IN an important case in which Employment Minister Eric Abetz intervened, a Fair Work Commission (FWC) full bench has ruled that employers can provide additional information to their workers alongside a Notice of Employee Representation Rights (NERR or ‘the Notice’), as long as that additional information does not form part of the Notice.

The case, Peabody Moorvale Pty Ltd vs CFMEU, saw the union object to Peabody’s application for its enterprise agreement to be approved, on the basis that the employer contravened section 174(1A) of the Fair Work Act by stapling two nomination slips to the Notice provided to employees.

Among its provisions, s174 (1A) of the Fair Work Act states an NERR must be provided to employees and ‘not contain any other content’.

The five-member full bench comprising President Justice Iain Ross, VP Hatcher, Deputy President Asbury, Deputy President Gostencnik and Commissioner Simpson, ruled that the notice provided by Peabody to its employees was invalid due to the two nomination slips constituting part of the notice (and potentially influencing the employees representative nomination) and thus contravening s174 (1A).

The Full Bench rejected the company’s assertion that it viewed the three documents as separate pieces information for its employees, namely because all three documents were provided in a single PDF file.

“In our view s.174(1A) is clear and unambiguous. There is simply no capacity to depart from the form and content of the notice template provided in the Regulations. A failure to comply with these provisions goes to invalidity,” the FWC Full Bench said in its summary.

As a result of the ruling, the enterprise agreement for Peabody’s Moorvale mine in Queensland’s Bowen Basin was dismissed by the Commission.

However, in an important development for employers, the Full Bench agreed with Minister Abetz’s submission that basic additional information, such as a cover letter, can be provided to employees as long as the information does not constitute part of the notice.

“S.174(1A) is not to be construed so as to preclude an employer from providing additional material to its employees at the same time as the Notice is given to them,” the Full Bench said.

“Subsection 174(1A) is directed at the form and content of the Notice. It does not require the Notice to be provided in isolation and to construe the provision in that way would produce some absurd results, for example, it would prevent an employee from providing employees with a simple covering letter or an offer of interpreter services.”

Implications for AREEA members

The implications for AREEA members is that a notice which otherwise complies with s.174(1A) in both content and form is not rendered invalid simply because other material is provided to the relevant employees at the same time and in separate documents.

However, it is strongly advised that our members confirm with their local AREEA employee relations consultant that any NERR complies with s174(1A) of the Fair Work Act and that any additional information provided to employees at the same time does not contravene your obligations.

Contact your local AREEA office for more information.

Issue of employee contact addresses

Another matter that was clarified in this case was the meaning of ‘the…address of each person who signs the agreement’, as stated in Regulation 2.06A(2)(b)(i).

The Full Bench rejected the CFMEU’s argument that the employer had contravened its obligations by providing the workplace postal addresses of its employees only.

As long as the postal addresses were complete and sufficient for the Fair Work Commission to contact the persons if required, the addresses did not necessarily have to be residential addresses, the Full Bench found.

Read a summary of the decision here.

Read the full decision here.