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On 11 November 2019, a Full Bench of the Fair Work Commission issued clarification of how an employee’s start date affects their right to be given pre-vote materials and their right to vote for a new enterprise agreement.

A single Commissioner had initially refused to approve the Kmart Australia Ltd Agreement 2018, accepting some (but not all) grounds argued by the Retail and Fast Food Workers Union Incorporated. One important ground was that Kmart did not permit some employees who were hired during the period the ballot was open to cast a ballot. The ballot was open between 21 and 30 November 2018, but the employer “closed the roll” of voters on 27 November, meaning employees hired in the period 28-30 November were not given a vote.

Explanatory materials and the right to vote

Do people who start employment during the “access period” or during the period the ballot is open get to vote on the EA?

Kmart, the Australian Workers Union and the Shop, Distributive and Allied Employees Association all appealed against the decision on several grounds.1 The Appeal decision ruled (along with other matters) that the Fair work Act 2009 (“Act”) provides an entitlement to vote to the employees who are employed at the time the ballot is opened.2 The employer’s invitation is a single, discrete event occurring at the time of that invitation, regardless of the duration of the ballot. As a result, employees starting after that date are ineligible to vote. Importantly, it is a separate discrete event from the requirement to give notice of the time, place and method of ballot by the start of the Access Period.

The decision also reaffirmed that employees starting employment within the Access Period must be given the required material and invited to vote, even though they may not have the full seven days (because they were not in employment for the full seven days). The seven days does not reset in that situation.

Reissuing NERRs

Unrelated to the above, another common error is issuing a fresh Notice of Employee Representational Rights to new employees who commence employment after the first NERR has been issued. This has caused approval problems.

The Act specifies that an NERR must be issued to employees who are employed at the notification time for the agreement. The notification time is when the employer first agrees to bargain, or certain orders are made by FWC at the start of the process. The notice must be given not later than 14 days after the notification time and the employer cannot request employees to approve the agreement until 21 days after the last notice is given.3

Again, the issuing of the NERR is discrete step that is completed once at the start of the process and should not be repeated for new employees commencing after that date. (Of course, such employees will still be entitled to receive the explanatory material and participate in the eventual ballot.)

Require further information/assistance?

If you require further information or advice, please contact one of our consultants

1 [2019] FWCFB 7599.
2 Fair Work Act 2009 (Cth) s 180(1).
3 Fair Work Act 2009 (Cth) s 173.

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