Enterprise Agreement Approval Challenge

Negotiating changes to an enterprise agreement can be a lengthy process. When negotiations are done, the employees who are covered get an opportunity to vote on the proposed agreement. For an enterprise agreement to get the go ahead, a majority of employees (greater than 50% of those who voted) need to support the changes.

Most employers would be hoping to get an absolute majority of all employees covered by the agreement to support it. Things become more complicated when employee opinions are split down the middle, creating an opportunity for a ballot result to be challenged as part of the enterprise agreement approval process. This is something GoVote recently experienced.

Late last year, GoVote ran a ballot for the Commonwealth Government to determine whether or not the Commonwealth Members of Parliament Staff Enterprise Agreement 2016-2019 (the Agreement) would be accepted. This was a single enterprise agreement vote that was closely contested.

Employee participation in the ballot was 72.4% (quite high) with a total of 1,413 votes being cast. The preference distribution was 714 in favour (50.5%) and 699 against (49.5%). With a slim majority the Agreement was submitted to the Fair Work Commission.

The Community and Public Sector Union (CPSU) and the Australian Services Union (ASU) were both bargaining representatives for the Agreement. Both Unions challenged the result as part of the enterprise agreement approval process at the Fair Work Commission. Their argument was that:

• Part of the the relevant pre-approval steps relating to the vote on the Agreement had not been adequately taken and therefore the result did not demonstrate that there was genuine agreement, submitting that some eligible employees were not provided with the relevant information during the ballot period and that the Applicant had failed to adequately explain the changes in the Agreement and the voting processes;
• Some staff couldn’t vote on the Agreement because of difficulties with the voting system; and
• The Agreement did not pass the Better Off Overall Test (BOOT).

Spoiler alert: the agreement was ultimately approved by the Fair Work Commission and you can read the detailed decision here. Here are three key takeaways from the experience.

It might sound obvious, but this is critical. Detailed records of the bargaining and voting process need to be kept and they are key to being able to defend yourself. If voters claim to have had problems voting, you (or your voting provider) may need to answer questions about:

• Individual voters: For example when and how did they receive voting instructions? If they had issues, who did they contact during the ballot period? When were they added to the voter roll and by whom?
• All voters: Did the support activity suggest problems with ballot access? How many voters who asked for support were subsequently able to vote? What other issues were raised during the ballot period?

It pays to have this documentation sorted in advance. Without it, a close ballot result could unravel. If you are using an electronic voting method this sort of information should be readily available.

You should remember a vote is a not a survey. People need to be able to trust the result and feel the process was run fairly. A smart vote means:

Bottom line, outsource the vote to a professional if you can afford it. They can manage all of the above. If you value your time, it is also likely to be cheaper for all but the smallest ballots.

Just like voting in a Federal election, people need to get their name marked off the “virtual” voter roll before they get access to the ballot. GoVote offers two types of ballot access. These are:

The Commonwealth elected to use employee staff numbers (aka CHRIS ID) as a verification item. As noted in the decision, some employees claimed not to be familiar with the term “CHRIS ID”, which led to some voters claiming they were unable to participate in the voting process. The key point here is that anything required to vote should be secret enough that it adds to security, but well known to the individual voter so as not to frustrate the voting process.