Recent Fair Work Commission decisions have again confirmed the importance of strict compliance with procedural requirements by employers when seeking the approval of Enterprise Agreements.
The Fair Work Act 2009 (Cth) sets out a number of substantive and procedural criteria regarding the processes to be followed for the commencement, negotiation and approval of Enterprise Agreements (EAs). These include prescribed formats for required documents set out the Fair Work Regulations 2009.
There are strict requirements and limitations on the form and content of important documents that must be prepared as part of the EA bargaining and lodgement process, such as the Notice of Employee Representational Rights (NERR).
In the two identical decisions in late-January 2016, DP World Melbourne Limited  FWC 386 (19 January 2016) and DP World Brisbane Pty Ltd  FWC 385 (19 January 2016), the Fair Work Commission refused to approve major stevedoring company DP World’s Brisbane and Melbourne EAs because DP World had failed to comply with the form and content requirements of the NERR.
In issuing the NERR to its employees, DP World had included its company logo and letterhead on the document. Commissioner Cambridge found that this error had “the effect of altering the character of the document whereby what is a regulatory form takes on the character of an Employer’s document.”
Quoting an earlier judgment of the Fair Work Commission, Commissioner Cambridge concluded that “there is simply no capacity to depart from the form and content of the notice template provided in the Regulations.” Accordingly, Commissioner Cambridge refused DP World’s applications for approval of its EAs.
The Fair Work Commission had previously refused to approved DP World’s EAs in November 2015 given a clerical error in DP World’s ballot declarations. The subsequent rejection of DP World’s EA application was undoubtedly frustrating for the company, after what was a drawn out and difficult negotiation process with the Maritime Union of Australia.
The Fair Work Commission eventually approved DP World’s EA on 22 March 2016, after finding that the procedural requirements of Fair Work Act 2009 had been satisfied.
Lessons for employers
While content requirements of EAs are perhaps more well-known to employers – for example, the requirement of the EA to satisfy the “Better Off Overall Test” (BOOT) – failing to comply with lesser known requirements, such as proper content of documents and forms relating to the negotiation and approval of the EA, are grounds for the Fair Work Commission to refuse to approve your EA.
If you are negotiating or renegotiating an EA with your workforce, it is essential that you are aware of these requirements, as minor errors of this kind can result in considerable cost and disruption to your business.