Enterprise Agreement Swinburne

The full-fledged bank found that the only Commissioner could properly refer to the argument in Swinburne, but that he had applied it too narrowly and that there was no objection to casual workers not doing work or being paid to do the work. The Full Bench stated that if casual workers were not allowed to vote on this basis, it would have «obvious consequences on the electoral manipulation of this approach» [at paragraph 35]. The full FWC bank found that (unlike the Swinburne case, where all workers – including inactive workers – were allowed to vote on the agreement) with respect to the approval of the enterprise agreement in the McDermott case, the «36 active workers» were invited to vote on the agreement [at paragraph 25]. The Fair Labour Act provides that the group of employees who can pass a proposed enterprise agreement is «the worker employed at the time of employment.» In the case of a strictly literal reading, this would mean that a casual or meeting employee who does not work accurately at the time of the vote could not be included in the voting pool. Full Bench felt that such an approach would be too technical and could yield absurd results. The Fair Work Act 2009 (FW Act) provides that «an employer who is covered by a proposed enterprise agreement may ask salaried workers covered by the agreement to approve the agreement by vote» (section 181.1).» The competent unions objected to the approval of the enterprise agreement before the Single Commissioner. One of the main objections of the unions was that the FWC could not be convinced that the workers had actually accepted the agreement. The employees who were asked to approve the agreement by voting for it were casual workers. You had accepted a current job at McDermott on a casual basis.

However, they were not responsible for the enforcement or payment at the time of the vote and, on that basis, the only Commissioner found that the agreement could not be approved. In deciding to reject the application for approval of the enterprise agreement, the Commissioner indicated that he had considered Jessup J`s decision in the National Tertiary Education Union/Swinburne University of Technology [2015] FCAFC 98 (Sburnwine case), a Federal Court decision. In Swinburne, this was the approval of a new enterprise agreement involving a large number of casual or meeting staff. McDermott Australia Pty Ltd`s (FWC) Fair Work Commission decision against The Australian Workers` Union – The Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, known as the Australian Manufacturing Workers` Union (AMWU) [2016] FWCFB 2222 (McDermott Case) points out that casual workers may be allowed to vote on an enterprise agreement even if they do not do work at the time of the vote.