Common Sense Returns

The Fair Work Commission has waved through an application for agreement approval despite what would once have been fatal errors in the process and paperwork. Relying on recent amendments to the Fair Work Act, the decision acknowledged errors had been made but none were of such magnitude or import to justify sending the employer and employees back to the drawing board.

The employer had signed the Notice of Representational Rights, which according to the previous strict interpretation of the Regulations, would have ended the matter there and then. In addition, the employees voted on the seventh day of the access period, rather than the next day, thereby not having “seven clear days” of access. Again though, on the evidence before the FWC, no harm was done.

This employer had just 11 employees and no doubt the transaction costs of the process were already significant, so had the slip rule not been available to the FWC, then the application would have needed to be resubmitted, with more cost, delay and uncertainty for all concerned.

This is a welcome development for those who want to focus on the substance rather than the form, although there is a limit to the discretion the FWC can adopt. There is still no room for complacency or sloppiness, but it is reassuring to know that FWC members now have the capacity to cut some slack where it is obvious no harm arises when inadvertence occurs.

Ross Alexander Family Trust T/A Drilltec [2019] FWCA 2394 (23 April 2019)