Ballot Box Bungle No Barrier to Approval

Just who gets to vote on an enterprise agreement has been the subject of a few disputes and it has again required a Fair Work Commission full bench appeal to clear up some misconceptions. In this case, there were two problems with the ‘electoral roll’; some casual employees who voted had not worked in the last three months prior to the vote, and some other employees were not allowed to vote who had been hired during the voting period.

The issue of casuals and voting has been dealt with before, including in the federal court, and remains fluid. In this case, the numbers involved would have made no difference to the overall result, so it was discarded.

However, in relation to the new employees, the FWC at first instance refused to approve the agreement because the employer “did not request employees to vote who were employed at the time of the voting period and would be covered by the Agreement”. This was despite the fact that again, the numbers involved would have made no difference to the overall result.

The appeal bench said this was a mistake, because while the Act does not spell out clearly what is meant by the “request” by an employer for employees to vote, there are several indicators which show that in a practical sense, it refers to the day on which voting commences. That is, it is a specific point in time.

This meant that just because the voting period was over several days, did not also mean that employees who were engaged after the request date had an entitlement to vote. The full bench said that “would also give rise to the practical difficulty, where there is an extended voting period, that an employer would have to continually add to the “roll” of voters and provide with a means of voting any new employees who are engaged up until the very end of the voting process.”

The decision said quite clearly that employees who are not employed at the time of the request do not have any entitlement to a vote. A good rule of thumb for voter eligibility is those persons on the payroll during the access period, the mandatory seven days before the ballot opens, should be what constitutes the electoral roll.

Shop, Distributive and Allied Employees Association and others [2019] FWCFB 7599 (11 November 2019)