The Full Bench of the Fair Work Commission (FWC) has issued yet another decision emphasising the incredibly strict approach taken to the enterprise agreement making rules.
In a recent decision, the Full Bench confirmed that notices of employee representational rights given by an employer after the end of the 14 day period required by the Fair Work Act (Act) were invalid because of their lateness, and for that reason, the enterprise agreement they related to could not be approved. A Notice of Representational Rights (NORR) is a notice required to be given to employees at the start of the enterprise agreement making process, informing the employees of their right to be represented by a bargaining representative.
In previous cases, issues such as stapling the NORR to another document or printing it on an employer’s letterhead have rendered the NORR invalid.
In this case, the employer agreed to commence bargaining for an enterprise agreement in 2014. Following some initial discussions, no real steps were taken to progress the bargaining throughout 2014 and 2015. The employer subsequently issued the NORR to its employees in February 2016 and the employees voted to approve the agreement in March 2016.
The question for the FWC was whether, having given the NORR in the correct form but more than 14 days after the prescribed notification time, the employer could have its enterprise agreement approved.
Whilst one member of the Full Bench commented that the issues involved in the case were crying out for a common sense approach and would have held the NORR to be valid to avoid an artificial and nonsensical outcome, the majority held that the NORR was invalid. The finding that the NORR was invalid meant that the employer had not complied with the requirements of the Act, and the agreement could not be approved.
The majority’s reasoning included that:
- the NORR plays a significant role in the scheme of bargaining established by the Act;
- the purpose of the NORR is to ensure that employees are informed at the earliest possible time of bargaining commencing and their entitlement to representation in that process; and
- the Act makes no provision for extending the timeframe to issue the NORR.
They held that allowing the NORR to be given late would have potential consequences which would be destructive of the statutory purpose of the NORR.
Interestingly, the majority did not discount the possibility that there could be circumstances in which a NORR might be validly given to an employee more than 14 days after the notification time, for example, where the employer had taken all reasonable steps to give the NORR as required, but those steps were unsuccessful in relation to a particular employee. However, that was found not to be the situation in this case.
Issuing a valid NORR in the right form, at the right time, and complying with other strict statutory requirements at each stage of the enterprise agreement making process is critical to satisfying the FWC that employees have genuinely agreed to an enterprise agreement.
So what happens if there is an error in the form or content of the NORR or if it is issued later than the timeframe under the Act? Well, according to the majority:
“Artificial though it may be, an employer that discovers it had issued an invalid notice, would cease bargaining with its employees and would agree to bargain or initiate bargaining afresh thus triggering a notification time and a new period within which a valid notice may be issued.”
This case highlights the incredibly technical and strict nature of the enterprise agreement making process and highlights the need to be aware of the requirements and to seek advice and assistance at the outset.
If you need advice in relation to enterprise agreement making or other employment law or industrial relations issues, please contact: