A majority of a Full Bench of FWA has upheld a decision which found that an enterprise bargaining agreement could not be approved because the notice of representational rights issued to employees failed to advise that the union was the default bargaining representative.

An employer applied to FWA to approve an enterprise agreement.  FWA refused to approve the agreement on the basis that the deficiency in the notice of representational rights meant that there was no “genuine agreement”.  The employer appealed to the Full Bench.

The majority held that FWA’s decision not to approve the agreement was correct, on the basis that the representation notice requirements are “clearly intended to ensure that employees not only have a right of representation in bargaining” but that they are also “fully informed as to their right of representation … and the means of affecting that right”. 

The majority did not accept the employer’s proposition that “a failure to meet a specific requirement in the Act could not have been intended to prevent approval in circumstances where genuine agreement otherwise exists”.  Such a proposition “would have an extremely broad application beyond the omission of advice of default representation …” and “would allow the provision of partial information, which would mislead employees as to their rights in relation to bargaining representation”.

Ostwald Bros Pty Ltd v Construction, Forestry, Mining and Energy Union [2012] FWAFB 9512 (8 November 2012)