Pre-approval requirements – common defects & issues

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Agreement making – pre-approval requirements

In deciding whether to approve an agreement, the Fair Work Commission will consider whether the prescribed pre-approval steps, including the provision of a valid notice of employee representational rights (NERR), were taken in accordance with statutory timeframes.

Since 12 December 2018, the Commission may be satisfied that an agreement has been genuinely agreed to, despite minor procedural or technical errors in relation to certain pre-approval requirements including the form of the NERR and certain legislative timeframes, if it is satisfied that the employees covered by the agreement were not likely to have been disadvantaged by the errors. This will be considered on a case-by-case basis depending on the circumstances of the matter.[1]

Where a pre-approval requirement has not been met in full, the Commission may ask for information explaining why a procedural or technical error may be considered minor and not likely to have disadvantaged the employees covered by the agreement.

Notice of employee representational rights (NERR) – common defects & issues

Defect or issue Requirement
Form and content of NERR The NERR given by the employer to employees was not in the correct form. For example:
  • both paragraphs that refer to a union were omitted, or
  • the scope of the agreement described in the first paragraph of the NERR is narrower than or substantively different to the scope of the agreement.
 The Notice of employee representational rights must be in form prescribed in Schedule 2.1 of the Fair Work Regulations.[2]
Provision of NERR The NERR must be provided within the prescribed timeframes
The employer did not take all reasonable steps to provide the NERR to all employees covered by the agreement and employed at the notification time (including employees on leave). The employer must take all reasonable steps to give the NERR to each employee who will be covered by the agreement and is employed at the notification time for the agreement (generally, the time when the employer agrees to or initiates bargaining).[3]
The employer did not provide sufficient information in the Form F17 as to the steps taken to provide the NERR to employees. The Form F17 requires the employer to provide information as to the steps taken and dates on which the NERR was provided to employees, so the Commission can be satisfied that the above requirement was met.[4]
The employer provided the NERR to employees more than 14 days after notification time. Employees must be provided with the NERR as soon as practicable and not later than 14 days after notification time.[5]
The last NERR was not given at least 21 days before voting. Employees must not be requested to approve an agreement until at least 21 days after the day on which the last NERR is given.[6]

Use the NERR tool to generate a NERR in the correct form and to complete all necessary fields and use the Date calculator.

Provide as much relevant information as possible when completing the application form and declaration. This includes:

  • when and how the NERR was provided to employees
  • when and how the agreement was explained to employees, and
  • when and how employees were informed of the time and place of the vote, when the vote took place, and the method of voting.

Include copies of relevant documents such as emails to employees with the application.

Related information

Access to copy of agreement & incorporated material – common defects & issues

Defect or issue Requirement
The employer did not take all reasonable steps to ensure that employees were given or had access to a copy of the agreement and incorporated material in the access period. The employer must take all reasonable steps to ensure the employees employed at the time who will be covered by the agreement are given the agreement and incorporated materials (including any policies incorporated into the agreement) during the access period or have access to the agreement and those materials throughout the access period.[7] The access period is the 7-day period immediately before the day on which voting for the agreement starts.
The employer did not provide sufficient information in the Form F17 as to how they provided this material to employees. The Form F17 requires the employer to provide information as to the steps taken and dates on which the materials or access to the materials was given to employees, so the Commission can be satisfied that the above requirement was met.[8]

Related articles

Notification of vote – common defects & issues

Defect or issue Requirement
The employer did not take all reasonable steps to inform employees of the voting time, place and method before the start of the access period for the agreement. The employer must take all reasonable steps to inform employees of the voting time, place and method before the start of the access period for the agreement.[9]
The employer did not provide sufficient information in the Form F17 as to how it notified employees of the voting time, place and method. The Form F17 requires the employer to describe the steps taken and the information given to employees, and the dates on which the steps were taken, so the Commission can be satisfied that the above requirement was met.[10]
Use the Date calculator to check that your dates comply with the statutory requirements.

Related informations

Explanation of effect of the agreement – common defects & issues

Defect or issue Requirement
The employer did not take all reasonable steps to explain to employees the terms of the agreement and their effect. The employer must take all reasonable steps to ensure that the terms of the agreement and the effect of those terms are explained to the employees in an appropriate manner.[11]
The employer did not provide sufficient information in the Form F17 as to how the effect of the terms of the agreement were explained to employees. The Form F17 requires the employer to describe the steps taken and when they were taken, what was explained, and how the particular circumstances and needs of employees were taken into account, so the Commission can be satisfied that this requirement has been met.[12] More detailed information may be required where different awards cover different groups of employees who are covered by the agreement.[13]

Related information

References

[1] See Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others [2019] FWCFB 318 (Ross J, Hatcher VP, Saunders DP, 18 January 2019).

[2] Fair Work Act 2009 ss.173–174; Fair Work Regulations reg 2.05 and Sched 2.1; Form F17, question 2.4.

[3] Fair Work Act s.173(1); Fair Work Regulations reg 2.04.

[4] Form F17, questions 18 and 19.

[5] Fair Work Act s.173(3); Form F17, questions 18 and 19.

[6] Fair Work Act s.181(2) (see also ss.186(2)(a) and 188(1)(a)(ii)); Form F17, questions 18 and 19.

[7] Fair Work Act s.180(2) (see also ss.186(2)(a) and 188(1)(a)(i)).

[8] Form F17, question 21.

[9] Fair Work Act s.180(3) (see also ss.186(2)(a) and 188(1)(a)(i)).

[10] Form F17, question 20.

[11] Fair Work Act ss.180(5)–(6) (see also ss.186(2)(a) and 188(1)(a)(i)).

[12] Form F17, questions 22, 23 and 24.

[13] See One Key Workforce Pty Ltd v Construction, Forestry, Mining and Energy Union [2018] FCAFC 77 (25 May 2018).

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