Sometimes ‘doing the right thing’ can backfire, as an employer who rang absent employees to ensure they could exercise their right to vote on an agreement has found out to its detriment. And despite the employees concerned not being fazed by the situation, and there being no evidence of coercion, the Fair Work Commission has refused to approve the agreement.
The employer had complied with the various requirements of the voting process, advising employees in writing of the where, when and how of the ballot. The voting would be by secret ballot, and the ballot would remain open over a two day period. However, on the second (and last) day of voting, the employer realised that three employees were absent, and so not able to participate in the secret ballot being held at the workplace.
The employer, in the presence of an employee bargaining representative, phoned the three absent employees and asked them if they would like to vote over the phone (including by text). This they did, all voting in favour of the deal. But the vote was close, 18 to 15 in favour. Had these three employees not been involved, the result would have been 15 all, not a majority, so the agreement would not have been made.
This aspect of the situation weighed heavily in the case. The FWC took the view that the voting process had been advised, and this is what should have occurred – that is, it was to be a secret ballot but in respect of these three employees, that did not happen. The FWC refused to include those three votes, so refused to approve the agreement.
The case underlines the importance of sticking to the process that has been established. Where voting is concerned, it is simply best practice not to fiddle in any way whatsoever with the method chosen and advised to employees. The issue of absent employees is forever present and employers who sense a tight result ought to factor that into their process steps by providing for alternative voting methods for those employees to vote.