'Common sense' must prevail, Cash warns FWC

Analysis

'Common sense' must prevail, Cash warns FWC

Employment Minister Michaelia Cash has vowed to crack down on the Fair Work Commission for knocking back enterprise agreements on minor technicalities.

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Employment Minister Michaelia Cash has vowed to crack down on the Fair Work Commission for knocking back enterprise agreements on minor technical grounds. 

No common sense


"These decisions and others like them do not pass the common sense test. These provisions of the Fair Work Act are clearly not operating as intended. The government will introduce legislation to fix these anomalies and enable common sense to prevail,” she said in a statement to WorkplaceInfo.

Senator Cash responded to recent criticism of Fair Work Commission decisions in cases such as The Maritime Union of Australia v MMA Offshore Logistics Pty in which an EBA was rendered invalid because the wrong phone number was included in the notice of employee representational rights (NERR). 

“In respect of the Fair Work Commission infoline, there is no room for such doubt; either the correct telephone number is given or it is not…” the Commission said.

It added that, until the Minister exercises her power to change the prescribed information to be issued on NERRs, then the full bench considered it was bound: “to not approve enterprise agreements where the NERR issued by the employer does not strictly comply with the currently prescribed form.”

Staples and letterheads


Other incidents in which EBAs have not survived technical deficiencies include a case in which an NERR was accidentally stapled to another document, and a further case in which an NERR was printed on the employer’s letterhead. 

Such a strict approach to technical deficiencies was severely criticised by former vice president of the Fair Work Commission, Graeme Watson, who resigned recently owing to his unhappiness with the operation of the system. 

Absurdity and ridicule


Another technical deficiency example can be found in the Uniline case which revolved around time limits.

In his dissenting decision, VP Watson wrote:

“The lateness of the NERR rendered the enterprise agreement invalid and of no effect. There is no clear and simple means of remedying the defect. To a lay observer, the proposition need only be stated to demonstrate its absurdity. The consequence of the decision, apart from subjecting the workplace relations system to ridicule, is that the agreement cannot be approved, and the employer (and many others in a similar position), must undertake a new process of agreeing to bargain.” 
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