Timely reminder on notices of representational rights

A Full Bench of the Fair Work Commission has overturned the approval of Harbour City Maritime Agreement 2014 as the notice of representational rights (the NERR) provided to employees by Harbour City Ferries  Pty Ltd (the Employer) departed from the strict wording and content requirements set out in the Fair Work Act 2009 (Cth) (the Act).

The Act requires employers, within 14 days of commencing bargaining for an enterprise agreement, to take all reasonable steps to provide employees who will be covered by a proposed enterprise agreement with a NERR.

The Act requires the NERR to:

• contain the content prescribed by the regulations;
• not contain any other content; 
• be in the form prescribed by the regulations; and
• provide details regarding the appointment of a bargaining representative.

The regulations provide a pro-forma version of the NERR which contain certain fields which to be  populated by the employer. 

In this matter, the NERR distributed did not include a description of the employees who were to be covered by the proposed enterprise agreement as required by the regulations. 

The Full Bench reaffirmed that the pro-forma NERR must be used and completed as set out in the regulations. As the NERR was not in the prescribed form, it was found to be invalid and the application for approval of the enterprise agreement declined.

Lessons

The decision re-affirms the critical step when commencing enterprise bargaining, that employers distribute a NERR to employees in strict compliance with the Act. A failure to do so may risk the Fair Work Commission's approval of the enterprise agreement and result in the employer incurring considerable time and expense.  For example, a non complying NERR would require the employer  to return to that step in the enterprise bargaining process  and recommence the process from that step. 

In particular, employers should ensure the NERR:

• strictly complies with the form specified by the Act and the regulations;
• contains the correct information - for instance, the correctly identifies the name of the enterprise agreement and the Fair Work Info line;
• does not contain any additional material not prescribed by the Act or, alternatively does not omit or change any information required by the Act; and
• is not attached to any other documents or have any other documents attached to it.

If you would like to know more about this article or enterprise bargaining  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.