A recent decision has confirmed employers must strictly comply with all requirements for notices of employee representational rights under the Fair Work Act 2009 (Cth) (Act) if an enterprise agreement is to be approved. This includes compliance with the specified timeframe for issuing these notices.
Notices of employee representational rights must be issued to employees who are to be covered by a proposed enterprise agreement within 14 days of an employer initiating or agreeing to bargain, or of a majority support determination, scope order or low-paid authorisation commencing. A majority of a Full Bench of the Fair Work Commission confirmed if notices are issued to employees after more than 14 days, the notices will be invalid and the enterprise agreement subsequently negotiated cannot be approved by the Commission.
In this case, bargaining for a new enterprise agreement by Uniline Australia Limited (Uniline) commenced, stalled, and then recommenced a couple of years later, at which time Uniline issued notices to employees to be covered by the new agreement. Despite complying with all other requirements in the Act (including as to the content of the notices), and over 80% of Uniline’s employees who cast a valid vote to approve the proposed agreement, it was first held by a single Commissioner that the failure to issue the notices within the specified 14 days invalidated the notices and, in turn, cast doubt on whether there was genuine agreement by the employees to be covered by the agreement.
Uniline’s appeal to a Full Bench did not succeed, despite two out of three members of the Full Bench saying they were ‘not unsympathetic’ to the plight of an employer and bargaining representatives in these circumstances and the Vice President, who was the minority, saying the requirement for strict compliance would ‘push the parties into … a senseless morass’ of ‘pretending to stop bargaining and pretending to agree to bargain afresh’. The majority of the Full Bench said the language of the Act clearly and unambiguously expresses mandatory timing requirements for the issuing of these notices (as well as mandatory requirements for their form and content).
The majority of the Full Bench also emphasised the ‘significant role’ these notices play in the context of bargaining – specifically, they provide employees, at the earliest practicable time, with information about an enterprise agreement, the bargaining process and the employees’ right to be represented to assist with negotiations for the agreement. They said, as a result, any departure from the mandatory requirements for notices under the Act would undermine the underlying objectives of the notices.
Lessons for employers
This decision means employers must ensure they strictly comply with the 14 day time frame (as well as other technical requirements) for issuing notices of employee representational rights if they are to establish, for the purpose of the Commission approving an enterprise agreement, the agreement was genuinely agreed by the employees to be covered by it.
If this cannot be established, employers must restart the entire bargaining process from scratch – adding further delays, cost and resources to what can often already be a lengthy and costly process for employers.