Most workplace relations specialists thought there was an end to the technicalities available to torpedo the agreement approval processes at the Fair Work Commission, but they were wrong. There’s more.
This time, an employer did not issue the Notice of Representational Rights within 14 days of notifying staff that the company wanted to negotiate an agreement. The negotiations for the agreement took place over approximately a two year period. There was no issue with the content of the agreement or any suggestion that the employees were in any way disadvantaged by the agreement or that they were sidelined from the process.
All that happened was, the employer identified a date when the employees were first told about the agreement proposal, and then, as time progressed, Notices were given to employees. The technical problem was, the employer did not give the first Notices out within the 14 day period after initiating bargaining.
Even though bargaining went on for so long, the FWC reasoned that since this technicality had been discovered, it could not be satisfied that the employees genuinely agreed to the agreement. It is not hard to see how such a set of circumstances could arise, where an employer, as a matter of courtesy, advises staff that over the coming months, there will discussions and negotiations about an agreement, and then at a later date, the employer issues the Notices.
In this case, the employer and employees have to go back and play out a pantomime of being told they will enter bargaining, there will be a new “Notification Date” and then after all the time lines and programs have been met, re-lodge with the FWC.
The take home from this case is, before embarking on bargaining, draw up a schedule with milestones and time frames, and avoid these deeply frustrating outcomes.