The Full Bench of the Fair Work Commission (FBFWC) has
taken a non-negotiable stance on compliance with the procedural
requirements of enterprise bargaining in the Fair Work Act
2009 (Cth) (FWA).
In Uniline Australia Limited  FWCFB 4969, the
FBFWC upheld the FWC's decision to reject an enterprise
agreement on the basis that Uniline failed to comply with the
obligation to issue a Notice of Employee Representational Rights
(NERR) to employees within the required time limits.
Section 173(3) of the FWA requires an employer to issue an NERR
to each employee covered by the enterprise agreement as soon as
practicable, and not later than 14 days, after the notification
time for bargaining has commenced.
Uniline commenced negotiating with employees in early 2014 as
the nominal expiry date of their existing enterprise agreement was
in mid-2014. During 2014 and 2015, the negotiations stalled. In
February 2016, negotiations recommenced and Uniline issued an NERR
on 11 February 2016 (almost two years after the bargaining process
On 9 March 2016, the enterprise agreement was made following
approval by a majority of the employees who voted (25 out of 30).
The enterprise agreement was made more than 21 clear days after the
issue of the NERR in accordance with section 181 of the FWA.
On 13 May 2016, Uniline applied to the FWC for approval of the
enterprise agreement. Commissioner Roe rejected the enterprise
agreement on the basis that Uniline failed to establish that
genuine agreement had been reached, as Uniline did not issue the
NERR within the 14 day time limit of commencing bargaining in early
Uniline appealed to the FBFWC, arguing that the failure to issue
the NERR in accordance with section 173(3) of the FWA was not a
valid reason to refuse to approve the enterprise agreement.
The majority of the FBFWC upheld Commissioner Roe's
decision. They held that, despite the majority of employees voting
to approve the enterprise agreement, as the NERR had not been
issued within the 14 day time limit, the employees could not have
Vice President Watson strongly dissented on the basis that a
'common sense approach' should be adopted in considering
compliance with procedural requirements to prevent the rejection of
otherwise genuinely agreed enterprise agreements. Vice President
Watson held that a common sense approach supported the objectives
of the FWA of enterprise bargaining being 'a simple, flexible
and fair framework for agreement making and the facilitation of
AiG Group, on behalf of Uniline, is considering applying to the
Federal Court to review the FBFWC decision.
This decision demonstrates the FWC's strict interpretation
of the procedural requirements of enterprise bargaining. The
FWC's non-negotiable stance means:
employers need to show they have complied with the 14 day
period for issuing NERRs to establish that the enterprise agreement
has been genuinely agreed to by the employees;
employers who have failed to comply with the 14 day period for
issuing NERRs will need to restart the entire bargaining process;
employers currently undertaking bargaining need to review their
bargaining process and remedy any technical deficiencies.
Winner – EOWA Employer of Choice for Women Citation 2009,
2010, 2011 and 2012
Winner – ALB Gold Employer of Choice 2011 and 2012
Finalist – ALB Australasian Law Awards 2008, 2010, 2011 and
2012 (Best Brisbane Firm)
Winner – BRW Client Choice Awards 2009 and 2010 - Best
Australian Law Firm (revenue less than $50m)
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guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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