The Full Bench of the Fair Work Commission (FBFWC) recently ruled that an employer may validly provide employees with additional information when advising those employees of their representational rights, so long as the additional information does not form part of the “Notice of Employee Representation Rights” (Bargaining Notice).
Section 174 of the Fair Work Act 2009 (Cth) (Act) provides that an employer which will be covered by an Enterprise Bargaining Agreement (EBA) must take steps to inform their employees of their rights to be represented by a bargaining agent once bargaining has commenced. The FWC may not approve an EBA until the employer demonstrates that it has complied with the requirements of section 174 of the Act.
In January 2013 Peabody Moorvale Pty Ltd (Peabody) lodged its new EBA for approval by FWC. The union objected to the approval of the EBA on the basis that Bargaining Notice provided to the employees contravened section 174 of the Act because Peabody had stapled two nomination slips to the one page Bargaining Notice.
The union argued that the three pages constituted the Bargaining Notice because they were stapled together and saved as one PDF document which was emailed to the employees. Peabody argued that the mere fact other materials were provided to the employees at the same time as the Bargaining Notice did not result in a breach of the Act.
The FBFWC concluded that the additional information provided by Peabody did in fact invalidate the Bargaining Notice in this instance because the additional information was stapled to the Bargaining Notice and thus gave the impression that it was one document.
The FBFWC stated that:
There is simply no capacity to depart from the form and content of the notice template provided in the Regulations. A failure to comply with these provisions goes to invalidity.
Importantly however, the FBFWC also found that the Act did not preclude an employer from providing additional information or materials to its employees at the same time the Bargaining Notice is given to them. The FBFWC held that section 174 of the Act:
…does not require the Notice to be provided in isolation and to construe the provision in that way would produce some absurd results, for example, it would prevent an employee (sic) from providing employees with a simple covering letter or an offer of interpreter services. Such construction would also give rise to considerable uncertainty, for example, about whether an employer could merely provide the additional information in a separate envelope to the envelope containing the Notice, or whether the additional information could be provided at the same time or whether the employer would have to wait until a later time, and if so how long should the employer wait.
The FBWC went on to clarify its determination, stating:
We wish to make it clear that the finding we have made in this case as to what constitutes the Notice turns on the particular facts in this matter. We repeat our earlier observation that s.174(1A) is not to be construed so as to preclude an employer from providing additional material to its employees at the same time as the Notice is given to them. Where additional material accompanies a document which complies with the form and content of the Notice the issue to be determined is what purports to be the Notice. This issue will turn on the evidence and particular circumstances of each case.
Lavan Legal comment
The FBFWC has made it clear that it is possible for employers to provide additional information to its employees when issuing a Bargaining Notice under section 174 of the Act. However when doing so it is incumbent on the employer to make it abundantly clear to the employees that the additional information does not form part of the Bargaining Notice.
