Tracey v Technip Oceania

Tracey v Technip Oceania Pty Ltd [2011] FWA 3509 – 13 June 2011

A union official may personally act as a bargaining representative where the union they work for does not have coverage

Bill Tracey, Assistant Secretary of the MUA (Maritime Union of Australia) in Western Australia sought bargaining orders to the effect that Technip recognise his status as an appointed bargaining representative of employees. The employees were casuals employed on ROVs (remotely operated sub sea vehicles) in the offshore oil and gas industry. The MUA does not have coverage of ROVs (work on ROVs is covered by the AMOU (Australian Maritime Officers Union). Despite this, the employees appointed Mr Tracey as their bargaining representative. Technip refused to recognise the appointment, on the basis that the union did not have coverage and was therefore not entitled to be a bargaining representative for the agreement.

Mr Tracey argued that he was acting as a bargaining representative in his individual capacity, not in his capacity as an MUA official. Technip argued that the MUA was seeking to place itself in the position of bargaining representative through Mr Tracey (as a guise, to avoid the provisions of the Fair Work Act 2009 preventing a union from doing so unless it had relevant coverage of the employees). It was relevant that all communications from Mr Tracey to Technip were on MUA letterhead, or through the MUA mobile phone or email.

Commissioner Cloghan found that employees are entitled to appoint any person to act as their bargaining representative, and that the fact that a person is also a union official does not prevent their appointment as a bargaining representative in their individual capacity. However, Commissioner Cloghan noted that Mr Tracey “must take steps as a private individual to distance himself from his role as Assistant Branch Secretary of the MUA”. He issued bargaining orders against Technip.