Fair Work Commission Logo relating to enterprise agreement approval

Enterprise Agreement Approval Challenge

Tim Slater Uncategorised Leave a Comment

Enterprise Agreement Approval

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.

A Close Result

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.

A Union Challenge

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.

Lesson #1: Document Everything

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.

Lesson #2: Run a Smart Vote

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:

  • Independence

    The votes are counted by an independent party.

  • Anonymity

    Voter preferences remain anonymous (secret ballot).

  • Count Votes Afterward

    Vote counting should only occur after all votes have been cast. This prevents an employer from trying to influence the result during the ballot.

  • Control Ballot Access

    Security measures should be in place to ensure the right people vote, and to make sure they can only vote once.

  • Suitable Communications

    Voting instructions should be sent in a way that suits voters (or a mix of methods). These might include emails, snail mail and / or text messages.

  • Flexible Voting

    No voter should be disadvantaged by the choice of voting method. GoVote frequently offers more than one voting option for each ballot (internet, telephone and / or SMS). Electronic voting also means votes can be lodged 24 hours a day, seven days a week from any location.

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.

Lesson #3: Balance Security with Accessibility

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:

  • Authenticated

    Access requires a numeric GoVote PIN.

  • Authenticated & Verified

    Access requires a GoVote PIN plus an additional “verification item”, such as a date of birth or payroll number.

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.

About the Author

Tim Slater

Tim is one of GoVote’s expert ballot consultants. He is a Chartered Accountant with experience across a range of disciplines, including audit and risk management.

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