A recent Fair Work Commission decision provides valuable guidance for employers on who may vote in an enterprise agreement ballot—particularly where the voting group includes large numbers of casual employees.
In Monadelphous (Regional NSW) Enterprise Agreement 2025, the Commission approved the Agreement, but only after undertaking a detailed assessment of whether 91 casual employees were eligible to vote. The Agreement passed with a narrow majority: 89 “yes” votes out of 176 valid votes.
Because the margin was so tight, even a small eligibility error could have changed the outcome. This led the Commission to closely scrutinise the voting cohort and clarify important principles around casual voting rights.
Why the Commission Examined Casual Voter Eligibility
The employer declared that 201 employees were covered by the Agreement and that 176 valid votes were cast. Of those employees, 91 were casuals. With the Agreement passing by only two votes, the Commission needed to determine:
- Which casual employees were “employed at the time” of the request to vote (as required by s 181(1) of the Fair Work Act); and
- Whether any casuals were merely “on the books” and therefore not eligible.
To answer these questions, the Commission reviewed extensive evidence relating to rostering, work patterns, engagement during the relevant period, and individual circumstances.
The Legal Test: When Is a Casual “Employed at the Time”?
The Commission considered prior Full Court and Full Bench authority and confirmed several key principles.
1. Casuals Do Not Need to Be Rostered on the Day of the Vote
A casual employee may still be eligible even if they are not working on the exact day voting begins. Eligibility is not determined solely by whether a casual is on shift at that time.
2. The Key Question Is Whether Employment Is “Current and Active”
Casuals who are merely “on the books” are not eligible to vote. A casual will generally be regarded as employed at the time if evidence shows that they:
- worked in the period leading up to the vote;
- accepted rostered shifts; or
- had an ongoing engagement, including authorised periods of absence.
3. Post‑Reform Rules Still Require Proof of Genuine Workforce Connection
Although the statutory “access period” no longer exists, the Commission treated the period between providing the Agreement (24 February 2025) and the start of voting (6 March 2025) as a notional access period. Evidence of work performed during that time was particularly persuasive.
How the Commission Assessed the 91 Casual Employees
The employer relied on payroll records, rosters, and supervisor evidence, which showed that:
- 88 of the 91 casuals worked during the notional access period.
These employees were clearly found to have “actuality and currency” in their employment. - Three casuals had not worked during that period.
The Commission assessed each case individually, considering authorised absences, accepted shifts, medical clearances, and the nature of ongoing engagement.
All three were ultimately found to be employed at the time and therefore eligible to vote.
Even if one casual had been excluded, the Agreement still would have passed, providing an additional safeguard.
– Fair Work Commission
Key Insights for Employers
This decision highlights the importance of getting voter eligibility right, especially where casuals make up a significant part of the workforce or where ballots are close.
1. Review Casual Status Before Issuing the Voting Request
Employers must distinguish between casuals with an active, ongoing engagement and those who are simply on the payroll without recent or expected work.
2. Maintain Clear Records
Access to rosters, payslips, and supervisor statements was critical in demonstrating eligibility. Where results are close, this evidence becomes decisive.
3. Treat the Pre‑Voting Period as a Practical Access Period
Even without a formal access period, employees must receive the Agreement early enough to consider it. Evidence that casuals were engaged during this time supported eligibility.
4. Expect Heightened Scrutiny in Close Votes
Narrow margins prompt closer examination of eligibility, explanations, and the overall integrity of the ballot process.
Final Outcome
The Commission was satisfied that:
- the Agreement was genuinely agreed;
- the voting process complied with statutory principles;
- casual employees were correctly included; and
- the Agreement passed the BOOT.
The Monadelphous (Regional NSW) Enterprise Agreement 2025 was approved.
Practical Takeaways for Agreement‑Making
- Audit your workforce before issuing a voting request, especially casuals.
- Document who is working, rostered, or otherwise engaged.
- Provide Agreement documents early and clearly.
- Prepare for challenges where margins may be tight.
- Apply a principled assessment of whether each casual has a real, ongoing connection to the business when voting begins.
Simplify Your EA Ballot Process
Clear voter eligibility and defensible ballot processes are essential—especially when outcomes are close. IRBLOTS helps employers run simple, secure, and compliant EA ballots that stand up to Fair Work scrutiny.
Planning an EA vote? Partner with IRBLOTS to ensure your ballot is accurate, transparent, and stress‑free. Request a quote or contact us today to get started.
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