Sacked Bargaining Reps Have Rights Too

When an employer found out that a union member had revoked his union’s right to be his bargaining representative, it assumed the union could have no further role in the process. But that turned out to be wrong, with a full bench of the FWC saying the union still had a right to be heard.

The union member had initially been represented in negotiations by the union. But at some point, the employee revoked the union’s right and appointed himself as his representative. Thereafter the company dealt directly with the employees, gained their support at ballot and filed the agreement for FWC approval without engaging with the union.

When the original matter came before the FWC, since the employer did not advise the FWC that at some point the union had been involved, the agreement was certified without any issue arising about the union’s involvement.

After the agreement was approved however, the union found out about it and appealed to a full bench.

The essence of the union’s argument was that despite its rights to represent the member being revoked, it had been at one time a bargaining representative. The full bench said that the union despite no longer being a representative, had a right to argue whether or not it should be heard in relation to the approval of the agreement.

So the bench quashed the original decision, meaning the agreement was not approved. It directed the matter be reheard, this time with the union being given an opportunity to argue why it should be allowed to make submissions about the agreement.

This case is about a technical point, but one employers need to be wary of. Just because a bargaining representative drops out of the picture during negotiations, does not mean that is the end of the matter. The application form for approval includes a question which asks were there any unions involved in the agreement making process as bargaining representatives. Even if the union dropped out before the end, the answer to this question has to be “Yes”.

It follows from that, that the employer must serve the application paperwork on that union so it knows the approval process is underway. That in turn permits it to at least appear and argue whether or not they should be heard about the agreement.

Had this employer done that in the first place, it may very well have saved a lot of angst but instead, the agreement has been quashed and the process now starts again.

NUW and Sigma Healthcare Case