Union Not Necessarily Union Member’s Rep

When an employer objected to a union making submissions about its enterprise agreement at the approval stage, the union argued it had a member at the workplace so it was entitled to be heard. However, the Fair Work Commission had other ideas and refused to admit the union’s submission.

This unusual set of circumstances arose because the employee, a member of the union, had exercised the right contained in the legislation, to nominate another employee as their bargaining representative. The union then was no longer the automatic, or default bargaining representative of this employee.

The union argued that despite that aspect, it was experienced in the industry and its views about the proposed agreement should be heard by the commission. But the commission made the point that enterprise agreements are made between an employer and the employees covered and since the only union member had authorised a person other than the union to be their representative, the union had no standing in the proceedings.

The commission went ahead and dealt with the matter in the absence of the union. This decision shows that union membership of itself is not necessarily the indicator of who is, or can be, a bargaining representative. The union member in this case exercised a right under the law to nominate a work mate as their representative so that person’s union membership, for the purposes of representation, was of no relevance.

Windhoist Aust. v CFMEU [2012] FWA 6330 (26 July 2012)