In brief

To commence the bargaining process for approval of an enterprise agreement (EBA), the employer must serve the Notice of Employee Representational Rights (Notice).

What you need to know

With effect from 1 January 2013, a new section 174(1A) of the Fair Work Act 2009 (Cth) was introduced and requires that the Notice must:

(a)        contain the content prescribed by the Fair Work Regulations 2009 (Cth);

(b)        not contain any other content; and

(c)        be in the form prescribed by the Regulations.

Eliminating Confusion

This provision was introduced in response to a recommendation from the Review Report of the Expert Panel: ‘Towards more productive and equitable workplaces – An evaluation of the Fair Work legislation’ [2012] and was intended to eliminate confusion about whether employers may modify the content or form of the Notice.

It had been submitted to the Expert Panel that modifications and additions to the Notice should not be permitted as they had the potential for employers to encourage employees to extinguish their right to be represented by the Union or otherwise confuse employees in the bargaining process.

In 2014, the Full Bench of the Fair Work Commission held that the new section 174(1A) of the Fair Work Act 2009 (Cth) meant that there could be no departure from the content or form of the Notice prescribed in the Regulations and that substantial compliance with the prescribed Notice is not sufficient. This means that the Fair Work Commission cannot approve an EBA commenced with an invalid or defective Notice and the bargaining process must commence again with the service of a fresh and valid Notice.

Recommendation

Employers are recommended to follow the form of the prescribed Schedule 2.1 of the Notice in the Fair Work Regulations 2009 (Cth) precisely and not to add any content whatsoever to the actual Notice document.

It is permissible to have a covering letter with additional information provided that any additional information is not misleading or intimidatory.

It’s a case of bargainer beware.

(See further: Peabody Moorvale Pty Ltd v CFMEU [2014] FWCFB 2042, and Methodist Ladies College [2015] FWC 4050)

About the Author

Tim Greenall

Special Counsel
Commercially savvy with over 30 years of experience, Tim provides pragmatic employment advice to his clients.

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