Unions’ Ability to Intervene in Agreement Making Reinforced

Inco Ships v The Australian Institute of Marine and Power Engineers and The Australian Maritime Officers’ Union [2016] FWCFB 3370 (26 May 2016)

Many employers think that if there are no union members in their workplace, and all the employees are their own bargaining representatives, that come time to seek approval for the enterprise agreement, no union could turn up to oppose the agreement. But they’d be dead wrong about that.

An appeal full bench of the Fair Work Commission has heard argument from an employer that since all the employees were self-represented in the making of their agreement, the unions who wanted a say about the agreement had no standing.

The bench disagreed, citing the FWC’s broad powers to inform itself of any matter in any proceeding. What this means in effect is that the FWC has discretion to permit anyone, whether a union or not, to intervene, if the presiding FWC member thinks that person’s contribution will assist in deciding whether or not to approve the agreement.

The employer confused this broad discretionary FWC power with a union’s right to be heard. But the unions in this case did not have any such right, so that argument fell away completely. All that was left was the fact of the legislation, and so on that score the appeal had to fail.

The case serves as a reminder that the FWC has broad discretionary powers in some areas, while in others it has no wriggle room at all, and parties appearing there need to be clear on where the lines are drawn.