Recent decisions have highlighted that before putting a proposed enterprise agreement to vote, you must first complete a number of steps (or process requirements) that are required by legislation.

Process Requirement #1: Legislation imposes an obligation on employers to take all reasonable steps to give a “notice of representational rights” in a particular form to “each employee who will be covered by the agreement” and “who is employed at the notification time”.

There are a number of ways you can do this, but if you elect to give the notice to employees personally, then you must do so for each employee who will be covered by the agreement. You must do this even if they are unlikely to remain employed at the time the agreement will take effect (for example, because the employee has been made redundant, or is engaged for the Christmas season only).

Process Requirement #2: The Fair Work Act requires an employer to take all reasonable steps to ensure that the terms of an enterprise agreement (and the effect of those terms) are explained to employees before the vote. A recent decision has suggested that where the proposed agreement replaces an existing agreement, the employer must provide some comparison between the proposed agreement and the existing agreement.

Remember: If you lodge an agreement that has been approved by employees without meeting these “process” requirements, you will have to remake the agreement. You cannot just fix the situation retrospectively by undertakings!

Regards,

Charles Power
Editor-in-Chief
Employment Law Practical Handbook

Tags: E2 Enterprise Agreements, enterprise agreement, enterprise bargaining, proposed agreement