A recent decision handed down by Fair Work Australia
(FWA) rejected an attempt by the Maritime Union of
Australia (MUA) to obtain a majority support
determination. The attempted strategy by the MUA (via its
organiser Mr Heath) represents a concerted effort to infiltrate
significant projects in WA's northwest and attract members in
workforces that have not traditionally been targeted by the
This is an important decision as the encroachment of unions into
areas over which they do not have coverage under their rules is
becoming a serious issue in many places, particularly in
construction. Majority support determinations have proven to
be very difficult to challenge.
A summary of the case
In a decision delivered on 5 October 2010, Douglas Heath v
Gravity Crane Services Pty Ltd  FWA 7751, FWA refused to
make an application made by Mr Heath for a majority support
determination against Gravity Crane Services Pty Ltd
(Gravity). DLA Phillips Fox represented the
Gravity is based in Port Hedland and supplies taxi hire and dry
hire mobile cranes to Jan De Nul on the BHP Billiton works known as
the Rapid Growth Project. Mr Heath is an organiser
employed by the MUA and, like Gravity, is based in Port
Hedland. Mr Heath argued before FWA that he had been
appointed in his personal capacity as a bargaining representative
by a majority of Gravity's employees and had attempted to enter
into bargaining with Gravity to negotiate a new enterprise
agreement. Gravity refused to bargain with Mr Heath and Mr
Heath brought an application for a majority support determination
to force Gravity to begin bargaining. DLA Phillips Fox, on behalf
of Gravity, argued that for all intents and purposes Mr Heath was
the MUA and, as the MUA did not have coverage over Gravity's
employees, he was precluded from being appointed as a bargaining
representative under the Fair Work Act (FW
FWA considered the purpose of the FW Act and accepted that Mr
Heath was acting as the MUA and not in his personal capacity.
FWA therefore refused to make the majority support
If the application had been successful it would have caused
considerable damage in lost time and profits to Gravity while a new
agreement was negotiated at increased wage rates and benefits.
What should you do?
In light of the MUA's apparent new strategy employers should
be wary of any request or demand by the MUA (or MUA employee) to
enter into bargaining for an enterprise agreement. Before
responding to any such request employers should seek advice on how
to respond. Employer's should understand what rights a union
has to represent its employees. It may not have any.
This case reflects a growing level of activity by unions. At DLA
Phillips Fox we have observed first-hand the increased level of
activity. This is also reflected in another recent matter in
which DLA Phillips Fox acted for Boskalis Australia, a dredging
contractor on the Gorgon project, in a successful application
against the MUA in FWA to stop industrial action by MUA member
employees (Boskalis Australia Pty Limited v Maritime Union of
Australia  FWA 7508).
DLA Phillips Fox is one of the largest legal firms in
Australasia and a member of DLA Piper Group, an alliance of
independent legal practices. It is a separate and distinct legal
entity. For more information visit
This publication is intended as a first point of reference and
should not be relied on as a substitute for professional advice.
Specialist legal advice should always be sought in relation to any
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Long experience representing many of Australia's leading employers has taught us that in employment litigation the identity of an employee's representative is a major factor in how employee litigation runs.
Australian employees receive certain entitlements (such as annual leave and superannuation) where contractors do not.
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