A common sense approach to notices of employee representational rights? Fair Work Commission says no

The Full Bench of the Fair Work Commission has 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 were invalid because of their lateness, and for that reason, the enterprise agreement they related to could not be approved.  The notice of employee representational rights is a notice required to be given to employees at the start of the enterprise bargaining process, informing the employees of their right to be represented by a bargaining representative.  

This outcome follows a line of strict decisions specifying that failure to comply with the technical requirements for a notice of employee representational rights means an enterprise agreement simply cannot be approved.  In previous cases, issues such as stapling the notice to another document or printing it on employer’s letterhead have rendered the notice invalid (see related article). 

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 further progress bargaining throughout 2014 and 2015.  Notices of employee representational rights were then issued in February 2016 and employees voted to approve the agreement in March 2016.

The question for the Commission was whether, having given the notices in the correct form but more than 14 days after the prescribed notification time, the employer could have its enterprise agreement approved.

Although one member of the Full Bench considered that the issues involved in the case were crying out for a common sense approach and would have held the notices to be valid to avoid an artificial and nonsensical outcome, the majority held that the notices were invalid.  The finding that the notices were invalid meant that the employer had not complied with the separate requirement not to request employees to vote for the agreement until at least 21 days after the last notices had been given. 

The majority’s reasoning included that: 

• the notice plays a significant role in the scheme of bargaining established by the Act; 
• the purpose of the notice is to ensure that employees are informed at the earliest practicable time of the fact that bargaining is occurring and their entitlement to representation in that process; and
• the Act makes no provision for extending the time within which the employer must give the notice.  

They held that allowing the notice to be given late would have potential consequences which would be destructive of the notice’s statutory purpose.

The majority did not discount the possibility that there may be circumstances in which a notice 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 notice as required, but those steps were unsuccessful in relation to a particular employee.  However, that was found not to be the case here.
 
Issuing a valid notice in the right form, at the right time, and complying with other strict statutory requirements at each stage of enterprise bargaining are critical to satisfying the Fair Work Commission that employees have genuinely agreed to an enterprise agreement. 

So what happens if you give the notice late, or if there is an irregularity in the form or content of the notice?  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 extremely technical nature of the whole enterprise bargaining process and the need to obtain good legal advice throughout the process.

If you need advice in relation to enterprise bargaining, agreement making or other employment law or industrial relations issues, please contact:

Sonia McCabe
Senior Associate
T: 03 5226 8558
E: smccabe@ha.legal

Jim Rutherford
Principal
T: 03 5226 8579
E: jrutherford@ha.legal