[1] Ikon Electrical Pty Ltd ("the Employer") has applied for approval of an enterprise agreement known as Ikon Electrical Enterprise Agreement 2025-2029 ("the Agreement"). The Application was made under section 185 of the Fair Work Act 2009 ("the Fair Work Act"). The Agreement is a single enterprise agreement.

[2] The voting process for the Agreement was a show of hands. I invited submissions as to whether it was consistent with the Fair Work (Statement of Principles on Genuine Agreement) Instrument 2023 (Cth) ("the Statement of Principles").

[3] The Employer stated that the vote was conducted in two locations, each with no managers present, and with no managers being able to see or hear the employees. The employees had the opportunity to discuss the matter in the absence of management before the ballot commenced. For each of the two votes, an employee representative (in each case, an apprentice) called on the ballot, and counted the votes. Another employee, who was not a manager, and who was a voting employee) witnessed the count. Each of the two employee representatives then completed a voting declaration form ("the voting declaration"). The voters were not identifiable from the voting declaration form. In summary the voting declaration included:

• the employee representative's name;

• confirmation that the vote was taken in a manner free from external pressure and that all employees were able to express their views and opinions;

• the location where the vote took place;

• the number of votes for and against the approval of the EA and the total number of employees who voted; and

• the signature of the Employee Representative and the witness;

• the date the form was signed by the Employee Representative and the witness.

[4] The Employer also stated that:

(a) the Applicant's managers were not in a position to witness the vote, or how individuals voted, nor did management witness the tallying of the employee's votes or the completion of the voting declaration by the employee representative and the witness; and

(b) the employee representatives then notified the Applicant's management that the vote had been concluded and what the outcome of the vote was. This was actioned by handing over the signed voting declaration, which in this instance was an approved vote by majority at both locations.

[5] The Employer submitted that there is nothing in section 181 or section 182 of the Fair Work Act that precludes an enterprise agreement from being voted on by a show of hands. They drew my attention to information on the Fair Work Commission's website explicitly contemplating voting by a show of hands, though the page they referred to is expressed to apply to agreements for which the notification time is before 6 June 2023.[1] They submitted that the decision in Novocastrian Electrical Contractors Pty Ltd [2024] FWC 3357 should be considered, and referred particularly to paragraphs [22] - [23] and [26] of that decision. With respect I agree with Deputy President Slevin that a show of hands is not impermissible and that "where a show of hands is used it should be done in a way that the employees can be confident when they cast their vote that the way they voted will not be disclosed to the employer."[2]

[6] My directions provided an opportunity for the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia ("the ETU") to provide a response if it wished to do so. The ETU had filed a declaration, in the prescribed form, in relation to the Agreement. After receiving the Applicant's submissions, and the undertaking to which I have referred below, the ETU advised it did not wish to be further heard in this matter and was content for the matter to be determined on the papers.

[7] I have turned my mind to whether there might be such a power differential between management and apprentices that employees would not be able to be confident when they cast their vote that the way they voted would not be disclosed to the employer. However, as no party has raised any concern in this regard, and noting the absence of any response to or contradiction of the Employer's submissions, I accept the Employer's submissions that this voting process was consistent with paragraph [15] of the Statement of Principles.

[8] In these proceedings I also sought submissions as to the Notice of Employee Representational Rights ("NERR"). The Employer had made and withdrawn an earlier application for approval of an enterprise agreement. They had done so with a view to dealing with some concerns raised in that earlier application. They formed the view that they did not need to issue a fresh NERR. In response to my request for submissions they argued that the Commission should exercise the discretion conferred by section 188(5) of the Fair Work Act because, inter alia, all employees had been extended more than the prescribed access period.

[9] For the purposes of subsection 188(5), I am satisfied that to the extent this reliance on the earlier NERR was an error, it was a minor technical or procedural error, and not likely to disadvantage any employees in the circumstances.

[10] I also sought submissions or an undertaking in relation to part-time employment. The Applicant has provided a written undertaking in that regard.

[11] Noting clause 5 of the Agreement, I am satisfied that the more beneficial entitlements of the National Employment Standards ("NES") in the Fair Work Act will prevail where there is an inconsistency between the Agreement and the NES.

[12] The Employer has given a written undertaking in accordance with section 190 of the Fair Work Act. The undertaking is attached as Annexure A to this decision. I am satisfied that the undertaking is not likely to cause financial detriment to any employee covered by the Agreement and does not result in substantial changes to the Agreement. The undertaking is taken to be a term of the Agreement.

[13] With the undertaking now given, and after having regard to the Statement of Principles on Genuine Agreement as well as the application and declarations filed in this matter, I am satisfied that each of the requirements of sections 186, 187, 188 and 190 of the Fair Work Act, as are relevant to this application for approval, have been met.

[14] The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia lodged a declaration in the prescribed form[3] giving notice under s.183 of the Fair Work Act that it wants the Agreement to cover it. In accordance with subsection 201(2) of the Fair Work Act, I note the Agreement covers the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia.

[15] The Agreement is approved and will operate in accordance with section 54 of the Fair Work Act. The nominal expiry date of the Agreement is 28 May 2029.

[1]'Voting process for agreements', Fair Work Commission (Web Page) https://www.fwc.gov.au/work-conditions/enterprise-agreements/make-enterprise-agreement/hold-vote-agreement/voting.

[2] Novocastrian Electrical Contractors Pty Ltd [2024] FWC 3357, [22].

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