We have previously discussed this essential step in the bargaining process, and the fatal errors employers make, which have included: stapling additional pages to the NERR (the now infamous Staple Case in Peabody Moorvale Pty Ltd v Construction, Forestry, Mining and Energy Union [2014] FWCFB 2042), placing the NERR on company letterhead (DP World Brisbane Pty Ltd [2016] FWC 385) and incorrectly identifying the Fair Work Ombudsman, rather than the Fair Work Commission (“Commission”) contact details (Maritime Union of Australia, The v MMA Offshore Logistics Pty Ltd [2017] FWCFB 660).

Thankfully, the Commonwealth Government has sought to remedy the last of these three common errors.

Changes come in to effect 3 April 2017

The unknowing inclusion of incorrect contact details has resulted in enterprise agreements being rejected for failing to comply with the Fair Work Regulations 2009 (Cth) (“the Regulations”). From 3 April 2017, the Regulations will no longer require the Commission’s contact number be included in the NERR. By removing this technical barrier, it is hoped otherwise compliant enterprise agreements will be approved by the Commission, saving the Commission and employers across the country time and money.

Schedule 2.1 of the Regulations presently requires the NERR contain the following sentence:

“If you have any questions about this notice or about enterprise bargaining, please speak to either your employer, bargaining representative, go to www.fairwork.gov.au, or contact the Fair Work Commission Infoline on [insert number].”

The Fair Work Amendment (Notice of Employee Representational Rights) Regulations 2017 (Cth) amends the Regulations by omitting the requirement to include the contact number. Effective 3 April 2017, the NERR will be updated to avoid this common error, by replacing the above sentence with the following:

“If you have any questions about this notice or about enterprise bargaining, please speak to your employer or bargaining representative, or contact the Fair Work Ombudsman or the Fair Work Commission.”

Caution - Strict application remains

Notwithstanding this recent amendment to the NERR itself, the Commission’s otherwise strict application of the NERR will still apply. That is, any deviation from the NERR may continue to result in council enterprise agreements being rejected for failing to comply with the NERR. As such, it is critical councils are accessing the most up to date version of the NERR when commencing their next enterprise agreement process, to avoid issues when bargaining has concluded and it is submitted to the Commission for approval.

Proposed changes welcomed

The Victorian Chamber welcomes the Employment Minister’s comments that the Commission should adopt a common sense approach to the interpretation of the Regulations. The current literal interpretation has resulted in employers across the country being burdened by overly prescriptive processes which hamper the bargaining process, cost employers time and money by compelling them to resume the bargaining process once agreements are rejected, and potentially delay passing on entitlements to employees. 

As a Local Government Member, you have access to $1,000 free consulting services. To access this or any of our other services, contact Lisa Alcock, Workplace Relations Consultant – Local Government on 03 8662 5139 or email LAlcock@victorianchamber.com.au.

Lisa Alcock – Workplace Relations Consultant – Local Government
03 8662 5139
LAlcock@victorianchamber.com.au