Originally this article was going to be a cautionary tale for my clients about the strict, non-negotiable timelines and requirements set down in the legislation for enterprise bargaining and enterprise agreement (EA) approval by the Fair Work Commission as I know many employers are keen to start the year with a fresh round of negotiations.
This article was going to say that if you slipped up (perhaps miscalculated your timeframes by a day, attached information to your NERR) the bad news was that you would have to go back and do it all again to make sure everything was compliant.
The FWC must approve an EA if it is genuinely agreed to between employees and employers. What that means is set out in section 188 of the Fair Work Act 2009 (Cth) – essentially a lot of boxes need to be ticked, ticked with a certain pen and they need to be ticked within certain timeframes.
I was going to tell you about how the Full Bench of the Commission, in Peabody Moorvale, determined that the form of the Notice of Employee Representational Rights (NERR) must be exactly in the form prescribed by the Regulations, and it must not deviate from this form in any way at all – not in a memo, not on letterhead, the right website, and absolutely nothing attached to it. Failure to comply the NERR requirement meant that section 188 was not complied with.
I was also going to tell you that in the same case it was found that the expression ‘no later than’ in section 173(3) was also expressed in mandatory language. The interpretation of the words ‘no later than’ had to be read as something similar to ‘in no circumstances after.’ With no other modifying provision or ability to extend the time limit for notification in s 173(3), there is simply no way the requirements set down by the statute in enterprise bargaining can be amended or circumvented.
The FWC has been rejecting approval applications for non-compliance with such procedural or technical requirements, even where employees were happy with the agreement.
However things have changed as at 12 December 2018. Good news! The position has become more reasonable if there is a minor technical error. Amendments have been made to the legislation that gives the FWC discretion it didn’t have before. That is not to say the legislative requirements are now only guidelines or can be ignored altogether. The legislation must still be carefully reviewed, understood and complied with.
The amendment to the Fair Work Act inserts into section 188, a subsection (2) so the whole section now reads:
- An enterprise agreement has been genuinely agreed to by the employees covered by the agreement if the FWC is satisfied that:
(a) the employer, or each of the employers, covered by the agreement complied with the following provisions in relation to the agreement:
(i) subsections 180(2), (3) and (5) (which deal with pre-approval steps);
(ii) subsection 181(2) (which requires that employees not be requested to approve an enterprise agreement until 21 days after the last notice of employee representational rights is given); and
(b) the agreement was made in accordance with whichever of subsection 182(1) or (2) applies (those subsections deal with the making of different kinds of enterprise agreements by employee vote); and
(c) there are no other reasonable grounds for believing that the agreement has not been genuinely agreed to by the employees
2. An enterprise agreement has also been genuinely agreed to by the employees covered by the agreement if the FWC is satisfied that:
(a) the agreement would have been genuinely agreed to within the meaning of subsection (1) but for minor procedural or technical errors made in relation to the requirements mentioned in paragraph (1)(a) or (b), or the requirements of sections 173 and 174 relating to a notice of employee representational rights; and
(b) the employees covered by the agreement were not likely to have been disadvantaged by the errors.
The Explanatory Memorandum to the amendment legislation indicates that technical or procedural errors could include:
- employees being informed of the time and place for voting on the proposed enterprise agreement or the voting method that will be used for the agreement just after the start of the access period rather than by the start of the access period (s.180(3));
- employees being requested to approve a proposed enterprise agreement on the 21st day after the last NERR was given, rather than at least 21 days after the day on which the last NERR was given (s.181(2));
- the inclusion of the employer’s company logo or letterhead on a NERR;
- the inclusion of additional materials that are stapled with a NERR; or
- minor changes to the text of the NERR that had no relevant effect on the information that was being communicated in it (for example, the NERR may say to contact a particular person in the human resources department rather than to ‘contact your employer’).
It still remains key to getting an EA approved that Employer Representatives are well-organised, have attention to detail and are well prepared far ahead of each step in the bargaining process.