a)
by way of a statutory declaration made in accordance with Form R8 by a person authorised by the employer to do so; and”.

4.2 Subrule 30G (2):

Omit the subrule.

4.3 Subrule 30G (3):

Omit the subrule.

5.Schedule

5.1 Form R6:

Omit the Form, substitute:

“FORM R6

Rule 30A

Industrial Relations Act 1988

AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

APPLICATION FOR CERTIFICATION OF AGREEMENT THAT APPLIES ONLY TO A SINGLE BUSINESS, PART OF A SINGLE BUSINESS OR A SINGLE PLACE OF WORK

IN the matter of:

[insert title of matter and original dispute number(s)]

Application is made under subsection 170MA (4) of the Act by [insert the name of the applicant(s)] for the certification of the attached memorandum of agreement reached in settlement (or part settlement) of this matter.

I (We) seek to have this application heard in [insert appropriate capital city].

* [Insert name of member of Commission] has assisted in facilitating the making of this agreement.

Dated 19 .

............................................

Signature of applicant(s)

Note: In respect of each party to the agreement, the application must be accompanied by a statutory declaration in accordance with Form R6AA.

* Omit if inapplicable.

SCHEDULE—continued

FORM R6AA

Subrule 30A (2)

Industrial Relations Act 1988

AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

STATUTORY DECLARATION IN RESPECT OF AN APPLICATION FOR CERTIFICATION OF AN AGREEMENT THAT APPLIES ONLY TO A SINGLE BUSINESS, PART OF A SINGLE BUSINESS OR A SINGLE PLACE OF WORK

An original signed statutory declaration and four copies of the declaration must be lodged with the application, together with an original signed agreement and four copies of the agreement, at an office of the Australian Industrial Registry in a State or Territory.

Each party to the agreement must complete a separate statutory declaration.

Answer all questions as directed.

If the space provided is insufficient, attach a separate sheet clearly marked with the relevant part number.

I, [insert name, address and occupation], do solemnly and sincerely declare as follows:

TITLE OF AGREEMENT

..............................................................................................................

Part 1: About the business

1.1. Name of business or place of work covered by this agreement

......................................................................................................................

SCHEDULE—continued

1.2. Address of the place of work, or at which the business is carried out

.......................................................................................................................

1.3. Does this agreement apply only to a part of a single business?

YES/NO? (If NO, proceed to Part 2.)

If YES, is the part of the single business a geographically distinct part or a distinct operational or organisational unit within the single business?

YES/NO? (If YES, proceed to Part 2.)

If NO, indicate the grounds why the Commission should not consider that:

(i) the agreement defines that part of the single business in a way that results in the agreement not covering employees whom it would be reasonable for the agreement to cover

.......................................................................................................................

.......................................................................................................; and

(ii) it is unfair for the agreement not to cover those employees (See subsection 170MD (7).)

.......................................................................................................................

Part 2: About the Employer(s)

2.1. Full name of employer(s)

..............................................................................................................

SCHEDULE—continued

2.2. Please include trading name(s) (if any)

..............................................................................................................

2.3. Full address

..............................................................................................................

..................................................................................................................................................................POSTCODE..............................

2.4. Contact person for receipt of hearing details concerning application (someone with authority to speak about the agreement on behalf of the employer(s))

Full name

..............................................................................................................

Position

..............................................................................................................

Address of contact person

..............................................................................................................

................................................................POSTCODE..................

Telephone number (business hours)

(

).............................................

Facsimile number

(

).............................................

SCHEDULE—continued

Part 3: About the Employee Organisation(s) party to the Agreement

3.1. Name(s) of organisation(s) of employees that is/are party to this agreement

.............................................................................................................

..............................................................................................................

Part 4: Involvement of Employee Organisations

4.1. Do the parties to the agreement include each organisation of employees that is party to the award(s) (including State awards) that is/are binding on the employer(s) and regulate(s) the wages and conditions of employment of the employees covered by the agreement?

YES/NO

(If YES, proceed to Part 5.)

If NO, identify the organisation(s) of employees not party to the agreement?

.......................................................................................................................

4.2. Did any such organisation of employees not party to the agreement have members employed in the business, part of a business or place of work concerned?

YES/NO

(If NO, proceed to Part 5.)

SCHEDULE—continued

4.3. Was each organisation of employees not party to the agreement, but with members employed in the business, part of a business or place of work concerned, given the opportunity to be a party to the agreement?

YES/NO

If YES, specify the opportunity given

.......................................................................................................................

...................................................................................................................... .

Part 5: About the Employees

5.1. Does the agreement apply only to a new business, project or undertaking and has no one yet been employed in connection with the business, project or undertaking?

YES/NO

(If YES, proceed to Part 6.)

If NO, state the total number of employees covered by the agreement at the time of signing

..............................................................................................................

5.2. Does the agreement include employees who might be relevant employees within the meaning of subsection 170MG (2) of the Act? (See 5.3 for examples of employees who might be relevant employees.)

YES/NO

(If NO, proceed to 5.4.)

5.3. Of the total number, how many employees are

women?

...................

persons whose first language is not English?

..................

SCHEDULE—continued

under the age of 21 years?

..................

Aboriginal or Torres Strait Islanders?

...................

disabled persons?

...................

part-time employees?

...................

casual employees?

....................

persons belonging to other

categories of relevant employees?

....................

5.4. Were reasonable steps taken during negotiations for the agreement to consult employees (including relevant employees) covered by the agreement about the agreement, and in the case of relevant employees, in ways that were appropriate having regard to their particular circumstances and needs?

YES/NO

If YES, please specify the steps taken

..............................................................................................................

5.5. Were reasonable steps taken:

(i) to inform employees (including relevant employees) who are covered by the agreement about the terms of the agreement and, in the case of relevant employees, in ways that were appropriate having regard to their particular circumstances and needs?

YES/NO

SCHEDULE—continued

If YES, please specify the steps taken

..............................................................................................................

(ii) to explain to employees (including relevant employees) the effect of those terms and, in the case of relevant employees, in ways that were appropriate having regard to their particular circumstances and needs?

YES/NO

If YES, please specify the steps taken

..............................................................................................................

(iii) to explain to employees (including relevant employees) the procedures for preventing and settling disputes between the employers and employees covered by the agreement about matters arising under the agreement and, in the case of relevant employees, in ways that were appropriate having regard to their particular circumstances and needs?

YES/NO

If YES, please specify the steps taken

..............................................................................................................

SCHEDULE—continued

(iv) to inform employees (including relevant employees) of the intention to apply to the Commission to certify the agreement and about the consequences of certification and, in the case of relevant employees, in ways that were appropriate having regard to their particular circumstances and needs?

YES/NO

If YES, please specify the steps taken

..............................................................................................................

5.6. Identify any employees whose interests may not have been sufficiently taken into account in the negotiations for, and in being informed of the terms of, the agreement.

..............................................................................................................

Part 6: About the Agreement

6.1. Identify the dispute in settlement, part settlement or prevention of which the agreement is made.

C No......................of

199... ; OR

Identify the facts on which it is asserted that the agreement is between parties to an industrial situation and is for preventing the situation from giving rise to an industrial dispute between them.

..............................................................................................................

SCHEDULE—continued

6.2. What is/are the name(s) of (all) the award(s) (including State awards) regulating the wages and conditions of employment of the employees covered by the agreement?

.............................................................................................................

..............................................................................................................

6.3. Does the agreement disadvantage the employees covered by the agreement in the context of their terms and conditions of employment as a whole?

YES/NO

6.4. Please identify, by referring to specific clauses in the agreement, any reductions in entitlements or protections of the employees under any award or other law.

(If there are no reductions proceed to 6.7.)

.......................................................................................................................

6.5. Please identify, by referring to specific clauses in the agreement, any benefits in entitlements or protections of the employees under the agreement.

.......................................................................................................................

SCHEDULE—continued

6.6. Indicate any other grounds on which the Commission should not consider, in the context of the employees’ terms and conditions of employment as a whole, any reduction(s) to be contrary to the public interest.

.......................................................................................................................

6.7. Does the agreement include procedures for preventing and settling further disputes between the employers and employees covered by the agreement about matters arising under the agreement?

YES/NO Clause .....................................................

6.8. Does the agreement establish a process for the parties to the agreement to consult each other about matters involving changes to the organisation or performance of work in any place of work to which the agreement relates?

YES/NO Clause ...................................................

If NO, have the parties agreed that it is not appropriate to consult each other about matters involving changes to the organisation or performance of work in any place of work to which the agreement relates?

YES/NO

6.9. Does the agreement provide for any of its terms to be varied during the period of operation specified in the agreement?

YES/NO Clause

6.10. Does the agreement constitute a closed agreement in that the agreement provides for no further wage or salary increases during the period of operation specified in the agreement, including increases from sources such as award variations or decisions of the

SCHEDULE—continued

Commission, other than increases that are consistent with the terms of the agreement?

YES/NO

6.11. Has the agreement been negotiated, on the one hand, by each employer concerned or a representative of the employer, and on the other hand, by a single person or group of persons representing all the other parties to the agreement?

YES/NO

6.12. What is the period of operation of the agreement?

..............................................................................................................

6.13. Has the agreement ended a bargaining period? (See paragraph 170PN(a) of the Act.)

YES/NO

If YES, indicate the bargaining case number(s) of the bargaining period(s) ended?

C No.................................. of 199.........

SCHEDULE—continued

SIGNATURE OF PARTY

And I make this solemn declaration by virtue of the Statutory Declarations Act 1959, and subject to the penalties provided by that Act for the making of false statements in statutory declarations, conscientiously believing the statements contained in this declaration to be true in every particular.

.............................................................................. 1

Declared at the

day of 19 .

Before me,

.............................................................................. 2

.............................................................................. 3

In the case of an organisation of employees that is party to the agreement, include the following:

Contact person for receipt of hearing details concerning application (someone authorised by the organisation to speak about the agreement on behalf of the organisation)

Full Name

.......................................................................................................................

Position

.......................................................................................................................

SCHEDULE—continued

Address of contact person

.......................................................................................................................

.............................................................. POSTCODE...................................

Telephone number (business hours)

(

).............................................

Facsimile number

(

).............................................

1Signature of person making the declaration.

2Signature of person before whom the declaration is made.

3Insert title of person before whom the declaration is made.

___________

SCHEDULE—continued

FORM R6AB

Rule 30AA

Industrial Relations Act 1988

AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

APPLICATION FOR CERTIFICATION OF AGREEMENT THAT DOES NOT ONLY APPLY TO A SINGLE BUSINESS, PART OF A SINGLE BUSINESS OR A SINGLE PLACE OF WORK

IN the matter of:

[insert title of matter and original dispute number(s)]

Application is made under subsection 170MA (4) of the Act by [insert the name of the applicant(s)] for the certification of the attached memorandum of agreement reached in settlement (or part settlement) of this matter.

The agreement covers [insert number of employees] employees of whom:

[insert number of employees] are women; and

[insert number of employees] are persons whose first language is not English; and
[insert number of employees] are persons under the age of 21 years; and
[insert number of employees] are Aboriginal or Torres Strait Islanders; and

[insert number of employees] are disabled persons; and

[insert number of employees] are part-time employees; and

[insert number of employees] are casual employees.*

Dated 19 .

..................................................

Signature of applicant(s)

SCHEDULE—continued

Note: In respect of each party to the agreement, the application must be accompanied by a statutory declaration of the type described in subrule 30AA (3).

* If the agreement covers employees of the category referred to in paragraph 30AA (3) (g), state the number of employees in each category.”.

5.2 Form R8:

Omit the Form, substitute:

“ FORM R8

Rule 30G

Industrial Relations Act 1988

AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

APPLICATION FOR APPROVAL OF IMPLEMENTATION OF AN ENTERPRISE FLEXIBILITY AGREEMENT UNDER SECTION 170NA OR VARIATION OF AN AGREEMENT UNDER SECTION 170NM

An original signed application and four copies of the application must be lodged at an office of the Australian Industrial Registry in a State or Territory together with an original signed agreement and four copies of the agreement.

Answer all questions as directed. If the space provided is insufficient, attach a separate sheet clearly marked with the relevant part number.

I, [insert name, address and occupation], do solemnly and sincerely declare as follows:

SCHEDULE—continued

TITLE OF AGREEMENT

..........................................................................................................................................................................................................................................................................................................................................

Part 1: About the enterprise

1.1. Name of business or place of work covered by this agreement

............................................................................................................................................................................................................................

1.2. Address of the place of work, or at which the business is carried out

..............................................................................................................

Part 2: About the Employer

2.1. Is the employer a constitutional corporation carrying on an enterprise to which the agreement applies?

YES/NO

2.2. Is the instrument of agreement about matters pertaining to the relationship between employers and employees?

YES/NO

2.3. Full name of employer

..............................................................................................................

SCHEDULE—continued

2.4. Please include trading name(s) (if any)

..............................................................................................................

2.5. Full address

..............................................................................................................

................................................................POSTCODE..................

2.6. Contact person for receipt of hearing details concerning application (someone with authority to speak about the agreement on behalf of the employer)

Full name

..............................................................................................................

Position

..............................................................................................................

Address of contact person

..............................................................................................................

.................................................................POSTCODE.................

Telephone number (business hours):

(

).........................................................

Facsimile number

(

).........................................................

Part 3 : About the Employees

3.1. State the total number of employees covered by the Agreement at the time of signing.

..............................................................................................................

SCHEDULE—continued

3.2. Does the agreement include employees who might be relevant employees within the meaning of subsection 170NG (2) of the Act? (See 3.3 for examples of employees who might be relevant employees.)

YES/NO (If NO, proceed to 3.4.)

3.3. Of the total number, how many employees are

women?

...................

persons whose first language is not English?

...................

under the age of 21?

...................

Aboriginal or Torres Strait Islanders?

...................

disabled persons?

...................

part-time employees?

...................

casual employees?

....................

persons belonging to other

categories of relevant employees?

....................

3.4. Were reasonable steps taken during negotiations for the agreement to consult employees (including relevant employees) covered by the agreement about the agreement and, in the case of relevant employees, in ways that were appropriate having regard to their particular circumstances and needs?

YES/NO

If YES, please specify the steps taken

..............................................................................................................

SCHEDULE—continued

3.5. Were reasonable steps taken:

(i) to inform employees (including relevant employees) who are covered by the agreement about the terms of the agreement and, in the case of relevant employees, in ways that were appropriate having regard to their particular circumstances and needs?

YES/NO

If YES, please specify the steps taken

..............................................................................................................

(ii) to explain to employees (including relevant employees) the effect of those terms and, in the case of relevant employees, in ways that were appropriate having regard to their particular circumstances and needs?

YES/NO

If YES, please specify the steps taken

..............................................................................................................

SCHEDULE—continued

(iii) to explain to employees (including relevant employees) the procedures for preventing and settling disputes between the employers and employees covered by the agreement about matters arising under the agreement and, in the case of relevant employees, in ways that were appropriate having regard to their particular circumstances and needs?

YES/NO

If YES, please specify the steps taken

..............................................................................................................

(iv) to inform employees (including relevant employees) of the intention to apply to the Commission to approve implementation of the agreement and about the consequences of approval and, in the case of relevant employees, in ways that were appropriate having regard to their particular circumstances and needs?

YES/NO

If YES, please specify the steps taken

..............................................................................................................

3.6. Identify any employees whose interests may not have been sufficiently taken into account in the negotiations for, and in being informed of the terms of, the agreement.

..............................................................................................................

SCHEDULE—continued

3.7. Have the majority of the persons who, as at the end of a day that is specified in this application and is not more than 7 days before the day when this application was made, were employees covered by the agreement, on or before the specified day, genuinely agreed to be bound by the agreement, even if they so agreed at different times?

YES/NO

Part 4: Involvement of Employee Organisations

4.1. Identify any organisation of employees that is an eligible union, being an organisation of employees that is a party to an award that binds the employer in respect of work performed in the enterprise and of which one or more employees whom the employer employs to perform work in that enterprise are members.

..............................................................................................................

4.2. Has each organisation of employees that is an eligible union:

(i) been notified of the negotiations leading to the agreement before, or as soon as practicable after, the time when negotiations for the agreement began?

YES/NO

If YES, specify the steps taken

..............................................................................................................

SCHEDULE—continued

(ii) been given a reasonable opportunity to take part in the negotiations and to agree to be bound by the agreement?

YES/NO

If YES, specify the opportunity given

..............................................................................................................

4.3. Has any organisation of employees that was an eligible union agreed by written notice to be bound by the agreement?

YES/NO

If YES, indicate each organisation of employees that has agreed to be bound

..............................................................................................................

Part 5 : About the Agreement

5.1. What is/are the name(s) of (all) the federal award(s) regulating the wages and conditions of employment of the employees covered by the agreement?

..............................................................................................................

SCHEDULE—continued

5.2. Does the agreement cover all of the employees:

(i) in respect of whom wages and conditions of employment are regulated by one or more awards that bind the employer?

YES/NO

(ii) whom the employer employs to perform work in that enterprise?

YES/NO

5.3. Does the agreement disadvantage the employees covered by the agreement in the context of their terms and conditions of employment as a whole?

YES/NO

5.4. Please identify, by referring to specific clauses in the agreement, any reductions in entitlements or protections of the employees under any award or other law. (If there are no reductions proceed to 5.7.)

.......................................................................................................................

5.5. Please identify, by referring to specific clauses in the agreement, any benefits in entitlements or protections of the employees under the agreement.

.......................................................................................................................

SCHEDULE—continued

5.6. Indicate any other grounds on which the Commission should not consider, in the context of the employees’ terms and conditions of employment as a whole, any reduction(s) to be contrary to the public interest.

.......................................................................................................................

5.7. Does the agreement include procedures for preventing and settling further disputes between the persons bound by the agreement about matters arising under the agreement?

YES/NO Clause........................................................

5.8. Does the agreement establish a process for the persons bound by the agreement to consult each other about matters involving changes to the organisation or performance of work in any place of work to which the agreement relates?

YES/NO Clause......................................................

If NO, have the persons bound by the agreement agreed that it is not appropriate to consult each other about matters involving changes to the organisation or performance of work in any place of work to which the agreement relates?

YES/NO

5.9. Does the agreement provide for any of its terms to be varied during the period of operation specified in the agreement?

YES/NO Clause

5.10. Does the agreement constitute a closed agreement in that the agreement provides for no further wage or salary increases during the period of operation specified in the agreement, including increases from sources such as award variations or decisions of the

SCHEDULE—continued

Commission, other than increases that are consistent with the terms of the agreement?

YES/NO

5.11. What is the period of operation of the agreement?

..............................................................................................................

SIGNATURE OF APPLICANT

And I make this solemn declaration by virtue of the Statutory Declarations Act 1959, and subject to the penalties provided by that Act for the making of false statements in statutory declarations, conscientiously believing the statements contained in this declaration to be true in every particular.

.............................................................................. 1

Declared at the

day of 19 .

Before me,

.............................................................................. 2

.............................................................................. 3

1Signature of person making the declaration.

2Signature of person before whom the declaration is made.

3Insert title of person before whom the declaration is made.”.

_______________

NOTES

1. Notified in the Commonwealth of Australia Gazette on 29 September 1995.
2. Statutory Rules 1989 No. 46 as amended by 1992 No. 391; 1994 Nos. 80, 246 and 464.

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