In a recent decision,1 the Fair Work Commission (“FWC”) found that a Notice of Employee Representational Rights (“NERR”) issued outside the 14 day time frame rendered the resulting enterprise agreement invalid and unable to be approved. This decision is being appealed; however, in any event it is important for employers to be aware of the important dates and statutory deadlines that apply.
Issuing the NERR
The employer has an obligation to issue an NERR within 14 days of the ‘notification time’ of the agreement. This notification time of the agreement is the occurrence of any one of certain prescribed events, and is most often when the employer agrees to bargain, or initiates bargaining, for the agreement. That is, an NERR must be issued within 14 days after the employer agrees to bargain.
The ‘notification time’ or time when the employer agrees to bargain is a single event which happens at a particular time. It could be a decision made and not communicated, and can be implied by conduct. Importantly an application to the FWC for approval of a proposed agreement involves the employer making a statutory declaration as to when the notification time was. It is an offence to make a false declaration.
See our Guidance Notes for further information on the commencement of bargaining. If you are unsure of your obligations, we recommend you obtain specific advice.
Other Important Dates
Access Period The employer must provide employees a copy of the agreement and any other material incorporated by reference in the agreement. The employer must also notify employees of the time and place at which the vote will occur and the voting method that will be used. Employees must be given 7 clear days to consider this information.
Voting Period Employees may be asked to cast a vote no sooner than 21 days after the day on which the last NERR was issued to employees who were employed at the notification time, and after the conclusion of the Access Period.
Application to FWC a bargaining representative must lodge the agreement with the FWC for approval within 14 days after the agreement is made (the agreement is ‘made’ on the day that the votes are counted and show a valid majority of employees have approved it).
Postal delays or any internal or third party (eg union) requirements may affect the pace of the above process, for example processes relating to counting votes, arranging meetings with employees during the Access Period, or the process for signing of the agreement. These delays should be factored in when preparing your proposed time line for the above process, and should be considered early on to ensure compliance with the statutory deadlines.
Require further information/assistance?
If you require further information or advice, please contact your local Consultant at either our Adelaide or Melbourne offices.