Any employer which has gone through the process of negotiating and making an enterprise agreement with its employees and seeking approval of the agreement from the Fair Work Commission (FWC) will know that the process and approval requirements can be complex and time consuming and that the requirements for approval are quite technical.

In a recent case illustrating how easy it is to get the process wrong, the FWC Full Bench held that the mandatory notice of employee representational rights given by an employer to its employees was invalid, due to the inclusion of additional material which altered the content of the notice.  The FWC consequently refused to approve the employer’s proposed enterprise agreement.  

The employer had provided its employees with a document purporting to be a notice of representational rights, together with two nomination slips which were stapled to the notice.  All three pages had also been electronically saved by the employer as a single PDF, and were jointly attached to the employer’s application to the FWC for approval of its enterprise agreement. 

The Fair Work Act 2009 mandates that a notice of representational rights must contain the content and be in the form prescribed by the Fair Work Regulations.  The notice must be given to employees on the happening of certain events and at least 21 days before the employer requests employees to approve an enterprise agreement by voting on it.  Although, the FWC confirmed in its decision in Peabody Moorvale Pty Ltd v Construction, Forestry, Mining and Energy Union that employers can validly give extra information to employees at the same time as providing them with the required notice, it confirmed that there is no capacity under the relevant legislation for employers to modify the content of the notice.   In this case, the additional pages were found to have formed part of the notice and therefore to have invalidly modified its content.  

As a consequence of the employer’s failure to provide a notice which complied with the content and form requirements of the regulations, the FWC did not have the power to approve the employer’s enterprise agreement, and dismissed the employer’s application for approval.   

A failure to follow the required process for bargaining, voting and approval of an enterprise agreement will often have the unavoidable result that the FWC simply cannot approve the agreement.  As an enterprise agreement can not come into operation under the Fair Work Act until at least 7 days after the FWC has approved the agreement, a failure to obtain approval means that the agreement will not take effect and the employer will be left to waste time and resources repeating the mandatory pre-approval process to correct any procedural errors, before making a new application for approval.

For assistance with your enterprise agreement negotiations, advice on approval requirements or other aspects of employment law, please contact:

Jim Rutherford
Workplace Relations
T: 03 5226 8579

Sonia McCabe
Workplace Relations 
T: 03 5226 8558