Employer only required to take all reasonable steps to issue notice of representational rights

An employee sought to overturn the approval of an enterprise agreement because he had not been given a notice of representational rights. The employee argued the employer had not taken ‘all reasonable steps’ to give the notice to employees (a pre-requisite to the making of an agreement). The employer had posted the notice on notice boards and in lunch rooms at its various sites. However, on the evidence, while senior management had instructed local area managers to post the notice in a readily accessible place for employees, this was not done at the employee’s workplace.

A majority of the Full Bench found that the decision as to whether the employer had taken reasonable steps was a discretionary one. The Full Bench noted that the requirement in the Act to provide notice does not require the employer to ensure that each employee receives the notice, but only to take ‘all reasonable steps’. Referring to the objects of the Act and the agreement making framework, the Full Bench was satisfied that the employer had taken all reasonable steps to issue the notice of representational rights.

The Full Bench also considered whether a failure to comply with the obligation to take all reasonable steps to give employees the notice meant that an enterprise agreement could not be approved, because employees could not have ‘genuinely agreed’ to the agreement. The Full Bench expressed doubt that this would always be so, preferring a holistic approach to agreement approval which took into account the circumstances leading to the making of the agreement in each case.

Commissioner Lewin disagreed, finding that FWA was misled at first instance about the fact that the notice had (or had not) been posted in each workplace (because the employer only admitted after the agreement was approved that notice was not posted at the employee’s site). The Commissioner found that he would have sought an undertaking from the employer that the agreement would not apply at that workplace as a pre-condition to the approval of the agreement.