The Case

DP World Brisbane Pty Ltd (DP) applied to the Fair Work Commission (FWC) to have its enterprise agreement approved. As part of the bargaining process, an employer must issue a Notice of Employee Representational Rights (NERR). DP placed the NERR on company letterhead, which contained DP’s company logo, before issuing the NERR to its employees.

The Verdict

The FWC refused to approve the agreement because the NERR was defective. The Fair Work Regulations 2009 (Cth) and the FWC’s Enterprise Bargaining Benchbook clearly set out the required content for the NERR:

• The employer must NOT change the content of the NERR by adding or removing any text, apart from inserting the employer’s name and other details that are specifically required to be included. If the employer varies the content of the NERR, the FWC cannot approve the enterprise agreement.
• The NERR needs to be on plain paper. It cannot be on company letterhead that includes additional information such as logos.
• Employers must delete the optional sections in the NERR if they do not apply.
• No other materials should be issued with the NERR. For example, do not attach additional information.

The FWC found that DP had invalidated the NERR by placing it on company letterhead.

The Lesson

This decision demonstrates that the FWC will not approve an enterprise agreement unless the NERR requirements are strictly adhered to. As such, it is important to double-check compliance with the NERR requirements, given a failure to comply will result in the agreement not being approved. If the NERR does not comply, you must correct any errors and reissue it.

Please note: Case law is reported as correct and current at time of publishing. Be aware that cases in lower courts may be appealed and decisions subsequently overturned.