In May this year (2011), a company made an application to Fair Work Australia (FWA) for the tribunal to approve an enterprise agreement, after a majority of its employees voted to accept the proposed agreement. The agreement was subsequently rejected by FWA as the tribunal stated, “there was no evidence provided by the company that each employee was given 21 days’ notice of their ability to be represented by a bargaining representative during bargaining for the agreement”.
Section 174 of the Fair Work Act states that notice must be given to employees that they may appoint a bargaining representative to represent them during bargaining an the agreement and the notice must be given 21 days before the vote.
Volvo Group Australia Retail Enterprise Agreement 2011 [2011] FWA 4050
Varying the Standard Notice
The Fair Work Act also determines the content of the notice (in the form of a standard letter) and the manner in which it is to be given to employees.
In another case before FWA an employer was denied approval of an agreement because the company placed a time limit on when to appoint a bargaining representative.
FWA found that putting a time limit on when an employee can appoint a representative meant the employer had not complied with its notice requirements and the agreement was not approved.
Fair Work Australia specifically commented that “the regulations do not permit employers to add additional comments, restrictions, directions etc, to the standard notice prescribed by the Act”.
ITW Buildex and National Union of Workers Enterprise Agreement 2010 [2010] FWA 4563
EnterpriseBargaining.com.au comment: To avoid costly administrative errors when seeking to have your EBA approved, call us on (02) 8907 3838.
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