Accurate Voter Lists: Ensuring Sufficient Interest and Representation

In a recent decision, the Fair Work Commission (FWC) refused to approve a proposed agreement because voters did not have sufficient interest and were not sufficiently representative. 

Understanding the Requirements 

The Fair Work Act s188(2) requires that employees eligible to vote on enterprise agreements have a “sufficient interest” and are “sufficiently representative” of the employees covered. The Fair Work Commission rejected an application for an agreement because it failed this test, citing that it disadvantaged CW1 and CW2 classifications who were not employed at the time. 

Case Overview: Hawthorn Plant and Logistics Pty Ltd (HPL) Enterprise Agreement 2024 

In the proceedings, the CFMEU argued that the HPL Enterprise Agreement 2024 did not pass the Better Off Overall Test (BOOT), and that: 

• HPL had failed to explain the terms of the proposed Agreement. 
• The employees who voted did not sufficiently represent the employees covered. 

Issues Identified 

• Lack of Representation in Key Classifications
  HPL classifications included CW1 to CW6; however, no employees were employed at CW1, CW2, or CW4. 

• Voting Cohort Composition
  13 of the 18 employees who voted were employed on a casual basis. 

• Impact on BOOT Analysis
  Due to the lack of employees at CW1 and CW2, and specific failures in the BOOT analysis at these rates, the FWC found that there was insufficient interest or representation among the voting employees. 

The FWC ruled in favor of the CFMEU on all three grounds, resulting in the rejection of the agreement. 

Key Takeaways for Employers 

This decision highlights the critical importance of adhering to procedural requirements during the enterprise agreement process. Focus areas include:

• Procedural Steps
  Ensuring that all procedural steps are followed before the vote.

• Correct Identification of the Voting Cohort
  Accurately identifying the employees eligible to vote to ensure they represent the broader workforce.

• Comprehensive BOOT Analysis
  Performing a thorough analysis to ensure all employee classifications are better off overall.

Your Balloting Partner for a Successful EA Vote

Ensuring accurate voter representation and meeting procedural requirements is crucial for compliance with the Fair Work Act. Don’t risk rejection due to insufficient representation or a flawed BOOT analysis. Get expert guidance to streamline your agreement process and ensure compliance. 

Contact IR BLOTS to ensure your voting processes and agreement negotiations are on the right track.