Who can vote?

On this page:

Overview
Who is employed at the time?
Who is covered?
Should casual employees vote?
Exception – greenfields agreement

Overview

The employees who can participate in the vote for a proposed enterprise agreement must be:

employed by the employer at the time of the vote, and
covered by the proposed enterprise agreement.

Who is employed at the time?

The class of employees that can be requested to approve an agreement is described in section 181 of the Fair Work Act 2009 as 'the employees employed at the time who will be covered by the agreement'.

Related information

Notification of vote – common defects & issues

Example

In National Tertiary Education Industry Union v Swinburne University of Technology[1], Swinburne University requested that its 'cohort' of employees vote on a proposed enterprise agreement. The vote was held before the commencement of the 2014 academic year. The 'cohort' of employees included casual and sessional employees who had been engaged during the 2013 academic year, but who were not currently engaged and who had not yet been engaged for the 2014 academic year.

The majority of the Full Court of the Federal Court found that only employees employed at the time the employer requests the employees to approve the agreement (the time of voting) are eligible to vote. As a result, the casual and sessional employees who were engaged during the 2013 academic year, but who were not currently engaged, were not eligible to vote.

Who is covered?

Example

A mining company employs miners on various mine sites and clerical workers in the head office in the capital city. The company has been negotiating with the clerical staff for a proposed enterprise agreement which covers the clerical employees.

When it is time to vote only the clerical employees who are employed at that time can vote, because the miners will NOT be covered by the proposed enterprise agreement they do not have a right to vote on that proposed enterprise agreement.

The intention of the legislature in using the expression 'employed at the time who will be covered by the agreement' was to ensure that the employer could only make an agreement with those employees who were named or described in the agreement and whom the agreement purported to cover.[2]

Should casual employees vote?

Casual employees are able to be covered by enterprise agreements and so must be included in votes to approve agreements. The question is how to determine which casual employees are properly included.

The general contractual characteristics of casual employment is that a person who works over an extended period of time as a casual employee will be engaged under a series of separate contracts of employment on each occasion a person undertakes work, however, they will not be engaged under a single continuous contract of employment.[3]

The majority of the Full Court of the Federal Court in National Tertiary Education Industry Union v Swinburne University of Technology[4] (Swinburne) found that only employees who are employed at the time the employer requests that employees vote upon a proposed enterprise agreement are eligible to vote. Therefore, in order to be able to vote, a casual must be employed at that time.

The effect of the Full Court’s reading of s.181(1) in Swinburne is that an employer should only make a request under s.181(1) to employees who are employed at the time, as opposed to those who are not employed at the time but who might otherwise be regarded as usually employed.[5]

A person who is a casual employee but who is not working on a particular day or during a particular period, is unlikely to be employed on that day or during that period.[6]

In Swinburne the relevant casual employees were engaged by the University as sessional employees during the 2013 academic year and were likely to be engaged as sessional employees during the 2014 academic year. Because the casual employees were not employed at the time the University requested employees to vote, they were not eligible to vote.

In McDermott Australia Pty Ltd v AWU & AMWU,[7] a Full Bench of the Fair Work Commission held that casual employees who had accepted ongoing employment with McDermott to work on the construction of an offshore gas facility were employed by McDermott at the time they were requested to vote on the enterprise agreement, notwithstanding the fact that no work was completed at the time of the vote.[8]

Exception – greenfields agreement

This approval step is not relevant for a greenfields agreement.

This is because a greenfields agreement, by definition, relates to a genuine new enterprise where the employer or employers have not yet employed any persons who will be necessary for the normal conduct of the enterprise.[9]