Preparing to vote on a proposed enterprise agreement

Written by: Sarah Queenan, Managing Director – Humanify HR Consulting

Enterprise bargaining can be a complex process, that involves multiple parties, all with competing and in many cases conflicting interests.  Once you reach the stage of preparing to take a proposed new enterprise agreement out to vote, it can feel as though you’ve reached a significant milestone in the enterprise bargaining process.  However, as many experienced enterprise bargaining experts will tell you, most of the work begins once bargaining meetings are complete and ‘in-principle’ agreement has been achieved at the bargaining table. 

Preparing to vote on a proposed enterprise agreement is a critical stage of the process, with several key technical aspects to consider.  Many of these elements of the enterprise bargaining process need to be assessed as you develop a bargaining strategy, ideally well before you start the process of enterprise bargaining.  We have prepared this article to help you prepare to vote on a proposed new enterprise agreement, outlining some of the key steps you need to consider before you put your agreement to employees for vote.

Step 1 – Make sure your employees knew that you were in the process of enterprise bargaining

This sounds like a simple step, yet surprisingly some employers do overlook this fundamental requirement to notify employees that they intend to engage in enterprise bargaining for a new enterprise agreement.  Once the employer realises this step has been missed, particularly if it is in the later stages of the enterprise bargaining process, like preparing to vote, it can be almost impossible to go back in time and ensure that a Notice of Employee Representational Rights (NERR) is issued correctly to satisfy the Fair Work Commission when they consider approval of the enterprise agreement. 

In preparing to vote, gaining a comprehensive understanding of the Fair Work (Statement of Principles on Genuine Agreement) Instrument 2023 is critical to ensuring the enterprise bargaining process, including the vote, is carried out in a compliant manner. 

Step 2 – Prepare (and triple check!) the information that will allow employees to consider the proposed enterprise agreement

Preparing to vote can be an exciting stage in the enterprise bargaining process, particularly if the parties involved have been for an extended period engaged in complex negotiations.  Don’t let the excitement overtake the importance of this stage in the process, as it is all about maintaining a strong attention to detail to ensure a successful outcome.  This will include completing rigorous checks on the enterprise agreement itself, ensuring all details such as cross-references, clause references, salary and allowance tables, and other content is accurate.  Once the proposed enterprise agreement is released at the start of the access period for vote, it can be very challenging to go back and then correct a clause that is not referencing accurately or content that is erroneous.  Whilst the Fair Work Act 2009 (Cth) has recently been updated to allow for some flexibility in making minor administrative corrections to agreements, it is always a better strategy to aim to get everything accurate the first time, and well before you take the proposed enterprise agreement to vote. 

Step 3 – Gain the buy-in from bargaining representatives on how you intend to vote

The voting process will include several administrative and process-based requirements, so it is always recommended in your last bargaining meetings to seek buy-in from bargaining representatives on the voting method that will be used.  This will ensure that bargaining representatives, who are often closer to employees given the fact they represent them, can help field any questions about the vote.  Bargaining representatives can also play a great role in encouraging employees to get involved in the vote, so you have as much participation as possible in terms of the employee ballot overall.

Step 4 – Ensure that you plan out the timeline of your access period and vote

Don’t commence the access period and vote without a timeline of key events, that represent the process.  This timeline should be agreed to by your key management negotiators who lead the process.  At a minimum, this timeline should include:

START OF ACCESS PERIOD: this is when the final copy of the proposed enterprise agreement will be released to employees to start the ‘access period’ – that is the minimum seven (7) clear calendar days that employees must have access to the proposed enterprise agreement (including incorporated material) before the vote can commence. 

EXPLAINING THE AGREEMENT: including clear dates of when the agreement will be presented to employees, outlining the method that will be used to explain the proposed new agreement.

VOTE OPEN: this will include the time that voting opens, explaining the method that will be used to facilitate voting and how this will be communicated to employees (from the start of the access period).

VOTE CLOSED: this will include the time that voting closes, explaining how this will take place and providing an indication of time when the results and outcome of voting will be communicated to employees.

Step 5 – Remember, it is all about ensuring your employees have genuinely agreed to the proposed new enterprise agreement

One of the primary goals of the Fair Work Commission in assessing the application for approval of the proposed enterprise agreement, will be ensuring that as an employer, all reasonable steps have been taken to support genuine agreement of employees.  Section 186 of the Fair Work Act 2009 (Cth) requires the Fair Work Commission to consider in the approval process, whether it is satisfied that an enterprise agreement ‘has been genuinely agreed to by the employees covered by the agreement’.

If you are responsible for managing the enterprise bargaining process, the best way to ‘test’ if this has been achieved, is to step in the shoes of employees and consider the proposed process from the viewpoint of employees and how they will potentially experience it.  Doing this before you take the proposed agreement out to vote will provide you with the opportunity to amend or change parts of the process you think will be ineffective when it comes to facilitating genuine agreement.

More information

Are you looking for guidance on enterprise bargaining?  Contact us at hello@humanifyhr.com.au to see how we can help through our enterprise bargaining services. To be the first to know about our useful insights and workplace resources, you can subscribe to our mailing list here. 

Disclaimer: The material contained in this article is provided as general information only.  It is not, nor is intended to be legal advice.  If you wish to take any action based on the content of this article, we recommend that you seek professional advice that considers your specific context, needs and requirements.