The decision of a Full Bench of the Fair Work Commission (FWC) in McDermott Australia Pty Ltd v The Australian Workers’ Union & The Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers’ Union (AMWU)  FWCFB 2222 (McDermott case) highlights that casual employees may be entitled to vote on an enterprise agreement even where they are not performing any work at the time when the vote takes place.
A single Commissioner of the FWC refused to approve an enterprise agreement. The agreement proposed to cover casual employees to work on a project offshore (off the coast of Western Australia).
The relevant unions objected to the enterprise agreement being approved before the single Commissioner. One of the unions’ main grounds of objection was that the FWC could not be satisfied that the employees had genuinely agreed to the agreement.
The Fair Work Act 2009 (Cth) (FW Act) provides that “An employer that will be covered by a proposed enterprise agreement may request the employees employed at the time who will be covered by the agreement to approve the agreement by voting for it” (section 181(1)).
The employees invited to approve the agreement by voting for it were casual employees. They had accepted ongoing employment with McDermott on a casual basis. However, they were not actually engaged to perform work or being paid at the time the vote took place and on this basis the single Commissioner found that the agreement could not be approved.
In deciding to refuse the application for approval of the enterprise agreement, the Commissioner stated that he had regard to the decision of Jessup J in National Tertiary Education Union v Swinburne University of Technology  FCAFC 98 (Swinburne case), a decision of a Full Court of the Federal Court. The Swinburne case dealt with the approval of a new enterprise agreement where a large number of casual or sessional employees were included in the voting ballot.
In the McDermott case, the Full Bench of the FWC reflected on the Swinburne case. In the Swinburne case a majority of the Full Court of the Federal Court found that it was inappropriate to include everyone who had been employed by Swinburne in the previous 12 months to vote on the agreement.
The Full Bench of the FWC noted that (unlike in the Swinburne case where all – including inactive – employees were entitled to vote on the agreement) in the matter relating to the approval of the enterprise agreement in the McDermott case, it was the “36 active employees” who were invited to vote on the agreement [at para 25].
The Full Bench found that the single Commissioner was correct to refer to the reasoning in the Swinburne case, but that he had applied it too narrowly and that there was nothing wrong with the vote occurring when the casual employees were not actually performing work or being paid for performing work. The Full Bench noted that if casual employees could be denied the right to vote on the agreement on this basis there would be “obvious implications for voting manipulation adopting this approach” [at para 35].
As noted by the Full Bench of the FWC, “There is no issue that enterprise agreements were intended by the legislature to be capable of covering casual employees, the difficulty is ascertaining when a casual employee ought be regarded as an employee ‘employed at the time’ within the meaning of [section 181(1) FW Act]” [at para 32].
Casual employees may be entitled to vote on the approval of an enterprise agreement. Whether or not casual employees will be entitled to vote for approval of a new enterprise agreement will depend upon a range of factors including whether they have accepted ongoing employment with the employer, the terms on which they are employed and what their employment comprehends about ongoing work.
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