The Fair Work Commission has rejected Charles Darwin University’s enterprise agreement because it said up to 151 casual employees who were ineligible to vote were inappropriately provided with access to the ballot.

Commissioner Christopher Platt said in his decision that on December 20, the National Tertiary Education Industry Union had raised concerns about whether the agreement had been genuinely agreed to as required by section188 of the Act.

The EBA included a four per cent pay rise last year and an overall eight per cent pay rise to October 2024, signing bonuses, work-from-home arrangements and increased sick days.

Based on the voting information supplied, at the time of the vote, 1802 employees were covered by the proposed agreement and there were 1065 employees who voted in the ballot for the proposed agreement.

Mr Platt said 664 employees voted in favour of the proposed agreement, and a valid majority would exist when 533 eligible voters voted in favour.

However, he said, it appeared that 151 casual employees who were ineligible to vote were provided with access to the ballot.

He said they were considered ineligible based on the 2019 FWC full bench decision in Kmart Australia Ltd v RFFWUI & Ors.

He said he expressed concern to CDU in a conference on January 18, that in light of the Kmart decision it appeared CDU may have provided an opportunity for employees who were not entitled to vote on the proposed agreement to do so, which raised an issue as to whether the proposed agreement had been genuinely agreed.

Commissioner Platt said CDU was directed to provide information on the number of casual employees it employed during the access period.

“The applicant submits that the existence of what appears to be a fixed-term casual contract changes the impact of the decision in Kmart,” he wrote.

“I disagree. It appears that the applicant engages casual employees on fixed-term contracts. In my view, this approach does not change the nature of the casual engagement.

“It does not offer any guarantee of employment. Despite the reference to a fixed term, casual employees continue to be engaged by the hour subject to a minimum engagement with no guarantee of future employment. For this reason, I consider casual employees with a ‘fixed term’ to be no different to the casual employees described in Kmart.”

He said between 146 and 151 votes in support of the proposed agreement could have been cast by ineligible people.

“The removal of those votes would result in a valid majority not being achieved,” Mr Platt said.

CDU vice-chancellor Scott Bowman said the decision was “disappointing”.

“We know that there was strong support for our proposed Enterprise Agreement and we are carefully considering our next steps, which may include appeal,” he said.

Mr Bowman had championed the agreement and said in November that the vote would be managed by Elections Australia.

In 2019, the FWC struck down a deal between Kmart and its employees partly because the company closed the voting two days before the end of the voting period which the FWC ruled amounted to “intentional non-compliance”, meaning it could not determine if all employees had agreed on the EBA.

There was also a problem of 443 staff who had been sacked being allowed to vote with 125 of them participating in the ballot. The FWC said it was not able to be satisfied the EBA was “genuinely agreed”, despite 91.7 per cent of the voting group endorsing the new agreement.