See Fair Work Act 2009 ss.173–174; Fair Work Regulations reg. 2.04, 2.05
An employer that will be covered by a proposed enterprise agreement that is not a greenfields agreement must take all reasonable steps to give notice of the right to be represented by a bargaining representative to each employee who:
A notice of employee representational rights (Notice) does not have to be given in circumstances where the employer has already given the employee a Notice within a reasonable period before the notification time for the agreement. For example, if an employer issues an employee with a Notice at the time the employer agrees to bargain, the employer is not required to issue another Notice to that employee if a scope order subsequently varies the group of employees who will be covered by the agreement, provided the Notice was issued within a reasonable period of the scope order.
There is no requirement for an employer (or employers) to give a Notice before negotiating a greenfields agreement. This is because there should be no employees employed. The persons who will be necessary for the normal conduct of the enterprise and will be covered by the agreement will be employed AFTER the greenfields agreement has been made.
An employer (or employers) negotiate a greenfields agreement with the relevant union (or unions).
The Notice must be given to each employee who will be covered by the proposed enterprise agreement as soon as practicable, and no later than 14 days, after the notification time. If the Notice is issued after the 14 day period it may be invalid.
The Fair Work Act does not require that an employer provide the Notice to any employees who are employed after the notification time for the proposed enterprise agreement.
Only a notice of employee representational rights (Notice) that is issued as soon as practicable, and no later than 14 days after the notification period has commenced, can be taken to be a Notice for the purposes of section 173(1) of the Fair Work Act. Any other notice issued, even if it claims to have the required identity, is no more than a document without statutory standing.
Determining the exact date an employer agreed to bargain (the notification time) can be difficult as there is no requirement to provide a formal notice to initiate bargaining.
When determining whether the Notice has been issued in accordance with the Fair Work Act, the Fair Work Commission generally relies on the information provided by the applicant in its declaration.
An employer must take all reasonable steps to provide a Notice to each employee.
What is a reasonable step will depend upon the circumstances of the employer and employee.
Once an employer has decided what steps they consider are reasonable in the circumstances, they may adopt one or more of the steps. The Commission has taken the view that the reference in the legislation to all reasonable steps is not a requirement that employers undertake each and every reasonable step to provide the Notice.
Each of the following methods is a way in which the employer for a proposed enterprise agreement may give an employee who will be covered by the agreement the Notice. The employer may:
The employer is not prevented from using another manner of giving the Notice to the employee.
The Notice must contain only the content prescribed by the Fair Work Regulations (Regulations) and be in the form prescribed in Schedule 2.1 to the Regulations. The prescribed Notice is set out in full below.
The employer must NOT change the content of the Notice by adding or removing any text, apart from inserting the employer's name and other details which are specifically required to be included.
If the employer varies the content of the Notice, the Fair Work Commission cannot approve the enterprise agreement.
The Notice must specify that the employee may appoint a bargaining representative to represent the employee in bargaining for the proposed enterprise agreement.
The Notice must explain that:
the union will be the bargaining representative of the employee.
If the Commission has made a low-paid authorisation in relation to the proposed enterprise agreement, the Notice must explain that the union that applied for the authorisation will be the bargaining representative of the employee unless the employee appoints another person as his or her bargaining representative.
The Notice must explain that if an employee appoints another person as his or her bargaining representative, a copy of the instrument of appointment must be given to the employee's employer.
Section 174(1A) of the Fair Work Act states that the Notice must not contain any other content.
In considering the meaning of section 174(1A), the Full Bench of the Commission has stated that the section is not to be construed so as to preclude an employer from providing additional material to its employees at the same time as the Notice is given to them. Section 174(1A) is directed at the form and content of the Notice. It does not require the Notice to be provided in isolation and to construe the provision in that way would produce some absurd results, for example, it would prevent an employer from providing employees with a simple covering letter or an offer of interpreter services.
These problems are avoided if section 174(1A) is interpreted as a means of curing the mischief to which it was directed, namely, ensuring that the actual Notice is not amended in form or content from the template provided in Schedule 2.1 of the Regulations.
Where additional material accompanies a document which contains the content, and is in the form, prescribed in the Regulations, the issue to be determined is what purports to be the Notice. Where additional material is provided with the Notice and that material has the character of being, for example, misleading or intimidatory, then this will be relevant to the Commission’s assessment of whether the enterprise agreement had been ‘genuinely agreed’ by the employees. However, it is not a basis for finding that a Notice has not been given in accordance with the Fair Work Act.
Fair Work Act 2009, subsection 174(1A)
[Name of employer] gives notice that it is bargaining in relation to an enterprise agreement ([name of the proposed enterprise agreement]) which is proposed to cover employees that [proposed coverage].
An enterprise agreement is an agreement between an employer and its employees that will be covered by the agreement that sets the wages and conditions of those employees for a period of up to 4 years. To come into operation, the agreement must be supported by a majority of the employees who cast a vote to approve the agreement and it must be approved by an independent authority, Fair Work Commission.
You have the right to appoint a bargaining representative to represent you in bargaining for the agreement or in a matter before Fair Work Commission about bargaining for the agreement.
You can do this by notifying the person in writing that you appoint that person as your bargaining representative. You can also appoint yourself as a bargaining representative. In either case you must give a copy of the appointment to your employer.
[If the agreement is not an agreement for which a low-paid authorisation applies – include:]
If you are a member of a union that is entitled to represent your industrial interests in relation to the work to be performed under the agreement, your union will be your bargaining representative for the agreement unless you appoint another person as your representative or you revoke the union’s status as your representative.
[If a low-paid authorisation applies to the agreement – include:]
Fair Work Commission has granted a low-paid bargaining authorisation in relation to this agreement. This means the union that applied for the authorisation will be your bargaining representative for the agreement unless you appoint another person as your representative, or you revoke the union’s status as your representative, or you are a member of another union that also applied for the authorisation.
[if the employee is covered by an individual agreement-based transitional instrument – include:]
If you are currently covered by an Australian Workplace Agreement (AWA), individual transitional employment agreement (ITEA) or a preserved individual State agreement, you may appoint a bargaining representative for the enterprise agreement if:
If you have any questions about this notice or about enterprise bargaining, please speak to your employer or bargaining representative, or contact the Fair Work Ombudsman or the Fair Work Commission.
 Fair Work Act s.173(4).
 Explanatory Memorandum to Fair Work Bill 2008 at para. 702.
 Transport Workers’ Union of Australia v Hunter Operations Pty Ltd  FWC 7469 (Hatcher VP, 30 October 2014) at paras 69–79; Uniline Australia Limited  FWCFB 4969 (Gostencnik DP, Riordan C, 25 August 2016) at paras 55–56, 110–113; see also Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others  FWCFB 318 (Ross J, Hatcher VP, Saunders DP, 18 January 2019).
 Re University of New South Wales  FWAA 9588 (Lawler VP, 16 December 2010) at para. 24; affirmed by National Tertiary Education Industry Union v University of New South Wales  FWAFB 5163 (Harrison SDP, Sams DP, Deegan C, 10 August 2011), [(2011) 210 IR 244].
 National Tertiary Education Industry Union v University of New South Wales  FWAFB 5163 (Harrison SDP, Sams DP, Deegan C, 10 August 2011) at para. 13, [(2011) 210 IR 244].
 Fair Work Regulations reg. 2.04.
 Fair Work Act s.174(1A).
 Fair Work Regulations reg. 2.05.
 Peabody Moorvale Pty Ltd v Construction, Forestry, Mining and Energy Union (CFMEU)  FWCFB 2042 (Ross J, Hatcher VP, Asbury DP, Gostencnik DP, Simpson C, 2 April 2014) at para. 67.
 Ibid., at para. 68.
 Ibid., at para. 69.
 Ibid., at para. 70.