Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation

Mr J V Murphy of Counsel Minister for Industrial Relations SOLICITOR: Mr I. Knight Crown Solicitors Office

Mr M. Lennon Labor Council of New South Wales

Ms S Winters of Counsel President of the Anti-Discrimination Board SOLICITOR: LEGAL REPRESENTATIVES: Mr I. Knight Crown Solicitors Office

Mr T. McDonald Employers' Federation of New South Wales Australian Business Industrial

Mr D Cudmore Catholic Commission for Employment Relations Australian Industry Group Motor Traders' Association of New South Wales State Chamber of Commerce and Industry (Industrial Relations) Local Government Association of New South Wales, Shires Association of New South Wales

JUDGMENT: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

CORAM: Wright J, President Walton J, Vice-President Schmidt J Boland J Redman C

RE REVIEW OF THE PRINCIPLES FOR APPROVAL OF ENTERPRISE AGREEMENTS 2000. Summons to show cause - Commission on its own initiative pursuant to Section 33(4) of the Industrial Relations Act 1996.

1 On 21 March 2000 the Commission summonsed industrial parties to appear before it to show cause why the Commission should not review the Principles for Approval of Enterprise Agreements made pursuant to s33 of the Industrial Relations Act 1996 ("the Act") on 19 December 1996. 2 Section 33 provides: (1) A Full Bench of the Commission is required to set principles to be followed by the Commission in determining whether to approve enterprise agreements. (2) In determining those principles, the Full Bench is to have regard, in particular, to the following: a) the objects of this Act and the public interest, b) the relevant criteria for approval imposed by this Part, c) the need for an appropriate process for approving agreements to be followed by the Commission, d) the need for an appropriate process for ensuring sufficient information about the effect of the agreement is provided to employees who are to be covered by the agreement, e) the need for an appropriate negotiating process for the agreement. (3) A Full Bench of the Commission is to review the principles for approval at least once every 3 years. (4) Principles for approval may be set or reviewed on the application of any party that can apply for approval of an enterprise agreement or on the Commission's own initiative. (5) Industrial organisations are entitled to be notified of any proceedings of a Full Bench under this section and to make submissions on the setting or review of the principles for approval. (6) The Industrial Registrar is to publish the principles for approval in the Industrial Gazette. (7) Principles for approval are to be set and published under this section within 6 months after the commencement of this Act. 3 The proceedings were initiated by the Commission pursuant to s33(4) of the Act. The proceedings concern a review, pursuant to s33(3) of the Act, of the Principles for the Approval of Enterprise Agreements which were established by a Full Bench of the Commission in Re Principles for Approval of Enterprise Agreements (1996) 94 IR 98 at 118 - 121 ("the Principles"). The Principles were established by the Commission pursuant to the provisions of s33(1) of the Act.

Agreed Principles 4 Wright J, President, held directions hearings in this matter which resulted in the parties and the interveners, the President of the Anti-Discrimination Board and the Minister for Industrial Relations filing proposed principles for the approval of enterprise agreements. For convenience, we shall refer to the interveners as, respectively the Anti-Discrimination Board and the Minister. 5 Conferences were held between the parties and the interveners (extending to the day of the hearing of the matter) which resulted in an agreement being reached between the parties and the interveners as to the principles which they considered appropriate to govern the approval of enterprise agreements following a review of the Principles pursuant to s33(3) of the Act ("the proposed principles"). There remained, however, a disputed matter arising from a contention advanced by the Anti-Discrimination Board. Broadly speaking, the disputed question concerned contentions by the Anti-Discrimination Board that the Commission should have regard to whether an enterprise agreement contained an anti-discrimination clause of the kind found in awards (as a result of the general order made by the Commission in Re State Wage Case 1999 (1999) 88 IR 363 at 396-397) when considering approval of that instrument. 6 The proposed principles were in the following terms: 1.1 The following principles are to be applied by the Commission pursuant to s33(1) of the Industrial Relations Act 1996 ("the Act"), in determining whether to approve enterprise agreements unless it is satisfied, in accordance with s35(3) that any departure from these principles would not prejudice the interest of any parties to the agreement.

1.2 These Principles take effect from the date of this decision and remain in force until varied by the Commission in accordance with the Act.

1.3 In deciding whether to approve an enterprise agreement, the Commission, in accordance with s146(2) of the Act, must take into account the objects of the Act, including whether the enterprise agreement provides equal remuneration for men and women doing work of equal or comparable value under the agreement.

1.4 The Principles embody matters related to the negotiation and processing of agreements, criteria for approval and seek to ensure that agreements and the processes which lead to agreements are appropriate and, having regard to the particular circumstances and needs of the employees to be covered by the agreement, the agreement complies with the Anti-Discrimination Act 1977.

1.5 In particular, the terms and conditions of employment in a proposed agreement must not unlawfully discriminate, either directly or indirectly, on the grounds of sex, race, marital status, homosexuality, age, disability or transgender identity.

2.1 Parties must demonstrate to the satisfaction of the Commission that they have followed all the requirements for approval, including: (a) involvement of the parties and/or their representatives in negotiation processes;

(b) the parties understand the nature and effect of the agreement;

(c) the parties did not enter the agreement under duress;

(d) that all relevant employees are covered by the agreement; and

(e) that the agreement does not breach relevant statutory requirements, including the requirements of Chapter 2, Part 2 (Enterprise Agreements) of the Act and the Anti-Discrimination Act 1977.

2.2 When the Commission is considering an enterprise agreement under section 35(2) of the Act, the Commission may also have regard to: (a) the wishes of the parties;

(b) the award coverage of employees not covered by the proposed agreement;

(c) the history of industrial regulation at the enterprise or workplace; and

(d) other matters the Commission considers relevant.

2.3 Where a secret ballot is required pursuant to section 36(4) of the Act, the conditions of ballot shall require that: (a) a returning officer be a person who is not the employer or a person selected by the employer;

(b) to be eligible to vote, the person must be an employee who is to be covered by the agreement at the time the ballot is conducted;

(c) each eligible employee is able to vote only once in a ballot;

(e) time/times were fixed for the ballot which enabled all eligible employees the opportunity to vote where practicable;

(f) the ballots were secure until counting commenced;

(g) the returning officer count and declare the result of the ballot; and

(h) ballots be retained until after the agreement is processed by the Commission.

The conditions of ballot should usually include that: (i) each ballot form be initialled by the returning officer;

(j) counting not commence until the ballot closed; and

(k) scrutineers may observe the count of the ballot papers.

In addition, the Commission may inspect the ballot papers.

2.4 The Commission, in accordance with section 35(1) of the Act, is to satisfy itself that: (a) in the case of an agreement that covers employees to whom State awards would otherwise apply the agreement does not, on balance, provide a net detriment to the employees when compared with the aggregate package of conditions of employment under the State awards, and

(b) in the case of an agreement that covers employees to whom Federal awards would otherwise apply the employees are not disadvantaged in comparison to their entitlements under the Federal awards, and

(c) in the case of an agreement that covers employees to whom no State or Federal award would otherwise apply the agreement does not, on balance, provide a net detriment to the employees when compared with the aggregate package of conditions of employment under a State or Federal award that covers employees performing similar work to that performed by the employees covered by the agreement. In determining the 'no net detriment' test, in accordance with section 35(1)(b), the Commission should have regard to: (a) the benefits and conditions applying under the proposed enterprise agreement in comparison to those applying under the relevant award/s:

(b) the conditions in the proposed enterprise agreement being considered as an aggregate package:

(c) provisions in the Occupational Health and Safety Act 1983 and regulations directly relevant to the change in work patterns to be performed under the agreement;

(f) any other matters the Commission considers relevant.

Furthermore, in determining the 'no net detriment' test, in accordance with section 35(1)(b), and without derogating from the above, the Commission shall have special regard to:

(g) test case decisions of the NSW Industrial Relations Commission;

(h) State decisions setting principles or provisions pursuant to section 51 of the Act;

(i) minimum sick leave provisions for awards as prescribed under section 26 of the Act

where such provisions or principles are found in the relevant award/s or which apply to awards generally.

2.5 An enterprise agreement should, where appropriate, facilitate the establishment of consultative mechanisms and procedures appropriate to the size, structure and needs of the enterprise for consultation on matters affecting their efficiency and productivity. 2.6 In accordance with section 39 of the Act, an enterprise agreement may be required to contain dispute resolution procedures. The Commission is to have regard to whether those dispute resolution procedures facilitate the resolution of industrial disputes concerning discrimination in employment on a ground to which the Anti-Discrimination Act, 1977 (NSW) applies.

2.7 (a) Where the relevant award contains provisions for competency based vocational training, and vocational training is provided for in an enterprise agreement, it shall be in accordance with those provisions.

(b) Notwithstanding the terms of principle 2.7(a), the Commission may approve training provisions which do not accord with the award provisions to meet the operational requirements of the enterprise or for any other good reason.

3 Process for approving agreements to be followed by the Commission

3.1 The Commission, in accordance with section 169(1) of the Act, must take into account the principles of the Anti-Discrimination Act 1977 when exercising its functions under these Principles.

3.2 In approving enterprise agreements in accordance with the Act and Principles, the Commission may approve an agreement by way of an informal process. However, parties may be required to address the Commission on all matters required under the Act and Principles.

3.3 For the purpose of section 38(1) of the Act, where an enterprise agreement has been approved by a secret ballot pursuant to section 36(4) of the Act, one or more employees may be nominated by the employees to sign the agreement on behalf of all the employees to be covered by the agreement.

3.4 The responsibility for lodging the Comparison and Compliance Statement, pursuant to Rule 41 of the Industrial Relations Commission Rules 1996, rests with the applicant, provided that where individual employees are the applicant, it shall be sufficient that a selected representative of the employees files the required statement. 4 Process ensuring sufficient information

4.1 During the negotiation of the agreement, consultative processes should be structured such that they encourage participation of all groups and categories of employees, which may include part-time and casual employees.

The negotiation process should therefore ensure that: (a) reasonable steps are taken to consult all employees who are to be covered by the agreement about the agreement;

(b) reasonable steps are taken so that employees who are to be covered by the agreement have an understanding of the agreement and its effect;

(c) employees are informed of the intention to have the agreement approved by the Commission and the consequences of the Commission's approval;

(d) employees have access to the proposed agreement and the relevant award/s; and

(e) employees have had reasonable time to seek advice independent from the employer eg. including relevant industrial organisations of employees.

5.1 Where the parties have agreed to negotiate an agreement, they should attend meetings they have agreed to attend, provide documentation they have agreed to provide, and comply with agreed or reasonable negotiating procedures.

5.2 In negotiations for a proposed enterprise agreement, the parties will consider matters such as workplace reform, productivity and efficiency.

Nature of the Agreement 7 In large measure, the proposed principles leave unaltered principles for approval of enterprise agreements established by this Commission in Re Principles for Approval of Enterprise Agreements (at 118 - 121). 8 The primary changes to the Principles arising from the proposed principles are as follows:

1. It was proposed that the preamble to the Principles would be changed by modifying the opening paragraph to incorporate some of the provisions previously found in Principle 1(ii); placing the provisions of Principle 1(ii) (concerning s146(2) and the objects of the Act) in cl 1.3 and incorporating in cl 1.3 a reference to "equal remuneration for men and women doing work of equal or comparable value under the agreement";
2. It was proposed that the provisions concerning the 'criteria for approval of enterprise agreements' would be altered in the following respects: a) The language employed in existing Principle 1(i)(b) will include a specific reference to "the parties". b) A new provision 2.4 will be incorporated which has the effect of bringing into the Principles the provisions arising from the amendment of s35 of the Act (by virtue of the Industrial Relations Amendment Act 2000 (Act No. 67 of 2000)). c) A new clause 26 will be incorporated in the Principles which concerns dispute settlement procedures.
3. The provisions dealing with the 'process for ensuring sufficient information' are proposed to be varied by adding to existing Principle 3(ii)(e) the words "eg. including relevant industrial organisations of employees".
4. The provisions concerning the 'appropriate negotiating process' are proposed to be altered by deleting the existing Principle 4(xiv).

The Disputed Matter 9 The Anti-Discrimination Board contended that cl 3.1 of the proposed principles should be amended by the inclusion of the words, at the end of the Principle, "including having regard to whether the enterprise agreement contained the standard anti-discrimination clause". 10 In the result, cl 3.1 would be altered to read as follows: 3.1 The Commission, in accordance with section 169(1) of the Act, must take into account the principles of the Anti-Discrimination Act 1977 when exercising its functions under these Principles including having regard to whether the enterprise agreement contains the standard anti-discrimination clause. 11 The standard anti-discrimination clause proposed by the Anti-Discrimination Board was as follows: (1) It is the intention of the parties to this agreement to seek to achieve the object in section 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 and age.

Paragraph 2 only applies where the agreement contains a dispute resolution procedure: (2) It follows that in fulfilling their obligations under the dispute resolution procedure set out in 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 section 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.

Employers and employees may also be subject to Commonwealth anti-discrimination legislation.

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." 12 Mr Lennon, who appeared for the Labor Council of New South Wales, supported the amendment proposed by the Anti-Discrimination Board. Mr Murphy, of counsel, who appeared for the Minister, submitted that the Minister did not oppose the inclusion of such a provision. 13 Mr McDonald, who appeared at the hearing of the matter for the Employers' Federation of NSW and Australian Business Industrial (and filed a written submission on behalf of a number of organisations including the Australia Retailers' Association of New South Wales), submitted that those organisations opposed the Anti-Discrimination Board's amendment to the proposed principles. 14 Mr Cudmore, who appeared for the Australian Industry Group, the Motor Traders' Association of New South Wales, the State Chamber of Commerce and Industry (Industrial Relations) Association Inc., the Local Government Association of New South Wales, the Shires Association of New South Wales and the Catholic Commission for Employment Relations, supported the submissions put by Mr McDonald.

Reserved Matter 15 The parties also agreed that, upon any amendment to the Anti-Discrimination Act 1977 making reference to carers' responsibilities, it would be appropriate to amend proposed principle 1.5 to include a reference to carers' responsibilities, upon application by any party.

Submissions 16 Much of the written submissions filed by the parties (in accordance with directions given at the outset of the proceedings) fell away during the hearing of the matter as the result of the agreements reached between the parties and the interveners. Ultimately, the submissions focussed on the nature of the review proceedings arising under s33(3) and the disputed matter. We shall, therefore, focus upon those aspects of the submissions which were directed to those matters.

The Employers' Federation and Australian Business Industrial 17 Written submissions were filed by the Employers' Federation of New South Wales ("the Employers' Federation") on behalf of Australian Business Industrial, the Australian Retailers Association of New South Wales, the Australian Industry Group and the Catholic Commission for Employment Relations. Those submissions commenced by noting that this matter was initiated by the Commission pursuant to s33(4) of the Act. It was submitted that s33 distinguished between the setting of the Principles and a review of the Principles and that a review in this context was not a rehearing of the case. A review involves, it was submitted, looking over the Principles with a view to addressing problems in their operation and updating. 18 The review provides, it was submitted, an opportunity to consider difficulties arising from the manner in which the Principles had operated. In this regard, reference was made to the observations of the Commission in Re Principles for Approval of Enterprise Agreements, as to potential difficulties arising from those Principles which repeated some, but not all, of the statutory requirements. The Commission expressed a view (at 117) that such difficulties as may arise could be addressed in the review held "at least every three years". 19 It was submitted that the Principles arose from an agreement reached between the parties and the Anti-Discrimination Board. That agreement was subsequently endorsed by the Commission in a manner which left no doubt that such an approach was desirable. In that context, care should be taken when an attempt was made to alter the bargain struck between the parties. 20 It was submitted that the Anti-Discrimination Board had sought to play a major role in these proceedings. The Anti-Discrimination Board had sought more changes than any industrial organisation of employees or employers. It was further submitted that this role was inconsistent with the limited role of an intervener pursuant to s167 of the Act. 21 It was also submitted that no role for the Anti-Discrimination Board, beyond what is set out in s167 of the Act, is apparent from s33 and, further, that s33(4) provides that principles for approval may only be set or reviewed by the Commission of its own initiative or on application of a party that can apply for approval of an enterprise agreement. The Employers' Federation further submitted that s33(5) makes no provision for the Anti-Discrimination Board to be notified of these review proceedings or to make any submissions on the review. Hence, it was submitted, s33 of the Act provides no right to the Anti-Discrimination Board to act as an applicant. 22 It was submitted that, in this way, s33 is akin to s51 of the Act; the role of the Anti-Discrimination Board in s51 proceedings having been dealt with by the Full Bench in Principles for Review of Awards - State Decision 1998 (1998) 85 IR 38 at 58, where the Commission stated: The matter falls to be considered in the context of both the application before the Commission and the statutory framework. The Labor Council's application, brought under s51 of the 1996 Act, does not seek the formulation of such a clause. The President of the ADB is an intervener in these proceedings in accordance with s167(2) of the 1996 Act and has no right to make an application for a State decision under s51. 23 Opposition was expressed to the insertion of a principle requiring the standard anti-discrimination clause to be inserted in agreements in a similar manner to what was done by way of a general order made in the State Wage Case 1999. It was submitted that the prescription in awards is sufficient. The circumstances of this case are different from those of the State Wage Case 1999 as, in that case, there was a large measure of agreement. Moreover, it was submitted, the Australian Industrial Relations Commission had adopted a standard anti-discrimination clause for awards prior to the creation of an anti-discrimination provision in this jurisdiction. 24 In his oral submissions, Mr McDonald reiterated the distinction between the circumstances surrounding the making of the general order in the State Wage Case 1999 decision and the present case. It was further submitted that there is no provision in the Act that would operate in relation to enterprise agreements in the same way as s50 operates in relation to awards, so as to allow such a provision to be inserted in a manner akin to a general order. 25 He emphasised that, having regard to the nature of the review process and further noting that the Principles had been established by an agreement between the industrial parties and interveners (including the Anti-Discrimination Board), the Principles should not be altered without good reason. A good reason would include changed circumstances such as relevant changes to legislation or where the subject matter of the proposed change had been identified for review in the decision of the Commission creating the Principles. 26 It was also submitted that the 'standard anti-discrimination' clause was unclear. It was uncertain just how the principle sought by the Anti-Discrimination Board would operate to guide the Commission's determination as to the approval of an enterprise agreement. 27 Furthermore, Mr McDonald submitted that the anti-discrimination clause arising from the State Wage Case 1999 was only intended to be inserted into awards. It arose only as a result of agreement reached between the parties and interveners to the proceedings. No such agreement existed in these proceedings. 28 Additionally, the anti-discrimination clause arose from the exercise of powers by the Commission under s50 and s52 of the Act, whereas in this matter the Commission was exercising powers under s33. 29 It was also submitted that the anti-discrimination clause could not arise for consideration under the 'no net detriment test' as it did not create any legal right or obligation. 30 Mr McDonald reiterated that the Anti-Discrimination Board, being an intervener in these proceedings pursuant to s167 of the Anti- Discrimination Act 1977, had no power to make an application as would a party to the proceedings. In this regard, the case is similar to that which was presented to Commission in Re Principles for Review of Awards - State Decision 1998. 31 As to cl 1.5 of the proposed principles, it was submitted that there has been legislation enacted, but not yet commenced, that would deal with discrimination as to carers' responsibilities and as such Mr McDonald gave an undertaking that should the legislation be commenced, then he would consent to an amendment of cl 1.5.

The Australian Industry Group, the Motor Traders' Association of New South Wales, the State Chamber of Commerce and Industry (Industrial Relations) Association Inc., the Local Government Association of New South Wales, the Shires Association of New South Wales, and the Catholic Commission for Employment Relations 32 Mr Cudmore, who appeared for these organisations, relied upon the written submissions filed by the Employers' Federation earlier referred to and supported the oral submissions of Mr McDonald.

The Labor Council of New South Wales 33 The Labor Council submitted that the Principles have, in the main, enhanced the operation of the industrial relations system in New South Wales and thereby required only minor adjustment. 34 The Labor Council contended for a provision which ensured that all employees would be aware of their rights at the outset of the enterprise bargaining process, including their right to be represented by a union. Further, the Labor Council contended for a provision which required the Commission to consider whether the enterprise agreement provided for equal remuneration for men and women doing work of equal or comparable value having regard to the decision of the Full Bench of the Commission in Re Equal Remuneration Principle (2000) 97 IR 177. 35 In oral submissions, Mr Lennon submitted that the proceedings concerned a review of the principles and thereby did not warrant a rehearing or "an overhaul of the principles without good reason". The proposed principles arose from extensive negotiations between the parties and the interveners and the consent of those organisations should be taken into account by the Commission in considering a review of the Principles.

The Minister for Industrial Relations 36 The Minister submitted that since the principles were established in 1996, the process for the negotiation and approval of enterprise agreements has worked effectively. It was submitted that the Principles, in their present form, have a broad degree of support from all parties and that the Commission should give substantial weight to this level of acceptance in the review of the current Principles.

37 The Minister supported the retention of the Principles as they currently exist, subject to the making of the amendments proposed by the parties and the intervener. Further, the Minister submitted that it is important that the Principles set by the Commission, and the manner in which they are given effect, should not act as a disincentive to the making of enterprise agreements under the Act 38 In his oral submissions, Mr Murphy submitted that, given the successful operation of the present system over four years, and given that the industrial parties have had direct experience of the operation of the present framework for the approval of enterprise agreements, the Commission should give considerable weight to the amendments to the Principles proposed by the parties. 39 It was submitted by the Minister, that the framework for the approval of enterprise agreements should be one that is capable of being utilised by employers, unions and employees and should not be overburdened with technical difficulties and the like. It was further submitted that the statistics submitted by the Minister suggested the present framework is indeed working and has been utilised by a significant number of employers, unions and employees. Mr Murphy submitted it was for that reason the Minister was essentially contending for the retention of the present system, modified in some slight way as was proposed by the agreement of the major employers and the Labor Council.

The President of the Anti-Discrimination Board 40 The Anti-Discrimination Board agreed with the proposed principles and commended the emphasis given in them to ensuring that unlawful discrimination was not incorporated either directly or indirectly into enterprise agreements. The Anti-Discrimination Board also endorsed the submission of the Minister that the operation of the proposed principles, insofar as they relate to anti-discrimination provisions, should be the subject of review by the Commission during the course of the operation of the principles so as to examine whether they are adequately affording protection, particularly to employees who are women, who have a non-English speaking background or disabilities. Special attention should also be given to part-time and casual employees.

41 The Anti-Discrimination Board submitted that, in undertaking the review, the Commission must take into account the principles contained in the Anti-Discrimination Act 1977 (see s169(1) of the Act). The Commission must also take into account the public interest in the exercise of its functions and, for that purpose, must have regard to the objects of the Act, which included the prevention and elimination of discrimination in the workplace (and, in particular, ensuring equal remuneration for men and women doing work of equal or comparable value). 42 It was noted that there did not appear to be any reported study into the operation of the Principles, either in the academic field or by the Department of Industrial Relations, in relation to matters of discrimination. 43 It was submitted that the Full Bench in the 1996 decision placed particular emphasis in the Principles on matters of discrimination and the necessity for measures to redress the possible disadvantage of groups of workers in relation to enterprise bargaining. The reasons for so doing continue to be applicable. 44 It was submitted that, when determining the Principles in the 1996 decision, the Commission properly had regard to the matters set out in s33(2), including the objects of the Act. Further, the Commission also had regard to the relevant criteria for approval of enterprise agreements, including the matters set out in s35. Accordingly, it was submitted, any contentions that seek to weaken those parts of the Principles dealing with matters of discrimination should be rejected. 45 As to the preamble to the Principles, on 31 May 2000, the Parliament passed the Anti-Discrimination (Carers' Responsibilities) Act 2000 (NSW). This amendment to the Anti-Discrimination Act 1977 introduced the grounds of carers' responsibilities into that Act in the area of employment. The amendment makes it unlawful for an employer to discriminate, directly or indirectly, against an employee or an applicant for employment on the ground of the employee's or applicant's responsibilities as a carer. It was submitted that the amendment is likely to commence early in 2001. In addition, the Law Reform Commission of NSW released a review of the Anti-Discrimination Act 1977 in December 1999 (NSW Law Reform Commission, Review of the Anti-Discrimination Act, 1977 (NSW), Report 92, November 1999). That report makes recommendations for additional grounds of discrimination to be included in the Anti-Discrimination Act 1977. It was submitted that, in this context, it is appropriate that the preamble be amended to take into account these statutory changes.

46 As to the proposed anti-discrimination clause, it was submitted that in the State Wage Case 1999 decision, the Commission determined to insert into all New South Wales awards by general order an anti-discrimination clause. The rationale for the insertion of the clause was to bring to the minds of the parties their rights and responsibilities under both the Act and the Anti-Discrimination Act 1977 in relation to the prevention and elimination of discrimination in awards. It was submitted that such a rationale is equally applicable to enterprise agreements. Further, it was submitted, that it is consistent with the objects of the Act and the Commission's obligations under s35(1)(a) and s169(1) for the Commission to have regard to whether the agreement contains such an anti-discrimination clause.

47 Ms Winters submitted that it was appropriate that an anti-discrimination clause of the kind now found in awards made by this Commission be incorporated in those enterprise agreements which essentially cover the entirety of employment conditions at a workplace, as opposed to those agreements which operated in conjunction with awards. In the latter case, the employees affected by the enterprise agreement would ordinarily benefit from the anti-discrimination provision within a related or underpinning award. In the former case, the same benefit afforded employees under awards should be conferred upon employees covered by enterprise agreements. 48 Ms Winters also submitted that the presence of such a clause was relevant to the assessments required to be made by the Commission in the consideration of applications for the approval of an enterprise agreement pursuant to s35(1)(a) and (b) of the Act. It was contended that the failure to incorporate such a clause was a relevant consideration under the 'no net detriment test'.

The Statutory Scheme 49 These proceedings arise under s33(3) of the Act. This subsection requires the Commission to "review" the principles for approval at least once every three years. In the present context, the Commission is required to review the principles established by the Commission in 1996 in Re Principles for Approval of Enterprise Agreements. 50 It was a common feature of the submissions of the parties to the proceedings that the use of the expression "review" by the legislature in s33(3) had the effect of constraining the discretion which may be exercised by the Commission in the consideration of the existing principles. Some of those submissions suggested that the Commission was constrained to maintain the existing principles unless a good reason was demonstrated to depart from those principles. In part, these submissions were linked to other contentions advanced by the parties to the effect that the Commission should adopt the proposed principles as they derived from an agreement reached between the industrial parties and the interveners. 51 The question arises then as to the meaning of the expression "review" in s33(3). In accordance with the ordinary rules of statutory interpretation, it is necessary to consider this question by examining the context in which the expression appears, thereby examining the whole of the section and the Part in which the expression appears and ultimately the Act as a whole: K&S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309 at 315; Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 at 304 and 319 - 320; Kingston NSW v Keprose Pty Ltd (1987) 11 NSWLR 404 at 423. 52 In our view, a review conducted pursuant to s33(3) should not proceed upon a presumption that the existing principles are necessarily correct. A review requires the Commission to inquire into the principles in order to determine whether those principles are appropriate having regard to the requirements of the Act and, in particular, Pt 2 of Ch 2 of the Act. It is not necessary for the parties to such proceedings to demonstrate that special circumstances exist or that changes have occurred from the last established principles in order to demonstrate a basis for an alteration to the existing principles in a review (although such factors would, no doubt, be a relevant consideration in a review conducted pursuant to s33(3)). 53 Rather, the Commission should consider whether a particular principle is sound having regard to the requirements of the statute and all other relevant circumstances. Hence, it may be demonstrated (by the calling of appropriate evidence) that a particular principle does not operate in the manner intended or creates adverse or inappropriate outcomes. Nothing in this approach, however, would prevent the Commission from re-adopting the principles earlier established where it is satisfied, on the materials before it and the submissions made by the parties, that the existing principles were appropriate. 54 Our reasons for this conclusion are as follows:

1. A distinction is drawn in s33 between the setting of principles and the reviewing of principles (see s33(1) and s33(4)). This is a distinction drawn elsewhere in the Act. For example, s16(3), s22(1) and s29 refer to the setting of conditions. In each such provision the word "set" is used in the context of the making of a term of an award. In this sense, the expression has no different meaning to the word "make" which appears in s10 and s11 of the Act. In contrast, s19 refers to a review of awards. In the light of these considerations, the distinction drawn in s33(3) between the setting of principles and the reviewing of principles is no more than the distinction between the establishment of principles at the outset of the operation of Pt 2 of Ch 2 and a re-examination of those principles at a later time. This view would seem to be supported by the use of the word "set" in s35(3), which refers to principles however so established (whether initially or after amendment upon review).
2. This approach conforms generally with the notion of a review conducted pursuant to s19 of the Act. The expression "review" is not defined in s19 or elsewhere in the Act but the legislature describes the purpose of a review in s19(2) as being to "modernise awards, to consolidate awards relating to the same industry and to rescind obsolete awards". In Re Principles for Review of Awards 1998 (at 43 - 44) the Full Bench described the function of the Commission in reviewing awards as follows: It follows from this statutory scheme that the awards which come to the Commission for review under s19 must, in the first instance, be reviewed in the context of the power given to the Commission to make awards under the 1996 Act.

We particularly emphasise this point because we were variously addressed on the meaning of the word 'modernise' as used in s19(2), where the purpose of the review process is specified to be to 'modernise awards, to consolidate awards relating to the same industry and to rescind obsolete awards'. "Modernise" is not a defined term but is a word which is used with its ordinary meaning, to be understood in its statutory context as comprehending both bringing the award up to date and making it contemporary.

The 1996 Act is the third major piece of legislation this decade to govern the making of awards by this Commission and its predecessors. Section 19 of the 1996 Act itself had no predecessor in the Industrial Relations Act 1991 or the Industrial Arbitration Act 1940. It follows, necessarily in our view, that comprehended in the s19 review process in 'modernising' awards is an obligation to ensure that the awards are made consistent with the current statutory framework. 3. The concept of "review" has consistently been considered in the industrial jurisprudence of this State as having a wide scope and operation. For example, s 32(1) of the Industrial Arbitration Act 1940 provided for the review of conditions of an industry or calling, together with the wages payable in such industry and calling if, in the case of an application for a new award, either party to the proceedings so applied for a review. The review in this context was consistently interpreted by the former Industrial Commission as requiring the Commission to inquire into the nature of the work done by employees in the industry, the conditions under which the work was done and all other relevant circumstances so as to make such an award as may be appropriate, notwithstanding that no special circumstances had been shown to exist or no change in the industry had taken place. The Commission was not bound to disregard previous award provisions (which could be used as a guide or aid to arriving at a proper determination) but reached its own conclusion as a result of its own examination and consideration of the material before it. In so doing, the Commission could simply affirm the existing terms of an award: see, for example, Re Gas Meter Makers (State) Conciliation Committee [1932] AR(NSW) 341 at 346; Re Glass Makers (State) Conciliation Committee [1937] AR(NSW) 313 at 314 - 315; Re Hospital Secretaries Committee [1951] AR(NSW) 577 at 590 - 591; re Motor Bus Drivers (State) Award [1957] AR(NSW) 304 at 307-310.

The Consent of the Parties 55 The consent of the parties to the proposed principles is nonetheless an important consideration in the review. Thus, the Commission will place substantial weight upon the agreement reached between the parties: Re Principles for Approval of Enterprise Agreements (at 115) and State Wage Case 1999 (at 394). However, the agreement of parties (even significant industrial parties) is not determinative of any application before the Commission: Re Equal Remuneration Principle (2000) 97 IR 177 at 195. This is particularly so in review proceedings where the Commission is required to consider the principles required to be established having regard to various statutory criteria (see s33(2)). We do not consider that the fact of the principles having been derived from the agreement of the parties at the time of the making of the principles necessarily has any significant bearing upon the review of the principles. That earlier consent of the parties may or may not have been well founded and would need to be considered in the light of all relevant circumstances, including the actual operation of the principles in the intervening period.

The Proposed Principles 56 The proposed principles do not significantly alter the Principles. In large measure, they represent a relatively slight adjustment to the form and language of the principles or make amendments reflecting changes in the statute (see s35 of the Act as amended by Act No. 67 of 2000). 57 The more substantial changes proposed to the principles are, in our view, appropriate. The reference to "equal remuneration for men and women doing work of equal or comparable value under the agreement" in the preamble is appropriate having regard to the establishment of an equal remuneration principle with respect to awards (see Re Equal Remuneration Principle). The incorporation of dispute resolution procedures is consistent with the objects of the Act and, in particular, consistent with s3(a) and s3(g). The reference to "industrial organisations of employees" in relation to the section of the principles dealing with the process of ensuring sufficient information, is again consistent with the objects of the Act and accords with the recognition given to such organisations in the statutory scheme. 58 The proposed principles also commend themselves as they arise out of the consent of the industrial parties and the interveners in the proceedings.

The Disputed Matter 59 The amendment proposed to clause 3.1 of the proposed principles by the Anti-Discrimination Board was supported by the Labor Council of New South Wales and not opposed by the Minister. As earlier mentioned, it is opposed by the employer parties to the proceedings. 60 It is appropriate to consider the origins of the anti-discrimination clauses referred to by the Anti-Discrimination Board. The anti-discrimination clause was inserted into awards of this Commission as a result of the decision of a Full Bench of the Commission in State Wage Case 1999 (at 398). In that decision the Commission noted that the genesis of the provision sought by the parties (the clause being supported by all industrial parties and interveners in those proceedings) was the model anti-discrimination clause adopted by the Australian Industrial Relations Commission for Federal Awards in the Third Safety Net Adjustment and s10A Review - October 1995 Decision (1995) 61 IR 236 as later varied in Re Award Simplification Decision (1997) 75 IR 272. It was also noted that those Federal provisions were earlier considered by this Commission in the State Wage Case - April 1996 (1996) 64 IR 439, but on that occasion the Commission had determined to defer the consideration of a model anti-discrimination clause. 61 The Commission gave considerable weight in the State Wage Case 1999 to the agreement reached between the parties and the Anti-Discrimination Board in determining to introduce the model clause (at 394). However, the Commission did not adopt the entirety of the proposal advanced by the parties and the intervener. 62 As to the basis for the provision adopted by the Commission, the Full Bench stated (at 394): We have also accepted the submissions of the parties that there is a need to depart from the federal clause having regard to the different legislative framework existing in New South Wales and nationally (see State Wage Case - August 1997 (1997) 73 IR 200 at 210). We accept that the insertion of the model clause into awards made under this Act is consistent with the requirements of s146(2) of the Act as the model anti-discrimination clause adopted by us is consistent with the objects of the Act. Furthermore, we consider that the granting of a model clause is in conformity with the requirements of s169(1) of the Act which provides as follows: The Commission must, in the exercise of its functions, take into account the principles contained in the Anti-Discrimination Act 1977. 63 The Full Bench noted that the anti-discrimination clause imposed no new legal obligations upon award parties in addition to those that already existed in relation to discrimination (at 395). The Commission also noted that the parties had opposed the making of a general order on the basis that the principal function of the anti-discrimination clause was "educative" (at 395). 64 In determining to make a general order, the Full Bench stated (at 397): We are not confident that leaving the standard anti-discrimination clause to be dealt with by way of application will result in sufficiently timely or widespread uptake of the provision, particularly in awards where the new provision might be most important or necessary. 65 The decision of the Full Bench in the State Wage Case 1999 reveals that, whilst the anti-discrimination clause did not create new legal obligations, it was recognised by the Full Bench as performing a potentially important function in some awards of this State, including the facilitation of conformity by industrial parties under awards with the objects of the Act in so far as they concern discrimination (and the provisions of s169(1) of the Act). The benefit of the provision may have been largely educative or illustrative, but it was nonetheless one which enhanced and facilitated the achievement of the objects of the Act to prevent discrimination in the workplace and thereby achieved the principles contained within the Anti-Discrimination Act 1977. By the introduction of an anti-discrimination clause in an award, the award became the instrument to facilitate this outcome. 66 Whilst it is true, as Mr McDonald put it, that the anti-discrimination clause arising from the State Wage Case 1999 was only intended for insertion in awards, the purpose for which the provision was created would seem to be equally applicable to enterprise agreements, particularly those, as was put by Ms Winters, which cover the field of employment in a particular area. Indeed, the proposal by the Anti-Discrimination Board is one which involves the amendment of a principle which requires that approval of enterprise agreements involve a consideration of the principles of the Anti-Discrimination Act. In our view, the insertion of an anti-discrimination clause in an enterprise agreement would serve essentially the same purpose as that envisaged for a similar provision in awards in the State Wage Case 1999. Furthermore, the Commission is required to have regard to the objects of the Act in the establishment of the principles for the approval of enterprise agreements and, as noted in the State Wage Case 1999, the creation of an anti-discrimination clause conforms with the objects of the Act (and, in particular, the object in s3(f)). 67 Overall, we conceive that the same benefits accruing to the parties under awards from the insertion of an anti-discrimination clause would be applicable to the parties to enterprise agreements. However, nothing in the clause proposed by the Anti-Discrimination Board (as indicated by the use of the words "having regard to") or these Principles would require a member of the Commission not to approve an application for an enterprise agreement because of the non-existence of an anti-discrimination clause. 68 We have had regard to the submission made by Mr McDonald that the Commission should not lightly alter the existing principles given that they were created by the consent of the industrial parties. However, we have some difficulty with this submission. Firstly, it is not consistent with the view we have taken as to the meaning of review for the purposes of s33(3). Secondly, one other party and the two interveners do not oppose the provision, notwithstanding their earlier acceptance of the existing terms of the principles. Thirdly, the decision to introduce an anti-discrimination clause in awards occurred after the introduction of the principles. 69 We finally deal with the issue as to whether the anti-discrimination clause is a relevant consideration under s35(1)(b) of the Act. This contention was opposed by Mr McDonald on the basis that the anti-discrimination clause, of itself, created no legal obligation. 70 All awards of this Commission now incorporate an anti-discrimination clause as a result of the general order made in the State Wage Case 1999. If an enterprise agreement replaces the entirety of the terms of any relevant award during its operation then the question arises as to whether the absence of an anti-discrimination clause in such an agreement is a relevant consideration in the assessment of any net detriment for the purposes of s35(1)(b) of the Act. 71 The Full Bench considers that the existence or otherwise of an anti-discrimination clause within an enterprise agreement does require consideration under s35(1)(b) of the Act. 72 The anti-discrimination clause within awards should be considered as part of the "aggregate package of conditions of employment" for the purposes of assessing any "net detriment" to employees for the purposes of s35(1)(b) of the Act. We consider that the reference to conditions of employment within s35(1)(b) should be construed broadly and beneficially as the expression is contained within a provision which is essentially designed to protect employees whose employment will be regulated by an enterprise agreement. 73 The expression "conditions of employment" should be construed as meaning the terms of employment which are found within the relevant awards. In modern awards, the terms of the award may not simply constitute traditional prescriptions such as rates of pay, allowances and non-monetary entitlements such as leave entitlements or hours of work. The non-monetary benefits found within awards are often not confined to such terms but also extend to terms which are more general in nature and less prescriptive in effect. Many awards contain consultative provisions, dispute settlement procedures and provisions relating to flexibility which do not confer specific monetary benefits or other entitlement upon employees but which may, in the particular circumstances of employment, nonetheless represent a benefit for an employee which may be taken into account under s35(1)(b). The terms of an award may also include references to the aspirations and objectives of the parties, the establishment of milestones or other achievement goals and the establishment of co-operative work arrangements such as team based structures. All of these terms in awards conform broadly with the objects of the Act in s3(h). That sub-section is in the following terms: To encourage and facilitate co-operative workplace reform and equitable, innovative and productive workplace relations.

74 Having regard to the foregoing considerations, we have decided to grant the amendment to the proposed principles sought by the Anti-Discrimination Board. We consider that the draft anti-discrimination clause proposed by the Anti-Discrimination Board is suitable for insertion into enterprise agreements.

Leave Reserved 75 We grant liberty to apply as to any matter arising from an amendment to the Anti-Discrimination Act 1977 with respect to carers' responsibilities.

Orders 76 Pursuant to s33(3) of the Act, the Full Bench of the Commission, upon the review of the principles for the approval of enterprise agreements, sets the principles contained in Annexure A to this decision as the principles to be followed by the Commission when determining whether to approve an enterprise agreement lodged for approval of the Commission under Ch 2 of the Act. 77 This order shall operate on and from 22 December 2000 and remain in force until further order of the Commission.

Re Review of the Principles for Approval of Enterprise Agreements 2000 [2000] NSWIRComm 250

1. Preamble 1.1 The following principles are to be applied by the Commission pursuant to s33(1) of the Industrial Relations Act 1996 ("the Act"), in determining whether to approve enterprise agreements unless it is satisfied, in accordance with s35(3) that any departure from these principles would not prejudice the interest of any parties to the agreement.

1.2 These Principles take effect from the date of this decision and remain in force until varied by the Commission in accordance with the Act.

1.3 In deciding whether to approve an enterprise agreement, the Commission, in accordance with s146(2) of the Act, must take into account the objects of the Act, including whether the enterprise agreement provides equal remuneration for men and women doing work of equal or comparable value under the agreement.

1.4 The Principles embody matters related to the negotiation and processing of agreements, criteria for approval and seek to ensure that agreements and the processes which lead to agreements are appropriate and, having regard to the particular circumstances and needs of the employees to be covered by the agreement, the agreement complies with the Anti-Discrimination Act 1977.

1.5 In particular, the terms and conditions of employment in a proposed agreement must not unlawfully discriminate, either directly or indirectly, on the grounds of sex, race, marital status, homosexuality, age, disability or transgender identity.

2.1 Parties must demonstrate to the satisfaction of the Commission that they have followed all the requirements for approval, including: (a) involvement of the parties and/or their representatives in negotiation processes;

(b) the parties understand the nature and effect of the agreement;

(c) the parties did not enter the agreement under duress;

(d) that all relevant employees are covered by the agreement; and

(e) that the agreement does not breach relevant statutory requirements, including the requirements of Ch 2, Pt 2 (Enterprise Agreements) of the Act and the Anti-Discrimination Act 1977.

2.2 When the Commission is considering an enterprise agreement under s35(2) of the Act, the Commission may also have regard to: (a) the wishes of the parties;

(b) the award coverage of employees not covered by the proposed agreement;

(c) the history of industrial regulation at the enterprise or workplace; and

(d) other matters the Commission considers relevant.

2.3 Where a secret ballot is required pursuant to s36(4) of the Act, the conditions of the ballot shall require that: (a) a returning officer be a person who is not the employer or a person selected by the employer;

(b) to be eligible to vote, the person must be an employee who is to be covered by the agreement at the time the ballot is conducted;

(c) each eligible employee is able to vote only once in a ballot;

(e) time/times were fixed for the ballot which enabled all eligible employees the opportunity to vote where practicable;

(f) the ballots were secure until counting commenced;

(g) the returning officer count and declare the result of the ballot; and

(h) ballots be retained until after the agreement is processed by the Commission.

The conditions of the ballot should usually include that: (i) each ballot form be initialled by the returning officer;

(j) counting not commence until the ballot closed; and

(k) scrutineers may observe the count of the ballot papers.

In addition, the Commission may inspect the ballot papers.

2.4 The Commission, in accordance with s35(1) of the Act, is to satisfy itself that: (a) in the case of an agreement that covers employees to whom State awards would otherwise apply the agreement does not, on balance, provide a net detriment to the employees when compared with the aggregate package of conditions of employment under the State awards, and

(b) in the case of an agreement that covers employees to whom Federal awards would otherwise apply the employees are not disadvantaged in comparison to their entitlements under the Federal awards, and

(c) in the case of an agreement that covers employees to whom no State or Federal award would otherwise apply the agreement does not, on balance, provide a net detriment to the employees when compared with the aggregate package of conditions of employment under a State or Federal award that covers employees performing similar work to that performed by the employees covered by the agreement.

In determining the 'no net detriment' test, in accordance with s35(1)(b), the Commission should have regard to: (a) the benefits and conditions applying under the proposed enterprise agreement in comparison to those applying under the relevant award/s;

(b) the conditions in the proposed enterprise agreement being considered as an aggregate package;

(c) provisions in the Occupational Health and Safety Act 1983 and regulations directly relevant to the change in work patterns to be performed under the agreement;

(f) any other matters the Commission considers relevant.

Furthermore, in determining the 'no net detriment' test, in accordance with s35(1)(b), and without derogating from the above, the Commission shall have special regard to:

(g) test case decisions of the NSW Industrial Relations Commission;

(h) State decisions setting principles or provisions pursuant to s51 of the Act;

(i) minimum sick leave provisions for awards as prescribed under s26 of the Act; where such provisions or principles are found in the relevant award/s or which apply to awards generally.

2.5 An enterprise agreement should, where appropriate, facilitate the establishment of consultative mechanisms and procedures appropriate to the size, structure and needs of the enterprise for consultation on matters affecting their efficiency and productivity.

2.6 In accordance with s39 of the Act, an enterprise agreement may be required to contain dispute resolution procedures. The Commission is to have regard to whether those dispute resolution procedures facilitate the resolution of industrial disputes concerning discrimination in employment on a ground to which the Anti-Discrimination Act, 1977 applies.

2.7 (a) Where the relevant award contains provisions for competency based vocational training, and vocational training is provided for in an enterprise agreement, it shall be in accordance with those provisions.

(b) Notwithstanding the terms of Principle 2.7(a), the Commission may approve training provisions which do not accord with the award provisions to meet the operational requirements of the enterprise or for any other good reason.

3 Process for approving agreements to be followed by the Commission

3.1 The Commission, in accordance with s169(1) of the Act, must take into account the principles of the Anti-Discrimination Act 1977 when exercising its functions under these Principles including having regard to whether the enterprise agreement contains an anti-discrimination clause as referred to in Re Review of the Principles for the Approval of Enterprise Agreements 2000 [2000] NSWIRComm 250 at [11]. 3.2 In approving enterprise agreements in accordance with the Act and Principles, the Commission may approve an agreement by way of an informal process. However, parties may be required to address the Commission on all matters required under the Act and Principles.

3.3 For the purpose of s38(1) of the Act, where an enterprise agreement has been approved by a secret ballot pursuant to s36(4) of the Act, one or more employees may be nominated by the employees to sign the agreement on behalf of all the employees to be covered by the agreement.

3.4 The responsibility for lodging the Comparison and Compliance Statement, pursuant to Rule 41 of the Industrial Relations Commission Rules 1996, rests with the applicant, provided that where individual employees are the applicant, it shall be sufficient that a selected representative of the employees files the required statement.

4.1 During the negotiation of the agreement, consultative processes should be structured such that they encourage participation of all groups and categories of employees, which may include part-time and casual employees.

The negotiation process should therefore ensure that: (a) reasonable steps are taken to consult all employees who are to be covered by the agreement about the agreement;

(b) reasonable steps are taken so that employees who are to be covered by the agreement have an understanding of the agreement and its effect;

(c) employees are informed of the intention to have the agreement approved by the Commission and the consequences of the Commission's approval;

(d) employees have access to the proposed agreement and the relevant award/s; and

(e) employees have had reasonable time to seek advice independent from the employer eg. including relevant industrial organisations of employees.

5.1 Where the parties have agreed to negotiate an agreement, they should attend meetings they have agreed to attend, provide documentation they have agreed to provide, and comply with agreed or reasonable negotiating procedures.

5.2 In negotiations for a proposed enterprise agreement, the parties will consider matters such as workplace reform, productivity and efficiency.

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