Minor errors in EAs no longer a reason for delay

An amendment to the Fair Work Act 2009, that was passed by Federal Parliament in early December 2018, gives the Fair Work Commission powers to approve an enterprise agreement that has been genuinely agreed to by employees but has “minor procedural or technical errors” provided that “the employees covered by the agreement were not likely to have been disadvantaged by the errors”. This includes minor errors in a Notice of Employee Representational Rights (NERR).

In introducing the legislation, the Minister for Jobs and Industrial Relations explained that these amendments will overcome the “unintended, and sometimes absurd, outcomes which have caused lengthy delays” using the example of rejecting an enterprise agreement because the notice to employees at the beginning of the bargaining process was erroneously printed on company letterhead. According to the Minister, “These changes will allow agreements reached between employers and employees to take effect sooner”.

Conveniently, the Fair Work Commission has handed down a decision to provide guidance to all participants of the system about the scope and application of the new laws. The Commission made the following key findings in the decision:

• an intentional error can nevertheless still constitute an “error”, the question that needs to be answered when assessing the matter is whether there was intentional non-compliance with legislative requirements;
• it is important for the Commission to consider the consequences of the error in determining whether the error was “minor” or not;
• the costs to an employer associated with any delays in having an enterprise agreement approved by the Commission was not a relevant consideration; and
• minor errors may include using an outdated form of the NERR; alterations of the text in the NERR; failing to provide the full seven days access period; putting the NERR on company letterhead; failing to provide the legal name of the employer on the NERR; and arranging the vote to occur less than 21 days after the last NERR was distributed.

Whilst the amendments are a welcome relief for employers and should assist with the delays and red tape involved in the approval process, employers should still nevertheless be vigilant about complying with the legislative requirements as the powers of the FWC to waive procedural or technical errors are discretionary.

Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others

[2019] FWCFB 318 (18 January 2019)

National Workplace Lawyers

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