Australia: When is a union official not a union official?
Employee Relations and Safety Update

In a recent set of decisions before Fair Work Australia, a union official who would not ordinarily have had the ability to represent workers has unsuccessfully claimed that he was not acting in his capacity as a union official at the time.

Background

The union official was seeking to represent employees in negotiations for a new enterprise agreement. The employer did not operate in an industry which the union official's union had the right to represent employees, however the union had been taking steps to try and obtain membership in that industry.

A number of the employer's employees sought to appoint the union official as their bargaining representative in the negotiations for the new enterprise agreement. They sought to nominate the union official in his personal capacity, rather than as an official of the union.

The union official commenced proceedings in Fair Work Australia seeking orders that the employer negotiate with him as a bargaining representative of the employees. The employer resisted the application on the basis that the union official was actually acting in his capacity as a union official rather than as an individual.

First instance

Initially, Fair Work Australia accepted that as a matter of law, a union cannot be a bargaining representative for an employee for whom it does not have the right to represent. Fair Work Australia agreed that the union did not have the right to represent the employees concerned. Despite this, Fair Work Australia initially found that there was no impediment to the union official acting as a bargaining representative in his personal capacity.

Appeal

The employer appealed this decision. In doing so, it principally relied on various written communications received from the union official that contained details of the union, in particular the signature block, address and use of the union's logo and letterhead.

The majority of the appeal bench found that the only conclusion available on the evidence was that the union official was not acting in his personal capacity, but in the capacity of an official of the union. As such, the majority of the appeal bench found that the union official's appointment as a bargaining representative was invalid, and accordingly, the application for bargaining orders was also invalid.

Key lessons for employers

Employers should take steps to identify the unions which have the right to represent their employees. Such representation rights can arise under an enterprise agreement, modern awards, or under the Fair Work Act 2009 (Cth) itself.

Employers should then take steps to ensure that in circumstances where a union official is seeking to represent an employee, that they actually have the right to do so.

For more information, please contact:

This report does not comprise legal advice and neither Gadens Lawyers nor the authors accept any responsibility for it.