Employment Law Update
Beware changes to the notice of employee representational rights!

June 2015

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A Full Bench of the Fair Work Commission (the FWC) has ruled invalid a company’s representational rights notice because it departed from strict wording and content requirements.

The bench overturned the original approval of the relevant enterprise agreement, after accepting the union’s argument that the notice provided by the employer was deficient, as it did not contain explicit specified content or wording required by Schedule 2.1 of the Fair Work Regulations.

In particular, the employer altered the wording of the prescribed form from “…to cover employees that” to “…to cover those employees of [employer] whose classifications appear in Attachment A“. However, there was no ‘Attachment A’ or any other document attached to the form provided to employees.

Although the bench considered the variations to be “…minor” and “…insignificant”, it ruled that variations from the prescribed form were unacceptable, and that as Parliament had intended the form in Schedule 2.1 to contain specific reference to prescribed content and form, failure to comply with these requirements invalidated the notice and meant the agreement could not be approved.

Employers should use the form of the notice provided in Schedule 2.1 and must not make changes to the form.

The FWC has issued a guide to the issuing of ‘notice of employee representational rights’. A copy of the guide can be found at: https://www.fwc.gov.au/documents/documents/factsheets/Guide-Notice-employee-rep-rights.pdf

For further information, please contact:

Seamus Burke | Partner
P: +61 2 4926 1733

This document contains information only and should not be relied upon by anyone as constituting legal advice