To commence the bargaining process for approval of an enterprise
agreement (EBA), the employer must serve
the Notice of Employee Representational Rights
What you need to know:
With effect from 1 January 2013, a new section 174(1A) of the
Fair Work Act 2009 (Cth) was introduced
and requires that the Notice must:
contain the content prescribed by the Fair Work
Regulations 2009 (Cth);
not contain any other content; and
be in the form prescribed by the Regulations.
This provision was introduced in response to a recommendation
from the Review Report of the Expert Panel: 'Towards more
productive and equitable workplaces – An evaluation of the
Fair Work legislation'  and was intended to
eliminate confusion about whether employers may modify the content
or form of the Notice.
It had been submitted to the Expert Panel that modifications and
additions to the Notice should not be permitted as they had the
potential for employers to encourage employees to extinguish their
right to be represented by the Union or otherwise confuse employees
in the bargaining process.
In 2014, the Full Bench of the Fair Work Commission held that
the new section 174(1A) of the Fair Work Act
2009 (Cth) meant that there could be no departure
from the content or form of the Notice prescribed in the
Regulations and that substantial compliance with the prescribed
Notice is not sufficient. This means that the Fair Work Commission
cannot approve an EBA commenced with an invalid or defective Notice
and the bargaining process must commence again with the service of
a fresh and valid Notice.
Employers are recommended to follow the form of the prescribed
Schedule 2.1 of the Notice in the Fair Work Regulations
2009 (Cth) precisely and not to add any content
whatsoever to the actual Notice document.
It is permissible to have a covering letter with additional
information provided that any additional information is not
misleading or intimidatory.
It's a case of bargainer beware.
(See further: Peabody Moorvale Pty Ltd v CFMEU 
FWCFB 2042, and Methodist Ladies College  FWC 4050)
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.Madgwicks is a member
of Meritas, one of the world's largest law firm
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An employee that refused a reasonable offer of settlement was ordered by the FWC to pay his ex-employer's legal costs.
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