The Notice of Employee Representative Rights ("NERR") is a simple document. Yet it has proven to a major stumbling block for many employers trying to have their Enterprise Agreements ("EA") approved. There are countless cases where proposed Enterprise Agreements have not been approved because employers have failed to comply with the NERR statutory requirements.
The Fair Work Act broadly requires employers to take reasonable steps to give employees a NERR in relation to a proposed EA. If you do not comply with the statutory requirements regarding the NERR, the Fair Work Commission is unlikely to approve your EA.
Picture this. You have spent many months negotiating a proposed EA. After what seems like an eternity of negotiations, you put the EA out to vote. Fortunately, the majority vote “yes” to approve it.
Next, you complete the relevant paperwork and lodge it together with the EA to the Commission for approval. Fingers crossed the EA will be approved. A few weeks later you receive communication from the Commission. They have some queries about the NERR.
After some back and forth with the Commission, it turns out you did not comply with the statutory requirement regarding this so called 'simple' document and as a result the Commission cannot approve the Agreement. After reissuing the NERR (again), you schedule another vote in a month's time.
Sound familiar? Below are some guidelines to help navigate the potential pitfalls of the NERR. Of course, you should always seek specific advice relevant to your circumstances.
So how do you get it right?
Step 1: Get the content right
- Use the Fair Work Regulations-prescribed Notice. It’s accessible via the Fair Work Commission website.
- Follow the Notice instructions, include relevant content and remove irrelevant content from the Notice.
- Insert the correct phone number for the Fair Work Commission Infoline: 1300 799 675.
- Include the correct website: www.fairwork.gov.au (NOT www.fwc.gov.au).
- Reword or reformat the Notice.
- Remove prescribed content which is required.
- Place the Notice on company letterhead or incorporate the company logo.
- Fail to remove irrelevant content from the Notice.
Step 2: Delivering the NERR
Employers must exercise caution when providing the Notice at the same time as other documents.
- Consider emailing the NERR to relevant employees using only a basic cover email. For example, “Dear employees, please find attached the Notice of Employee Representational Rights.”
- Post the NERR on a place known by and available to employees (such as a notice board).
- Staple or otherwise add other documents to the Notice.
- Use a dividing line to differentiate the Notice from other documents.
- Attach an extra form to assist employees to nominate a bargaining representative.
Step 3: Complying with timelines
Employers must strictly conform to the prescribed Notice timelines.
- Give the NERR within 14 days after the employer agrees to, or is required to, bargain. If you don’t do this, then –
- Give the NERR at least 22 days in advance of a request to vote on the EA.
- Delay giving the NERR once the organisation has committed to bargaining representatives that bargaining is starting.