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.
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
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.
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
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.
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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