Majority Support Campaign Material Disallowed

While there’s nothing wrong with an employer robustly campaigning on a majority support vote, just like regular electioneering, there are obligations on the ‘parties’ to ensure that an accurate picture of the effects of a vote one way or another are stated.

And the Fair Work Commission has expressed its displeasure with a labour hire company’s approach to its employees, citing its advice to employees about when it would commence bargaining and that voting was not compulsory. The FWC took umbrage at these issues in combination, on the grounds that the original intent of the ballot was to find out the views of employees. Hence anything the employer said which militated against that was contrary to purpose.

The employer had indicated to the employees that even if there were majority support, it would not start negotiating “until later”. The FWC appeared to characterise this as a disincentive for employees to either participate in the ballot, or perhaps vote against the proposal.

The employer declined to remove that part of the notice which the FWC found unhelpful. So the FWC issued a direction requiring the employer to alter the notice to conform with it swishes and to indicate that the employer had been directed to issue it by the FWC. No remarks were to be included that indicated bargaining would commence later regardless of the outcome of the ballot. The employer was also ordered to distribute a union notice in support of the determination.

Majority support ballots, if they succeed, can only require an employer to bargain – they cannot force an employer to agree to anything. This means taking a tough approach to such a preliminary step may taint the whole process if in fact majority support exists. Tactically, employers need to be very certain that the ballot will not succeed before they adopt an aggressive stance at the outset.

National Union of Workers v Coldunit Pty Ltd [2017] FWC 150 (9 January 2017)