A workplace vote is supposed to be fair, confidential, and free from pressure—but what happens when it isn’t?
In a recent Fair Work Commission (FWC) ruling, Novocastrian Electrical Contractors Pty Ltd (NEC) had its Single Enterprise Agreement 2024 rejected. The reason? A flawed voting process.
Despite NEC securing 30 out of 37 votes in favour, the FWC found that the “show of hands” voting method failed to ensure anonymity and fairness. To make matters worse, votes were counted by management—a direct conflict with principles of confidentiality.
Beyond the voting issues, the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing, and Allied Services Union of Australia (CEPU) successfully argued that it was a default bargaining representative at critical stages, despite employees later nominating other representatives.
The Legal Landscape: Why the Vote Was Rejected
The FWC rejected NEC’s enterprise agreement application after finding multiple procedural flaws in the voting process. The key issues included:
- Lack of confidentiality
The ‘show of hands’ voting method did not ensure anonymity, potentially influencing employee choices.
- Management counted votes
The process lacked independence and did not align with FWC principles of fairness.
- Union representation oversight
The CEPU had a statutory right to participate but was not properly engaged at key points in the process.
Despite NEC’s efforts to consult employees, the voting method did not satisfy the statutory test of genuine agreement under section 186(2)(a) of the Fair Work Act 2009.
Lessons for Employers: How to Get It Right
1. Use Secure and Confidential Voting Methods
The FWC requires that employee voting be free from pressure and conducted fairly. Voting by a show of hands is problematic because it can compromise confidentiality and influence employees’ decisions. Employers should implement anonymous voting methods, such as paper ballots or secure electronic voting, to align with FWC standards.
2. Ensure Employees Understand the Agreement
A key part of proving genuine agreement is ensuring that employees fully understand what they are voting for. Employees must have sufficient time and information to make informed decisions. Employers should provide detailed explanations of agreement terms, offer opportunities for questions, and ensure employees are not pressured into voting a certain way.
3. Engage with Bargaining Representatives
If unions have a statutory right to participate, employers must properly engage with them. In this case, the FWC ruled that the CEPU had a right to be involved, highlighting the importance of consulting with all bargaining representatives. Maintaining open communication and documentation of interactions can prevent disputes and strengthen an employer’s position.
4. Satisfy the Better Off Overall Test (BOOT)
While NEC’s agreement was rejected on procedural grounds, all enterprise agreements must also pass the BOOT test. This ensures that employees are better off under the agreement than under their existing award. Proactively addressing potential issues—such as wages, penalty rates, and entitlements—can help secure Fair Work approval without unnecessary revisions.
Next Steps for Employers
To avoid similar issues, businesses should:
- Review existing voting policies to ensure compliance with FWC standards.
- Train managers and HR teams on proper bargaining procedures and union engagement.
- Conduct audits of current agreements and approval processes to identify compliance risks.
- Seek legal advice to ensure enterprise agreements and voting procedures meet regulatory requirements.
Final Thought: A Fair Vote is a Valid Vote
NEC’s failed agreement proves that even small missteps in voting procedures can lead to rejection. Employers must balance efficiency, transparency, and legal compliance to secure valid enterprise agreements.
A workplace vote should be about employee choice, not pressure. And when it comes to the Fair Work Commission, if the vote isn’t fair, it doesn’t count.
Ensure compliance with secure, anonymous, and efficient electronic voting with IR BLOTS—trusted by Australian businesses for workplace ballots. Contact us today.
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