A recent decision of the Full Bench of FWA has sparked
speculation of a return to the dark days of significant demarcation
disputes between competing unions.
In SDA -v- NUW  FWAFB 461, the FWA Full Bench expressly
abandoned the tradition of "one workplace, one union",
and instead emphasised the freedom of employees to join the union
of their choice.
The Shop, Distributive and Allied Employees Association
(SDA) and the National Union of Workers (NUW) are
both able to represent employees in retail distribution centres. In
Queensland, the SDA has tended to cover distribution centres
operated by retailers, and the NUW has tended to cover wholesale
Woolworths operates a distribution centre in Brisbane. The SDA
has a long history of enrolling and representing employees at that
site, stretching back to at least 1977. The NUW, in comparison,
started to become involved on the site in 2005, leading the
Australian Council of Trade Unions (ACTU) to issue
a statement in 2005, and again in June 2011, confirming that in its
view, the SDA was to have sole coverage of the worksite, and the
NUW should desist from having active organisers on the site.
In August 2011, Woolworths began bargaining for an enterprise
agreement to cover the worksite. Both the SDA and the NUW
participated in the negotiations as bargaining representatives. SDA
and Woolworths reached agreement on a new enterprise agreement, but
the NUW does not support the proposed Agreement.
The claim to Fair Work Australia
The SDA applied to the Full Bench of FWA for a
"representation order" under the Fair Work (Registered
Organisations) Act 2009 (Cth). The SDA sought an order that would
exclude the NUW from being able to recruit members at the site,
effectively giving the SDA exclusive rights to recruit those
At the time of the application, the worksite had approximately
1,200 employees, 561 of which were SDA members, and 273 were NUW
The SDA argued that the NUW was frustrating and impeding the
process of the negotiations, in breach of a long-standing
demarcation agreement and in defiance of the ACTU's
The NUW contended that it had never reached any agreement with
the SDA over demarcation, that the ACTU's determinations were
irrelevant as the ACTU did not participate in the proceedings, and
further provided a petition signed by 325 employees (some of whom
were SDA members) supporting the right of the NUW to represent
employees at the worksite.
Decision by Fair Work Australia
The Full Bench stated that, if the case turned on choosing the
best union to exclusively represent the site, then the SDA's
arguments would carry considerable weight. However, it said that
the question was not "choosing the best union" to
exclusively represent workers on the site, but whether an
exclusivity order should be granted at all.
The Full Bench found that the Fair Work Act (Cth) had changed
the traditional approach of discouraging competition between unions
for members. Instead, the Fair Work Act emphasised the right of an
employee to choose whatever bargaining representative they wished.
The Full Bench stated:
"The freedom of employees to choose their bargaining
representatives and provisions of the FW Act that support the right
to freedom of association significantly reduce the significance of
the historical assumptions that have applied in matters of this
type. In our view a strong case needs to be presented for an order
to be made which would have an effect to modify current statutory
rights. We do not consider that the SDA has established a
sufficiently strong case".
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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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