In a 2-1 majority decision, Fair Work Australia (FWA) quashed a decision that permitted the Maritime Union of Australia (MUA) official, Mr Tracey, to act as a bargaining representative for Technip's employees who the MUA were not eligible to cover.

Mr Tracey initially applied to FWA and sought a good faith bargaining order that required Technip to allow him to act as a bargaining representative for a group of its employees.

Technip opposed Mr Tracey's application for a good faith bargaining order on the basis that Mr Tracey was not acting as a bargaining representative in a personal capacity but rather as an official of the MUA. Technip argued that the law would not allow Mr Tracey as an official of the MUA to be a bargaining representative because the MUA is not entitled to represent the industrial interests of [the particular group] of employees in relation to work ... particularly, given that the Australian Maritime Officers Union (AMOU) covered these particular employees.

At first instance, Commissioner Cloghan decided to grant Mr Tracey his application for a good faith bargaining order on the basis that 'employees may appoint whoever they wish as their bargaining representative'. He also found there was no issue with respect to the MUA not being permitted at law to act as a bargaining representative for coverage reasons as Mr Tracey was being appointed in an individual capacity.

On Appeal

Fair Work Australia revisited the evidence that was put to the Commissioner Cloghan. That evidence included:

  • A newsletter to the particular group of employees on MUA letterhead which involved a quote abut workers in simila job roles successfully campaigning for better rates of pay and conditions
  • Correspondence to the group of employees referred to Mr Tracey in his MUA capacity as the primary contact.

The central issue was whether Mr Tracey was acting as himself, in an individual capacity, or whether the MUA was seeking to place itself in the role of a bargaining representative under the guise of Mr Tracey.

In its decision, the majority said of the evidence: 'that material is bursting with indicators that, in his dealings with Technip, Mr Tracey was acting as an official of the MUA. Although the [documents] are written in first person, the signature block, address, contact and use of the [MUA] logo all strongly suggests Mr Tracey was acting in his [MUA] capacity. The newsletter... also contained unmistakable indicators that Mr Tracey's advocacy for the group of employees was inextricably linked to the MUA.'

The majority decided that it could not grant a good faith bargaining order to an MUA official when the MUA is not entitled to represent the industrial interests of the employees concerned.

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