Fair Work Commission (FWC) decisions continue to highlight the difficulties some employers face with the issuing of Notices of Representational Rights. These notices are given to employees at the commencement of bargaining for a new enterprise agreement.
Getting the issuing of the notices right is extremely important, as the FWC will refuse to approve an agreement where certain mandatory steps – including provision of the notices to employees in the correct form – have not been taken.
ISSUING REPRESENTATION NOTICES: WHAT DOES THE FAIR WORK ACT REQUIRE?
Section 173 of the Fair Work Act 2009 (Cth) (FW Act) requires an employer to take all reasonable steps to give notice of the right to be represented in bargaining, to all employees who will be covered by a proposed enterprise agreement:
- The representation notices must be given within 14 days of the commencement of bargaining – usually this occurs when an employer either initiates, or agrees to a request from a union/employees to begin, bargaining.
- Notices may be given to employees in person; by post, email or fax; or by displaying the notice at a readily accessible location at the workplace (e.g. a notice-board).
- Representation notices must contain the content, and be in the form, prescribed by the Fair Work Regulations 2009 (Cth) (FW Regs). Notices must not contain any other content (FW Act, section 174(1A)).
- The notices are intended to inform employees of their right to appoint a bargaining representative in the making of an enterprise agreement; and that if an employee is a union member, the union will be their bargaining representative by default (unless the employee appoints another representative).
- An agreement may not be approved by the FWC where it finds that employees have not ‘genuinely agreed’ to the agreement, having regard to factors including the employer’s non-compliance with any of the steps that must be taken before employees vote on an agreement (sections 186(2)(a), 188) – including the correct issuing of representation notices.
COMMON MISTAKES IN THE ISSUING OF REPRESENTATION NOTICES
Form and Content of the Notices
While the requirements outlined above appear relatively straight-forward, the FWC continues to refuse the approval of agreements due to employers’ failure to issue representation notices in the required form.
This can be the outcome even where the employer’s error may seem trivial, as the following examples illustrate:
- Transit (NSW) Services Pty Ltd  FWC 2742 (3 May 2016): The problem here was the employer’s inclusion, in the notices given to employees, of reference to the FWC’s website as a source of further information available to employees (www.fwc.gov.au). However the pro forma notice in the FW Regs includes reference to the Fair Work Ombudsman’s website (www.fairwork.gov.au). The FWC found that although it was not clear if any employee had relied on the erroneous website, or whether this would have impacted on their decision whether to vote for the agreement, section 174A does not allow any departure from the required wording of a representation notice. An exception might be made for minor typographical errors; however providing the ‘incorrect website could not be described as being insignificant, minor or inconsequential’.
- DP World Melbourne Limited  FWC 386 and DP World Brisbane Pty Ltd  FWC 385 (19 January 2016): The employer had issued representation notices on company letterhead with its corporate logo, and referred to the incorrect year of the proposed agreement, citing a 2014 agreement, rather than a 2015 agreement. The FWC found that the latter error was not ‘material’ and therefore did not invalidate the notices. However the use of the company’s logo and letterhead was ‘a matter of more serious concern’. Although this might be considered insignificant, it 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. In certain circumstances, this type of alteration to a [representation notice] could conceivably have significant consequences.’ Use of the letterhead was found to have invalidated the notice.
- WorkPac Mining Pty Ltd  FWC 251 (14 January 2016): Various problems arose in this case, including the employer’s provision of factually incorrect information in the representation notices. For example, the notices indicated that the employer and its subsidiaries sought to make an agreement, whereas the proposed agreement would only apply to the employer. The notices also indicated that the agreement would cover employees in the black coal mining industry, whereas the coverage clause in the agreement extended beyond coal mining. In refusing to approve the proposed agreement, the FWC stated that: ‘It should be a simple matter for employers to download the template [representation notice] from the Commission's website, include the required information in the introductory paragraph, delete the content that is not relevant, and give it to employees.’
- Methodist Ladies’ College and IEU (FWC Full Bench, 28 July 2015; upholding  FWC 4050): The employers’ representation notices were found to have improperly incorporated a form asking employees to nominate a bargaining representative. This was misleading as it gave the impression to employees that the attached form was the only method of appointing a bargaining representative (contrary to the FW Act’s requirements).
Giving the Notices to Employees
The above cases focus on problems that employers have encountered with the form and content of representation notices. A number of cases have also considered the manner in which employers have provided notices to employees.
The main lesson from those cases is that whatever method is used, it must be very clearly signalled to employees that they are being given information that outlines their rights in bargaining for a proposed agreement.
For example, simply sending employees an SMS or email described as ‘docs relating to proposed agreement’ with links to a number of websites (including a link to the representation notice) has been found not to satisfy the FW Act requirements. In WorkPac Mining Pty Ltd  FWC 251, the FWC determined (at ) as follows:
‘Notwithstanding that the email and the SMS message in the present case indicated that the weblinked documents related to the Agreement, as a matter of prudence, an essential document such as a [representation notice] should not be provided by way of a generic SMS message or email that also refers to other documents.’
PRACTICAL TIPS FOR ‘GETTING IT RIGHT’
The cases discussed above illustrate the importance of strict compliance with the FW Act steps for informing employees about their rights to representation in bargaining for a new agreement.
Unlike some other requirements for FWC approval of enterprise agreements, such as the ‘better off overall test’, non-compliance with the mandatory steps in the agreement-making process cannot be cured by the giving of undertakings under section 190 at the approval stage.
Tripping up on the mandatory requirements could therefore result in having to start the process over again – this could take months, and may have other costs such as delaying wage increases and lowering employee morale.
To avoid this outcome, employers should follow these practical tips in the issuing of representation notices to employees:
- The golden rule is this: stick to the wording of the pro forma notice in the FW Regs.
- Do not alter any of the wording, except the variables relating to the name of the employer and the title of the proposed agreement and its coverage – and make sure that those details match the agreement itself.
- Do not attach any documents to the notices –do not even provide any other documents to employees with, or at the same time as, the notices.
- In distributing the notices to employees by SMS or email, clearly sign-post that the information being provided relates to the rights of employees to be represented in bargaining for a new agreement. Do not send this information out as part of a message about other employment or workplace issues.