The distribution to employees of the Notice of Employee Representational Rights (NERR) is a vital first stage of bargaining for an enterprise agreement. The Fair Work Commission takes a strict approach to the NERR and has refused to approve agreements where:
- the employer had stapled extra pages to the prescribed NERR;
- the NERR was placed on company letterhead;
- the employer included reference to the Fair Work Commission website (www.fwc.gov.au) as a source of further information rather than the Fair Work Ombudsman’s website (www.fairwork.gov.au) as required;
- the employer included the phone number of the Fair Work Ombudsman, rather than the Fair Work Commission (see case study below).
While these deficiencies may seem relatively minor, the Commission has previously stressed that the NERR must be in the exact format prescribed by the Fair Work Regulations to meet legislative compliance and cannot contain any other content.
Case Study: MUA v MMA, DOF and Smit Lamnalco  FWCFC 660
The Maritime Union of Australia (MUA) had successfully negotiated three separate enterprise agreements and all three were rejected by the Fair Work Commission on the basis that they included the wrong number for the FWC Infoline.
The NERR provided the phone number for the Fair Work Ombudsman Infoline (13 13 94), rather than the number for the Fair Work Commission Infoline (1300 799 675). While the employer argued that it was still an information line that could provide employees with advice, the Commission emphasised that the requirements of the regulations called for strict compliance, not substantial compliance.
Upcoming changes to the NERR
Following the MUA case, the Federal Government has addressed this issue with amendments to the regulations aimed at removing this technical barrier for approving agreements.
The existing NERR wording provides that:
“If you have any questions about this notice or about enterprise bargaining, please speak to either your employer, bargaining representative, go to www.fairwork.gov.au, or contact the Fair Work Commission Infoline on [insert number].”
From 3 April 2017, this paragraph that leaves it up to parties to “insert number” will be replaced with the new wording:
“If you have any questions about this notice or about enterprise bargaining, please speak to your employer or bargaining representative, or contact the Fair Work Ombudsman or the Fair Work Commission.”
This may seem like a minor variation, but it highlights the pitfalls that parties can face. The change to the NERR will only apply to notices issued from 3 April 2017 onward. Until that date the current form of the NERR continues to apply.
Lessons for Employers
It can be tempting to make changes to the NERR to make it seem more presentable to employees or to provide further information about the proposed enterprise agreement. However, any such changes can completely undermine the approval of an enterprise agreement.
The welcomed changes to the NERR will hopefully ensure that less obvious mistakes, such as including the incorrect phone number, should now be much less common and will not provide an impediment to the approval of an otherwise compliant enterprise agreement.
HR Legal works with employers to prepare and negotiate enterprise agreements, to develop strategies for negotiations and to avoid the pitfalls of the enterprise agreement approval process. If you require assistance in relation to these areas, please contact us.
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.