By Charles Power
The Federal Government has finally passed legislation to give the Fair Work Commission (FWC) the capacity to overlook minor procedural or technical errors when approving an enterprise agreement, if it is satisfied that employees were not likely to have been disadvantaged by those errors.
Currently, parties to an enterprise agreement that has been genuinely agreed to, cannot get the agreement approved by the FWC if there are minor procedural or technical errors in relation to the requirements concerning the Notice of Employee Representational Rights (NERR) and other steps required to be taken for employees to approve a proposed enterprise agreement.
The following are examples of errors that have caused an application to approve an enterprise agreement to fail, despite them resulting in no disadvantage to the employees covered by the agreement:
- Employees being informed of the time and place for voting on the proposed enterprise agreement, or the voting method that will be used for the agreement just after the start of the mandatory 7 day access period, rather than by the start of the access period.
- Employees being requested to approve a proposed enterprise agreement on the 21st day after the last NERR was given, rather than at least 21 days after the day on which the last NERR was given.
- The inclusion of the employer’s company logo or letterhead on an NERR.
- The inclusion of additional materials that are stapled with an NERR.
- Minor changes to the text of the NERR that had no relevant effect on the information that was being communicated in it (for example, the Notice may say to contact a particular person in the human resources department rather than ‘contact your employer’).
Under the new laws, these defects will not cause an approval application to fail provided the employees (as a whole) to be covered by the proposed enterprise agreement are or were not likely to have been disadvantaged by those errors, in relation to the requirements concerning the NERR and other steps required to be taken for employees to approve a proposed enterprise agreement.
When considering whether the employees were not likely to have been disadvantaged by an error, the FWC could take into account, for example, the effect of the error and the circumstances of the error.
The amendments will apply to approval applications made to the FWC on or after the date that the amendments commence, and approval applications made but not yet determined by the FWC (or if made, are the subject of appeal).