The Case

(2018)

The Fair Work Commission (FWC) at first instance refused to approve two proposed enterprise agreements of Aldi Foods Pty Limited as General Partner of ALDI Stores (A Limited Partnership) (Aldi).

The FWC refused the enterprise agreements because Aldi had not strictly complied with the prescribed form when issuing the Notice of Employee Representational Rights (NERR).

At the commencement of enterprise bargaining for a proposed enterprise agreement, an employer is required to give relevant employees an NERR. The content and form is prescribed by the Fair Work Act 2009 (Cth). Employers cannot depart from these strict requirements to ensure employees are not misled or confused about the bargaining process. A template NERR can be found in Schedule 2.1 to the Fair Work Regulations 2009.

The NERR directed employees who had any questions about the notice or bargaining process to their ‘leader’ instead of to their ‘employer’.

Aldi appealed the matter to the Full Bench of the FWC, arguing that its amendment to the NERR was not a substantial departure from the prescribed form and should not invalidate the NERR. Aldi argued the term ‘leader’ was consistent with its organisational structure in the workplace, as employees were often directed to ‘leaders’ to discuss employment matters.

The Verdict

The Full Bench of the FWC rejected Aldi’s argument. It held that the prescribed form of the NERR provides employees with important information as to whom they could direct their inquiries. By amending the form to insert the term ‘leader’, Aldi had restricted the employees’ options in seeking answers to any questions they may have about the enterprise agreement or bargaining process. If Aldi had wanted to nominate an appropriate person or persons to whom questions might be directed, this could have been done in a separate document accompanying the NERR. This would mean Aldi would not need to alter the prescribed NERR.

The Lessons

While the issuing of an NERR would appear to be a fairly straightforward task, it can be disastrous if not precisely executed. The current views of the FWC and supporting case law provide that any modification to the content or form of the NERR will invalidate it. This has the consequence that any subsequent agreement won’t be ‘genuinely agreed’ and therefore is not able to be approved. As such, it is important to use the template NERR to avoid any of these issues with the enterprise agreement approval process.

Please note: Case law is reported as correct and current at time of publishing. Be aware that cases in lower courts may be appealed and decisions subsequently overturned.