Enterprise bargaining agreements delayed by increased FWC scrutiny

Tuesday 14 Apr 2015

Enterprise bargaining agreements (EBAs) will take longer to be approved due to increased scrutiny by the Fair Work Commission (FWC).

For a private sector EBA to be legally enforceable it has to be approved and registered by the Fair Work Commission (FWC).

The registration process has dramatically slowed in recent weeks as the effects of a recent legal decision are absorbed by the FWC.

That decision, Peabody Moorvale v CFMEU [2014] FWCFB 2042, found that the "notice to bargain", which has to be issued by employers to their employees at the start of bargaining, must strictly follow the template set out in the FW Act.

This means there is a much higher level of scrutiny when EBAs are registered. While this is not a bad thing, it means agreements that are otherwise in perfect order but for technicalities, may be rejected.

Some deficiencies can be fixed quite easily. However, in some cases, the employer has had to restart the process, reissue the "notice to bargain" to all employees, wait the required 21-day statutory period, have another ballot of employees, and then resubmit the agreement for registration.

Unless the employer agrees, this process can delay the effective dates of any increases under the agreement.

Under the Fair Work Act, employers are not required to provide the union with copies of the "notice to bargain" they provide their employees, so it is important that when members, and in particular, Workplace Representatives, receive such notices, they provide the union with a copy.

This ensures we can check for compliance at the earliest opportunity and press for the rectification of any problems before they cause delay in registering the agreement.

If you have any questions about what is happening with the agreement at your workplace, please do not hesitate to phone 9328 5155 or email the union: union@hsuwa.com.au.

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