Bargaining Games

Remember playing snakes and ladders as a kid, getting all the way to the top row landing on square 99 with the big snake, only to find yourself back at the beginning in one move?

Well, bargaining has its snakes and ladders issue and you must make sure you don’t land on square 99 because there is nothing we can do to help you if you do.

Still the most common error made by employers is failing to comply with technical legal requirements in relation to the Notice of Employee Representational Rights (NERR), including asking employees to approve the proposed enterprise agreement (EA) on the 21st day after the last NERR was issued, instead of waiting at least 21 clear days.

As part of the bargaining process, all employers must issue their employees with a NERR. As a pre-condition to the Commission approving an EA; a NERR must be validly issued to all employees.

This means that the NERR must be issued within 14 days of the notification time for the EA. Additionally, it must contain only the content prescribed by the Fair Work Regulations 2009 (Cth).

In March 2017, a bill was introduced in the Federal Parliament to amend the Fair Work Act 2009 (Cth) (FW Act) to allow the Commission to overlook minor procedural or technical errors when approving an EA, provided that the errors were not likely to disadvantage employees.

Such errors included:

• The inclusion of the employer’s company logo or letterhead on a NERR.
• The inclusion of additional materials that are stapled with a NERR.
• Minor changes to the text of the NERR that had no relevant effect on the information that was being communicated in it.
• Employees being requested to approve a proposed EA on the 21st day after the last NERR was given, rather than at least 21 days after the day on which the last NERR was given.

The bill appeared to be a sensible resolution to deal with EAs being rejected based on the grounds of minor procedural or technical errors. Indeed, the Commission commenced holding back EAs that were doomed to fail on the basis that such agreements would likely be approved following the passing of the bill in Federal Parliament.

Unfortunately, our politicians could not bring themselves to make this sensible change and the bill failed and is unlikely to be put back on the table any time soon.

As a result, you are left in a situation that despite bargaining in good faith and trying to best navigate all legal and technical requirements, your EA may not be approved by the Commission if the NERR used to start everything is not compliant.

So unless you want to play bargaining snakes and ladders you must get the form and content of the NERR “perfect”.

KEY INSIGHTS:

• Don’t put the NERR on your letterhead – plain paper only.
• Don’t change any words or punctuation in the pro-forma text – even if you are trying to be helpful.
• Don’t ignore the mandatories - there are parts you need to add in. Be very careful how you do this and don’t change any surrounding words to fit in with your grammar; make your grammar fit in with the surrounding words.
• Don’t send the NERR to employees with anything else; especially never staple anything to it.