In the first test of the new Fair Work Act 2009 (Cth) (FW Act) provisions on the content of employee representation notices, the Fair Work Commission has refused an application to approve an enterprise agreement, finding that the notice of representational rights provided to employees was not a notice as required by the FW Act1.
Shape Shopfitters Pty Ltd (Shape Shopfitters) lodged an application with the Fair Work Commission (FWC) for approval of an enterprise agreement. The notice of representational rights was issued to employees on 22 February 2013.
Accompanying the application was a statutory declaration by an employee of Shape Shopfitters, attaching the notice of employee representational rights prescribed by the Fair Work Regulations 2009 (FW Regulations). However, attached to the notice was an additional form that asked employees to nominate either their union, themselves or another person as their bargaining representative.
On receipt of the application, Deputy President Gooley wrote to Shape Shopfitters’ representative advising she was concerned that the notice of representational rights did not comply with the requirements of the notice set out in the FW Act. As a result it was questionable whether the employees had genuinely agreed to the agreement. Following a response from Shape Shopfitters’ representative, the matter was listed for hearing.
On 1 January 2013, amendments to the FW Act came into effect concerning notices of representational rights. The amendments followed a recommendation by the Review Panel of the Fair Work Act Review to eliminate confusion about whether employers may modify the content or form of the notice.
The amendments state that the notice must:
- contain the content prescribed by the regulations; and
- not contain any other content; and
- be in the form prescribed by the regulations.
Schedule 2.1 of the FW Regulations contains the content that must be provided in a notice of employee representational rights.
Deputy President Gooley had to determine whether, by providing the employees with a document that complied with the FW Regulations, while at the same time providing them with another document that contained additional content, Shape Shopfitters had breached the mandatory requirements of the FW Act.
In finding against Shape Shopfitters, Deputy President Gooley was of the view that, when issuing a notice of representational rights, it would not be consistent with intention the FW Act and FW Regulations if any additional content could simply be included in a separate document provided to employees at the same time as the information prescribed by the FW Act and FW Regulations.
As the notice of representational rights provided by Shape Shopfitters contained additional content, it did not comply with the FW Act and, therefore, this meant that no notice of representational rights was provided to employees.
As a consequence, Deputy President Gooley found that the enterprise agreement had not been genuinely agreed to by the employees it covered, as required by the FW Act. This was because the requirement that employees be requested to approve the agreement 21 days after the last notice of employee representational rights is given, had not been satisfied.
The agreement could not therefore be approved and the application was dismissed.
Bottom line for employers
When giving employees the notice of representational rights, the notice must only contain the content prescribed by the FW Regulations and no other content except that which the FW Regulations require an employer to insert or omit. A failure to follow the requirements of the FW Act at that stage will invariably lead to an application for approval of an agreement being dismissed.