When an employee is a member of a union that is a bargaining representative for an enterprise agreement, then that employee is able to attend negotiations under the union’s umbrella. And an employer’s attempt to exclude such an employee from discussions has been thwarted by the Fair Work Commission.
The employee had filed for workers’ compensation and was on leave pending a resolution of his claim. The company argued that he should not attend negotiations, (a) because he was unfit for work, (b) he was not an official bargaining representative for the purposes of the legislation and (c) he had not attended earlier meetings so was not up to speed on the status of negotiations.
But the FWC disagreed especially when the employee provided the requisite medical evidence indicating fitness for the purpose of attending meetings. On top of that, the employer had been represented by different personnel itself, so its consistency argument was compromised by that too.
But most importantly, the FWC found that since the union was a “corporate entity” , there was no basis for the proposition that the employer could determine the make-up of its bargaining team. Put another way, it meant that just like the employer could choose the personnel who attended the bargaining sessions on its behalf, so too could the union.
The FWC also made the point that this particular union member sat on the company’s Employee Representative Committee so was well placed to make a contribution to the negotiations. In the context of good faith bargaining, the FWC found that it was custom and practice for members of that committee to participate. FWC ordered the company to desist from its opposition to the employee’s participation in future bargaining sessions.
The employer’s stance was a bit like Brad Fittler trying to tell Kevin Walters who’s going to pull on the maroon jumper. It doesn’t work that way, and the case underlines the importance of sticking to the main game instead of getting bogged down with side issues.