Australian Workers' Union

[2015] FWC 6616

[2015] FWC 6616

FAIR WORK COMMISSION

RECOMMENDATION

Fair Work Act 2009
s 229 - Application for a bargaining order

Australian Workers' Union & Ors
(B2015/1142; B2015/1282; B2015/1283)

DEPUTY PRESIDENT SAMS SYDNEY, 25 SEPTEMBER 2015

Applications for bargaining order/s – single employees nominate multiple employee bargaining representatives – written nominations not valid – recommendation issued.

[1] This recommendation arises from three applications made by the Australian Workers’ Union (AWU), the Construction, Forestry, Mining and Energy Union (CFMEU) and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) (collectively, the ‘Unions’), pursuant to s 229 of the Fair Work Act 2009 (the ‘Act’). The applications are sought in the context of bargaining with Spotless Facility Services Pty Limited (Spotless or the ‘respondent’) for a new enterprise agreement. The new agreement is to replace the Spotless Anglo Coal Facilities Management Enterprise Agreement 2012, which reached its nominal expiry date on 30 June 2015.

[2] Yesterday, the Fair Work Commission (the ‘Commission’) chaired a telephone conference with the parties to the dispute. Mr T McKernan appeared with Mr P Robertson for the AWU, Mr S Brunker appeared for the CFMEU, Ms M Delaware appeared with Mr J White for the CEPU and Mr J Douglas appeared for the respondent. Mr D Peverill also appeared for United Voice, which is also a bargaining representative for the proposed enterprise agreement.

[3] The dispute centres on a number of letters of appointment signed by individual employees, which seek to appoint up to four employee bargaining representatives (EBRs) for the individual employee. The Unions contend that such nominations of multiple bargaining representatives to represent one person, are not permitted under s 176(1)(c) of the Act. That section is expressed as follows:

176 Bargaining representatives for proposed enterprise agreements that are not greenfields agreements

Bargaining representatives
(1) The following paragraphs set out the persons who are bargaining representatives for a proposed enterprise agreement that is not a greenfields agreement:

…

(c) a person is a bargaining representative of an employee who will be covered by the agreement if the employee appoints, in writing, the person as his or her bargaining representative for the agreement;

[4] The Unions submit that the use of the singular (‘a person … the person as his or her bargaining representative’)in sub-section (c) makes clear that an employee may only appoint one employee bargaining representative to represent him/her. It follows that the four persons named in each individual letter cannot have been properly appointed in accordance with s 176(1)(c) of the Act. Mr Douglas for Spotless, while opining that the appointment of EBRs is a matter between the relevant employees, did not strongly resist the Union’s interpretation of s 176(1)(c). All parties agreed that it was possible for individual employees to nominate themselves as their own bargaining representative (See: s 176(4)).

[5] I am unaware of any decision of the Commission, nor was any cited by the parties, which have addressed this particular discrete issue. Without the benefit of detailed submissions and in order to ensure that bargaining is not delayed by a narrow technical argument, I am inclined to state my preliminary view that the Unions’ interpretation of s 176(1)(c) of the Act is correct.

[6] Accordingly, I make the following recommendation.

1. A written notice made pursuant to s 176(1)(c) of the Act, that is the nomination of an employee bargaining representative by a single employee who will be covered by the enterprise agreement, will only have effect if it nominates one employee bargaining representative.

DEPUTY PRESIDENT

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