EBA ballots and employees who join during the voting period

By Charles Power

If you ask employees to vote on a proposed enterprise agreement you need to give them access to the proposed agreement for at least 7 clear days before the voting period.

In the notice to employees about the voting period and method, the question arises as to whether you need to give a vote to employees who aren’t working for you at the time notice is given or during the access period, but are working for you during the voting period.

This issue arose when a major retail chain submitted its proposed enterprise agreement to the Fair Work Commission (FWC) for approval (Kmart Australia (2019)).

The employer notified employees of the time, place and method of the voting process for the agreement on 12 November 2018. The electronic voting process commenced 21 November 2018 and ran until 30 November 2018. The employer gave any casual employee who had worked in the 3 months prior to the access period a vote.

The employer added to the voting cohort employees employed on or after 21 November 2018, but could not reach a practical solution as to how employees employed on or after 28 November 2018 could be added to the electronic voting system. This resulted in the exclusion of casuals employed in the last 2 days of the voting period.

At first instance, the FWC considered this was a fatal flaw in the voting process and dismissed the application for approval of the agreement.

On appeal, the FWC overturned this ruling. The FWC determined that it was ‘logically nonsensical’ that a request for employees to vote to approve a proposed agreement remains operative on an ongoing basis even after voting has already commenced.

This would allow newly engaged employees to vote who had not been given access to the agreement or have it explained to them.

It would also give rise to the practical difficulty, where there is an extended voting period. An employer would have to continually add to the ‘roll’ of voters and provide with a means of voting any new employees who are engaged up until the very end of the voting process.