Yet another enterprise agreement approval application has been dismissed by the Fair Work Commission because of inadvertence in the preparation of the Notice of Representational Rights document the employer issued.
The issuing of the Notice is a mandatory requirement for any employer who intends to bargain for an enterprise agreement. If it isn’t issued, or it does not comply with the strictures imposed on its format, then any agreement subsequently made is deemed invalid. The Notice is issued at the outset and its primary function, as its title clearly suggests, is to inform employees they are entitled to be represented in the bargaining process.
In this case, the employer missed the section which describes the proposed coverage of the agreement. Ordinarily this is accomplished by a simple explanation such as “the employees whose classifications are in the agreement”. Given the agreement at this stage of the proceedings doesn’t actually exist, these words are next to useless, but they ‘tick the box’.
The employees were represented by three of the most well-resourced, militant unions in the country, so there was never any chance of employees not being represented, or knowing about their right to be represented. This was not the first agreement for these employees, so in practice, the Notice was purely a formality. There was no impact on the employees as a result of the oversight. Oblivious to it, the parties went about the business of negotiating an agreement and voting.
The agreement received majority employee support, but two of the three unions weren’t happy. That’s when the defect in the Notice came into play. One of the unions detected the omission and proceeded to argue at the approval hearing that since the Notice wasn’t valid, neither was the agreement. The dissenting unions did not raise the problem earlier and used the red-tape glitch only after all the work had been done.
At the initial hearing the agreement was approved. That Commission member took the pragmatic view no harm had been done, it was clear to all involved what was going on. There was no evidence any employee had been misled, coerced or not made an informed decision about the agreement.
But on appeal, a full bench found otherwise. It decided that since the words were not included in the space provided, despite all the realities on the ground, the Notice was invalid, therefore, so too was the agreement.
The Commission has no discretion to waive such petty irregularities. That the Commission cannot exercise industrial relations common sense in these situations is an indictment of the inflexibility and inadequacy of the law.
Employers must not deviate from the prescribed words, phrases and symbols, nor attach anything to it. Including just one of them may render the Notice invalid. Employers should thoroughly check the Regulations to make certain they comply, otherwise a lot of time and effort could be wasted.