Stage in bargaining process
Preparing to vote
See Fair Work Act 2009 s.181
When an employer believes a suitable proposed enterprise agreement has been negotiated with the other bargaining representatives, the employer may put the proposed enterprise agreement to a vote of the employees to be covered by the agreement.
Before an employer requests that employees approve a proposed enterprise agreement by voting for the agreement, the employer must comply with certain requirements set out in the Fair Work Act.
See Fair Work Act s.182
A single-enterprise agreement that is not a greenfields agreement is made if the employees who will be covered by the agreement approve the proposed agreement with a majority vote.
A majority vote occurs when a majority of employees who cast a valid vote, vote to approve the enterprise agreement.
Employees genuinely agree
Simple majority or the greatest number of valid votes prevails
Penrhos College made application for approval of a single-enterprise agreement to be known as the Penrhos College Teaching Staff Enterprise Bargaining Agreement 2012. The Independent Education Union of Australia WA Branch did not support approval of the agreement on the basis that it was not approved by a valid majority of those employees who cast a valid vote.
Of the 57 employees who cast a valid vote, 29 voted to approve the agreement. The union argued that the Fair Work Commission could not be satisfied that employees genuinely agreed to the agreement because the Fair Work Act requires that a majority of employees must vote to approve the agreement. The union argued that this required 50% of employees plus 1 additional employee. The union argued that for a majority to exist in this case, it was necessary for 30 employees to vote to approve the agreement. The union calculated this number by taking 50 percent of the employees who voted (28.5), rounding this number up to 29 and adding an additional employee.
The Commission found that if the Fair Work Act had provided for a definition of majority to require a 'rounding up' rule, it would have been inclined to favour the union's approach. However, in the absence of such a definition, the Commission found that a simple majority or the greatest number of valid votes prevails over the lesser number. Accordingly, the agreement was approved.