The Full Bench of the Fair Work Commission (Commission)[1] recently  reaffirmed that employers who issue a notice of representational rights (Notice) must ensure the Notice complies with the Fair Work Act 2009 (Cth) (Act).

Background

In Australia, when commencing bargaining with employees for a new enterprise agreement, a Notice must be provided to each employee who will be covered by the proposed agreement.  The precise format and content of the Notice is crucial due to section 174(1A) of the Act, which requires that the Notice:

(a) contain the content prescribed by the regulations; and

(b) not contain any other content; and

(c) be in the form prescribed by the regulations.

This section is intended to eliminate confusion about whether employers may modify the content and form of the Notice and respond to a concern that employers were inserting information additional to that required under section 174 of the Act.

Recent decision

In this case, Methodist Ladies’ College (the Employer) provided employees with a Notice that also incorporated a nomination form. The nomination form was placed beneath the bargaining notice and separated by a black dividing line that employees could presumably fill out, tear off and return to nominate a bargaining representative.

At first instance the Commission declined to approve the enterprise agreement which had been made after the issuing of the Notice, on the basis that the Notice was inconsistent with the content and form prescribed by Schedule 2.1 of the Fair Work Regulations.

The Employer appealed to the Full Bench, arguing that because the employees had expressly been informed that the document constituted the Notice and a nomination form (that is, two separate documents) and no objections had been raised, this was distinguishable from the case last year (Peabody v CFMEU[1]) in which the employer had rendered its Notice invalid by stapling two nomination forms to it.

The Full Bench rejected this argument and held that, as a result of the nomination form being attached to the Notice, it did not comply with section 174(1A) and was invalid.  The consequence being that the enterprise agreement making process needs to recommence.

Lessons

If the Notice is not in the form and/or contains content other than that prescribed by the Fair Work Regulations, the Notice is invalid.

On 4 August 2015 the Commission posted on its website the correct version of the Notice contained in the Fair Work Regulations.[2]   Any employer considering issuing a Notice to commence the bargaining process should ensure it uses the correct Notice.

[1] Peabody Moorvale Pty Ltd v Construction, Forestry, Mining and Energy Union (CMFEU) [2014] FWCFB 2042

[2] https://www.fwc.gov.au/about-us/news-and-events/clarification-notice-employee-representational-rights

[1] (C2015/4657) https://www.fwc.gov.au/documents/documents/Transcripts/20150728_C20154657.htm

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