Sorry, Wrong Number

Just when we thought it couldn’t get any sillier with the Notice of Representational Rights, it has. An agreement has been disallowed because the Notice issued by the employer had the wrong phone number on it, in a section of the Notice that isn’t even required to be there under the legislation.

At the very end of the prescribed text in the Notice, there is a concluding sentence not unlike many ordinary business letters. It advises interested persons where and how to seek further advice if necessary. It is not a paragraph concerned with anyone’s rights or responsibilities essential to fulfilling the purposes for which the Notice exists in the first place.

To make the situation even more farcical, the Notice in this case had the Fair Work Ombudsman’s phone number on it, instead of the number of the Fair Work Commission. If that wrong phone number had been for a completely unrelated entity, then maybe there would be some genuine argument that the Notice was unhelpful, but only in that limited regard.

But it is a real stretch to suggest that if a person rang the Ombudsman number that a simple referral to the Commission couldn’t be achieved. The Commission’s name is on the Notice and so is its website address, so in 2017, it is at the extreme end of probability that anyone would be disadvantaged in the process by this petty inadvertence.

Nevertheless, because of this slip, the FWC was obliged to find that the employees could not have genuinely agreed to the enterprise agreement because the Notice did not comply.

This is not the first time that some trivial error in the Notice has wrecked an agreement. Indeed litigation around this document is notorious, and one of the cases cited in this matter is on its way to the High Court. Until either that court or the parliament finds that common sense can prevail, employers must be absolutely vigilant with the Notice and other key steps in the bargaining process and seek advice to avoid the plight of this company and its employees.

AusNet Transmission Group Application [2017] FWC 1387 (15 March 2017)