The Federal Court has set aside a previous decision of the Fair Work Commission (FWC) which approved the Swinburne University of Technology's 2014 enterprise agreement, due to the inclusion of ineligible casual or sessional employees in the voting process for the agreement. 

In February 2014, the University requested staff, including individuals who had been engaged as sessional employees during the 2013 academic year, to approve the agreement by voting for it.  The University considered 2005 of the votes cast to be valid and applied to the FWC for approval of the agreement based on a slim 57 vote majority in favour of the agreement.

The National Tertiary Education Industry Union (NTEU) opposed the University's application for approval of the agreement, on the basis that some of the sessional employees who were asked to approve the agreement were not actually employed by the University at the time they were requested to vote and some would not be covered by the proposed EA.   

In its approval decision, the FWC acknowledged that a strictly literal interpretation of the relevant provisions of the Fair Work Act would mean that a casual or sessional employee who is not engaged at precisely the time an employer makes a request to vote for the agreement cannot be included in the class of employees requested to approve the agreement. The FWC however found this to be an overly technical approach and decided that it was appropriate for the University to have included some casual and sessional employees in the request to vote for the agreement, even if they were not actually engaged at the time, because they were "usually employed" by the University. 

The FWC considered that the question of which casual or sessional employees should be included in the request to vote for an enterprise agreement needed to be determined by reference to the nature of the employment and the employment patterns in the industry and the employer's enterprise.  It decided that it was reasonable and appropriate for the University to request those individuals who were engaged by it on a sessional basis in the 2013 academic year and who were likely to be engaged as sessional employees in the 2014 academic year to be asked to vote on the agreement.  The agreement was originally approved by the FWC on 16 December 2014.

The NTEU appealed that decision to the Federal Court where, 6 months after the initial approval of the agreement, a majority of the Court found that the FWC's approach was incorrect.   Justices Jessup and White found that the group of employees to whom a request for approval of an enterprise agreement should be made (and who are eligible to make the agreement with the employer) is specifically confined by the Fair Work Act to individuals who are actually employees at that time.  This meant that casual and sessional staff usually, but not currently employed by the University, were not entitled to vote for the agreement.

Employers bargaining for an enterprise agreement should be aware that the group of permanent, casual and sessional employees who may be requested to vote on the agreement might be a different group of employees to those required to be included in pre-bargaining and bargaining steps for the agreement and that in some cases, evidence may be required of the employees' eligibility to participate in voting in order to gain approval of the agreement.  Care needs to be taken at all stages of enterprise bargaining to ensure compliance with mandatory procedural steps and avoid approval being refused on technical grounds.

For more information please contact:

Jim Rutherford
Harwood Andrews
T: 03 5226 8579

Sonia McCabe
Senior Associate
Harwood Andrews
T: 03 5226 8558