The laws around enterprise agreement-making under the Fair Work Act 2009 (Cth) changed on 6 June 2023. In some respects, the technical requirements are now less stringent. However, employers should still be careful to ensure compliance.

The Fair Work Commission (FWC) must still be satisfied that the agreement has been genuinely agreed to by the employees covered by the agreement. In making this assessment, the FWC will now take into account a statement of principles made by the FWC.

One such principle is that the employer should ensure that those of its employees who will be covered by a proposed enterprise agreement who are employed at the notification time receive certain information at a certain time.

The content, timing and manner of the information given to the employees should give them a reasonable opportunity to be represented in bargaining for the agreement.

Content of information

The employees are to be informed:

• the employer is bargaining for the agreement;
• the proposed coverage of the agreement;
• the employees have rights to be represented in bargaining for the agreement, including by an employee organisation or by another bargaining representative of their choice; and
• how the employees can exercise those rights.

In the case of a non-greenfields single-enterprise agreement, the way to do this is still to give a notice of employee representational rights (NERR) to those of its employees who will be covered by a proposed enterprise agreement and who are employed at the notification time for the agreement.

The NERR is in Schedule 2.1 to the Fair Work Regulations 2009 (Cth). The NERR must contain the content prescribed by the Regulations, not contain any other content, and be in the form prescribed by the Regulations. Regulation 2.04 sets out how the NERR is to be given to employees.

Timing of information

The relevant time is 14 days after the notification time. The latter is the date on which any of the following occurs:

• the employer agrees to bargain, or initiates bargaining, for the agreement;
• a majority support determination in relation to the agreement comes into operation;
• a scope order in relation to the agreement comes into operation;
• a supported bargaining authorisation in relation to the agreement that specifies the employer comes into operation;
• a single interest employer authorisation in relation to the agreement that specifies the employer comes into operation; or
• the employer receives a written request from an employee bargaining representative to bargain in relation to the agreement.

The last trigger for the issuing of an NERR is new. An employee bargaining representative can make this request and trigger a notification time when it seeks to replace a single-enterprise agreement that passed its nominal expiry date not less than 5 years ago and the proposed agreement sought will cover the same, or substantially the same, group of employees as the earlier agreement.

The NERR must be issued to the employees as soon as practicable, and not later than 14 days, after the notification time for the agreement (unless the employer has already given the employee an NERR before the notification time for the agreement).

Non-compliance

So, what happens if the NERR requirement is not strictly complied with, e.g. the form is incomplete or contains details that are not prescribed, or it is issued too late, or is not issued to all the employees who will be covered by the agreement who are employed at the notification time? The obligation on the employer is to take all reasonable steps to provide the NERR in the right form at the right time. The FWC may disregard minor procedural or technical errors, provided it is satisfied that the employees were not likely to have been disadvantaged by the errors.

The FWC’s Statement of Principles on Genuine Agreements indicates the FWC will look to see if the employer has misled employees (by words, action or otherwise) about the employees’ right to be represented by a bargaining representative and/or the role of an employee organisation as the default bargaining representative of its members.