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April 2016 HRMonthly 41
The letter of
Preparation is key to avoid enterprise bargaining missteps.
BY ALISON BAKER, PARTNER, HALL & WILCOX
FOR EMPLOYERS LOOKING TO NEGOTIATE AND
implement an enterprise agreement in 2016, the key to achieving a
successful outcome is planning and preparation.
Enterprise bargaining is subject to a detailed system of rules
and requirements. The Fair Work Act 2009 regulates all aspects
of the enterprise bargaining process, including the pre-bargaining
process; the actual bargaining; and the approval process.
One misstep by an employer along the way, even if minor, can
result in the entire enterprise bargaining process having to start
again, including the minimum 21-day bargaining period.
Some of the most common reasons an enterprise agreement
can be denied include not complying with the strict requirement
regarding the content and the form of the Notice of Employee
Representational Rights (NERR).
THE NERR TEMPLATE
The NERR must be provided to all employees who will be
covered by the proposed agreement.
Under the Fair Work Act, the Fair Work Commission (FWC)
can only approve an enterprise agreement if the content and the
form of the NERR are identical to the NERR template provided
in the Fair Work Regulations 2009.
The FWC has rejected agreements because of minor defects
with the NERR. For example, an NERR was rejected for being
printed on the employer’s letterhead. The FWC found that the
letterhead altered the ‘character of the document’, saying that it
took on the character of being the employer’s document instead of
a regulatory form.
ATTENTION TO DETAIL
Application docu ments for enterprise agreements, including
all supporting documents and declarations, need to be closely
checked for clerical errors. In two recent applications, the
accompanying declarations incorrectly stated that fewer than 10
per cent and two per cent of workers respectively voted to approve
the agreement. A majority of employees must vote in favour
of an agreement before it can be approved by The Fair Work
Commission (under section 182 of the FW Act).”
In fact, the figures set out in the declarations referred to who
had disapproved of the agreement. The mix-up arose from a
simple clerical error, yet the Fair Work Commission dismissed the
applications on the basis of the information supplied.
TIMETABLE OF AGREEMENT
Strict timeframes must be met to ensure the Fair Work
Commission can approve a proposed agreement. For example:
the NERR must be given to each employee who will be covered
by the proposed enterprise agreement no later than 14 days after
the employer initiates, agrees to, or is ordered by the Fair Work
Commission to bargain.
The employer cannot request that a vote to approve a proposed
agreement be held until at least 21 clear days after the day on
which the last NERR was given to the employees to be covered by
The employer must meet a number of requirements during the
seven-day access period that ends immediately before the start
of the voting process, including making a copy of the proposed
agreement available to the employees involved.
A failure to comply strictly with any of the above timeframes
will result in the agreement not being approved.
To ensure employers place themselves in the best possible
position to get their proposed enterprise agreement approved by
the FWC, it is essential that they understand all of the rules and
requirements at the outset, and have a well-prepared, step -by-step
plan to ensure time and procedural requirements are met.
AHRI professional members are automatically protected by
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of doing their job. For more information go to:
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