Bargaining for an Agreement
The facts about Representation Notices
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.
Representation in bargaining under the Fair Work 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.
Notices must comply with the Fair Work Regulations
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:
· agreements are negotiated between an employer and unions
· an employer must give employees permission to attend meetings with unions during working time
· 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