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Minor procedural or technical errors
adjournment
To end proceedings or to suspend them to another time or place.
appeal
To request that a decision of a single member of the Commission be reviewed by a Full Bench to determine if the decision made is consistent with the Fair Work Act 2009. An appeal can only be made on the grounds that an error of law or fact has been made. A person must seek the permission of the Commission to lodge an appeal by lodging a Form F7—Notice of Appeal.
bullying at work
Bullying at work, as defined by the Fair Work Act 2009, occurs when:
- a person or a group of people behaves unreasonably and repeatedly towards a worker or a group of workers while at work, and
- the behaviour creates a risk to health and safety.
Bullying does not include reasonable management action carried out in a reasonable manner.
bullying policy
A formal procedure outlining the processes used, including disciplinary measures, to resolve bullying in the workplace. A policy would normally include definitions of bullying, a worker's responsibility in relation to bullying and the step by step process that should be adopted when bullying is reported.
code of conduct
A set of rules and responsibilities that govern an organisation. A code of conduct generally sets out appropriate and inappropriate behaviour of employees within an organisation.
Commission
Abbreviation for Fair Work Commission.
Commonwealth
Refers to the Commonwealth government or an Australian territory.
conference
A private proceeding conducted by a Fair Work Commission Member.
constitutionally covered business
A constitutionally covered business is:
- a proprietary limited company
- a foreign corporation
- a trading or financial corporation formed within the limits of the Commonwealth
- the Commonwealth
- the Commonwealth authority
- a body corporate incorporated in a territory
- a business or organisation conducted principally in a territory or Commonwealth place.
It does not include sole traders, partnerships, some state government employees, corporations whose main activity is not trading or financial.
decision
A judgment or conclusion reached after considering the facts and law. A decision in relation to a matter before the Commission can include the names of the parties and will generally outline the basis for the application, comment on the evidence provided and include the judgment of the Commission in relation to the matter. A decision can be made by a single member or a Full Bench of the Commission. It is legally enforceable.
directions
Instructions given to the parties by the Commission that set out a timetable in accordance with which they must file in the Commission and serve on each other an outline of submissions, witness statements and any supporting documents.
evidence
Information which tends to prove or disprove the existence of particular belief, fact or proposition. Certain evidence may or may not be accepted by the Commission, however the Commission is not bound the normal rules of evidence. Evidence is usually contained within or attached to a witness statement or provided verbally by a witness in a hearing.
Fair Work Act 2009
The principal Commonwealth law governing Australia's workplace relations system. Go to the Fair Work Act 2009.
Fair Work Commission
Australia's independent, national workplace relations tribunal, established under the Fair Work Act 2009, from July 2009 to December 2012. Fair Work Australia assumed the functions of the Australian Industrial Relations Commission, and the Australian Fair Pay Commission and the agreement-making function of the Workplace Authority. Fair Work Australia was renamed the Fair Work Commission on 1 January 2013.
Full Bench
A Full Bench of the Fair Work Commission is convened by the Fair Work Commission President and comprises at least three Fair Work Commission Members, one of whom must be a Deputy President. Full Benches are convened to hear appeals, matters of significant national interest and various other matters specifically provided for in the Fair Work Act 2009.
harassment
Unwanted and offensive conduct or behaviour by a person or persons directed towards another person based on an attribute such as a person’s age, gender, race, religion or a disability. Harassment can be physical or psychological.
hearing
A public proceeding conducted by a Fair Work Commission Member. A hearing is generally more formal than a conference, and may be held if the matter can't be resolved at mediation, conciliation or conference.
jurisdiction
The scope of the Commission’s power and what the Commission can and cannot do. The power of the Commission to deal with matters is contained in legislation. The Commission can only deal with matters for which it has been given power by the Commonwealth Parliament.
jurisdictional objection
An objection to an application on the basis that the Fair Work Commission does not have jurisdiction to deal with the matter. A jurisdictional objection is not simply that the respondent thinks the applicant's case has no merit.
matter
A case or legal proceeding before the Commission.
mediation
An informal, confidential and voluntary process. It is one of the processes used by the Commission to facilitate the resolution of a grievance or a dispute between parties by helping them reach an agreement.
Member
A person appointed by the Governor-General to decide matters at the Commission. A Member may be the President, a Vice President, a Deputy President or a Commissioner.
non-constitutional corporation
An entity that is not a constitutional corporation. The following are not constitutional corporations:
- sole traders
- partnerships
- some state government bodies
- corporations whose activities do not include significant trading or financial functions (e.g. some charities).
order
An order is a ruling made by a Fair Work Commission Member after he or she hears your case. Once an order has been made, anyone bound by that order must follow it.
outcome
The end result of an application made to the Commission.
outline of submissions
A written document that clearly sets out the key elements of a case. All facts, information and evidence that you wish to bring to the attention of the Commission should be included in your outline of submissions.
partnership
An organisation in which two or more persons carry on a business together and it is not a constitutional corporation as defined.
party
A person or organisation involved in a matter before the Commission. A party is generally known as either an applicant or a respondent.
principal
A person or business that has entered into a contract for services with an independent contractor.
private enterprise
A business owned and operated by private individuals for profit, instead of by a government or its agencies.
procedural fairness
When persons are treated equally or fairly before the law (also known as due process). For example, procedural fairness occurs when both parties to a dispute have an opportunity to be heard or to defend themselves.
pty ltd
A proprietary limited company. A constitutionally covered business.
reasonable management action
In relation to an anti-bullying application, reasonable management action is the action or behaviour of management that is considered to be carried out in a reasonable manner. Reasonable management action does not constitute workplace bullying.
Reasonable management action may include:
- performance management processes
- disciplinary action for misconduct
- informing a worker about unsatisfactory work performance or inappropriate work behaviour
- asking a worker to perform reasonable duties in keeping with their job, and
- maintaining reasonable workplace goals and standards.
In each of these examples, if they are not carried out in a reasonable manner, then they could still be considered bullying.
Rules
service/to serve
A requirement to send a copy of a document (and all supporting documents) to another party or their representative, usually within a specified period. A person’s obligation to serve documents can be met in a number of ways. The acceptable ways in which a document can be served are listed in Parts 7 and 8 of the Fair Work Commissions Rules 2013.
sole trader
An organisation in which one person is responsible for the business.
WHS
Abbreviation for work health and safety.
WHS state or territory regulator
A body established by a state or territory government which regulates WHS laws in a particular state or territory. To find contact details for the regulator in your state or territory, go to the Enquiries page.
witness statement
A person who gives evidence in relation to something they saw, heard or experienced. A witness is required to take oath or affirmation before giving evidence at a formal hearing. The witness will be examined by the party that called them and may be cross examined by the opposing party to test their evidence.
worker
In relation to an anti-bullying application, the definition of a worker is drawn from the Work Health and Safety Act 2011. A worker can include:
- an employee
- a contractor or subcontractor
- a person employed by a labour hire company who is working at a particular business or organisation
- an outworker
- an apprentice or a trainee
- a work experience student
- a volunteer.
Only people who are considered to be workers may apply for an order to stop bullying at work.
workplace
A place where a person performs work.
workplace bullying
See bullying at work.
Minor procedural or technical errors relating to genuine agreement
See Fair Work Act 2009 s.188(2)
The Fair Work Amendment (Repeal of 4 Yearly Reviews and Other Measures) Act 2018 (the Amending Act) has revised s.188 of the Fair Work Act to provide a mechanism for the Fair Work Commission to conclude that an enterprise agreement has been genuinely agreed, within the meaning of s.186(2)(a), despite 'minor procedural or technical errors'.
Section 188(2) reads as follows:
- An enterprise agreement has also been genuinely agreed to by the employees covered by the agreement if the [Commission] is satisfied that:
- the agreement would have been genuinely agreed to within the meaning of subsection (1) but for minor procedural or technical errors made in relation to the requirements mentioned in paragraph (1)(a) or (b), or the requirements of sections 173 and 174 relating to a notice of employee representational rights; and
- the employees covered by the agreement were not likely to have been disadvantaged by the errors, in relation to the requirements mentioned in paragraph (1)(a) or (b), or the requirements of sections 173 and 174.[1]
The Amending Act received the Royal Assent on 11 December 2018 and the amendments to s.188 commenced on 12 December 2018.
Examples of what may be considered minor procedural or technical errors is provided in the Revised Explanatory Memorandum to the Fair Work Amendment (Repeal of 4 Yearly Reviews and Other Measures) Bill 2017:[2]
Examples of minor procedural or technical errors could include (without limitation):
- employees being informed of the time and place for voting on the proposed enterprise agreement or the voting method that will be used for the agreement just after the start of the access period rather than by the start of the access period (subsection 180(3));
- employees being requested to approve a proposed enterprise agreement on the 21st day after the last Notice was given, rather than at least 21 days after the day on which the last Notice was given (subsection 181(2));
- the inclusion of the employer's company logo or letterhead on a Notice;
- the inclusion of additional materials that are stapled with a Notice; or
- minor changes to the text of the Notice that had no relevant effect on the information that was being communicated in it (for example, the Notice may say to contact a particular person in the human resources department rather than 'contact your employer').
The proper construction of section 188(2)
The Full Bench of the Commission considered how the introduction of s.188(2) could be applied in Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others.[3]
The following propositions[4] emerged from the Full Bench’s consideration of the proper construction of s.188(2):
- Subsections 188(1) and (2) are to be approached sequentially. The first question is whether the Commission is satisfied as to the matters at s.188(1)(a) to (c). If it is so satisfied then the agreement has been genuinely agreed to and there is no need to consider s.188(2).
- The reference to the 'employees covered by the agreement' in ss.188(1) and (2), is a reference to those employees employed and covered by the agreement at the time of the request to vote under s.181.
- Subsections 188(1) and (2) both provide that an enterprise agreement has been genuinely agreed if the Commission is satisfied as to certain matters (ie those in s.188(1)(a) to (c) and ss.188(2)(a) and (b) respectively). The latitude as to the choice of the decision to be made by ss.188(1) or (2) is quite narrow in that the decision maker is required to conclude that the agreement was genuinely made if he or she forms a particular opinion or value judgment. Assessing the genuineness of agreement under ss.188(1) and (2) involves an evaluative assessment.
- Section 188(2) is confined to circumstances where the Commission is not satisfied that an agreement has been genuinely agreed to within the meaning of s.188(1), as a result of 'errors made in relation to the requirements mentioned in paragraph (1)(a) or (b), or the requirements of sections 173 and 174 relating to a notice of employee representational rights'.
- Section 188(2) does not extend to circumstances where the Commission is not satisfied that an agreement was genuinely agreed to in a more general sense, as might arise from a consideration of s.188(1)(c).
- Section 188(2) does not apply to all procedural or technical requirements with which an employer must comply when bargaining for an enterprise agreement. The 'minor procedural or technical errors' referred to in s.188(2)(a) must be errors 'made in relation to the requirements mentioned in paragraph (1)(a) or (b), or the requirements of sections 173 and 174 relating to a notice of employee representational rights' [emphasis added].
- The following table sets out the procedural or technical requirements to which s.188(2) applies.
Table 1: Scope of s.188(2)
Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others[5]
| Section | Procedural or technical requirement |
|---|---|
|
188(1)(a) |
Comply with subsection 180(2) – take all reasonable steps to ensure that relevant employees are given the written text of the agreement and any materials incorporated by reference during the access period or that the relevant employees are given access to these materials throughout the access period |
|
Comply with subsection 180(3) – take all reasonable steps to notify the relevant employees of the time, place and method of vote, prior to the start of the access period |
|
|
Comply with subsection 180(5)(a) – take all reasonable steps to ensure the terms of the agreement and their effects are explained to the relevant employees |
|
|
Comply with subsection 180(5)(b) – take all reasonable steps to ensure the explanation is provided in an appropriate manner taking into account the particular circumstances and needs of the relevant employees |
|
|
Comply with subsection 181(2) – the employer must not request that the employees approve a proposed agreement until at least 21 days after the day on which the last notice of employee representational rights (NERR) is given |
|
|
188(1)(b) |
The agreement must be made in accordance with subsection 182(1) or (2) |
|
173(1) |
Take all reasonable steps to give a NERR to each employee who will be covered by the agreement and is employed at the notification time for the agreement |
|
173(3) |
Issue the NERR as soon as practicable, no later than 14 days after the notification time |
|
174(1A)(a) |
The NERR must contain the content prescribed by the regulations |
|
174(1A)(b) |
The NERR must not contain any other content |
|
174(1A)(c) |
The NERR must be in the form prescribed by the regulations |
Section 188(2)(a): minor procedural or technical errors
When considering the definition of minor procedural or technical errors the Full Bench found the following:[6]
- The adjective minor qualifies both procedural errors and technical errors, such that the expression reads 'minor procedural errors or minor technical errors'. The word minor is a limitation upon the type of errors contemplated by s.188(2)(a).
- A failure to comply with a procedural requirement will constitute a procedural error within the meaning of s.188(2)(a).
A procedural requirement is one which requires an employer to follow a particular process or course of action.
For example:
An example of a procedural requirement may be providing employees with a NERR as soon as practicable, and not later than 14 days after the notification time (s.173(3)), or ensuring there are at least 7 clear days between notifying employees of the voting process and the commencement of that process (s.180(3)).
- A failure to comply with a technical requirement will constitute a technical error within the meaning of s.188(2)(b).
A technical requirement includes an obligation to comply strictly with the form and content of an instrument, such as the NERR.
- A single error may have both procedural and technical components.
- The impact of the errors is to be assessed by reference to the objects of the requirements in ss.188(2)(a), 188(1)(b), 173 or 174.
- What constitutes a minor error calls for an evaluative judgment having regard to the underlying purpose of the relevant procedural or technical requirement which has not been complied with and the relevant circumstances.
Table 2 (see below) examines each of the procedural or technical requirements, considers the underlying purpose of these requirements and outlines some ways in which employees might be disadvantaged by a minor technical or procedural error.
- Generally speaking, the lower the level of non-compliance the more likely it is to be characterised as a minor error.
For example:
Informing the employees of the time and place at which the vote will occur, and the voting method that will be used as per the requirements of ss.180(3)(a) and (b) just after the start of the 7 day access period (for instance 6 days before the start of the voting process) is likely to be a minor error in most cases.
However this will depend on the circumstances.
If it is the first agreement at the enterprise; the bargaining representatives are inexperienced and the employees are predominantly from a non-English speaking background, then it may not be a minor error.
Conversely, only informing the employees of the time and place at which the vote will occur some 4 days before the voting process starts may be a 'minor error where there is a history of bargaining at the enterprise; the agreement is, in effect, a roll over agreement; the employer takes further active steps to remind employees of the time and date of the vote; and a high proportion of employees actually vote.
- Whether an incidence of non-compliance is characterised as a minor error also depends on the nature of the requirement which has not been complied with.
For example:
The need to inform employees of the time and date of the vote (s.180(3)(a)) is more significant than informing them of the voting method (s.180(3)(b)) – the first requirement may impact on the employees' capacity to participate in the voting process, the second may not.
- Some species of error are unlikely to be classified as minor.
For example:
The deletion of the prescribed text of the NERR which deals with an employee's right to appoint a bargaining representative and the role of the unions as the default bargaining representatives. But, again, it may depend on the circumstances.
- The test in s.188(2)(b) is whether the employees covered by the agreement were 'not likely to have been disadvantaged by the errors, in relation to the requirements mentioned in paragraph (1)(a) or (b) or the requirements of sections 173 and 174' [emphasis added].
The impact of the errors is to be assessed by reference to the objects of those requirements and not by reference to any more general sense of genuine agreement.
- Cost or inconvenience to the employer and employee covered by an agreement associated with a delay in the approval of the agreement is not relevant to the question of whether the employees covered by the agreement 'were not likely to be disadvantaged by the errors'.
- The test suggested by s.188(2)(b) is whether 'the employees covered by the agreement were not likely to have been disadvantaged by the errors.
- The word likely in s.188(2)(b) means probable in the sense that there is an odds-on chance of it happening, rather than merely being some possibility of it happening. The word disadvantaged suggests a deprivation which manifests in the employees covered by the agreement being prevented from substantively exercising their rights within the bargaining regime in Part 2-4 of the Fair Work Act.
- In assessing whether employees were not likely to have been disadvantaged by an error, it may be necessary to consider the particular circumstances of the employees concerned at the time the error occurred and the impact of the error on the subsequent course of bargaining. This may include considering any steps taken by the employer to address the adverse impact of the non-compliance.
Table 2: Procedural or technical requirements & potential disadvantages
Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others[7]
| Section | Procedural or technical requirement | Underlying purpose of requirement | How might employees be disadvantaged? |
|---|---|---|---|
|
188(1)(a) |
Comply with subsection 180(2) – take all reasonable steps to ensure that relevant employees are given the written text of the agreement and any materials incorporated by reference during the access period OR that the relevant employees are given access to these materials throughout the access period |
To ensure employees have a reasonable chance to make an informed decision when voting |
In the circumstances employees may not have had effective access to materials or insufficient time to consider them to make an informed decision when voting |
|
Comply with subsection 180(3) – take all reasonable steps to notify the relevant employees of the time, place and method of vote, prior to the start of the access period |
To ensure employees are able to attend and participate in the voting process (should they choose to do so) |
In the circumstances employees might be unaware of the voting process occurring thus preventing them from effectively participating in the voting process |
|
|
Comply with subsection 180(5)(a) – take all reasonable steps to the terms of the agreement and their effects are explained to the relevant employees |
Ensure that employees understand the effect of the agreement that is to be voted on, enabling them to make an informed decision |
In the circumstances the steps may have been taken such that the employees might not be in a position to make an informed decision about the terms of the agreement upon which they are eligible to vote |
|
|
Comply with subsection 180(5)(b) – take all reasonable steps to ensure the explanation is provided in an appropriate manner taking into account the particular circumstances and needs of the relevant employees |
Ensure that particular classes of employees are able to understand the agreement not withstanding any particular circumstances or needs |
In the circumstances the employees may have received the explanation in a language they do not speak thus they may not be in a position to make an informed decision when voting |
|
|
Comply with subsection 181(2) – the employer must not request that the employees approve a proposed agreement until at least 21 days after the day on which the last NERR is given |
To provide the employees with a minimum period of time for the bargaining process to occur before voting on an agreement |
In the circumstances the period is cut short preventing the employees from effectively appointing bargaining representatives and participating in genuine good faith bargaining |
|
|
188(1)(b) |
The agreement must be made in accordance with subsection 182(1) or (2) |
|
|
|
173(1) |
Take all reasonable steps to give a NERR to each employee who will be covered by the agreement and is employed at the notification time for the agreement |
To ensure that all employees are aware that their employer intends bargain for an enterprise agreement and that they are aware of their representational rights |
In the circumstances the NERR may be so altered that employees fail to understand and exercise their representational rights and effectively participate in the bargaining process |
|
173(3) |
Issue the NERR as soon as practicable, no later than 14 days after the notification time |
To ensure that the employees understand their representational rights within a reasonable period before bargaining commences thus allowing them to exercise those rights in a timely manner |
In the circumstances the employees may have received the NERR later than the 14 days thus period preventing them from attending initial bargaining meetings and thus effectively influencing the bargaining process even after they do participate |
|
174(1A)(a) |
The NERR must contain the content prescribed by the regulations |
To ensure that the employees understand the scope of the proposed agreement, who is the employer and what their representational rights are prior to the actual bargaining commencing |
In the circumstances the employer may have been incorrectly named within a complex group of companies thus creating real confusion resulting in employees failing to effectively participate in the bargaining |
|
174(1A)(b) |
The NERR must not contain any other content |
||
|
174(1A)(c) |
The NERR must be in the form prescribed by the regulations |
Case examples
References
[1] Fair Work Act s.188(2).
[2] Revised Explanatory Memorandum to Fair Work Amendment (Repeal of 4 Yearly Reviews and Other Measures) Bill 2017 at para. 47.
[3] Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others [2019] FWCFB 318 (Ross J, Hatcher VP, Saunders DP, 18 January 2019).
[4] Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others [2019] FWCFB 318 (Ross J, Hatcher VP, Saunders DP, 18 January 2019) at para. 117.
[5] Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others [2019] FWCFB 318 (Ross J, Hatcher VP, Saunders DP, 18 January 2019) at para. 52.
[6] Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others [2019] FWCFB 318 (Ross J, Hatcher VP, Saunders DP, 18 January 2019) at para. 117.
[7] Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others [2019] FWCFB 318 (Ross J, Hatcher VP, Saunders DP, 18 January 2019) at para. 74.
Updated time
Last updated
24 May 2019
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