Document ID: chunk:federal_register_of_legislation:F2023L00551:clause:1_4:p2
Version: federal_register_of_legislation:F2023L00551
Segment Type: clause
Provision Reference: sch 1 cl 4 (pt 2/8)
Character Range: 4346–7189

of their choice, and how to exercise those rights,

    at such a time and in such a manner that the employees have a reasonable opportunity to be represented in bargaining for the agreement.

    2.             Where section 173(1) of the Fair Work Act applies to the employer in relation to a proposed enterprise agreement, the employer will be taken to satisfy paragraph 1 if, subject to paragraph 3, the employer gives a notice of employee representational rights in accordance with sections 173 and 174.

    3.             An employer should not mislead employees (by words, action or otherwise) as to:

        (a) the employees' right to be represented by a bargaining representative, or

        (b) the role of an employee organisation as the default bargaining representative of its members.

NOTE 1: Section 173(2) of the Fair Work Act provides that the notification time for a proposed enterprise agreement is the time when:
   (a) the employer agrees to bargain, or initiates bargaining, for the agreement; or
   (aa) the employer receives a request to bargain under section 173(2A) in relation to the agreement; or
   (b) a majority support determination in relation to the agreement comes into operation; or
   (c) a scope order in relation to the agreement comes into operation; or
   (d) a supported bargaining authorisation in relation to the agreement that specifies the employer comes into operation; or
   (e) a single interest employer authorisation in relation to the agreement that specifies the employer comes into operation.

NOTE 2: Section 173(1) applies to an employer that will be covered by a proposed single-enterprise agreement (other than a greenfields agreement). It requires the employer to take all reasonable steps to give the notice of employee representational rights to each employee who will be covered by the agreement and is employed at the notification time for the agreement (unless the employer has already given the employee the notice within a reasonable period before the notification time for the agreement).

The notice of employee representational rights is in Schedule 2.1 to the Fair Work Regulations 2009 (Cth). Section 174(1A) of the Fair Work Act provides that the notice must contain the content prescribed by the regulations, not contain any other content, and be in the form prescribed by the regulations. Regulation 2.04 sets out how the notice is to be given to employees. Section 173(3) requires the employer to give the notice as soon as practicable, and not later than 14 days, after the notification time for the agreement.

NOTE 3: Section 188(5) provides that the FWC may disregard minor procedural or technical errors in relation to sections 173 and 174, provided that it is satisfied that the employees were not likely to have been disadvantaged by the errors.

Providing