Uniline Australia Limited [2016] FWCFB 4969

The Fair Work Act 2009 sets out a number of requirements that must be satisfied before the Fair Work Commission will approve an enterprise agreement. One of those is that an employer must have issued a notice of employee representational rights (NERR) within 14 days of bargaining commencing.

There have been a number of cases where the Commission has not approved an enterprise agreement because the NERR did not include the required text, failed to accurately describe the employees to be covered or attached other documents. From those cases, it is clear that strict compliance with the content of the NERR is essential.

In Uniline Australia Limited, a Full Bench considered the situation where a NERR was issued outside the required 14- day timeframe. Uniline had commenced bargaining in February 2014, however negotiations did not occur in 2014 or 2015. Discussions recommenced in February 2016, at which point Uniline issued the NERR (thinking it was complying with the statutory requirements).

At first instance, and on appeal, it was found that despite more than 80 percent of voting employees approving the agreement, the Commission could not approve Uniline’s enterprise agreement because it had issued the NERR more than 14 days after bargaining commenced. Uniline was required to re-issue the NERR and wait at least 21 days before it could put the agreement to a vote again.

The decision continues the Commission’s requirement for strict compliance with all aspects of the agreement approval process. The minority judgment of Vice President Watson said this issue was crying out for a common sense approach, consistent with the intended simple, fair and flexible agreement making framework; rather we are left with a nonsensical outcome.

The nonsense Vice President Watson was referring to is further highlighted in the example below.

Consider an employer that identifies during bargaining that the issued NERR is defective or deficient in some respect. The employer cannot simply re-issue a correct NERR. Rather, what the Full Bench identified as the required approach is to ‘cease bargaining’ and then ‘start bargaining’ afresh, and issuing the correct NERR within 14 days of that occurring. The majority recognised this is somewhat artificial, but provided no further guidance on the point. The minority judgment of Vice President Watson was much more scathing. He said this approach requires the parties to enter into the ‘theatre of the absurd’.