National system employers who have completed the negotiation phase of the agreement making process and are ready to put their agreement to vote to employees need to follow the correct voting process in order to prevent their application for agreement approval from failing.
The various steps of the voting process must be implemented at the right time and over the correct period.
Prior to Voting
21 days – Notice of Employee Representation Rights
The Notice of Employee Representational Rights (NERR) is a notice which informs an employee of their right to appoint a bargaining representative to represent them in bargaining for the agreement, and in a matter before the Fair Work Commission (FWC) that relates to bargaining for the agreement.
Section 174 of the Fair Work Act 2009 deals with what content must be included in the NERR, and regulation 2.04 of the Fair Work Regulations 2009 provides the acceptable methods for providing the NERR to the employees.
Voting for an agreement must not commence prior to 21 days after the last NERR is issued. The 21 days must be exclusive of the day the last NERR was issued and the day or days of voting.
Access period
The ‘access period’ is a period of at least seven clear days, prior to the voting period, where employers must provide all relevant employees who will be covered by the agreement with a written copy of the agreement and any other materials which the agreement makes reference to (e.g. a modern award). The access period must not include the day the information is provided to employees or the day or days of voting.
Employers must take all reasonable steps to ensure the relevant employees receive these documents, giving consideration to employees who may be on a period of leave, working in remote or regional areas, casual employees etc.
The access period can make up part of the 21 days for the NERR as mentioned above. Additionally, during the access period employers must take all reasonable steps to ensure that new employees who commence employment within that period are, as soon as practicable, provided with the relevant information. If a new employee is going to be covered by the agreement they also have a right to vote.
At the commencement of the access period employers must notify the relevant employees of the time and place that voting will occur as well as the method of voting that will be used.
Absent employees
Careful consideration should be given as to the most effective way to reach relevant employees that may be on leave, fly in fly out rosters, working in remote areas or otherwise absent from the workplace during the access period. Registered post may be an acceptable method of distribution as this allows the employer to confirm if the employee has received the documentation and when.
Email with a read receipt may also be an acceptable form for documentation to be issued. What ever method is used it is important for the employer to be able to establish when and whether the relevant employees have received all of the applicable documentation. This is necessary to demonstrate that the appropriate access period and the 21 days following the issuing of the NERR has been satisfied prior to voting commencing.
New employees
Employers need to exercise caution when issuing the voting ballot forms concurrently with the access period. Employees must not cast a vote until the voting period commences otherwise the vote may be considered invalid by FWC and approval of the agreement may be jeopardised.
In order to prevent this from occurring employers should ensure they make clear to their employees that votes cannot be cast until the voting period commences and that any vote cast before this time may be considered invalid.
It may be advisable not to provide or post ballot papers until the 7 day access period has ceased so as to prevent early votes from being cast.
Educating staff on agreement content
Employers must take all reasonable steps to ensure the terms and conditions of the agreement are communicated effectively to the relevant employees. Consideration must be given to young employees and employees who may have difficulty understanding the agreement (e.g. due to language barriers or learning difficulties etc.) The use of translators, support persons and guardians can assist in ensuring the content of the agreement is appropriately communicated and understood by all relevant employees.
The onus is on the employer to demonstrate they have taken all reasonable steps to ensure the communication of the agreement content has been effective. Employers should exercise caution where a union endeavours to take responsibility for the communication of the content of an agreement as any failure in this process will fall upon the employer and will likely see the agreement fail to be approved by FWC. It is advisable that if a union takes responsibility for the communication process, the employer also conduct their own communication process to ensure they have met their obligations.
Voting
Voting must not commence until 21 days after the last NERR is issued. The seven-day access period may form part of the 21 days. Voting is not restricted to a particular method and may be in the form of a secret ballot, show of hands, electronic vote or other means.
However, a secret ballot method is generally preferred as it prevents intimidation coercing staff into voting/ not voting or voting in a particular way and can therefore encourage employees to partake in the voting process where they otherwise may not have. Additionally, it allows the employer to maintain a written record of the number of votes received and those for and against the agreement proceeding. This is important for the purposes of demonstrating that majority support has been achieved.
The voting method should provide all relevant employees with the opportunity to cast a vote. Therefore, voting may be done via multiple methods in order to satisfy this requirement e.g. a combination secret ballot and postal vote etc. If an electoral commission is used to facilitate the vote, the employer will be required to cover the cost.
Where the majority of employees who will be bound by the agreement cast a vote in favour of the agreement, the agreement will be “made”. The agreement may then be lodged with FWC for approval.
It is important to note that employers must not take, or threaten to take, any action against employees for the purposes of coercing them into voting in a particular way.
Such action might include demotion, termination, discrimination or any other action that injures the employee in their employment. In doing so, employers may breach the general protections part of the Fair Work Act 2009 (Cth) risking prosecution.
Post voting
If the agreement is made, along with the relevant declaration, it must be lodged by a bargaining representative with FWC within 14 days. If the agreement is approved by FWC it will come into effect 7 days after the date of approval.
If the agreement is not approved FWC may choose to approve the agreement by requiring the employer to complete and lodge an undertaking. An undertaking is a submission from the employer which effectively changes provisions of the agreement or includes further terms in the agreement so as to ensure the agreement meets the statutory criteria to be passed by FWC.
If FWC is satisfied that an undertaking meets their concern, the agreement may be approved. Undertakings which are accepted by FWC will form the terms of the agreement.
Undertakings may be used for the purposes of having an agreement approved where FWC is concerned that the agreement doesn’t meet the requirements set out in the Fair Work Act 2009 (Cth) necessary for agreement approval. FWC will only accept an undertaking if it is satisfied that the undertaking will not cause financial harm to any employee covered by the agreement, or result in substantial changes to the agreement.
Undertakings can not be used to correct any mistakes in the agreement. Before accepting an undertaking, FWC will seek the views of each person who is a known bargaining representative for the agreement.
For further information please contact the Employee Relations Advice Centre on 9365 7660 or email [email protected].
