FWC decision provides clear direction about the role of the ‘Access period’

A lack of clarity and timeliness in employee communication leads to FWC Rejection

Key takeaways

• Clear and timely communication to employees covered by a proposed enterprise agreement is essential to demonstrate compliance with the Statement of Principles on Genuine Agreement (the Statement) around employee agreement to the deal.
• Providing employees with adequate time to review agreements is crucial for ensuring compliance with the Statement. Paragraph 6 of the Statement requires that time to be at least seven days clear of the vote. In that sense, the ‘7-day access period’ remains a primary consideration and must start the day after notice of the ballot is given and end the day before the vote.
• For practical purposes, employers should consider treating the access period as nine days inclusive.
• Conflicting or misleading information to employees during that period can undermine compliance with the Statement and result in a refusal by the Fair Work Commission to approve an agreement.
• No changes can be made to the agreement during the access period.

Geocon Constructors (ACT) Pty Ltd recently faced a setback in pursuing a new deal with employees after the Work Commission (FWC) rejected its application for approval of a new enterprise agreement. The FWC rejected their application following claims that Geocon had failed to demonstrate compliance with the Statement of Principles on Genuine Agreement in two material ways:

1. Failing to provide employees with clear and accurate information and explanation about the terms of the proposed new agreement and
2. Failing to provide employees with a reasonable time to consider the agreement before the vote.

The key factor at the heart of this decision was Geocon’s alleged failure to provide its workers with an updated agreement reflecting negotiated changes, which included a reduced pay rise.

That step offended against the following Statement of Principles on Genuine Agreement:

Providing employees with a reasonable opportunity to consider a proposed enterprise agreement

• The employer should provide employees with a reasonable opportunity to consider a proposed enterprise agreement before voting on it so that the employees can vote in an informed manner.
• The employer will be taken to satisfy paragraph 4 if, a reasonable time period before the start of the voting on the proposed agreement, the employer provides to employees who are entitled to vote on the agreement:

a. a full copy of the agreement, and

b. a full copy of any other material incorporated by reference in the agreement.

• In paragraph 5, a reasonable time period will include:

a. at least seven full calendar days before the day on which voting starts (for example, if the voting is to start on 9 May, employees are to be given the materials on or before 1 May), or

b. such other reasonable time period as is agreed with one or more employee organisation(s) acting as bargaining representative(s) for a significant proportion of the employees to be covered by the agreement.

This decision makes it unequivocal that the ‘access period’ must be seven days clear of the date notice of the vote is given and the vote date.

The information that Geocon did provide was, according to the FWC decision, inadequate and best by significant failures, including providing employees with a copy of the agreement, which had been superseded by a later version.

In the decision, Deputy President Slevin reprimanded Geocon Constructors for significant failures in providing workers with a full, up-to-date copy of the agreement and explaining its terms and implications in a reasonable timeframe before the vote. The Deputy President’s views make clear that even if Geocon had conveyed the final version of the deal to the bargaining representative on the date, it contends it did, that would not have satisfied the Statement, which requires a minimum of seven full calendar days between the giving of the information and the date of the vote. The FWC’s rejection of Geocon Constructors’ application underscores the importance of transparency, clear communication, and consideration of the Statement of Principles on Genuine Agreement in ensuring procedural compliance and providing the best opportunity to approve an agreement.