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.
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 are provided in the Revised Explanatory Memorandum to the Fair Work Amendment (Repeal of 4 Yearly Reviews and Other Measures) Bill 2017:
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').