When new workers commenced employment during the access period for an agreement, and voted in the ballot, an employee bargaining representative thought the process had been compromised, so tried to stop the approval of the agreement by the Fair Work Commission.
The agreement had been endorsed by a narrow margin, and the aggrieved employee told the commission there had been five new employees join the firm just a few days before the vote. On top of their ‘late’ arrival on the scene, these employees were from overseas, so, he argued, their comprehension of events was potentially very poor.
These submissions were examined by the FWC and in each instance, dismissed. Firstly, the fact that employees were newly hired so close to voting day was of no consequence, because to halt or postpone processes in bargaining for that reason could mean a vote might never happen. Secondly, the employees were not entitled to be issued with a Notice of Representational Rights because the legislation makes it clear this need only be done at the notification time – that is, at the beginning of the whole process. So the technical aspects of the process were not jeopardised.
The employee representative was also denied satisfaction on his claims the newly arrived employees’ poor English skills and general lack of knowledge of Australian workplace regulation, meant the employer could not have taken all reasonable steps to explain the agreement and its effects.
However the employer produced evidence the employees had to pass written English tests to get their jobs. Further, the employer held pre-work meetings (which included the new arrivals) to explain the agreement’s effects. An existing employee who spoke the foreign worker’s language also testified his compatriots understood what was going on.
The evidence of the pre-work meetings, the documentation distributed at them and the evidence of English comprehension easily swayed the decision in favour of the employer. The FWC approved the agreement, satisfied that the employer had taken reasonable steps to ensure the workforce understood the substance of the agreement.