Currently, union demarcation is generally defined by awards and
agreements entered with named unions as respondents. Existing
agreements typically reference union rules and award
Under the Fair Work Act regime, two things are set to
First, the Bill states: "A permit holder may enter premises
to hold discussions with one or more persons who perform work on
the premises; and whose industrial interests the permit
holder's organisation is entitled to represent; and who wish to
participate in those discussions." (Section 484). So, a union
won't have to be covered by an award or agreement to gain entry
to a site for member recruitment and discussion purposes, as long
as the union's rules allow them to cover the workers.
Second, the Federal Government removed the traditional concept
of respondency in modern awards in order to ensure the award
modernisation process was not hamstrung by complex demarcation
arguments. The Government has sought to avoid the inclusion in
modern awards of "cumbersome union coverage schedules".
That is, modern awards will not have any named respondents. So, in
order for a union to represent employees, its Union Rules must
permit it to cover the work performed under an award or
This poses problems in civil construction where competition
between the AWU and CFMEU is keen. The AWU has traditionally
claimed exclusive coverage and the CFMEU maintains that its Rules
allow it to have coverage. The AWU's position is that it long
ago decided it had no interest in highrise construction and that
was the domain of the CFMEU, and equally the CFMEU should not be
trying to cover civil construction.
The result is likely to be that competition between unions on
civil construction sites will increase. Unions will market to
eligible members that they can achieve better agreement outcomes
and representation than their union competitor.
The Government has responded to the union and employer concern
by suggesting that new representation orders exercised by Fair Work
Australia could be the answer. That is, in the Government's
view, the simplest way to manage union representation and potential
demarcation disputes is to retain current award-derived coverage
rights, and where representation is disputed, parties can apply to
FWA for representation orders.
But a party would need to make application to FWA for orders,
and that is probably not a place that civil construction industry
employers want to be. In many cases, seeking representation orders
that remove a union's right to represent certain employees
could result in uncertainty and be hazardous to site
Union representation rights are proposed to be included in the
forthcoming transitional and consequential bill legislation, which
will no doubt be controversial and will need to be debated and
settled by July 1 to be ready for the operational date of the
substantive Fair Work Bill. The Government is aiming to have the
Fair Work Bill through Parliament by 19 March 2009.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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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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