For employers looking to negotiate and implement an enterprise agreement in 2016, the key to achieving a successful outcome is planning and preparation.
Enterprise bargaining is subject to a detailed system of rules and requirements. The Fair Work Act 2009 regulates all aspects of the enterprise bargaining process, including the pre-bargaining process; the actual bargaining; and the approval process.
One misstep by an employer along the way, even if minor, can result in the entire enterprise bargaining process having to start again, including the minimum 21-day bargaining period.
Some of the most common reasons an enterprise agreement can be denied include not complying with the strict requirement regarding the content and the form of the Notice of Employee Representational Rights (NERR).
The NERR template
The NERR must be provided to all employees who will be covered by the proposed agreement.
Under the Fair Work Act, the Fair Work Commission (FWC) can only approve an enterprise agreement if the content and the form of the NERR are identical to the NERR template provided in the Fair Work Regulations 2009.
Attention to detail
Application documents for enterprise agreements, including all supporting documents and declarations, need to be closely checked for clerical errors. In two recent applications, the accompanying declarations incorrectly stated that fewer than 10 per cent and 2 per cent of workers respectively voted to approve the agreement. A majority of employees must vote in favour of an agreement before it can be approved by The Fair Work Commission (under section 182 of the FW Act).
Timetable of agreement
Strict timeframes must be met to ensure the Fair Work Commission can approve a proposed agreement. For example: the NERR must be given to each employee who will be covered by the proposed enterprise agreement no later than 14 days after the employer initiates, agrees to, or is ordered by the Fair Work Commission to bargain.
The employer cannot request that a vote to approve a proposed agreement be held until at least 21 clear days after the day on which the last NERR was given to the employees to be covered by the agreement.
The employer must meet a number of requirements during the seven-day access period that ends immediately before the start of the voting process, including making a copy of the proposed agreement available to the employees involved.
A failure to comply strictly with any of the above timeframes will result in the agreement not being approved.
To ensure employers place themselves in the best possible position to get their proposed enterprise agreement approved by the FWC, it is essential that they understand all of the rules and requirements at the outset, and have a well-prepared, step-by-step plan to ensure time and procedural requirements are met.
This article is an edited version. The full article was first published in the April 2016 issue of HRMonthly magazine as “The Letter of the Law”. AHRI members receive HRMonthly 11 times per year as part of their membership. Find out more about AHRI membership here.
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