Do casuals really have an EBA vote?

McDermott Australia Pty Ltd [2016] FWC 1113 (25 February 2016)

An enterprise agreement has been ruled invalid after the Fair Work Commission found casuals employed by the company were not working at the time they voted on the agreement. In an unexpected decision, the FWC found that because the casuals were not physically at work on the days allocated for voting, then there were no “relevant employees” employed “at the time” as those terms are used in the legislation.

The casuals had worked for the company before and would be doing so in the future, because the work they do is intermittent. It was not unusual that on the days voting took place, no work was being performed by the casuals. In fact, work re-commenced just three days after the vote closed. But the two unions who covered the work (but weren’t involved in the negotiations) complained at the approval hearing about this aspect, and the FWC agreed with the unions’ argument.

The FWC relied on a federal court decision made mid-2015 which had ruled against an agreement where the employer had included all its casual employees from the previous year. In that case, the federal court held that the meaning of the term “employed at the time” could be confined to the mandatory seven day access period immediately prior to the voting. Since in the current case there was no evidence work had been performed during that period, the FWC ruled against the employer.

Complicating this issue is the inclusion in the definition of an employee in the legislation of the term “usually employed”. There is also the reality that casuals work long term with the same employer. So the approach taken in this case has adopted a narrow view and rests entirely on the evidence that on the actual voting days (of which there were two), no work was performed, therefore there were ‘no employees’.

For companies that employ casuals who work irregularly, this narrow approach potentially presents difficulties. It is manifestly unfair to casuals who may not be actually in attendance right at the time of voting, from having a say in the EBA, as this decision has done. Employers can circumvent this by making certain that casuals entitled to a vote because of their relationship with the employer, have either worked at some time during the access period or, if necessary, to pay the casuals their minimum start on the day of voting.