Recent amendments to the Fair Work Act 2009 (Act) have enhanced the Fair Work Commission’s (Commission) discretion to approve enterprise agreement applications despite minor procedural or technical errors. Yet despite this new discretion, a recent Full Bench has rejected an application on the basis of a technical error relating to the notice of employee representational rights, thereby casting doubt on whether the Commission will actually use it.
In December 2018, the Commission was provided with the discretion to approve an application for an enterprise agreement under section 185 of the Act despite a minor procedural or technical error, where the error has caused no disadvantage to the employees.
The Commission used the following examples to illustrate what might be considered by the Commission to be a minor procedural or technical error for the purpose of section 188(2) of the Act:
- where employees were provided with six days’ notice of an upcoming vote for an enterprise agreement rather than seven days’ notice in accordance with the Act; and
- where an employer alters the wording of the notice of employee representational rights from “speak to your employer” in the final paragraph to “speak to your manager Brad or Damien”.
However in Spotless Facility Services Pty Ltd [2019] FWC 1331, the Commission rejected an application for approval of an enterprise agreement because of a failure by the organisation to include in its notice of representational rights all employees who were to be captured by the coverage of the enterprise agreement. Although the Commission acknowledged that Spotless Facility Services Pty Ltd had not intentionally avoided its obligations under the Act, the difference between the coverage as defined in the notice of employee representational rights and the coverage of the enterprise agreement could not be classified as a minor procedural or technical error.
This case acts as a reminder that although the Act provides the Commission with the power to approve enterprise agreement applications with minor technical errors, it will not do so hastily. It remains important that orgainsation are aware of and comply with their obligations under the Act.
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If you require support or assistance with negotiating a new enterprise agreement or making an application with the Fair Work Commission to have your enterprise agreement approved, please do not hesitate to contact us .