NERR enough isn’t good enough

If you have been involved in enterprise bargaining before, you probably already know about the requirement to provide employees with ‘the NERR’ (Notice of Employee Representational Rights). You may have also heard horror stories about agreements being rejected by the Fair Work Commission just before the ‘finish line’ because of defective notices. In these cases, bargaining must recommence from scratch, often at considerable cost.

This is an infamously unforgiving area of regulation. If an employer provides a NERR that is even slightly different from the form prescribed by the regulations it will be invalid. This is particularly significant because bargaining cannot lawfully commence until employees have been provided with a valid notice and allowed a specified period to ‘digest’ the information about their representational rights. An error at this pre-bargaining stage may go unnoticed for a long time and then come back to haunt you.

The government recently made changes to the NERR which came into operation on 3 April 2017. The underlying requirement, to issue the NERR in precisely the form prescribed by the regulations, remains the same, but the information which it must contain has been slightly amended. The changes remove the requirement for the employer to insert the number of the Fair Work Commission Infoline, which is often (understandably) confused with the Fair Work Ombudsman helpline. This will probably be a good thing in the long term, but ironically, during the changeover period there is an increased risk that employers might use the outdated form by mistake.

If you are bargaining during the upcoming months (or if you issued a NERR on or after 3 April), be sure to double check that you are using the latest version of the NERR, as required by the regulations. If you mistakenly issue a defective notice, you will be required to recommence the statutory bargaining process and this can be not only embarrassing but sometimes strategically difficult when one of the bargaining representatives refuses to cooperate. Still, it is far better to catch a problem like this relatively early than to find out after you make an application for approval in the FWC.

If you want advice about how to get the NERR right, you can contact us for further information.

David Dilger
Partner
M: 0428 238 819
E: ddilger@pageseager.com.au

Rod Collinson
Partner
M: 0430 221 067
E: rcollinson@pageseager.com.au

Luke Gattuso
Partner
M: 0411 989 292
E: lgattuso@pageseager.com.au

Published: 16 May 2017

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