It was not only legitimate but necessary for a group of casuals to be allowed to vote on an enterprise agreement covering work by McDermott on the Ichthys project, a Full Bench of the Fair Work Commission (FWC) has found.

Overturning an earlier decision by Commissioner Tim Lee, a FWC Full Bench – Vice President Joe Catanzariti, Deputy President Geoff Bull and Commissioner Bruce Williams – found that although the casuals were not actively working at the time of the vote, that did not mean they should not have been allowed to vote.

McDermott Australia Pty Ltd had previously asked the FWC to approve the agreement which was voted on by 36 casual employees, 19 of whom voted in favour of the agreement.

Two unions – the AMWU and AWU – opposed the approval of the agreement on the grounds that none of the 36 casuals were working on the Ichthys project at the time.

The proposed agreement was to cover McDermott employees engaged to work offshore on the project. The company’s work on the project included installing flexible risers / flow lines, umbilicals / controls, spools, jumpers, lateral buckling sleepers and crossings.

Commissioner Lee at first instance heard it was industry practice that all offshore construction employees engaged on projects off the North West Coast of Western Australia were employed on a casual basis while that was not necessarily the case elsewhere. Offshore construction workers in the Bass Strait, for example, were engaged on a permanent basis.

At the time of the vote on the agreement, none of the 36 casuals were working offshore as there was no current work being undertaken by McDermott. However, those employees had been paid wages to undertake training essential for the project and had accepted an employer offer of ongoing casual work which was reflected in the company’s payroll records.

Commissioner Lee originally found the agreement had not been validly approved as the workers to be covered by the agreement were not employed at the time as required.

The appeal decision

In the 19 April 2016 appeal decision, the Full Bench said there was no issue that enterprise agreements were intended to cover casual employees. The difficulty was ascertaining when a casual employee should be regarded as being “employed at the time” as per s181(1).

“The Commissioner was of the view that there was something wrong with the vote occurring while employees were not actually performing or being paid for performing work at the time of the vote. This in our view was incorrect.”

The Full Bench went on to say:

“In our view it would be inappropriate and counterintuitive to disenfranchise casual employees of a right to vote on an agreement that determines their wages and conditions on the basis that they were not rostered on to work on the day/s of the vote, or during the seven day access period.”

Given that the employees had accepted ongoing work with McDermott as evidenced in payroll records, they were employed at the time the agreement was voted on, the Bench said. It did not matter that the particular campaign of work to be covered by the agreement had not yet commenced.

“It was legitimate and necessary for them to be included in the group of employees asked to approve the agreement.”

Commissioner Lee had therefore erred in finding the agreement had not been genuinely agreed to as per s186(2)(a) of the Fair Work Act.

Implications for employers

This decision clarifies some of the circumstances under which casuals are legitimately included in the vote for an enterprise agreement.

It confirms that an employer offering ongoing casual employment to casual employees and documenting their acceptance of that offer, means those employees can be found to be “employed at the time” for the purpose of voting on an agreement even if they are not actively working and the work covered by the agreement has not yet commenced.

Click here for the Full Bench decision.

For advice on any employee relations matter in your workplace, contact an AREEA consultant via your local AREEA office.