All enterprise agreements must be approved by the Fair Work Commission (FWC) to come into operation.[1] The FWC has traditionally needed to satisfy itself that an enterprise agreement has been genuinely agreed to by the employees covered in the agreement.
On 6 June 2023, the laws around enterprise agreement-making under the Fair Work Act 2009 (Cth) (Act) changed. Now, in making their assessment, the FWC must, in addition to the genuine agreement criteria, consider the enterprise agreement against a statement of principles prepared by the FWC.
Application of the FWC statement of principles
The statement of principles is relevant when an employer wants to propose a variant of an enterprise agreement, or a new enterprise agreement (other than a greenfields agreement).
One of these principles is that employers must now ensure that certain information is communicated to its employees at the notification time of the proposed enterprise agreement.
Content, manner, and timing of the required information
Employees falling within the category outlined above must be informed by their employer of the following:
- That the employer is bargaining for an enterprise agreement;
- The proposed coverage of the agreement;
- The right of the employee to be represented in bargaining for the agreement, including by an employee organisation or by another bargaining representative of their choice; and
- how to exercise that right.[2]
To satisfy these requirements, an employer must give a notice of employee representational rights (NERR) to its employees who are employed at the notification time and will be covered by a proposed enterprise agreement. The NERR should be in accordance with sections 173 and 174 of the Act and should contain:
Content and form prescribed by the Regulations
This will be specific to the nature of the agreement and employees you intend to make the agreement with. To download a notice of employee representational rights for your single-enterprise agreement in accordance with Schedule 2.1, click here.
No additional content
Section 174(1A) of the FWA states that the Notice must not contain any other content. This does not require the Notice to be provided in isolation. Rather, where additional material is provided with the Notice and that material has the character of being misleading or intimidatory, this may influence an assessment of the enterprise agreement being ‘genuinely agreed’ by the employees.
Timing of notice
The employer is required to give the notice as soon as practicable, and not later than 14 days after the notification time for the agreement.
The notification time is the time when:
- The employer agrees to bargain, or initiates bargaining for the agreement; or
- A majority support determination in relation to the agreement comes into operation; or
- A scope order in relation to the agreement comes into operation; or
- A supported bargaining authorisation in relation to the agreement that specifies the employer comes into operation; or
- Aa single interest employer authorisation in relation to the agreement that specifies the employer comes into operation; or
- An employer receives a request to bargain in relation to the agreement.[3]
The last time point on this list was added in the recent changes. Importantly, it now allows an employee bargaining representative to make this request, thereby triggering the notification time.
Consequences for non-compliance
The obligation of the employer is to take all reasonable steps to provide the NERR in the right form within the timeframe. Strict compliance with the NERR requirement is not essential as minor procedural or technical errors may be disregarded. However, the FWC must be satisfied that the employees were not likely to have been disadvantaged by these errors.
If you would like to further understand how these changes could affect your business, feel free to reach out to Daniel daniel@morganenglish.com.au and the Workplace team at M+E today.
[1] Fair Work Act 2009 (Cth) s 186 (FWA).
[2] FWA s 174.
[3] FWA s 173(2).
