Recent Fair Work Commission decisions have confirmed that employers must meet strict technical requirements before enterprise agreements will be approved.
Once an employer has reached an agreement with employees regarding a proposed enterprise agreement, the employer must apply to the Fair Work Commission for approval of the agreement.
Before this, the employer must, amongst other things, notify employees of the time, place and voting method that will be used to vote on the proposed agreement at least seven clear days before the vote takes place.
A recent Full Bench decision1 considered an application by CBI Constructors for approval of an enterprise agreement. The employees were provided with the required details of how, when and where the vote would be conducted at approximately 10:00 am on 22 June 2017. The vote was conducted seven days later at approximately 11:00 am on 29 June 2017 and a majority of employees voted in favour of the new enterprise agreement. Despite this, the Fair Work Commission refused to approve the agreement. Although seven 24 hour periods had passed before the vote, the Full Bench confirmed that the Fair Work Act requires seven “clear calendar days” notice to be provided to employees before they vote.
The CBI Constructors decision has since been applied by the Commission in refusing to approve other agreements that do not meet this strict seven day requirement. For example, in Civica BPO Pty Ltd  FWC 4376 an enterprise agreement was not approved where seven clear calendar days’ notice was not provided to employees before the vote. In this case, the employer had the support of the union in seeking approval of the agreement and had taken steps to try to be compliant including relying on a “Date Calculator” available on the Commission website to determine an appropriate timetable for conducting the vote. Due to the timing of this application and the decision in CBI Constructors, the Date Calculator had not been amended to reflect the requirement for seven “clear calendar days”. Accordingly, although the Commission acknowledged that it was a “regrettable result”, the strict requirements had not been met and the agreement was not approved.
In light of the CBI Constructors decision, the Commission has contacted employers who have recently submitted enterprise agreements for approval where the application might now not meet the strict technical requirements. Those employers have been invited to withdraw their applications meaning that the whole voting and approval process would need to start over which can be costly and time consuming.
If your business is facing this situation, before withdrawing your application you should consider whether you can demonstrate that you have complied with the requirements in other ways. For example, you may be able to show the Commission that your business sent an email to employees on an earlier date that included details of when and where the vote would be held, the voting method that would be used and attached a copy of the final enterprise agreement. This may be enough to show the Commission that all the requirements were in fact met and that the agreement should be approved without the need to start the process over again.
1Construction, Forestry, Maritime, Mining and Energy Union and Ors v CBI Constructors Pty Ltd  FWCFB 2732