Employers entering negotiations for a new enterprise
agreement must provide a notice of employee representation to
employees within 14 days of the notification time.
Making an enterprise agreement can be a drawn-out process, as
you and your workforce attempt to create a legal framework that
works for both of you. With all of the detail you must discuss, it
could be easy to lose sight of the technical requirements in the
Fair Work Act (2009) (Cth). Unfortunately, as one employer recently
discovered, these requirements are non-negotiable.
In Uniline Australia Limited  FWC 2973, an application for
the approval of an enterprise agreement was rejected by the Fair
Work Commission following Uniline's failure to provide its
employees with a notice of employee representation within the
requisite 14 days of initiating the bargaining process - and
throwing away over two years' worth of negotiation.
Notice to be represented
Section 173 of the Fair Work Act (2009) (Cth) requires an
employer to issue a notice to each employee who would be covered by
the enterprise agreement, as soon as practicable, and no later than
14 days after bargaining has commenced for an enterprise
Uniline took a little bit longer than 14 days to issue its
notice - it was issued approximately two years after initiating the
bargaining process in April 2014.
The Fair Work Commission will only approve an enterprise
agreement if it considers that the employees to be covered by the
agreement have genuinely agreed to it. Commissioner Roe in Uniline
found that employees cannot be said to have genuinely agreed to the
enterprise agreement unless the NER notice had been issued in
accordance with section 173(3) of the Fair Work Act. As the notice
was invalid, there was no genuine agreement as required by section
186(2)(a) of the Fair Work Act and the enterprise agreement was
What does this mean for employers?
The Uniline decision highlights the Fair Work Commission's
reluctance to approve a proposed enterprise agreement where an
employer has failed to comply with a mandatory procedural step,
such as the 14 day timeframe.
All employers who are intending to commence bargaining for an
enterprise agreement must ensure that once the bargaining process
has been initiated that you provide the notice to the employees
ASAP, or no later than 14 days following notification.
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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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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