'Ticking all the boxes' critical in gaining enterprise agreement approval

Recent Fair Work Commission decisions re-affirm that if you don’t 'tick all the boxes' associated with pre-approval requirements, it may result in enterprise agreement not being approved.

The first decision

Under the Fair Work Act 2009 (the Act) before employees are asked to vote in favour of or against the proposed enterprise agreement, employers are required to ensure that employees have 7 clear days access to the proposed enterprise agreement and any incorporated material (the Access Period).

In this matter, the employer forwarded an email to eligible employees on 11 December 2013 advising them that:

• the Access Period had commenced at 10.30am that day; and
• voting for the proposed enterprise agreement would commence at 11.00am on 18 December 2013.

The Fair Work Commission found in determining the access period, there must be 7 clear, entire days. Part days cannot be included. Accordingly, the appropriate date for the vote to commence in this matter was 19 December 2013 (not 18 December 2013).

As a consequence, the Fair Work Commission was not satisfied the employees to be covered by the enterprise agreement had genuinely agreed to it. Consequently, the proposed enterprise agreement was not approved.

The second decision

Under the Act, the employer is required to notify employees of the time and place of the vote in relation to a proposed enterprise agreement prior to the commencement of the Access Period.

In this matter, a postal vote was to be conducted. When the employer notified employees of the time and place of the vote in relation to a proposed enterprise agreement, it also attached the ballot paper and a return envelope.

The Fair Work Commission found that by attaching the ballot paper and return envelope when the employer notified the employees of the time and place of the vote, the employer had effectively commenced the voting process on that day.

Consequently the employer failed to comply with the obligation to provide an Access Period. In the circumstances, the pre-approval requirements of the Act had not been complied with.

Needless to say, the enterprise agreement was not approved.

Key lesson

These decisions highlight that the precursors set out in the Act to the Fair Work Commission approving an enterprise agreement are strict. Employers should carefully ensure these requirements are met to avoid delays in approval or the Fair Work Commission refusing to approve the enterprise agreement.

If you would like more information about pre-approval requirements for enterprise agreement approval or enterprise agreements generally, please contact Jason Donnelly, Tass Angelopoulos, Carly Stebbing or Elizabeth Kenny +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.