Ostwald Bros Pty Ltd v Construction, Forestry, Mining and Energy Union  FWAFB 9512 (8 November 2012)
This case concerned a Notice of Representational Rights, a mandatory process requirement of the Fair Work Act when embarking on enterprise bargaining.
The company had issued the Notice but neglected to include the words concerning default bargaining representatives. This is included in the Act and covers the situation where an employee is a union member but does not formally appoint someone to be their rep. In such cases, the union is the ‘default’ representative.
There were two unions claiming members, and there had been detailed proceedings in the tribunal about representation – in other words, a turf war. When one union lost that war, it found this technicality to sink the agreement after it had been negotiated and approved by a majority of the employees. Despite the facts on the ground, the full bench majority accepted the spoiler’s argument and refused to approve the agreement. It was back to square one. The agreement was deemed invalid.
The dissenting judgement was delivered by a Vice President of FWA. He said an overly technical approach was contrary to the objects of the exercise. There was, he continued, no evidence that any employee had been poorly represented or not represented and no one had been duped.
The lesson has to be that employers should go to the Regulations and copy exactly what is contained there for the Notice and not deviate by even a comma.