Two recent decisions of the FWC have once again highlighted the importance of strict adherence to the requirements in FWC forms, particularly those pertaining to bargaining for and approval of an enterprise agreement (‘EA’).
In Uniline Australia Limited , the Full Bench declined to approve the EA on the basis of the deficient Notice of Employee Representational Rights (‘NERR’). The NERR, being the form that notifies employees that bargaining has commenced for a new EA, was issued to employees outside of the 14 day limit mandated by the Fair Work Act 2009 (Cth)(‘FW Act’).
Pursuant to section 173(3) of the FW Act, an employer negotiating an EA is required to issue the NERR within 14 days of “notification time”, defined to mean when:
- The employer agrees to bargain or initiates bargaining; or
- A majority support determination in relation to the proposed agreement comes into operation; or
- A scope order in relation to the agreement comes into operation; or
- A low-paid authorisation in relation to the agreement comes into operation.
The decision reinforces the importance of correctly identifying when the employer has agreed to bargain or has initiated bargaining. Giving due consideration to this important step is will go a long way to mitigate the risk that later in the process (and even following a successful vote) the EA will not be approved.
The Full Bench in Maritime Union of Australia v MMA Offshore Logistics* decision (‘Maritime’) overturned the approval of two EAs and again demonstrated its unwillingness to overlook seemingly minor deficiencies in a NERR.
In Maritime, the FWC restated its previous position in Peabody* that there is “no capacity to depart from the [NERR] template in the FW regulations” and failure to strictly comply with such template will render a NERR invalid.
In Maritime, the inclusion of the Fair Work Ombudsman telephone number instead of the required FWC Info Line phone number in the NERR proved fatal. The employers seeking to have the EAs approved unsuccessfully argued that the incorrect telephone number did not undermine the purpose and intent of the NERR. The Commission held that the prescribed NERR form required the inclusion of the FWC Infoline number and absence of that number is sufficient to invalidate the NERR.
Following Maritime, Employment Minister Michaelia Cash commented that the government will introduce legislation to “fix these anomalies and enable common sense to prevail” stating that the relevant provisins of the FW Act “are clearly not operating as intended”.
These recent decisions remind us of the importance of attention to detail even prior to the EA bargaining phase to ensure an otherwise successfully bargained EA is not compromised by earlier seemingly minor deficiencies.
If you would like further information regarding the process of bargaining for, voting on, and/or approval of EAs, please do not hesitate to contact Nick Stevens, Megan Cant, or Jane Murray on (02) 9222 1691.
* The Maritime Union of Australia v MMA Offshore Logistics Pty Limited t/a MMA Offshore Logistics, the Maritime Union of Australia v Smit Lamnalco Australia Pty Limited .
This article is intended only as a general overview of legal issues currently of interest to clients and practitioners. It is not intended as legal advice and should only be used for information purposes only. Please seek legal advice from Stevens & Associates Lawyers before taking any action based on material published in this article.