Office of the Australian Building and Construction Commissioner

The ABCC has issued an e-Alert about letters sent by some unions to employers in the building and construction industry. It is possible employers could be misled about the bargaining process under the Fair Work Act 2009 (FW Act).

An employer must notify their employees of the right to be represented by a bargaining representative during bargaining for an enterprise agreement.

The unions’ letters attached copies of representation notices to be sent to an employer’s employees. The representation notices do not accurately describe the role of a bargaining representative and the negotiation of an enterprise agreement. The notices could mislead people about their rights and obligations.

It is important that parties ensure they understand the bargaining rules contained in the FW Act.

Under the FW Act, once an employer decides to bargain for an agreement with employees, the employer is required to provide a representation notice to employees. The purpose is to explain an employee’s right to be represented by a bargaining representative. Employees can generally appoint whoever they wish as their bargaining representative including themselves. The bargaining representative does not have to be a union.

An employer is only required to send a representation notice to employees when bargaining is being, or has been, initiated.

The "Notice of Enterprise Bargaining" or "Notice of Employee Representation Rights" which unions have sent out is not in the same form as that prescribed in Schedule 2.1 of the Fair Work Regulations 2009 (FW Regulations) and may be misleading.

The unions’ version of a representation notice suggests that:

1. agreements are negotiated between an employer and unions
2. an employer must give employees permission to attend meetings with unions during working time
3. negotiations will be between ’management’ and ‘the union’ with employees ’kept informed’
　

This does not accurately represent how the process operates under the FW Act.

The form of Representation Notice set out in the FW Regulations can be found on the Fair Work Australia website.

The unions’ notices state that enterprise agreements are negotiated between an employer and a union. Employers and unions may negotiate and make agreements. Agreements can also be negotiated between employers and employees without union involvement.

An employee has a right to appoint a bargaining representative of their choice. The representative may be a union or someone else. An employer is obliged to negotiate with all the bargaining representatives appointed by employees. This can involve both union and non-union bargaining representatives. Negotiation solely with a union will only occur if the union is the only bargaining representative chosen by the employees.

The unions’ notices also assert that negotiations will be between management and the union with employees kept informed. An employee can choose to be a bargaining representative and be directly involved. Employees and non-union bargaining representatives may participate in bargaining, whether or not a union is also involved.

The unions’ notices also state that an employer must give employees permission to attend meetings with the union during working time. No such obligation is contained in the FW Act. An employer may choose whether or not to allow such meetings.

Employers need to understand that by signing up to a set of "bargaining principles" or sending a union version of a representation notice to employees they might be restricting what they can do in negotiations and indeed signing away their right not to make an agreement. Parties are encouraged to adhere to the rules set out in the FW Act whilst they are engaged in the bargaining process.

If you have received a letter which relates to commencing enterprise agreement negotiations and you wish to discuss your rights and obligations, contact the ABCC on 1800 003 338 or the Fair Work Ombudsman on 13 13 94.

Your employer association may also provide advice about what action, if any, needs to be taken in response to correspondence from unions about bargaining.