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A recent decision of the Full Bench of the Fair Work Commission (FWC) has once again confirmed that the precise content and form required for notices of employee representational rights is no trivial matter.
At the commencement of bargaining for a proposed enterprise agreement, employers are required to give relevant employees a notice of employee representational rights (NERR).
The Fair Work Act 2009 (Cth) is very specific about the ways in which employers must give an NERR to their employees. The purpose of these specific requirements is to ensure that employees are not misled or confused about the bargaining process.
One of the specific requirements is that the NERR must have the content and be in the form prescribed by the Fair Work Regulations 2009. A template NERR is found in Schedule 2.1 to the Regulations.
Whilst this is a fairly simple task, it is one that can have serious repercussions if not precisely executed by employers. The current case law supports the view that any modification to the content or form of the NERR will invalidate it and result in the proposed enterprise agreement not being “genuinely agreed” to by the parties, and therefore not capable of approval.
Aldi Foods Pty Limited as General Partner of ALDI Stores (A Limited Partnership) v Shop, distributive and Allied Employees Association & National Union of Workers and Another  FWCFB 2485
This decision related to an appeal by Aldi of the FWC’s decisions at first instance to reject two of Aldi’s proposed enterprise agreements.
The FWC’s basis for rejecting the proposed agreements was that the NERR that had been given to employees departed from the prescribed form. Instead of directing employees to their “employer” if they had any questions about the notice or bargaining process, the NERR directed employees to their “leader”. In deciding whether this change was permitted, the FWC at first instance relied on previous case law, which confirmed that strict compliance with the prescribed content and form of the NERR was required.
On appeal, Aldi sought to argue that its amendment did not amount to a departure from the prescribed form of the NERR. It argued that, not only was it required to nominate an individual to respond to such questions, the amendment actually enhanced the statutory objective of the NERR and this could not amount to invalidating the NERR. Aldi contended that the term “leader” was one that was consistent with the organisational structure of the workplace and employees were often directed to “leaders” when they needed to discuss employment matters.
Aldi also argued that, in the event that the Full Bench did consider it a departure from the prescribed form, it was a departure that was so trivial that it could not amount to invalidation.
The Full Bench rejected these arguments and upheld the initial FWC decisions.
In doing so, the Full Bench found that the prescribed form of the NERR provides employees with an option as to which person representing the employer they can direct inquiries. The purpose of Aldi’s amendment to the NERR restricted the avenues by which employees could ask questions.
The Full Bench also took the opportunity to endorse comments previously made by a Judge of the Federal Court of Australia in Shop, Distributive & Allied Employees Association v ALDI Foods Pty Ltd  FCAFC 161, who had noted that if an employer wished to designate an appropriate person or persons to whom questions might be directed, this could sensibly be done in a document accompanying the NERR without any need to alter the prescribed form of the NERR.
Lessons for employers
The position in relation to modification of NERRs has been made clear by the FWC – proposed enterprise agreements will not be approved where modified NERRs have been provided to employees.
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