In deciding to reject the application for approval of the company agreement, the Commissioner stated that he had taken into account jessup J in National Tertiary Education Union`s decision against Swinburne University of Technology  FCAFC 98 (Swinburne case), a decision of a plenary session of the Federal Court. The Swinburne case concerned the approval of a new company agreement involving a large number of casual employees or meetings in the vote. In order to ensure the proper constitution of voting pools and maximise the potential of a company agreement, it is essential that employers in the education sector take an objective, transparent and logical approach to determining who should appear or exclude the ballot. This is especially the case when the agreement can cover a large number of employees from the meeting or occasion. It will not be enough to include in the voting pool all second-hand staff and meetings who were employed the previous year. Evidence should be presented demonstrating a pattern of work and job retention. The employees asked to approve the deal by voting for it were casual workers. They had accepted a continuing job at McDermott on an occasional basis. However, at the time of the vote, they were not actually busy or paid to carry out work and, on that basis, the Commissioner alone found that the agreement could not be approved. The decision to involve or exclude staff in a vote to vote on a company agreement can make the decisive difference to the success of the vote.
To be able to vote on a proposed company agreement covering the work performed by an employee, the employee must be “employed at that time”. An employee may have the right to vote if the person is employed or employed by the employer (by reference to the nature of the job, the patterns of the employer`s sector and company) instead of being strictly limited to the person having worked at the time of the vote or at the time of the vote. The Fair Work Act 2009 (Cth) (FW Act) provides that “an employer covered by a proposed company agreement may ask workers employed on that date covered by the agreement to approve the agreement by voting in favour of it” (section 181(1)). Deakin University could be the first university to get a corporate deal in the new cycle. The university is proposing a salary increase of 2% per year for the life of the upcoming 2017-2020 agreement, plus a $1,000 signing bonus. True, the campus union is issuing a petition calling for a “fair and reasonable” academic workload, better conditions for casual professionals with the possibility of secure employment and work-life balance, but this is far from the arsenal of the opposition, which the NTEU uses when it is not inclined to deal. A spokeswoman for the university said management was “very pleased with the progress of our negotiations on a new EA.” Close observers of system-specific negotiations say NTEU`s high-level leaders are interested in an agreement to show the union is reasonable, in the hope that other universities will not follow the example of the VA`s four public institutions, where leaders do not compromise in their insistence on shorter and simpler rules on wages and working conditions. In the McDermott case, the FWC Full Bench reflected on the Swinburne case. In Swinburne`s case, a majority of the federal court ruled that it was inappropriate to involve all those who were employed by Swinburne over the past 12 months to vote for the deal. Full Bench found that the Commissioner alone was right to refer to the explanatory memorandum in the Swinburne case, but that he had applied it too much and that there was nothing wrong with the vote taking place when casual workers were not actually working or were being paid for the performance of the work.
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