Shape Shopfitters Pty Ltd re Shape Shopfitters Pty Ltd Enterprise Agreement 2013-2017 –  FWC 3161 – 21 May 2013
Yet another Fair Work Commission decision has thrown out an enterprise agreement because of a technicality based on the Notice of Representational Rights. The Notice is prescribed by the Fair Work Act’s Regulations. In January this year, the legislation was changed to make it abundantly clear that the Notice must be distributed to employees exactly as it is in the Regulations, no more, no less.
In this case, the employer handed out the Notice exactly as it appears in the Regulations and at the same time, handed out a further, separate document which, according to the Commission, contravened the Act. The additional, or second document, identified the various options for representation that might arise under the Regulations and asked employees to advise their employer who would be representing them. It did not demand this, or in any way suggest that if employees did not respond there would be any consequences, adverse or otherwise.
The Commission determined that by distributing both documents together, effectively, they were one in the same. The Commission also pointed out that the second document had effectively overstepped the legislation. The Commission said the second document was misleading, because it “required employees who were union members to advise their employer in writing that they wished their union to be their default bargaining representative”. This, the Commission claimed, was contrary to the Act as the Act makes no provision for such a requirement.
It remains to be seen if this Decision survives appeal. If an employer distributes any other document at the same time as the Notice, by this Decision, it could be deemed to be part of the Notice and therefore a contravention. It seems unlikely that the legislation intended for the process to be this technical and precise, especially since the ‘second’ document was clearly designed to assist an orderly process regarding participants and representatives. It is also open to argue that while there is no requirement for this information in the Act, equally, there is no prohibition on it either.
Until such time as this issue of process over substance is resolved with more pragmatic engagement rules, employers are well advised to avoid doing anything other than issue the Notice at the beginning of bargaining.