Who is Eligible to Vote on an EBA?

National Tertiary Education Industry Union v Swinburne University of Technology [2015] FCAFC 98 (17 July 2015)

The tricky question of who to include in an enterprise agreement ballot has been answered by a full bench of the Federal Court, in a case involving casual employees.

The problem has been around since the beginning of enterprise bargaining, and involved a university which allowed casual (or sessional) staff to vote on a proposed agreement. The sessional employees were those who had at some time in the preceding twelve months, worked for the university and it was effectively assumed, could work for the university again. This is analogous to the situation many employers, who have a sizable casual contingent, find themselves in when it comes time to run an agreement ballot.

Initially the Fair Work Commission found that the inclusion of these sessional workers was reasonable, given that they were ‘usually employed’, a term used to describe employees generally and defined in the Fair Work Act.

However the vote in this particular case was quite close. The union argued that if sufficient numbers of those who voted weren’t actually entitled to (because they were not employees “at the time” of the vote – referring to another section of the Act), then the outcome of the ballot would have been different.

On appeal to the full court, the union’s argument held sway. The majority in the court said that the Act clearly states the eligible voters are those employed “at that time”, referring to s.181 of the Act. The judges said that the specific use of those words in the directly relevant section of the Act relating to the voting process, meant that the only employees eligible to vote were those employed at that time.

The decision went on to say that the words “at that time” meant at the time of the vote. The primary judgement indicated that the best way to deal with the issue was to ensure that every employee employed during the seven day mandatory access period prior to the beginning of voting should be entitled to vote and no one else. That would normally include all permanent employees (including those on approved leave) and those casuals (or other similar intermittent types of employees, for example day labourers) who had worked during that week