Some building and construction industry employers have recently received letters from a union proposing a new enterprise agreement. These letters may mislead employers about the bargaining process under the Fair Work Act 2009 (FW Act).
The letters seen by the ABCC state that the union wishes to commence negotiations for an enterprise agreement with the employer. The letters also attach a copy of a Notice of Employee Representation Rights and imply that the employer must send a copy of that notice to its employees.
Do you need to act?
No. If you are not already bargaining you do not need to respond. An employer is only required to send a representation notice to its employees if the employer agrees to bargain for an agreement.
What happens if I send the representation notice to my employees?
This could be seen as initiating the bargaining process.
The ABCC is concerned that employers might mistakenly believe they must send the Notice of Employee Representation to employees upon receiving the union’s letter and that, by sending the letter, the employer will be seen to agree to bargain for an enterprise agreement.
It is important that parties ensure they understand the bargaining rules of the FW Act.
How does bargaining begin under the Fair Work Act?
Bargaining is the process of negotiating the terms and conditions for an enterprise agreement, and occurs between one or more employers and employees. Either side may be represented by a bargaining representative.
The bargaining process starts when an employer initiates bargaining or an employer agrees to bargain.
An employer who is requested to bargain by a bargaining representative, including a union, is not obliged to agree. If an employer does not agree to bargain, a bargaining representative may attempt to start the bargaining process by applying to Fair Work Australia.
What happens once bargaining begins?
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 each employee who will be covered by the agreement. The prescribed content of the notice can be found on the Fair Work Australia website.
The purpose of a representation notice 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.
Once employees are notified, voting on a proposed enterprise agreement cannot take place for 21 days.
What should you do if you receive one of these letters?
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.
Further information: