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This note is an update to EMA Note Issue 7 2016, which referenced the decision of McDermott Australia Pty Ltd [2016] FWC 1113 (25 February 2016). (“February Decision”).1

When putting an enterprise agreement out for a vote, employees eligible to vote are those who are ‘employed at the time who will be covered by the agreement’.2 In the February Decision, the Fair Work Commission (“FWC”) decided that only casuals who were performing work during the voting period were ‘employed at the time’ and therefore eligible to vote.

In April, the full bench of the FWC overturned this decision on appeal,3 confirming that while the particular casual employees were not performing any paid work during the voting period they were in fact ‘employed at the time’. In coming to this conclusion the Full Bench had regard to the employees’ contract of employment and other factors, including the fact that they had been engaged to perform work on a particular project which the agreement was intended to cover.

Lessons for Employers

Not all casuals who will be covered by an agreement will be eligible to vote for it – they need to be ‘employed at the time’ of the vote. Whether particular casual employees will be eligible will differ depending on a number of factors, including the nature and pattern of the work, their contract of employment, and the particular industry. Employers must determine which employees are ‘employed at the time’ based on an assessment of the particular facts and circumstances applying at the time.

If you are unsure of who is eligible, specialist advice should be obtained because getting it wrong could result in the FWC rejecting the application for approval of the agreement.

Require further information/assistance?

If you require further information or advice, please contact your local Consultant at either our Adelaide or Melbourne offices.

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