Evidence before a recent Senate estimates hearing has revealed up to 70 enterprise agreements are sitting in abeyance pending the passage of legislative change to overcome the requirement for strict compliance with Notice of Representational Rights (NERR) requirements in the Fair Work Act 2009 (Cth) (FW Act). The evidence suggested that over 115 had been withdrawn, a likely concession that they would not have been approved by the Fair Work Commission (FWC).
The FWC has previously held that where a NERR does not comply strictly with the regulatory requirements, it cannot approve a subsequently made enterprise agreement.
The Fair Work Amendment (Repeal of 4 Yearly Reviews and Other Measures) Bill (Bill) was introduced into the House of Representatives 1 March 2017. Despite all of the matters contained in the Bill being perceived as largely uncontroversial, it has yet to pass the Senate.
In an illuminating Senate estimates hearing, Senator Cash told the Senate Education and Employment Legislation Committee that Justice Iain Ross, President of the FWC, had written to her and had called for the changes to ‘address a significant backlog of enterprise agreements infected with a minor or technical error that cannot currently be approved and which is costing workers covered by those agreements a pay rise’.
Senator Cash revealed she had written to Shadow Minister for Employment and Workplace Relations Brendan O’Connor 5 October 2017, outlining the urgency of the changes. In an effort to ensure that critical NERR changes were passed, it is reported the Minister offered to extract these key measure in order that they pass independently of the other items in the Bill.
This amendment to the regulations aligns with AREEA’s letter to the Minister in January, in which we called for urgent reform to application of the NERR, to address increasing instances of the FWC rejecting or overturning agreement approvals for minor technical or procedural defects that otherwise had little to no impact on agreements genuinely reached.
Other measures in the Bill include the repeal of the requirement for a four-yearly review of modern awards, a requirement under the FW Act. This is a measure supported by the Ai Group, the ACTU and ACCI, who issued a joint letter that the review provisions be repealed. The final measure contained in the current Bill relates to the capacity to deal with the conduct of members of the FWC.
Minister Cash noted that the four-yearly review had proven to be a ‘very costly and time-consuming process for everyone involved’.
AREEA has been vocal in its support of the need to make minor amendments to the FW Act to allow legitimate agreements made between bargaining parties to stand. The provisions, as they are, have resulted in absurd outcomes where employers and employees who have genuinely negotiated enterprise agreement outcomes are forced to artificially start the process again. Businesses and employees have better things to do with their time than send out a notice, wait at least 21 days, organise for a vote and then lodge an agreement, in identical terms to one already negotiated.
The Parliamentary debate around these changes does not reveal a deep division in policy positions about this issue. In fact, speeches to date reveal that most in parliament support these sensible and modest reforms. AREEA calls on its elected officials to heed the advice of the FWC and the hundreds of businesses and many more employees who face uncertainty about the status of their agreed conditions and pass these measures without further delay.
For more information or to talk to one of our Policy Team about your business needs, call 1800 627 771 or email [email protected].
