No Cap on Bargaining Reps

While it may make good sense to keep bargaining committees down to a manageable size, arbitrarily limiting the number of bargaining representatives is not the way to go. This, along with a few other procedural flaws, resulted in an agreement being knocked back by the FWC recently, when it became clear the mistakes were too important to waive through under the slip rule.

The issue about representatives arose because the employer had sent an email to all employees which included the statement that the “end result will be that 2 representatives for (one branch) and 1 representative for (another branch) will be appointed.” The problem with this is that all employees have a basic right to appoint whomsoever they choose to represent them. Indeed, the Notice of Representational Rights, which formally kicks bargaining off, is quite explicit about this, and the Notice is derived from the legislation. It is not something an employer or the FWC can disregard.

The FWC said that putting a limit on the number of reps, in the way this employer did, could be seen as both interfering with a right to be represented and, consequently, undermining the genuineness of the employees’ agreement.

Quite likely the employer was thinking about the efficient handling of the process. But just because there might be many nominated representatives, does not mean that a negotiating committee needs to be formed. Many agreements are made where no committee exists at all. Rather, the employer develops and maintains a communication system, fielding questions, claims and commentary from the entire workforce throughout the process.

So even where individual employees nominate as representatives, either on their own account or on behalf of others, there is no legal requirement for an employer to form a negotiating committee or similar structure or where they do to include all the bargaining representatives on it. Conversely, there is no legal right for an employer to stipulate the number of representatives it will deal with. What is important is that nominated representatives are recognised and consulted. As far as efficiency is concerned, better to wait and see how many put their hands up to be representatives (if any) and then decide which way to proceed, than try to limit the numbers beforehand.

Australian Pacific Touring Pty Ltd [2019] FWC 3046 (3 May 2019)