The Fair Work Amendment (Notice of Employee Representational Rights) Regulations 2016 (Amending Regulations) will amend the form of the NERR which an employer is required to give employees at the commencement of the enterprise bargaining process. The Amending Regulations commence on 3 April 2017.

Background

The Fair Work Act 2009 (FW Act) sets out a framework for the making of enterprise agreements between employers and employees. Section 173 of the Act provides that an employer must take all reasonable steps to give a NERR to each employee who will be covered by the proposed enterprise agreement. Section 174 of the Act sets out the requirements, in terms of content and form, of the NERR.

Section 174(1A) of the Act specifically requires that the NERR must be in the form prescribed at schedule 2.1 of the Fair Work Regulations 2009 (FW Regulations) and it must contain the content prescribed by the FW Regulations and not any other content.

Changes being introduced

The main change brought about by the Amending Regulations is to the form of the NERR. Specifically, under the heading “Questions?” in the NERR the reference to the Fair Work Commission’s website and Infoline telephone number have been removed. The new content provides that the recipient may contact the Fair Work Ombudsman as well as the employer, bargaining representative or Fair Work Commission.

The changes are set out below:

Please click here to view the table. 

Other changes made by the Amending Regulation include omitting the references to the now repealed sub-section 174(6) of the FW Act in FW Regulation 2.05 and in the NERR set out in Schedule 2.1 and substituting it with a reference to subsection 174(1A) of the FW Act.

The changes made to the NERR requirements will apply only to NERR’s that are given to employees on and from the 3 April 2017. NERR’s issued prior to this 3 April 2017 are not affected by the Amending Regulations.[1]

Summary

While the amendments are minor and largely technical, it is important for employers to ensure they are using the most up to date version of the NERR. The Fair Work Commission has consistently found that inconsistencies or variations to the NERR will invalidate the notice.[2]

By way of example, in Transit (NSW) Services Pty Ltd[3] the Commission found an erroneous reference in the NERR to the “FWC website” instead of the “Fair Work Ombudsmen website” under the heading “Questions?” was invalidated the NERR as it did not comply with the requirements of the FW Regulations.

A finding of invalidity of the NERR by the Commission has led to enterprise agreements not being approved and parties having to recommence the lengthy and costly bargaining process.

Tips for employers:

  1. always use the most recent notice prescribed by the Regulations at Schedule 2.1: see section 174(1A) of the FW Act;
  2. do not vary the prescribed form in any way: see AMOU v Harbour City Ferries Pty Ltd and Orrs (2015) 67 AILR 102-389(6);
  3. to avoid confusion, do not provide additional material at the same time as providing a notice: see Methodist Ladies’ College and IEU [2015] FWC 4050; and
  4. as always, contact McCabes Lawyers if you need any assistance or have any further questions.