When can a union official truly be taken to acting in their personal capacity as a bargaining representative?

The WA Assistant Secretary of the Maritime Union of Australia (MUA) was appointed as bargaining representative of ROV operators in the offshore oil and gas industry who were not eligible to be members of the MUA. The employer refused to recognise the official as the employee’s bargaining representative on the basis that he was not entitled to represent them. The official sought bargaining orders against the employer requiring it to recognise and deal with him as a bargaining representative in his personal capacity (not on behalf of the MUA). FWA issued bargaining orders after finding that the Fair Work Act did not prevent a union official acting in his own capacity as a bargaining representative of employees.

After reviewing the evidence on appeal, which included various documents referring to the MUA, the MUA ‘log of claims’ and including the official’s MUA contact details, a Full Bench majority overturned the decision. FWA found that while employees had appointed the official as their bargaining representative (and not the MUA) the evidence was ‘bristling’ with suggestions that the official was acting in his capacity as a union official. On that basis, the official was not entitled to be the bargaining representative of the employees and had no standing to seek bargaining orders against the employer.

One member of the Full Bench disagreed, finding that the official was properly appointed in his individual capacity and his employment by the MUA did not render him incapable of being the person employees chose to represent them.