Ruling means minor defects could lead to major problems

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Ruling means minor defects could lead to major problems

Employment agreements could be knocked back by the workplace relations authority because of a timing problem with paperwork that has no way of being corrected, following a Fair Work Commission ruling.

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Employment agreements could be knocked back by the workplace relations authority because of a timing problem with paperwork that has no way of being corrected, following a Fair Work Commission ruling.

The case, which is the subject of an appeal, highlights the complexities of the enterprise bargaining framework.

The Uniline Australia ruling that is the subject of the appeal was made by Commissioner Roe in May.

The Australian Chamber submitted that the commission was wrong in finding that an employment agreement could not be approved by the commission if an employer had not strictly complied with the required timeframe for giving employees a notice of employee representational rights.

The issue relates to the Fair Work Act 2009. Section 173(3) of the Act requires employers to provide the notice as soon as practicable, and no later than 14 days, after the notification time for the agreement.

The notification time of the agreement can be triggered by a range of circumstances, including where an employer agrees to bargain or initiates bargaining. Section 186 of the Act spells out the requirements for when the workplace relations authority must approve an enterprise agreement.

If the decision stands it may cause inefficiency and uncertainty in the bargaining process. It would mean that where a notice of employee representational rights was issued more than 14 days after the notification time for the agreement, the error would be incapable of being remedied and bargaining would have to start over.

This outcome is problematic given the prescriptive and detailed provisions of section 174, which tightly regulates the form and content of the notice and frequently gives rise to employer error. If an original notice is invalid, any subsequent notice seeking to remedy this would also be considered invalid if issued out of time.

The Productivity Commission has previously found that the level of prescription in the Fair Work Act relating the notice of representational rights is problematic. It recommended allowing the Fair Work Commission to have wider discretion to overlook minor procedural or technical errors when approving an agreement, as long as the Fair Work Commission is satisfied that the employees were unlikely to have been disadvantaged.

Overly prescriptive and complex provisions in the bargaining framework prevent employers and employees negotiating workplace arrangements that best meet their needs. 
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