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
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.
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
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
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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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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