The Fair Work Commission (Commission) has rejected an enterprise agreement application because the Notice of Employee Representational Rights (Notice) was wrongly placed on company letterhead. In this latest saga, Commissioner Cambridge held that the additional information - namely the company's logo and letterhead - invalidated the Notice.1
This decision follows an earlier case in which the Commission rejected an enterprise agreement because the employer had stapled two extra pages to the prescribed Notice.2
Employers will also be aware that the template notice in Schedule 2.1 of the Fair Work Regulations 2009 (Cth) includes options relating to low-paid authorisations and where employees are covered by an individual agreement-based transitional instrument. The intention is that these sections are to be deleted from the Notice if there is no applicable low-paid authorisation, or where there are no employees covered by a former Australian Workplace Agreement (AWA) or Individual Transitional Employment Agreements (ITEA). A Notice may also be defective if the employer fails to omit such irrelevant information.3
Bottom line for employers
The Commission's Enterprise Bargaining Benchbook states:
The employer must NOT change the content of the Notice by adding or removing any text, apart from inserting the employer's name and other details which are specifically required to be included.
If the employer varies the content of the Notice, the Fair Work Commission cannot approve the enterprise agreement.
The Notice needs to be placed on plain paper. Employers must also delete the optional sections in the Notice if these do not apply. No other materials should be issued with the Notice.
While this decision seems to be a very technical application of the Fair Work Act 2009 (Cth), it represents the current law. Employers should apply this technical interpretation until such time as the Full Bench of the Commission delivers a different view.
Employers who are in the process of negotiating an enterprise agreement should double-check any Notices previously issued. If the Notice was issued on company letterhead, did not omit the options which did not apply to the employees to be covered by the enterprise agreement or in way attached any other information, the employer must re-issue the Notice to correct any errors.
The Commission has no discretion to approve the enterprise agreement if the Notice requirements are not strictly adhered to.