"In the decision which is the subject of the appeal, Commissioner Roe adopted a particularly problematic interpretation of section 173(3) of the Fair Work Act 2009. Section 173(3) states that an employer must provide a Notice of Employee Representational Rights to employees within 14 days of bargaining commencing. In most circumstances, bargaining is deemed to commence when the employer initiates or agrees to bargain. Commissioner Roe held that if this requirement is not strictly met, any agreement which results from the bargaining cannot be approved.
"It is very common for employers and employees to have initial discussions about an enterprise agreement, with the employer serving the official notice under section 173 at a slightly later stage. It is also common for minor errors to be discovered in the wording of notices that are issued by employers, and for this to be corrected by issuing another notice to employees. In these circumstances, Commissioner Roe's interpretation would mean that any enterprise agreement which results from the bargaining is incapable of being approved because the notice was not issued within 14 days of bargaining commencing. What's more, the employer would have no way of addressing the situation because under the Fair Work Act, once an employer commences bargaining, the employer cannot unilaterally stop bargaining.
"If Commission Roe's interpretation is correct, an employer could theoretically frustrate the bargaining rights of unions and employees indefinitely by failing to issue the notice under s.173. Under the interpretation, the unions and employees would be unable to obtain a bargaining order, a serious breach determination or to have any penalty imposed on the employer. Surely such an interpretation is inconsistent with the objects of the Fair Work Act.
"Commissioner Roe's Uniline decision has already led to many enterprise agreements being held up or rejected by the FWC, some of which are the product of lengthy negotiations between employers and unions. Hopefully, the decision will be overturned by the Full Bench and a more practical and workable interpretation of the Fair Work Act adopted," Mr Willox said.
Decision of Commissioner Roe
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