Which casual and sessional employees can vote for an enterprise agreement?

February 1, 2016

In this edition we consider an important decision of the Full Bench of the Fair Work Commission (FWC) addressing an issue many employers in the education sector face when employees vote on a proposed enterprise agreement – which casual and sessional employees are eligible to vote?

Key points

Determining which employees should be included or excluded from a ballot to vote on an enterprise agreement can make all the difference to the success of the vote. To be eligible to vote on a proposed enterprise agreement covering the work performed by an employee, the employee must be “employed at the time”. A casual or sessional employee may be eligible to vote if the person is employed, or usually employed by the employer (by reference to the nature of the employment, patterns in the industry and the employer’s enterprise), rather than limited strictly to whether the person was working at the time the vote was conducted or when the request to vote is made.

What happened?

Swinburne University had been engaged in lengthy negotiations with the National Tertiary Education Union (NTEU) and other bargaining representatives over a 12-month period for a proposed enterprise agreement covering its academic, executive and general staff – including casual and sessional staff. When a majority of employees finally voted up the Swinburne University of Technology, Academic and General Staff Enterprise Agreement 2014 (Agreement), the NTEU objected to the FWC approving the Agreement on the basis that there had not been “genuine agreement” by employees because Swinburne University had included in the ballot of 3158 employees a number of sessional employees engaged during the 2013 academic year. According to the NTEU, 47 employees were ineligible to vote because they were not relevant employees employed by Swinburne at the time the request was made to vote on the Agreement. The Agreement voted up by a majority of 57 votes.

What did the Full Bench of the FWC decide?

The Fair Work Act provides that the class of employees who can be requested to vote on a proposed enterprise agreement are “the employees employed at the time” an agreement is put to vote. On a strictly literal reading, this would mean that a casual or sessional employee who is not working precisely at the time voting occurs could not be included in the voting pool. The Full Bench found such an approach would be overly technical and could produce absurd results.

The Full Bench preferred a more practical approach to determination of “employees employed at the time”, finding that it was entirely appropriate for Swinburne University to include casual and sessional employees in the voting pool not withstanding that those employees may not have worked on the day or days when the vote occurred. The Full Bench said that the relevant test was whether the person is employed, or usually employed by the employer (by reference to the nature of the employment, patterns in the industry and the employer’s enterprise), not whether the person was working or attended work when the request to vote was made or the vote was conducted.

The Full Bench approved the Agreement, finding that there was simply no evidence to support the NTEU’s allegation that any of the alleged ineligible employees actually voted to approve the Agreement.

Take away tip

To ensure the proper constitution of ballot voting pools and to maximise the potential of having an enterprise agreement voted up, it is vital that employers in the education industry adopt an objective, transparent and logical approach to deciding who should be included or excluded from the ballot. This is particularly the case where large numbers of sessional or casual employees may be covered by the agreement. It will be insufficient simply to include all casual and sessional employees who were employed in the preceding year in the voting pool. Evidence that establishes a pattern of work and continued employment relationship would need to be shown.