Voting process

See Fair Work Act 2009 s.180

Example

If an employer plans to request that employees vote on the proposed agreement on Wednesday 25 February 2015, the access period will run from after midnight Tuesday, 17 February 2015 to midnight Tuesday, 24 February 2015.

Related information

• What is a day?

The employer must take all reasonable steps to ensure that:

• during the access period for the agreement, the employees (the relevant employees) employed at the time who will be covered by the agreement are given a copy of the following materials:
  • the written text of the agreement, and
  • any other material incorporated by reference in the agreement;[2] or
• the relevant employees have access, throughout the access period for the agreement, to a copy of those materials.[3]

The employer must take all reasonable steps to notify the relevant employees of the following by the start of the access period for the agreement:

• the time and place at which the vote will occur, and
• the voting method that will be used.[4]

The voting process described in s.181(1) of the Fair Work Act is the process that is characterised by an employer that will be covered by a proposed enterprise agreement requesting 'the employees employed at that time who will be covered by the agreement to approve the agreement by voting for it'. The request made by the employer is to approve the agreement by voting for it.[6]

An agreement may only be approved through a vote of employees employed at the time of the vote who will be covered by the agreement. The request to approve the agreement and the vote are not separate stages of the voting process. The voting process starts when an employee is first able to cast a valid vote to approve the agreement and not at some earlier time when an employer may provide to employees the ballot paper.[7]

See Fair Work Act s.180(5)

For the Commission to be satisfied that there was genuine agreement the employer must take all reasonable steps before requesting that the employees vote to ensure that:

• the terms of the agreement, and the effect of those terms, are explained to the relevant employees, and
• the explanation is provided in an appropriate manner taking into account the particular circumstances and needs of the relevant employees. The following are examples of the kinds of employees whose circumstances and needs are to be taken into account for the purposes of complying with this requirement:
  • employees from culturally and linguistically diverse backgrounds
  • young employees, and
  • employees who did not have a bargaining representative for the agreement.

The purpose of this explanation is to enable the employees to cast an informed vote, so that they know what it is they are being asked to agree to, and to help them to understand how their wages and working conditions might be affected if they vote in favour of the agreement.[8]

In order for the Commission to determine whether the employees had genuinely agreed to the agreement, it needs to consider whether the employees were likely to have understood its terms and effect.[9]

Without knowing the content of the explanation, the Commission cannot be satisfied that all reasonable steps have been taken to ensure that the terms and their effect had been explained to the employees who voted on the agreement, or that they have genuinely agreed to the agreement.[10]

A simple statement by an employer that an explanation has been given is not enough to satisfy the Commission that the requirement to explain the terms of the agreement has been met. In order to be satisfied, the Commission must consider the content of the explanation and the way it was given, having regard to all the circumstances and needs of the employees, and the nature of the changes made by the agreement.[11]

Related information

• Employer requirements
• Explanation of effect of the agreement – common defects & issues
• Access to copy of agreement and incorporated material – common defects & issues

Employees given copy of agreement or other material

NES and Long Service Leave Act available in public domain

Re McDonald's Australia Pty Ltd [2010] FWAFB 4602 (Watson VP, Kaufman SDP, Raffaelli C, 21 July 2010), [(2010) 196 IR 155].

In the first instance decision, the Commission decided to dismiss the application to approve the proposed enterprise agreement because (amongst other things) the employers did not provide employees with a copy of the National Employment Standards or a copy of long service leave legislation referenced in the agreement. The Commission determined that this amounted to non-compliance with section 180(2) of the Fair Work Act.

On appeal, the employer challenged the Commissioner's finding that the Fair Work Act required certain documents to be provided. The Full Bench agreed, confirming that the Fair Work Act only requires that reasonable steps be taken to provide certain documents.

The Full Bench also concluded that, in this case, the employer's obligation did not extend to taking further steps to ensure that employees had access to legislation as it was freely available in the public domain.

Information about the voting process provided by employer

Re McDonald's Australia Pty Ltd [2010] FWAFB 4602 (Watson VP, Kaufman SDP, Raffaelli C, 21 July 2010), [(2010) 196 IR 155].

The employer also appealed the first instance finding that it had not appropriately provided information to employees regarding the voting process. Varying information was posted on an electronic notice board called 'Metime' as well as employee notice boards. Three posters were used to convey elements of the information about the voting process as required by the Fair Work Act.

The Full Bench found the requirement was that the employer take all reasonable steps to notify employees of the time, place and voting method for a ballot prior to the access period for the agreement. The employer adopted a variety of means of communication and provided extensive details of these communications. The Full Bench was satisfied that the employer and the union adopted a collaborative approach to communicating to employees about the voting process. In the Full Bench's view, the approach was detailed, thorough and comprehensive.

Provision of documents during multiple access periods

Re MSS Security Pty Limited [2013] FWCA 1474 (Lee C, 8 March 2013).

An application was made for the approval of an enterprise agreement, which was made after two previous 'no' votes.

The proposed enterprise agreement contained references to the NES and incorporated some terms of previous enterprise agreements. United Voice objected to the approval of the enterprise agreement, alleging that MSS Security had failed to take reasonable steps to give employees copies of, or access to, relevant provisions of the NES and the previous enterprise agreements during the access period.

The Commission was satisfied that the terms of the NES were simply referred to and not incorporated. In relation to the incorporation of terms from the previous enterprise agreement, MSS Security argued that it had taken reasonable steps to provide employees with access to this material, as it was open to employees to obtain or view the material during the previous access periods (which had resulted in 'no' votes). The Commission was not satisfied that this met the requirements of the Fair Work Act. However, the Commission was satisfied that the existence of hardcopies of the relevant agreements at each guardhouse was sufficient.

Employees NOT given copy of agreement or other material

Not all employees received a copy of additional documents

Re Healthcare Imaging Services [2010] FWA 3473 (McKenna C, 4 May 2010).

During the access period the applicant did not take any steps, reasonable or otherwise, to ensure the employees at one of the workplaces covered by the agreement and an employee on maternity leave were provided with information and materials consistently with the timeframes required by the Fair Work Act. Neither the applicant nor the union provided any evidence on which the Commission could determine the workplaces covered by the Agreement.

As the pre-approval requirements of the Fair Work Act had not been met, the agreement was incapable of approval.

Employees NOT notified about voting process

Notification did not occur before the start of the 'access period'

Re Concept Engineering (Aust) Pty Ltd [2014] FWC 4227 (Ryan C, 27 June 2014).

Application was made for approval of the Concept Engineering (Aust) Pty Ltd Metals Labour Hire Agreement 2013-2016. The employer had advised employees by mail on 1 May 2014 that the voting method would be by postal vote and this correspondence included a voting slip and return envelope.

The Fair Work Act provides that an employer cannot request employees to vote on an enterprise agreement until the employer has undertaken 3 actions, namely:

• giving a copy of the enterprise agreement and any material incorporated into the agreement to employees
• providing access to a copy of the agreement and any material incorporated into the agreement for a defined period, and
• notifying employees of the time and place of the vote and voting method that will be used.

Each of these 3 actions has to occur within a set time. The requirement to give a copy of the agreement must occur sometime during the access period. The requirement to provide access to a copy of the agreement must occur throughout the access period. The requirement to notify employees of the voting process must occur before the start of the access period. The access period is defined as being 'the 7 day period ending immediately before the start of the voting process'.

The employer had at the very least commenced the voting process on 1 May 2014 by sending to employees the covering letter for the vote, the ballot paper and the return envelope for the ballot paper, the access period was therefore the 7 day period ending immediately before 1 May 2014.

The employer had not complied with the requirements of the Fair Work Act and as such there was no valid application before the Commission.

Terms of agreement explained to employees

The terms of the agreement, and the effect of those terms, were explained

Re McDonald’s Australia Pty Ltd [2010] FWAFB 4602 (Watson VP, Kaufman SDP, Raffaelli C, 21 July 2010) [(2010) 196 IR 155].

The employer also appealed the finding that employees were not provided with relevant information as required by section 180(5).

The Full Bench found a number of errors with the first instance approach. The Fair Work Act only requires reasonable steps to be taken to ensure that the terms and conditions are explained to employees. In addition, there is no requirement in the Fair Work Act for the employer to provide a full explanation of the terms of a proposed agreement before requesting that employees vote on the agreement.

In considering the evidence, the Full Bench was satisfied that the employer took reasonable steps to ensure that the agreement was explained to employees. The documents produced by the union and the employers were comprehensive and detailed.

National Tertiary Education Industry Union v University of New South Wales

National Tertiary Education Industry Union v University of New South Wales [2011] FWAFB 5163 (Harrison SDP, Sams DP, Deegan C, 10 August 2011) [(2011) 210 IR 244].

At first instance, the NTEU contended that the University had not adequately explained the terms of the agreement and the effect of those terms as required by the Fair Work Act because it had not identified certain disadvantageous changes from an earlier agreement made in 2006.

The Commission found that a practical approach needs to be adopted in relation to these obligations. Obviously, the nature of the explanation provided to employees who will be covered by an agreement, and the steps that will constitute all reasonable steps will vary according to the circumstances of the employer and employees covered by the agreement and the complexity of the agreement. In this case, the proposed agreement was lengthy and complicated. The Commission found that the employer was not required to explain every single feature or every single clause in the agreement.

On appeal, the Full Bench did not identify any error in the Commission's approach. The Full Bench agreed with the employer's submission that the obligation on an employer to explain the terms of the agreement and the effect of those terms to employees does not require an explanation of every clause in the agreement.

See Fair Work Act s.181(1)

An employer that will be covered by a proposed enterprise agreement may request the employees employed at the time, and who will be covered by the agreement, to approve the agreement by voting for it.

Related information

• Who can vote?
• Voting methods
• Timeframe for vote
• When is an agreement made?
• If parties cannot agree