Please enable JavaScript, then refresh this page. JavaScript is required on this site.

Enterprise Agreement Making - Legislation Update

Georgina Porter, Kate Pennicott, Harriet Eager

Relief on the horizon for non-compliant Notices of Employee Representational Rights issued in enterprise agreement negotiations

One of the first steps in the enterprise bargaining process is to provide staff members with a Notice of Employee Representational Rights (Notice).

The difficulties associated with the Fair Work Commission's inflexible approach to minor discrepancies in Notices have been well-documented. Agreements have been rejected for technical – and some may say trivial – errors in Notices such as including the wrong phone number or website, being placed on company letterhead and being stapled to other bargaining documents.

Perhaps unsurprisingly, the Commission requested that the Coalition review the Fair Work Act 2009 (Cth) to implement a discretion that allows the Commission to correct minor defects in these Notices.

On 1 March 2017 the Fair Work Amendment (Repeal of 4 Yearly Reviews and Other Measures) Bill 2017 (Cth) was introduced into Parliament. If the Bill is passed, an agreement may be 'genuinely agreed to' – despite minor procedural and technical errors in the Notice and the application process – if employees covered by the agreement are not likely to have been disadvantaged by the errors.

The form of the Notice has also been recently updated (and must be used in relation to bargaining commencing after 3 April 2017). Although the amended form is intended to make the approval process easier, the Commission has reported that the number of applications with non-compliant Notices has almost doubled.

In light of this, the Commission has requested that Parliament backdate the Bill's proposed amendments to allow them retrospective effect. A senate inquiry recently backed this proposal. The Bill is expected to head back to Parliament for its second reading by the end of this month. Watch this space.