AREEA employee relations consultant Catherine McGonigle summarises the first case on amendments to the Fair Work Act relating to the content of the notice of representational rights.

THE Fair Work Commission has recently considered the first case on amendments to the Fair Work Act relating to the content of the notice of representational rights. For employers this case highlights the importance of strictly adhering to the content of the notice provided under the Fair Work Regulations.

Shape Shopfitters (‘the Employer) lodged an application for approval of the Shape Shopfitters Enterprise Agreement 2013-2017 with the Fair Work Commission (‘the Commission’). The Employer issued the notice of representational rights to employees in a document which contained the content prescribed in the Fair Work Regulations, while also attaching a separate form which provided employees with 3 options for nominating a bargaining representative.

The Commission considered whether by providing the employees a document that complies with the regulations and at the same time another document with additional content, is sufficient to overcome the mandatory requirements of the content of the notice.

The employer raised a number of arguments in defending the validity of notice, including:

• that employees were given 2 different documents;
• the employees knew that completing the form was not the only way to appoint a bargaining representative;
• all employees choose to select someone as their bargaining representative;
• the employer has since become aware no employees are members of a union; and
• the document was a pro-forma used previously and the issue was not raised at that time.

Each argument was rejected.

Significantly, the Commission found that the 2 documents combined comprised of the Notice of Representational Rights. Given the new amendment in the Fair Work Act (effective 1 January 2013) requires the notice to contain content prescribed by the regulations and no other content, the notice in this case did not comply with the requirements of the Act.

Where this practice may have been accepted in the past, Deputy President Gooley was of the view these decisions were “made in the context of a different legislative framework.”

The Agreement was not approved on the basis that the approval requirements of the Fair Work Act were not met and the employer had to revert to the beginning of the bargaining process.

Implications for Employers

While issuing the notice of representational rights to employees may be seen by many employers as merely an administrative step in the bargaining process, it is important to get it right. This case highlights that any additional written information provided to employees at the time the notice is provided could compromise the content of that notice and result in non-compliance with the Fair Work Act.

Employers should ensure where additional information is provided to employees it is done so in a separate communication to avoid any implication that that information has altered the content of the notice of representational rights.