Australia: The new NERR – another bargaining stumbling block?

From 3 April 2017, there is a new look to the most controversial form in enterprise bargaining – the notice of employee representational rights (NERR). The NERR is the form an employer must use to notify employees, when enterprise bargaining commences, of their right to be represented. And in recent times, this legislative form has received a lot more attention than you might expect.

There are 2 changes to the form:

1. A new last paragraph which says: “If you have any questions about this notice or about enterprise bargaining, please speak to your employer or bargaining representative, or contact the Fair Work Ombudsman or the Fair Work Commission.” Unlike before, there is no longer any need to insert particular websites or phone numbers.
2. A change to the header of the form to reflect a new legislative reference (i.e. “Fair Work Act 2009, subsection 174(1A)”).

You can access the new template NERR form on the FWC’s website here.

Previously, employers were required to insert the Infoline phone number for the Fair Work Commission (Commission) in the NERR. However, many were incorrectly inserting the Fair Work Ombudsman’s phone number, causing the form to be invalid. In an explanatory statement, Minister Cash said the recent amendments “are technical in nature and are intended to reduce the occurrence of errors in respect of the content of the Notice.”

There certainly have been some errors. And when it comes to the NERR, even a relatively minor error can mean the Commission must refuse to approve an enterprise agreement and send the parties back to the bargaining table. For example, the Commission has refused to approve agreements for technical and – some might say – trivial reasons, such as referring to the wrong website, or using the Ombudsman’s number instead of the Commission’s Infoline. Consequently, many employers and industry bodies have called for legislative change to ensure that minor errors such as these do not unwind long running (but otherwise successful) bargaining rounds.

For some employers though, this latest amendment to the content of the NERR is merely another potential stumbling block on the long road to getting an enterprise agreement approved. While employers no longer have to worry about websites or phone numbers, the bigger concern is that several versions of the NERR are ‘doing the rounds’. Employers therefore need to be even more careful to make sure they use the right form. For example, if an employer obtained the NERR off the Commission’s website a few days ago, and issues that NERR to employees today, the employer may not be able to get their agreement approved. While that might seem odd, it’s the current state of the law.

If your organisation has commenced bargaining (or will soon), please contact our team of enterprise bargaining experts if you require any assistance.

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This article was written by Adam Ray, Solicitor, Brisbane.