Fair Work Act 2009

s.185 - Application for approval of a multi-enterprise agreement

Application for approval of the Neighbourhood Houses and Adult Community Education Centres Collective Agreement 2024.

• [1] An application has been made for approval of an enterprise agreement known as the Neighbourhood Houses and Adult Community Education Centres Collective Agreement 2024. (the proposed Agreement). The application was made pursuant to s 185 of the Fair Work Act 2009 (the Act). It has been made by Neighbourhood Houses Victoria Inc (NHV).
• [2] On 26 March 2025 I issued a Statement[1] in relation to this application which indicated that, to allow for the efficient consideration of it, the Commission intends to issue several Statements, dealing with issues as they emerge from the Commission's internal process.
• [3] This is the second of those Statements. It deals with matters relating to representation during bargaining, set out below.
• [4] This Statement invites the parties to provide further information. This should occur no later than 4:00PM Tuesday 8 April 2025.

• [5] The Amended Application, at item 1.1, describes the proposed Agreement as a "multi-enterprise agreement". Section 12 of the Act defines a "multi-enterprise agreement" as an enterprise agreement made as referred to in s 172(3) of the Act. Section 172(3) relevantly describes a multi enterprise agreement as one made with two or more employers that are not all related employers, with the employees who are employed at the time the agreement is made and who will be covered by the agreement.
• [6] It appears the proposed Agreement is plainly an agreement made involving two or more employers that are not all related employers. No supported bargaining or single interest employer authorisation was made in respect of the proposed Agreement. It is therefore a "cooperative workplace agreement" within the meaning of s 12 of the Act.

• [7] A previous Statement issued in relation to this matter noted that the "notification time" for a proposed enterprise agreement - the time when the employer agrees to bargain, or initiates bargaining for the agreement1 - is relevant for several reasons, including the time by which a Notice of Employee Representational Rights (NERR) should be distributed to employees, and the time within which employees may be asked to approve an agreement by voting for it.
• [8] While several of the employers proposed to be covered by the agreement did not provide information as to the notification time, this has now been rectified.
• [9] Depending on the notification time, several issues arise with respect to employers who are proposed to be covered by the agreement. Those issues are set out below and are in summary:
  1. In respect to employers with a "pre reform" notification time, issues arise relating to the distribution of the NERR outside of the 14 day distribution requirement.
  2. In respect to employers with a "pre reform" notification time, issues arise relating to the distribution of the NERR before the notification time.
  3. In respect to employers with a "post reform" notification time, issues arise relating to compliance with the Statement of Principles on Genuine Agreement (statement of principles) where compliance appears to have occurred significantly later than the notification time;
  4. In respect to employers with a "post reform" notification time, issues arise relating to compliance with the statement of principles where compliance appears to have occurred before the notification time.

Representation during bargaining - pre reform issues - failure to distribute NERR within 14 days of the notification time

• [10] Various amendments were made to the Act by the Fair Work Legislation (Secure Jobs Better Pay) Amendment Act 2022 (the Amending Act) relating to the making of agreements. The commencement date of many of those amendments was 6 June 2023. However, the Act's transitional provisions provide that despite the amendments made to, for example, parts of the Act relating to genuine agreement in relation to enterprise agreements, the amendments do not operate in relation to any proposed enterprise agreement for which the notification time occurs before the commencement of those amendments2.
• [11] Amendments relating to the better off overall test apply to enterprise agreements made on and after the commencement of the amendments3.
• [12] One effect of the amendments made by the Amending Act to s 173 of the Act was that a NERR is no longer required to be distributed to employees in respect of a multi-employer agreement. Prior to this amendment, it was required that a NERR be distributed to employees in respect to an enterprise agreement that was not a greenfields agreement. This included proposed multi-enterprise agreements.
• [13] Several of the employers who purport to have made the proposed Agreement identify a "notification time" as prior to 6 June 2023. If it is indeed the case that, with respect to these employers, the notification time for the proposed Agreement arose prior to 6 June 2023, several consequences arise. One is that the requirement in s 173(1) prior to amendment, that employees be provided with a NERR, must be complied with. Another is that the amendments relating to genuine agreement in relation to enterprise agreements do not apply, and the requirements set out prior to those amendments must also be complied with.
• [14] Prior to the amendments, s 173(3) of the Act required that the NERR be provided to employees no later than 14 days after the notification time for the agreement. An employer's failure to provide the NERR no later than 14 days after the notification could have rendered the notice invalid, and any subsequent agreement incapable of approval4.
• [15] However, as a result of amendments to the Act made in 2018, minor procedural or technical errors made into some requirements in respect to the making of agreements, including s 173, could be overlooked5. In several decisions of the Commission, this has been considered to encompass circumstances where the NERR is provided to employees late6.
• [16] Former s 188(2) was explored in detail in _Huntsman Chemical Company Australia Pty Limited (t/as RMAX Rigid Cellular Plastics)_7, where a Full Bench found that the crucial question was whether employees covered by the agreement were not likely to have been disadvantaged by the errors taking into account the objects of the relevant requirements. In relation to the requirement that the NERR be distributed within 14 days of the notification time, the object of the requirement includes to ensuring that the employees understand their representational rights within a reasonable period before bargaining commences thus allowing them to exercise those rights in a timely manner. If this does not occur, disadvantage such as employees being prevented from attending initial bargaining meetings and thus effectively influencing the bargaining process even after they do participate can arise8. In Application by Bunbury Cathedral Grammar School Inc9 Beaumont DP observed as follows (footnotes omitted):

[14] At this point it is important to appreciate the role of the Notice in respect of a proposed enterprise agreement, and the persons who will be covered by that agreement. It provides employees with important information about the nature of a proposed enterprise agreement, and the employees' right to appoint a bargaining representative to assist them in bargaining for the agreement, or a matter before the Commission with regard to the agreement. Further, the Notice sets out the default position for union members, that is, they will be represented by their union if they do not appoint a bargaining representative.

[15] In the Full Bench decision of Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others, it was said that a failure to comply with a procedural requirement will constitute a 'procedural error' within the meaning of s188(2)(a). A procedural requirement was said to be one that required an employer to follow a particular process or course of action e.g. providing employees with a Notice as soon as practicable, and not later than 14 days after the notification time (s 173(3)).

[16] The Full Bench in Huntsman outlined that what constitutes a 'minor' error calls for an evaluative judgment having regard to the underlying purpose of the relevant procedural or technical requirement which has not been complied with, and the relevant circumstances.

[17] Where employees received the Notice later than the 14 day period, it may be the case that this prevented them from attending initial bargaining meetings, and therefore may keep them from effectively influencing the bargaining process even after they participate. However, there was no evidence before me to suggest that this was the case. It would appear that for the first tranche of bargaining meetings, representatives were appointed and attended. When it was evident to the School that two of the bargaining representatives would no longer be available, the school took it upon themselves to issue further Notices to allow for the appointment of bargaining representatives. I am satisfied that, notwithstanding the delay in providing the last Notice, employees were, at all relevant times, provided with a reasonable period to exercise their representational rights.

[18] I am satisfied in the circumstances of this case that the failure to provide the last Notice in the requisite period was a minor procedural requirement in light of that which has been observed. The relevant employees were unlikely to be disadvantaged by such error, and I do not consider it to be one that stands in the way of the approval of the Agreement.

• [17] Each of the employers set out in Schedule A have advised they distributed a NERR to employees more than 14 days after the notification time. It is noted that one employer - Lilydale Community House Inc - has not been able to supply a date on which it says it distributed a NERR to employees. This may affect whether the agreement can be approved in respect to this employer.

Further submissions from the parties are requested on why the failure of the Employers listed in Schedule A to provide employees with a copy of the NERR no later than 14 days after the notification date is a minor procedural or technical error which did not disadvantage employees, and should not prevent a finding that the proposed agreement was genuinely agreed to by employees within the meaning of s 188 of the Act (as it existing prior to the Amending Act).

Representation during bargaining - pre reform issues - distribution of the NERR before the notification time.

• [18] Several employers whose notification time was before 6 June 2023 have indicated they distributed employees with a NERR before the notification time. These employers are set out in Schedule B.
• [19] It is not clear how these employees say that when they distributed the NERR to their employees, they did not "agree to bargain" or "initiate bargaining" in respect to the proposed Agreement. Somehow, it appears these employers maintain they distributed the NERR, but this was not an indication of agreement to or initiation of bargaining, which occurred at some later time. This peculiarity may be addressed by further submissions or material provided to the Commission.
• [20] In the event it is the case that certain employers distributed a NERR to their employees before the notification time, regard must be had to s 174(4) of the Act. This provides that an employer is not required to give an employee a NERR if it has already provided one within a reasonable period before the notification time for the agreement.
• [21] Accordingly, a question arises as to whether, in respect to the employers set out in Schedule B, the distribution of the NERR to employees occurred within a "reasonable period" of the notification time.
• [22] Whether a period of time is reasonable depends on the particular circumstances. A lengthy period of time will weigh against a finding of reasonableness, although the particular circumstances are crucial. For example, in _Tasmanian Water and Sewerage Corporation Pty Ltd T/A TasWater_10 a period of 16 months was considered to be reasonable, given the level of communications and involvement of the bargaining representatives and the low level of employee turnover. In _Wangaratta Rural City Council_11 reasons such as these, as well as there being no change to the scope of the agreement, and the support of the relevant Union bargaining representatives, were sufficient to cause a period of 20.5 months to be found "reasonable".

Further submissions from the parties are requested as to why, in respect to the Employers listed in Schedule B, the distribution of the NERR to employees occurred within a "reasonable period of time" of the notification time, taking into account the particular circumstances.

Representation during bargaining - post reform issues - distribution of the NERR or similar at a time significantly after the notification time

• [23] Other employers concerned with the proposed Agreement identify a notification time after 6 June 2023. Accordingly, no NERR was required to be distributed by these employers, as a result of the amendment to s 173. However, in respect of these employers, s 188(1) of the Act applies, which requires the Commission to take into account the Statement of Principles on Genuine Agreement (statement of principles) in determining whether it is satisfied that an enterprise agreement has been genuinely agreed to by the employees covered by the agreement.
• [24] In relation to the question of representation during bargaining, items 1 and 2 of the statement of principles provides that:

Informing employees of bargaining for a proposed enterprise agreement Informing employees of their right to be represented by a bargaining representative

1. The employer should ensure that employees of the employer who will be covered by a proposed enterprise agreement and are employed at the notification time for the agreement (as defined in section 173(2) of the Fair Work Act) are informed: (a) that the employer is bargaining for an enterprise agreement and of the proposed coverage of the agreement, and (b) of the employees' rights to be represented in bargaining for the agreement, including by an employee organisation or by another bargaining representative of their choice, and how to exercise those rights, at such a time and in such a manner that the employees have a reasonable opportunity to be represented in bargaining for the agreement.

2. Where section 173(1) of the Fair Work Act applies to the employer in relation to a proposed enterprise agreement, the employer will be taken to satisfy paragraph 1 if, subject to paragraph 3, the employer gives a notice of employee representational rights in accordance with sections 173 and 174.

• [25] Principles 1 and 2 require the information to be given to employees at such a time and in such a manner that the employees have a reasonable opportunity to be represented in bargaining for the agreement. A specific period of time (such as 14 days) is not specified. It appears likely however that the statement of principles has as part of its objective to ensure against the kind of potential disadvantage as was considered to be the purpose of the requirement that a NERR be distributed within 14 days of the notification time - employees being prevented from attending initial bargaining meetings and thus effectively influencing the bargaining process even after they do participate can arise.
• [26] Only a single employer falls into this category. Rye Community House Inc has indicated a notification time of 6 June 2023 (the commencement date of the reforms), and distribution of the NERR on 7 August 2023. If a requirement existed that the NERR be distributed 14 days after the notification time (which it does not), it was distributed 48 days after this time.

Further submissions from the parties are requested as to why the Commission can be satisfied that, in respect to Rye Community House Inc, information given to employees of their right to be represented by a bargaining representative occurred at such time and in such a manner that they had a reasonable opportunity to be represented in bargaining for the agreement and further, that the Commission can be satisfied, taking this into account, that in respect to those employees, the agreement was genuinely agreed to by employees.

• [27] Representation during bargaining - post reform issues - distribution of the NERR or similar before the notification time.
• [28] The employers in Schedule C, each of whom have a notification time after 6 June 2023, indicated they provided their employees with information of their right to be represented by a bargaining representative before the notification time.
• [29] It is again appropriate to observe that this appears odd - that somehow the distribution of NERR to employees was not itself an indication of agreement to or initiation of bargaining -and that this occurred at some later time.
• [30] In respect to these employers, s 173(4) of the Act does not apply, because these employers are not required distribute employees with a NERR at all.
• [31] However, the requirement that information about these employees' right to be represented by a bargaining representative must be given at such a time and in such a manner that the employees have a reasonable opportunity to be represented in bargaining for the agreement. To this extent, consideration as to whether the information provided by the employers in Schedule C (which in each case was the provision of the NERR) was given a reasonable period before the notification date may be appropriate.

Further submissions from the parties are requested as to why, in respect to the Employers listed in Schedule C, the provision of information to employees about their right to be represented by a bargaining representative (through distribution of the NERR) occurred within a "reasonable period of time" of the notification time, taking into account the particular circumstances and further, that the Commission can be satisfied, taking this into account, that in respect to those employees, the agreement was genuinely agreed to by employees.

Park Orchards Community House and Learning Centre Incorporated

Braybrook and Maidstone Neighbourhood House Incorporated

Blind Bight Community Centre Management Committee Inc

Warracknabeal Neighbourhood House and Learning Centre Inc

[1] PR785742

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