Tuesday, 15 May 2018

Make No Mistake: Providing Access to a Proposed Enterprise Agreement

So, you’ve successfully voted up an enterprise agreement. This has likely taken weeks of hard negotiations with the workforce and their union, tough compromises and a successful Vote Yes campaign.

Only then, after you’ve submitted the agreement to the Fair Work Commission for approval, the union makes a complaint. They claim that you only gave the workforce six and a half days to review the agreement before the vote. Therefore, your organisation has been in minor breach of the obligations to provide employees with access to the agreement during the access period. What now?

The Price of Failure

If an employer fails to comply with the agreement-making process requirements for an enterprise agreement, there is little discretion for Fair Work Commission to approve the agreement despite a seemingly minor technical failure.

This means that, in the scenario above, for the sake of half a day’s notice, the process starts again.

A lot can happen in the process leading to a second vote. Workers may be frustrated with an extended process, and union voices inevitably grow louder as they seize the opportunity to renew a Vote No campaign and seek further concessions from the business. This process can also cast the business in a bad light, where employees see the second vote as a waste of their time, or feel that management don’t know what they’re doing.

Access – Get It Right the First Time

It is crucial that all employees are given access to the enterprise agreement in the period leading up to a vote. This can be done in a number of ways:

  • Providing each employee with a copy of the agreement, by email or by post
  • Leaving copies of the agreement in common areas, such as break rooms
  • Inviting staff to meetings to discuss the enterprise agreement and to review hard copies of the agreement
  • Informing staff where they can find copies of the agreement, such as via a centralised email address or asking their managers.

Coverage is key. It is often appropriate to do more than one of the above steps to ensure that all employees can read and understand the agreement during the access period.

Lessons for Employers

In addition to the issue of access, recent cases have emphasised the importance of adhering to the pre-approval requirements. This includes providing a compliant notice of representational rights and adequately explaining the agreement to the workforce.

It is always worth the additional time and effort to ensure each requirement is met. This will help avoid the costs and headaches involved in repeating these processes. It also safeguards your organisation against the risk of a different outcome when the agreement is voted on again.

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This article was produced by HR Legal. It is intended to provide general information only in summary format on legal issues. It does not constitute legal advice, and should not be relied on as such.

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