Strict Rules for Bargaining Notices Upheld as One Word Invalidates Enterprise Agreements

Two enterprise agreements have been deemed defective by the Full Federal Court (FFC) after Aldi referred to themselves as “leader” rather than “employer” in their bargaining Notice (Notice) to employees about their representational rights.

The FFC upheld the Fair Work Commission’s (FWC) decision and rejected Aldi’s submission that the word change was a “trivial matter”. Aldi sought to rely on the Acts Interpretation Act 1901 (Cth) to argue it had “substantially complied” with the Notice requirements, and that the notice should be rendered valid. Aldi’s lawyers argued that the word was changed to accord with the language Aldi uses within its business.

The FFC rejected Aldi’s argument and the Notice was held to be invalid due to the “strict compliance” required for such forms as prescribed by Section 174 of the Fair Work Act 2009 (Cth) (the Act), which requires the Notice to “contain the content prescribed by the regulations; not contain any other content; and be in the form prescribed by the regulations.”

On this basis, the FFC took the view that there are no “degrees of validity” and for the purposes of upholding a “tightly regulated notice provision”, confirmed that the departure from the mandatory form was not trivial.

While the Morrison government passed a bill in December 2018 that seeks to provide the FWC with more discretion to disregard minor technical errors in Notices, the decision reaffirms the importance of compliance with the Act and Fair Work Regulations when preparing Notices.

Read the full decision here: ALDI Foods Pty Limited v Shop, Distributive and Allied Employees’ Association[2019] FCAFC 35

If you have any questions about or require assistance with drafting enterprise agreements and/or Notices of employee representational rights, please do not hesitate to contact Nick Stevens, Jane Murray or Angharad Owens-Strauss.

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