Who can use this correspondence?
This correspondence can be used by all employers throughout Australia, except the following excluded employers:
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Non-constitutional corporation employers in Western Australia;
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State public sector employees (ie employees of a Minister, the Governor, or the Crown); and
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Local Government employers — except in Tasmania and Victoria.
Commentary
This letter can be provided by an employer to an employee with whom it is bargaining with for an enterprise agreement. The purpose of the letter is to provide the employee with the mandatory Notice of Employee Representational Rights and also enable the employee to nominate a bargaining representative to assist them in bargaining for the enterprise agreement (Agreement).
Notification of employee representational rights
Unlike previous legislative requirements, unions are no longer required to serve a ‘log of claims’ on an employer to initiate a bargaining period. Instead, bargaining will commence from the time:
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the employer agrees to bargain with its employees
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when the employer initiates the bargaining period
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a majority support determination comes into operation
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a scope order comes into operation, or
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a low-paid authorisation comes into operation.
The date on which this occurs is referred to as the 'notification time'.
From the date of the notification time, an employer has 14 days to take all reasonable steps to notify all employees employed at that time who will be covered by the agreement, of their right to be represented by a bargaining agent/representative.
The ‘notice’ that is to be given to the employees is prescribed by the Fair Work Regulations and is called a ‘Notice of Employee Representational Rights’. That notice can be obtained from Fair Work Australia’s website or by clicking here.
What is a bargaining representative?
The term bargaining representative is self explanatory. It is a person or persons who are able to bargain about the terms and conditions of the Agreement. Bargaining representatives are broken into two categories, employer and employee.
An employer is always taken to be a bargaining representative. Employers may also appoint, in writing, another bargaining representative such as an organisation of employers, consultant, or a lawyer.
Where an employee is a member of an employee organisation, that organisation will be taken to be the employee’s bargaining representative unless the employee has appointed someone else or revoked in writing the organisation’s status as their representative. To clarify, an employee organisation cannot be a bargaining representative for an employee unless the employee organisation is entitled to represent the industrial interests of the employee in relation to the work that will be performed under the proposed Agreement. If a member of an employee organisation appoints a different bargaining representative or revokes the organisation’s status as the employee’s representative, the employee must notify the employer, but need not advise the employee organisation.
It is important to note that the Fair Work Regulations require that a bargaining representative of an employee must be free from control or improper influence from the employer or another bargaining representative. Additionally, there is no restriction on when a person may appoint a bargaining representative, and the appointment of a bargaining representative comes into force on the day specified in the instrument of appointment. The instrument of appointment can be revoked in writing.
The letter that you are about to create, enables the relevant employee to specifically identify their bargaining representative.
How can the Notice of Employee Representational Rights be given to an employee?
The notice can be given to an employee in any of the following ways:
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personally
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pre-paid post to residential or nominated postal address
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email at work or nominated home address
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email with a direct link to the intranet, which has a copy
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fax to work fax number or nominated fax number
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displayed in a conspicuous place at the workplace
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any other appropriate method
Other important considerations
It is important to note that:
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the notice is to be issued to all employees to be covered by the Agreement who are employed at the time the Notice is given. If the employer fails to provide all relevant employees with the notice, then Fair Work Australia cannot approve the Agreement
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the employees must have the notice for 21 days before a vote can be cast to determine whether the Agreement is approved
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employers should retain details of the date the last notice was issued. This information is critical to completing the approval forms which must be lodged with Fair Work Australia.
Important note to subscribers
The commentaries and documents in HR Advance are updated as necessary, to keep them relevant. You should familiarise yourself with the relevant commentary each time you create a document.
This document has been drafted to suit a wide variety of businesses, with a number of options available to enable you to customise the document to better suit your business. Nevertheless, you may need to make other changes to the document so that it suits the specific needs of your business. If you make additional changes, we cannot guarantee that the changes and modifications you make to the document will be legally compliant or enforceable.
This commentary and any additional information provided to assist you in creating this document, does not constitute legal advice.
If you are unsure about any aspect of this document (including the changes or amendments you make to it), you should seek appropriate advice from a lawyer, skilled in these issues. You should consult with your financial advisor in relation to any relevant taxation or financial issues concerning the document you create.
After creating this document, you should read through it carefully to make sure it meets your business needs and is consistent with other industrial instruments, policies and procedures which operate in your workplace. This commentary is not designed to be provided to employees or other workplace participants. |
Further information
Further information on how to use this document can be found at the 'How to use correspondence' link on the Correspondence page of the HR Advance website.
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