Casual employee roster could invalidate enterprise agreement vote

Casual employee roster could invalidate enterprise agreement vote

A recent decision handed down by the Fair Work Commission may have significant consequences for employers of casual workers when voting on enterprise agreements.

On 31 December 2018, many Australians were still finishing off their Christmas leftovers or otherwise gearing up for a night of festivities. The same cannot be said for the Fair Work Commission.

Instead, on 31 December 2018, a Full Bench of the Commission handed down a decision that will have a nationwide impact on the voting rights of casual employees with respect to enterprise bargaining.

The upshot of the decision: the decision found that, save for exceptional cases, casual employees will not be entitled to vote on an enterprise agreement unless the employees are actually working on one of the days of the vote or (on a broader view) perhaps also during the access period for the enterprise agreement.

The relevant statutory provisions

The Fair Work Act provides that an employer may request all employees “employed at the time” to approve of an enterprise agreement if they will be covered by the agreement.

Whilst, ordinarily, there is no difficulty in ascertaining which employees are “employed at the time”, the application of this provision with respect to casual employees has been particularly fraught.

The casual conundrum

In McDermott Australia Pty Ltd [2016] FWC 1113, Commissioner Lee rejected the approval of an enterprise agreement in circumstances where casual employees who had been employed to work on a specific offshore project – but who were not working on the voting days – voted on the agreement. Commissioner Lee found that, because the casuals were not working on any of the days the agreement was voted on, they could not be said to be “employed at the time” of the vote.

This decision was overturned on appeal. A Full Bench of the Fair Work Commission held that:

The Commissioner was of the view that there was something wrong with the vote occurring while employees were not actually performing or being paid for performing work at the time of the vote.  This in our view is incorrect; the status of the 36 casual employees at the time of the vote is a natural and expected phenomenon of being employed on a casual contract… In our view it would be inappropriate or counter intuitive to disenfranchise casual employees of a right to vote on an agreement that determines their wages and conditions on the basis that they were not rostered on to work on the day/s of the vote…” ([2016] FWCFB 2222)

What do employers do now?

The state of the law in this space is rapidly evolving. At present, to minimise prospects of an EA vote being invalidated at a later date, employers should ensure that only the following employees are entitled to vote:

  1. Permanent employees;
  2. Casuals who actually work on one of the voting days or who worked during the access period for voting (this latter/broader group has not yet been endorsed by the Courts); and
  3. Casuals where evidence establishes there is a firm advance commitment to continuing and indefinite work according to an agreed work pattern (this category of casuals could well be considered permanent under recent Federal Court authorities).

If an employer wishes to ensure that its casual workforce vote counts, thought should be given to rostering employees to present for work on the day of the vote (or a voting day where multiple voting days are scheduled). This is the only approach which provides absolute certainty that an EA will not be invalidated at a later date.

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