Bargaining for an enterprise agreement commences with the requirement that the employer provide the employees to be covered by the agreement with a notice of employee representation rights (“Notice”). Section 174(1A) of the Fair Work Act 2009 (Cth) (“Fair Work Act”) provides that a Noticemust:
- contain the prescribed content;
- not contain any other content; and
- be in a prescribed form.
The registration of a number of enterprise agreements have been opposed on the basis that the Notice given by the employer does not comply with these requirements. In several, the employer has sought to include nomination forms for employees to appoint bargaining representatives.
In the case of Peabody Moorvale Pty Ltd v CMFEU  FWCFB 2042, the CFMEU objected to an application by Peabody Moorvale Pty Ltd (“Peabody”) for the approval of an enterprise agreement on the ground that the Notice that Peabody provided to its employees did not comply with the provisions of the Fair Work Act and, therefore, was invalid.
Part of the CFMEU’s objection was based on the fact that Peabody had stapled two additional nomination slips to the Notice, which the CFMEU submitted formed part of the Notice itself, meaning that it contained other content and was not in fact in the prescribed form.
In interpreting section 174(1A) and related provisions of theFair Work Act, the Commission held that employers were not precluded providing their employees with additional documents at the same time as providing them with a Notice.
“Subsection 174(1A)… does not require the Notice to be provided in isolation and to construe the provision in that way would produce some absurd results, for example, it would prevent an employer form providing employees with a simple covering letter or an offer of interpreter services.”
However, the Commission held that employers are precluded from providing their employees with additional information where that information is deemed to constitute part of the Notice itself.
In Peabody’s case, the Commission found that the Notice consisted of not only the prescribed form, but also the two additional nomination slips. Accordingly, it held that the Notice was in breach of section 174(1A) and, therefore, invalid. As a consequence the Commission could not approve Peabody’s enterprise agreement.
Lessons for employers
- You are entitled to provide your employees with additional information at the same time as you provide them with a Notice.
- However, you need to be careful to ensure this information is provided independent of and separate to the Notice itself.
- You also need to be careful that any additional information that you provide is not misleading or intimidatory, as this will be relevant to the Commission’s assessment of whether the enterprise agreement was “genuinely agreed” to by the employees.