Drafting Errors Sink Agreement

The devil is in the detail, as the saying goes, so rushing the job of drafting is a high risk approach, as a transport operator found out when its agreement did not pass muster.

The company was anxious to qualify as a preferred tenderer for work on projects which required bidders to have an enterprise agreement in place. Since this was the company’s motive and focus, it failed to pay requisite attention to the drafting of the document itself.

The Fair Work Commission, while sympathetic to the employer’s plight, was unimpressed by the extent and nature of the deficiencies. Example after example was given to the company with explanations why the lack of clarity in the words meant lack of clarity to the entitlements and obligations of the parties.

The FWC declined to approve the agreement on the basic ground that if the wording did not make clear what the various entitlements really were, then the employees could not have truly appreciated what they were agreeing to.

Employees have a right to know how approval of an agreement will affect their terms and conditions of employment, the FWC said in this case, and this approach must inform all drafting processes. Without it, approval of the agreement may fail.

Rhino Transport (QLD) Pty Ltd [2010] FWA 2798 (14 May 2010)