FWC Votes Casuals Back In

McDermott Australia Pty Ltd v AWU, AMWU [2016) FWCFB 2222 (19 April 2016)

A full bench of the Fair Work Commission has upheld an appeal against an earlier FWC decision to effectively disenfranchise a group of employees who are casuals from making an EBA with their employer (see 3 March 2016 story, Do casuals really have an EBA vote?).

The employees had been hired as casuals and were on a 21 day on, 21 day off roster. During one of the off cycles, they voted on their EBA, but at first instance, with union intervention, the FWC made the finding that the employees were not “employed at the time”. The Commissioner based this on a narrow view of the employees’ actual engagement, essentially compartmentalising it in line with each of the cycles. In particular, the Commissioner reasoned that, as casuals, they were engaged on a day to day basis. That meant they were not eligible to vote at the time because they weren’t actually at work.

But the full bench dismissed this notion, saying it was very clear from the evidence that the company had always engaged workers on these jobs as casuals, that they had been engaged for a project that was on-going and so they were employed at the time of the vote.

The original decision had also relied on an earlier federal court decision which had used terms such as “likely to be engaged” or “usually employed” in determining that the casuals in that case were not actually employed at the time. However in this situation, the casuals were not just likely to be engaged, or usually engaged, they were actually engaged, albeit on an off cycle but due to work the next on cycle in the immediate future.

The full bench pointed to several key pieces of evidence that should have been taken into account. All the employees had undertaken comprehensive induction including paid training, they had payroll records established, none had resigned or been terminated by the employer and none had indicated any unavailability for future work.

These findings are important. There are many situations where casuals have an on-going relationship with an employer, for instance hotels and restaurants, where the casual may not have had a shift for a month or so, but both the employer and employee know that they will work again so they should have a say in the EBA. The full bench has given employers some indicators to use in deciding just who is eligible to vote.