Failure to comply with signatory detail proves costly in enterprise agreement approval

The Fair Work Commission (the Commission) recently refused to approve an enterprise agreement as the signatory requirements under the Fair Work Act 2009 (the Act) had not been met.

Background

Sky Channel Pty Ltd made an application to the Commission for approval of the Sky Channel Enterprise Agreement 2014 (the Agreement).

Two unions involved in the negotiations made statutory declarations in relation to the Agreement but raised concerns regarding the terms of the Agreement and the process involved in making the Agreement. In the statutory declarations, the unions alleged that the Agreement:

• offended the terms of the National Employment Standards;
• did not meet the better off overall test; and
• was not genuinely agreed to by the employees.

Finding

The Commission determined that when an application for approval of an enterprise agreement is made, it must be accompanied by a signed copy of the enterprise agreement in accordance with the regulations.

The regulations provide that an enterprise agreement is a signed copy only if it includes an explanation of the person's authority to sign the enterprise agreement.

The Agreement lodged by Sky Channel Pty Ltd included a person's signature but did not include an explanation of that person's authority to sign the Agreement on behalf of employees.

A replacement signatory page presented by Sky Channel Pty Ltd during the proceedings included the words "EMPLOYEE BARGAINING REP" after the typed text "Authority to sign the agreement".

Although the Commission found it did have authority to accept the replacement signatory page as a correction to the Agreement, it declined to do so in the circumstances, given the concerns raised by the unions.

Commissioner Cambridge found that:

"In these circumstances I have formed the view that the most practical and efficient means to provide the best prospect for the Parties to establish an agreement which may be far less contentious than the subject of this application, and hopefully capable of timely approval, would involve the re-commencement of negotiations between the Parties."

As a consequence, the Agreement was not approved.

The lesson

This decision confirms that parties should strictly comply with the requirements of the Act when negotiating enterprise agreements to ensure the approval process is seamless and thereby avoiding additional (and unnecessary) cost and time delays.

We regularly assist employers in the enterprise bargaining and approval process. If you would like more information about this case or enterprise agreements generally, please contact National Workplace Lawyers on +61 2 9233 3989. 

National Workplace Lawyers

Note — this is for information purposes only and does not purport to be comprehensive or to render legal advice.