9 February 2016
Elizabeth Kenny, Associate
When preparing to bargain for a new enterprise agreement, many employers know that they must provide employees covered by the proposed enterprise agreement with what is known as a ‘Notice of Employee Representational Rights’ (“NERR”).
The NERR is a requirement under the Fair Work Act 2009 (Cth) (the “FW Act”) and its form and content is prescribed by the Fair Work Regulations 2009 (Cth) (the “FW Regulations”). However, many employers do not know that the form and content prescribed by the FW Regulations must be strictly complied with, or this may later jeopardise the approval of the enterprise agreement when it reaches the Fair Work Commission (“FWC”).
Recently, two case examples highlight the importance of strictly complying with the form and content set out in the FW Regulations and the consequences of failing to do so.
In the case of DP World Brisbane Pty Ltd  FWC 385, the FWC noted deficiencies with the NERR being that:
- the NERR contained other content in the form a company logo and letterhead information; and
- the NERR incorrectly referred to the DP World Brisbane Enterprise Agreement 2014.
The FWC formed the view that the incorrect date in the title of the agreement referred to in the NERR did not invalidate the NERR as it does not represent a material change to the form and content prescribed for a NERR. However, the additional content, being the company logo and letterhead information, was considered to be significant in that its inclusion had the effect of altering the character of the document from a regulatory document to an Employer document and as such, the FWC was unable to approve the agreement and the application was dismissed.
In the case of WorkPac Mining Pty Ltd  FWC 251, communications about the NERR were sent to employees via SMS text and email. The text of the email set out some, but not all, of the terms of the NERR and SMS text messages sent to the employees directed employees to a link on the employer’s intranet site including the NERR.
The dispute arose around whether the primary method of distribution of the NERR – by email – was consistent with the FW Regulations and whether the alternative or secondary method – by SMS text message – was also consistent with the FW Regulations.
The FWC determined that the employer did not comply with the requirements to give the NERR in the required form for the following reasons:
- two versions of the NERR were contained in the email, the first being incomplete and the second having content above and below the NERR so it was unclear what is part of the notice and what is additional content. Therefore, the email did not contain a NERR in the required form; and
- the Regulations require the employer to “give” the notice which connotes a positive action on the part of the employer. By simply providing a weblink in a SMS text message was not enough on the employer’s behalf to satisfy the requirements as it does not identify the purpose of the communication, being to give the NERR or identify how the notice can be accessed.
Lesson for Employers
Although employers are aware that NERR must be provided to start the bargaining process of a new enterprise agreement, it is important that employers are aware that the NERR must be provided in the exact form as provided by the Regulations and failing to do so will result in the application of the enterprise agreement subject to the NERR being dismissed. The employer must ensure that the NERR is given without any additional content, particularly anything that could characterise the document as being an employer document such as a company letterhead or logo.
Employers must be also be aware in giving the NERR, that it is clear what information is part of the NERR and what information is additional information. This could be done by providing the NERR as an attachment and any additional information is contained in the body of the email. In addition, employers must ensure that they “give” the NERR to their employees and identify how it can be accessed. This can be as simple as including a statement in an email or SMS text message such as “We are required to give you a Notice of Employee Representational Rights. It is attached to this email/SMS message in the form of a weblink/attachment”.