The Fair Work Act in section 173(1) says that employers must
take all reasonable steps to give notice to their employees who
will be covered by a proposed enterprise agreement about their
right to be represented by a bargaining representative –
but what are all reasonable steps? And can the enterprise agreement
still be approved by Fair Work Australia if they don't?
The decision in Bland v CEVA Logistics (Australia) Pty Ltd
 FWAFB 7453 gives some important answers and guidance to
employers (Clayton Utz acted for CEVA).
What did Mr Bland say was wrong about the enterprise
Mr Bland is an employee of CEVA Logistics (Australia) Pty Ltd,
and is covered by a new enterprise agreement made earlier this
year. He says that he was not given notice of his right to be
represented by a bargaining representative. He said that in those
circumstances the enterprise agreement was wrongly approved by Fair
What did the employer do?
As part of the process of making an enterprise agreement, the
General Manager of CEVA's Human Resource Services took the
he emailed a copy of the notice of employees'
representational rights in the prescribed form to each manager at
each business unit at each of CEVA's 35 sites around
in the same email he asked them to place a copy on notice
boards at each site and give a copy to each employee;
he then followed this up at least twice; and
he undertook a random survey of approximately 25% of the
managers in various locations to confirm compliance with his
He did not talk with Mr Bland's direct manager about this
issue, but he did confirm that his instructions had been followed
with the manager who had overall line management responsibility for
that, and some other work areas.
Unfortunately, the direct manager at Mr Bland's workplace
did not follow through with those instructions with the result that
CEVA could not establish that notice of representational rights had
been given to employees at Mr Bland's workplace.
All reasonable steps had been taken
On appeal by Mr Bland from a decision to approve the agreement
the Full Bench of Fair Work Australia considered both the question
of whether the evidence about what CEVA had done satisfied the
obligation on the employer to take all reasonable steps to give
notice to their employees and whether a failure to
satisfy that obligation was fatal to obtaining FWA approval of the
The Full Bench emphasised that section 173(1) "does not
require that the employer give notice of the right to be
represented by a bargaining representative to each employee. It
only requires that the employer take all reasonable steps to do
In this case, the majority decision of the Full Bench held that
CEVA through its General Manager of Human Resource Services had
taken all reasonable steps to give notice of the right. Granted,
the process he designed and followed failed at one of 35 sites, but
that does not mean all reasonable steps were not taken.
What if all reasonable steps had not been taken?
As to the second question of whether failure to satisfy the
section 173(1) obligation was fatal to approval, the majority said
the arguments that were advanced by CEVA on this issue had force
and it doubted that compliance with section 173(1) was a mandatory
requirement for approval.
On the other hand, they did observe that on an approval
application Fair Work Australia does need to be satisfied that an
agreement was genuinely agreed to by employees before it can
approve it. A breach of the notice requirement in some
circumstances may mean that there are reasonable grounds for
believing that the agreement had not been genuinely agreed to by
Clayton Utz communications are intended to provide
commentary and general information. They should not be relied upon
as legal advice. Formal legal advice should be sought in particular
transactions or on matters of interest arising from this bulletin.
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Long experience representing many of Australia's leading employers has taught us that in employment litigation the identity of an employee's representative is a major factor in how employee litigation runs.
Australian employees receive certain entitlements (such as annual leave and superannuation) where contractors do not.
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