Recent amendments to the FW Act enable the FWC to overlook minor procedural or technical errors when approving an enterprise agreement, where those errors were not likely to have disadvantaged employees in relation to their ability to genuinely agree to the terms of the proposed agreement.
This includes errors concerning the requirements relating to the Notice of Employee Representational Rights.
The Explanatory Memorandum to the legislation explains that the measure promotes collective bargaining because it enables the FWC to approve enterprise agreements that it would previously have been required to reject simply because of a minor procedural or technical error.
There have been many situations where agreements have been rejected by the FWC for minor technical reasons.
The changes insert a new subsection 188(2), which provides that an enterprise agreement will also have been genuinely agreed to by the employees covered by the agreement if the FWC is satisfied that the agreement would have been genuinely agreed to under subsection 188(1), but for any minor procedural or technical errors made in relation to:
- the requirements referred to in paragraph 188(1)(a) or (b), or
- the requirements of sections 173 and 174, relating to the Notice (of Employee Representational Rights).
The Memorandum provides examples of minor procedural or technical errors, that could include:
- employees being informed of the time and place for voting on the proposed enterprise agreement or the voting method that will be used for the agreement just after the start of the access period rather than by the start of the access period (subsection 180(3));
- employees being requested to approve a proposed enterprise agreement on the 21st day after the last Notice was given, rather than at least 21 days after the day on which the last Notice was given (subsection 181(2));
- the inclusion of the employer’s company logo or letterhead on a Notice;
- the inclusion of additional materials that are stapled with a Notice; or
- minor changes to the text of the Notice that had no relevant effect on the information that was being communicated in it (for example, the Notice may say to contact a particular person in the human resources department rather than ‘contact your employer’).
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