Mark Branagan

Fair Work Commission puts employers on notice

Mark Branagan

28 January 2016

Enterprise Bargaining

Three recent decisions of the Fair Work Commission (FWC) rejecting applications for approval of enterprise agreements provide a timely reminder to employers of the importance of issuing a compliant Notice of Representational Rights (Notice) to commence bargaining.

Notices must be issued in the form set out in the Fair Work Regulations 2009 and must not in any circumstances depart from that prescribed form.  In April 2014, the Full Bench of the FWC confirmed in Peabody that any failure to comply with these requirements means there is no validly issued Notice and the FWC is not permitted to approve the subsequent enterprise agreement (EA).

In WorkPac Mining Pty Ltd, the employer purported to issue the Notice via email and text message. Two versions of the Notice were embedded in the email.  The first embedded version was incomplete and the second version was “sandwiched” between other content, leading to confusion as to what formed part of the Notice and what was additional content.  The email also referred to an additional Notice, but no such document was attached to the email.  The text message included a link to a website relating to the proposed agreement, which contained a third version of the Notice.  When assessing the application to approve the EA however, DP Asbury of the FWC found this message did not direct employees’ attention specifically to the Notice.

DP Asbury accepted that, while the FW Regulations permit the provision of a Notice by email or other means including text message, communication in this form should specifically inform employees that the employer is required to give them a Notice and contain a link which takes them directly to the Notice.

The FWC was unable to approve the EA in this case, as all versions of the Notice contained factually incorrect information.

The employer attempted to rationalise its communication efforts on the basis that to do so would have “require[d] the destruction of a small rainforest“. Despite this admirable sentiment, the Deputy President was not convinced, referring instead to the situation as a “debacle“.

Similar scrutiny of a Notice was also recently undertaken by Commissioner Cambridge in DP World, who refused to approve applications as the Notices provided to employees were on the employer’s letterhead.  While the FWC recognised that the inclusion of an employer’s logo may be of little significance, “it has the effect of altering the character of the document whereby what is a regulatory form takes on the character of an employer’s document“.

These decisions serve as a compelling reminder to employers to:

  • use the correct form of Notice as it appears in the FW Regulations in force at the time the Notice is issued, without making any changes – no matter how insignificant or logical those changes might seem to be;
  • ensure information inserted by the employer in the Notice about the proposed EA is correct; and
  • distribute the Notice to all relevant employees using methods that comply with the Fair Work Act 2009.