Employees must be notified of their right to be represented

See Fair Work Act 2009 ss.173–174; Fair Work Regulations reg. 2.04, 2.05

An employer that will be covered by a proposed enterprise agreement that is not a greenfields agreement must take all reasonable steps to give notice of the right to be represented by a bargaining representative to each employee who:

• will be covered by the agreement, and
• is employed at the notification time for the proposed agreement.

A notice of employee representational rights (Notice) does not have to be given in circumstances where the employer has already given the employee a Notice within a reasonable period before the notification time for the agreement.[1] For example, if an employer issues an employee with a Notice at the time the employer agrees to bargain, the employer is not required to issue another Notice to that employee if a scope order subsequently varies the group of employees who will be covered by the agreement, provided the Notice was issued within a reasonable period of the scope order.[2]

There is no requirement for an employer (or employers) to give a Notice before negotiating a greenfields agreement. This is because there should be no employees employed. The persons who will be necessary for the normal conduct of the enterprise and will be covered by the agreement will be employed AFTER the greenfields agreement has been made.

An employer (or employers) negotiate a greenfields agreement with the relevant union (or unions).

Related information

• Greenfields agreement
• Notice of employee representational rights – common defects & issues

The Notice must be given to each employee who will be covered by the proposed enterprise agreement as soon as practicable, and no later than 14 days, after the notification time. If the Notice is issued after the 14 day period it may be invalid.[3]

What happens with new employees?

The Fair Work Act does not require that an employer provide the Notice to any employees who are employed after the notification time for the proposed enterprise agreement.[4]

Related information

• What is a day?
• Genuine agreement

Only a notice of employee representational rights (Notice) that is issued as soon as practicable, and no later than 14 days after the notification period has commenced, can be taken to be a Notice for the purposes of section 173(1) of the Fair Work Act. Any other notice issued, even if it claims to have the required identity, is no more than a document without statutory standing.[5]

Determining the exact date an employer agreed to bargain (the notification time) can be difficult as there is no requirement to provide a formal notice to initiate bargaining.

When determining whether the Notice has been issued in accordance with the Fair Work Act, the Fair Work Commission generally relies on the information provided by the applicant in its declaration.

Related information

• Notification time
• Who can be represented in bargaining?

An employer must take all reasonable steps to provide a Notice to each employee.[6]

What is a reasonable step will depend upon the circumstances of the employer and employee.[7]

Once an employer has decided what steps they consider are reasonable in the circumstances, they may adopt one or more of the steps. The Commission has taken the view that the reference in the legislation to all reasonable steps is not a requirement that employers undertake each and every reasonable step to provide the Notice.[8]

Each of the following methods is a way in which the employer for a proposed enterprise agreement may give an employee who will be covered by the agreement the Notice. The employer may:

• give the Notice to the employee personally
• send the Notice by pre-paid post to the employee's residential address or a postal address nominated by the employee
• send the Notice (or an electronic link that takes the employee directly to a copy of the Notice on the employer's intranet) to the employee's email address at work or another email address nominated by the employee
• fax the Notice to the employee's fax number at work, at home or to another fax number nominated by the employee, or
• display the Notice in a conspicuous location at the workplace that is known by and readily accessible to the employee.

The employer is not prevented from using another manner of giving the Notice to the employee.[9]

The Notice must contain only the content prescribed by the Fair Work Regulations (Regulations) and be in the form prescribed in Schedule 2.1 to the Regulations.[10] The prescribed Notice is set out in full below.[11]

Related information

• Schedule 2.1 – Notice of employee representational rights

Employee may appoint a bargaining representative

The Notice must specify that the employee may appoint a bargaining representative to represent the employee in bargaining for the proposed enterprise agreement.

Default bargaining representative

The Notice must explain that:

• if the employee is a member of union that is entitled to represent the industrial interests of the employee in relation to work that will be performed under the proposed enterprise agreement, and
• the employee does not appoint another person as his or her bargaining representative;

the union will be the bargaining representative of the employee.

Bargaining representative if a low-paid authorisation is in operation

If the Commission has made a low-paid authorisation in relation to the proposed enterprise agreement, the Notice must explain that the union that applied for the authorisation will be the bargaining representative of the employee unless the employee appoints another person as his or her bargaining representative.

Copy of instrument of appointment to be given

The Notice must explain that if an employee appoints another person as his or her bargaining representative, a copy of the instrument of appointment must be given to the employee's employer.

Providing additional information

Section 174(1A) of the Fair Work Act states that the Notice must not contain any other content.

In considering the meaning of section 174(1A), the Full Bench of the Commission has stated that the section is not to be construed so as to preclude an employer from providing additional material to its employees at the same time as the Notice is given to them. Section 174(1A) is directed at the form and content of the Notice. It does not require the Notice to be provided in isolation and to construe the provision in that way would produce some absurd results, for example, it would prevent an employer from providing employees with a simple covering letter or an offer of interpreter services.[12]

These problems are avoided if section 174(1A) is interpreted as a means of curing the mischief to which it was directed, namely, ensuring that the actual Notice is not amended in form or content from the template provided in Schedule 2.1 of the Regulations.[13]

Where additional material accompanies a document which contains the content, and is in the form, prescribed in the Regulations, the issue to be determined is what purports to be the Notice.[14] Where additional material is provided with the Notice and that material has the character of being, for example, misleading or intimidatory, then this will be relevant to the Commission’s assessment of whether the enterprise agreement had been ‘genuinely agreed’ by the employees. However, it is not a basis for finding that a Notice has not been given in accordance with the Fair Work Act.[15]

Related information

• Schedule 2.1 – Notice of employee representational rights

Form and content of notice of employee representational rights correct

Application of the Acts Interpretation Act 1901 (Cth)

Serco Australia Pty Limited v United Voice and the Union of Christmas Island Workers [2015] FWCFB 5618 (Hatcher VP, Lawrence DP, Riordan C, 2 September 2015).

At first instance the Commission had dismissed an application for approval of an enterprise agreement on the basis that the notice of representational rights (the Notice) issued by Serco to its employees did not conform to the prescribed form of the notice, did not therefore comply with the requirements of section 174(1A), and was invalid as a result.

The only difference between the Notice issued and the prescribed form (set out in Schedule 2.1 of the Fair Work Regulations) as being that where the prescribed form refers to the 'Fair Work Commission', the Notice referred to 'Fair Work Australia'.

Section 25B(1)(b) of the Acts Interpretation Act provides that where an Act alters the name of a body or an office, in any instrument under an Act 'a reference to the body or the office under the former name shall … be construed as a reference to the body or the office under the new name.'

The Full Bench concluded that section 25B(1)(b) of the Acts Interpretation Act operated in respect of the Notice to make it compliant with section 174(1A). The reference to 'Fair Work Australia' in the Notice should be read as if the reference was to the 'Fair Work Commission'.

Coverage of proposed agreement

Australian Maritime Officers' Union v Harbour City Ferries Pty Ltd; Maritime Union of Australia; Australian Institute of Marine and Power Engineers [2015] FWCFB 3337 (Harrison SDP, Smith DP, Johns C, 15 May 2015).

The Australian Maritime Officers' Union v Harbour City Ferries Pty Ltd [2016] FWCFB 1151 (Hatcher VP, Booth DP, McKenna C, 15 April 2016).

An application was made for approval of the Harbour City Ferries Maritime Agreement 2014 and the agreement was approved. The AMOU appealed the decision. It contended in the appeal that the notice of employee representational rights (NERR) issued by Harbour City Ferries (HCF) at the commencement of the negotiations failed to identify the coverage of the proposed agreement and was therefore fatally defective. A Full Bench upheld this ground of appeal and quashed the decision approving the 2014 Agreement.

Three days after the appeal decision, HCF issued a new NERR. This described the coverage of the new agreement proposed by HCF as '... employees that are currently covered by the Sydney Ferries Maritime (AMOU and MUA) Enterprise Agreement 2012'. The AMOU indicated that it did not agree with the coverage of the proposed agreement and advocated for the negotiation of a separate agreement to cover ferry masters and engineers.

HCF advised that there would be a vote in respect of its proposed new agreement. The terms of the 2015 Agreement were the same in substance as those of the 2014 Agreement. The vote proceeded and the result was 115-64 in favour of the 2015 Agreement. HCF lodged its application for approval of the 2015 Agreement. The Commission approved the Harbour City Ferries Maritime Agreement 2015.

The AMOU appealed on grounds including that HCF had not issued a valid NERR which accurately set out the coverage of the proposed agreement as required by the form prescribed under s.174(1A). The AMOU submitted that any misdescription of the coverage of the proposed agreement constituted a failure to comply with s.174(1A) and thereby rendered the NERR invalid. The Full Bench accepted that any 'non-trivial' misdescription of coverage would render a NERR invalid with the consequence that any subsequent enterprise agreement would be incapable of approval.

The Full Bench did not consider that there was any basis for the proposition that the NERR misdescribed who would be covered by the proposed agreement. There was no suggestion in the evidence or submissions that any actual employee or job which was covered by the 2012 Agreement was not covered by the 2015 Agreement, or that any actual employee or job not covered by the 2012 Agreement became covered by the 2015 Agreement. That some employees were given a different classification description for pay purposes was beside the point. The coverage was the same. The Commission’s conclusion at first instance was correct and no error had been demonstrated. Permission to appeal was refused.

Form and content of notice of employee representational rights NOT correct

Additional material accompanying a Notice

Peabody Moorvale Pty Ltd v Construction, Forestry, Mining and Energy Union (CFMEU) [2014] FWCFB 2042 (Ross J, Hatcher VP, Asbury DP, Gostencnik DP, Simpson C, 2 April 2014).

The employer stapled 2 additional pages (containing forms for nominating a bargaining representative for the proposed enterprise agreement) to the notice of employee representational rights which was provided to employees. The Full Bench was required to considered whether section 174(1A) precluded an employer providing additional material to its employees when the Notice is given.

The Commission confirmed that failing to provide a Notice which complies with the requirements of section 174(1A) means that the Commission cannot approve the enterprise agreement.

The Full Bench concluded that section 174(1A) is not to be construed so as to preclude an employer from providing additional material to its employees at the same time as the Notice is given to them. However, the employer cannot add additional content to the Notice itself. The question for the Commission will then be what constitutes the Notice itself and what is 'additional material'.

In this case, the employer provided all 3 pages together to the Commission when filing the relevant statutory declaration for approval of the enterprise instrument. The Full Bench was satisfied, on the evidence, that in this case the Notice was all 3 pages.

Accordingly, the Notice was not valid and the enterprise agreement could not be approved.

Notice included timeframe to appoint bargaining representative

Cement Australia Pty Limited [2011] FWA 6917 (Ryan C, 14 October 2011).

Cement Australia Pty Ltd (the employer) made an application for approval of the Cement Australia Packaged Products Operators West Footscray (Vic) Collective Agreement 2011 (the agreement). The statutory declaration in support of the application included a copy of the notice of employee representational rights, which was generally in the form required, with the exception that it contained an additional requirement that employees who wished to nominate a bargaining representative do so by 'Monday 15 August 2011'.

The Commission stated that the additional requirement left employees with the impression that, if they did not appoint a bargaining representative by 15 August 2011, they would not be able to have a bargaining representative.

The Commission concluded that the time limit on appointing a bargaining representative meant that the Notice was not in the form prescribed by the Fair Work Act. Accordingly, the agreement could not be approved, and the application was dismissed.

Incorrect website reference

Re Transit (NSW) Services Pty Ltd T/A Transit Systems [2016] FWC 2742 (Bull DP, 3 May 2016).

The prescribed form for the notice of employee representational rights (NERR) contains a reference to a website 'www.fairwork.gov.au' that must be included in the NERR. This is the website of the Fair Work Ombudsman. The NERR provided to employees by Transit made reference to a different website 'www.fwc.gov.au', this is the website of the Fair Work Commission. The website link reference was to a different website, which takes an employee to a different institution, the Fair Work Commission instead of the required website of the Fair Work Ombudsman. Both bodies have separate and distinct roles and responsibilities.

The Commission held that the website that Parliament intended be referred to in the NERR was the Fair Work Ombudsman's, in this case that was not done and Parliament's intentions were not met.

Transit, whilst acknowledging that the NERR contained a reference to the incorrect website, urged the Commission to consider the error as being a matter of such insignificance it would not be appropriate to allow such an error to prevent the agreement's approval.

The Commission accepted that minor typographical or insignificant errors would not on the face of it render a NERR invalid, however the Commission could not accept that providing an incorrect website reference could be described as being insignificant, minor or inconsequential.

The Commission found that s.181(2) has not been complied with as employees had been directed to an incorrect website. Therefore the Commission could not be satisfied that the agreement had been genuinely agreed to as no valid notice was provided. The application for approval of the agreement was dismissed.

Schedule 2.1 – Notice of employee representational rights

(regulation 2.05)

Fair Work Act 2009, subsection 174(1A)

[Name of employer] gives notice that it is bargaining in relation to an enterprise agreement ([name of the proposed enterprise agreement]) which is proposed to cover employees that [proposed coverage].

What is an enterprise agreement?

An enterprise agreement is an agreement between an employer and its employees that will be covered by the agreement that sets the wages and conditions of those employees for a period of up to 4 years. To come into operation, the agreement must be supported by a majority of the employees who cast a vote to approve the agreement and it must be approved by an independent authority, Fair Work Commission.

If you are an employee who would be covered by the proposed agreement:

You have the right to appoint a bargaining representative to represent you in bargaining for the agreement or in a matter before Fair Work Commission about bargaining for the agreement.

You can do this by notifying the person in writing that you appoint that person as your bargaining representative. You can also appoint yourself as a bargaining representative. In either case you must give a copy of the appointment to your employer.

[If the agreement is not an agreement for which a low-paid authorisation applies – include:]

If you are a member of a union that is entitled to represent your industrial interests in relation to the work to be performed under the agreement, your union will be your bargaining representative for the agreement unless you appoint another person as your representative or you revoke the union’s status as your representative.

[If a low-paid authorisation applies to the agreement – include:]

Fair Work Commission has granted a low-paid bargaining authorisation in relation to this agreement. This means the union that applied for the authorisation will be your bargaining representative for the agreement unless you appoint another person as your representative, or you revoke the union’s status as your representative, or you are a member of another union that also applied for the authorisation.

[if the employee is covered by an individual agreement-based transitional instrument – include:]

If you are an employee covered by an individual agreement:

If you are currently covered by an Australian Workplace Agreement (AWA), individual transitional employment agreement (ITEA) or a preserved individual State agreement, you may appoint a bargaining representative for the enterprise agreement if:

• the nominal expiry date of your existing agreement has passed; or
• a conditional termination of your existing agreement has been made (this is an agreement made between you and your employer providing that if the enterprise agreement is approved, it will apply to you and your individual agreement will terminate).

Questions?

If you have any questions about this notice or about enterprise bargaining, please speak to your employer or bargaining representative, or contact the Fair Work Ombudsman or the Fair Work Commission.

Download the correct Notice

• Notice of employee representational rights