IN A much-welcomed development for employers, a parliamentary committee has recommended that new legislation introduced to provide members of the Fair Work Commission (FWC) with discretion to overlook or correct minor errors in the agreement making process, provide such power retrospectively.

The legislation, the Fair Work Amendment (Repeal of 4 Yearly Reviews and Other Measures) Bill 2017, contains provisions to enable members of the FWC to approve agreements even where minor errors or procedural deficiencies exist, provided such errors have no disadvantage on employees.

It comes after AMMA wrote to Minister for Employment Michaelia Cash in January, highlighting the high number of agreements being rejected in the final stages of approval due to minor errors specifically relating to the Notice of Employee Representation Rights (NERR).

As per AMMA’s suggestion, the Minister made an immediate amendment to the Fair Work Regulations to provide employers and the Commission some relief on the issue of the NERR. She also promised to introduce legislation to parliament that more broadly provided discretion to the FWC to overlook minor errors in the agreement making process.

AMMA’s letter also strongly recommended that such change be retrospective to “effectively give life to enterprise agreements otherwise properly made” and “resurrect the bargains made between employers, employees and their representatives and afford an appropriate degree of discretion to the Commission”.

This retrospectivity was reportedly also recommended by the FWC in its submission to the Parliament on the draft legislation.

On Monday (22 May 2017), the Senate Education and Employment Legislation Committee reviewing the legislation released its final report, taking up the recommendation for retrospective application.

“Allowing the FWC to overlook minor technical or procedural issues, especially in relation to the Notice of Employee Representation Rights (NERR), when approving agreements is a win for productivity and harmony in the workplace,” the Committee said in its final report.

“The committee acknowledges the point raised by the FWC that (without retrospective application) the new discretion… will only apply… after the commencement of (the legislation).

“So as to avoid agreements from being unnecessarily rejected, the committee (recommends) that the bill… be amended to provide for the new approval discretion to apply (retrospectively) to applications made prior to the commencement of (the legislation).”

Implications for employers

If passed as recommended, the retrospective application of these changes would be a welcome outcome for employers and employees.

It would mean that agreements currently submitted for approval, or even those that previously were rejected based on minor errors with the NERR, can be reviewed by the FWC with the discretion to correct or overlook such errors.

This has the potential to save many employers and employees time and money having to correct (or potentially renegotiate), reproduce and re-lodge applications for agreement approval with any minor errors fixed.

For more information on this issue or any other agreement making advice, contact AMMA workplace relations lawyer Lindsay Carroll via [email protected].