William Tracey v Technip Oceania Pty Ltd
[2011] FWA 3509
•13 JUNE 2011
Note: An appeal pursuant to s.604 (C2011/4957) was lodged against this decision and the order arising from this decision [PR510445] - refer to Full Bench decision dated 7 November 2011 [[2011] FWAFB 6551]for result of appeal.
[2011] FWA 3509 |
|
DECISION AND REASONS FOR DECISION |
Fair Work Act 2009
s.229—Bargaining order
William Tracey
v
Technip Oceania Pty Ltd
(B2011/2846)
COMMISSIONER CLOGHAN | PERTH, 13 JUNE 2011 |
Application for a bargaining order.
[1] On 12 May 2011, Mr William Tracey made application to Fair Work Australia (“FWA”) for bargaining orders pursuant to s.229 of the Fair Work Act 2009 (“FW Act”).
[2] Following leave to amend the application, the bargaining orders are sought against Technip Oceania Pty Ltd (“Technip” or “the Employer”) in relation to bargaining for the proposed Technip Casual ROV Enterprise Agreement 2011 (“Proposed Replacement Agreement”).
[3] The bargaining orders, stripped of their legal technicalities, seek that:
- Technip and its enterprise bargaining representatives recognise Mr William Tracey as the employees’ appointed bargaining representative for the purposes of a replacement enterprise agreement;
- Technip and its enterprise bargaining representatives desist from any direct bargaining with the employees except through Mr Tracey.
[4] The application was the subject of a conference on 18 May 2011 and a hearing on 30 May 2011.
[5] At the hearing on 30 May 2011, Mr Edmonds of counsel represented Mr Tracey. Mr Cameron, Australian Mines and Metals Association (“AMMA”), represented Technip.
RELEVANT BACKGROUND FACTS
The Employer
[6] Technip employs a number of casual employees as ROV (Remotely Operated [sub-sea] Vehicles) Operators in the offshore oil and gas industry.
Employment Conditions
[7] The ROV Operators are currently employed pursuant to the Technip Oceania Pty Ltd ROV Casual Employee Collective Agreement 2009 (“ROV Casual Employee Collective Agreement 2009”) which nominally expires on 27 July 2011.
[8] The ROV Casual Employee Collective Agreement 2009 was made pursuant to s.327 of the Workplace Relations Act 1996.
[9] The ROV Casual Employee Collective Agreement 2009 applies to all casual ROV Operator employees employed by Technip.
[10] Following the issue of the Notice of Employee Representational Rights, Mr Tracey was appointed by a number of employees as their bargaining representative for bargaining for the proposed replacement agreement.
[11] There is no dispute between the parties that, for the purposes of s.176(1)(c) of the FW Act, Mr Tracey has been appointed by employees who will be covered by the proposed replacement agreement.
[12] On 18 April 2011, Mr Tracey forwarded to Technip and AMMA the instruments appointing him as bargaining representative by the relevant employees.
[13] On 19 April 2011, AMMA acting for the Employer, advised Mr Tracey that the Employer was not prepared to recognise him as the bargaining representative for any of the employees to be covered by the proposed replacement agreement and states as follows:
“It is therefore clear that in purporting to act as a Bargaining Representative for Technip ROV employees you are doing so in your role as Assistant Branch Secretary of the MUA.
As you would be aware, it is the Australian Maritime Officers’ Union (AMOU) rules which cover ‘[A]ll persons employed or engaged in the function of ROV Pilot/Technicians in or in association with the operation, utilisation, control, maintenance, installation, repair and service of remotely operated sub sea vehicles and associated equipment shall be admitted as members.’
Section 176(3) of the Act precludes your organisation from being a Bargaining Representative for ROV employees due to the fact that the MUA is not entitled to represent the industrial interests of such employees in relation to the (ROV) work that will be performed under the Technip ROV EA 2011.
Consequently, I can advise that Technip does not have any obligations to you under the Act in relation to its ROV employees and as such, Technip will continue to engage with its ROV workforce directly in relation to negotiations for the Technip ROV EA 2011.
Notwithstanding this, Technip acknowledge that some of its ROV employees think of you as their representative and therefore, Technip may decide to have discussions with you about the proposed Technip ROV EA 2011 at some point in the future, at which point wither Technip or myself will contact you.”
[14] On 6 May 2011, Mr Tracey, pursuant to s.229(4)(b) of the FW Act set out his concerns. While the concerns are not expressly stated, I surmise that they are that Technip, as a bargaining representative, is not meeting the good faith bargaining requirements, in particular, s.228(1)(f) which is, “recognising and bargaining with other bargaining representatives”.
[15] On 11 May 2011, the AMMA, on behalf of Technip, responded to Mr Tracey’s concerns reiterating the points made above in paragraph [14]
[16] The parties agree that:
- The employees party to the proposed replacement agreement are not eligible to be members of the MUA;
- The employees party to the proposed replacement agreement are eligible to be members of the Australian Maritime Officers’ Union (“AMOU”); and
- The AMOU has not been nominated by any of the employees to be a bargaining representative and consequently will not be involved in bargaining for the proposed replacement agreement.
[17] The ROV Casual Employee Collective Agreement 2009 expressly excludes and displaces the operation of any otherwise applicable award conditions that are contained in any award, including the Remotely Operated Sub Sea Vehicles Award 1998 (“the ROV Award”).
[18] The ROV Award provides, at clause 3. Parties Bound, Area and Incidence, the following:
“This award shall be binding upon the Australian Maritime Officers’ Union and its members and upon the employers named in the Schedule hereto, as to the employment by them of all employees engaged in the classifications set out in the definitions of this award. Such employees, whether members of the Union or not, who are engaged in or in association with the operation, utilisation control, maintenance, installation, repair, and service of remotely operated sub sea vehicles and associated equipment within the Commonwealth of Australia or within the adjacent areas, as defined in the Petroleum (Submerged Lands) Act, Commonwealth or State as the case may be and/or such areas as fall within the territorial jurisdiction of the Commonwealth of Australia.”
[19] For the purpose of these Reasons for Decision, I highlight the following content of the current ROV Casual Employees Collective Agreement 2009:
“13 SETTLEMENT OF DISPUTES
“... The Company [Technip] or the employee may be represented by a person before the AIRC.”
Current Bargaining for Technip ROV Enterprise Agreement 2011
[20] On or about 11 March 2011, Technip issued a Notice of Employee Representational Rights to employees employed as ROV Operators, pursuant to s.173 of the FW Act.
[21] On 18 April 2011, Mr Tracey forwarded to Technip and the AMMA the required instruments appointing him as the bargaining representative for those employees.
[22] Mr Tracey is the Assistant Secretary of the Western Australian branch of the Maritime Union of Australia (“MUA”)
APPLICANT’S CASE
[23] At the risk of simplicity, the Applicant’s case is that the FW Act allows for Mr Tracey to be appointed as a bargaining representative to represent employees for the proposed replacement enterprise agreement.
[24] In the first instance, Mr Edmonds, counsel for Mr Tracey, refers to s.176(1)(c) of the FW Act which provides that an employee bargaining representative is any person who is appointed, in writing, by an employee who will be covered by the proposed replacement enterprise agreement. Further, the employee may appoint him or herself.
[25] In support of s. 176(1)(c), Mr Edmonds referred to the objects of the FW Act, and in particular, s.3(e) which provides for representation at work.
[26] Mr Tracey also, in support of s.176(1)(c), referred to the objects of Part 2-4 Enterprise Agreement which can be found at s.171(a) and (b) of the FW Act. These provisions place an emphasis on a simple, flexible and fair framework and the ability of the Tribunal to deal with disputes where bargaining representatives require assistance.
[27] In further pursuit of the legislative intention, Mr Edmonds referred to a number of the extracts of the Explanatory Memorandum to the Fair Work Bill 2008. Counsel referred to paragraph r141 in the Regulatory Analysis in which it is stated that under the FW Act, there would be no distinction between union and non union agreements and the Bill would provide for the creation of a single stream of collective enterprise agreements to be made between employer(s) and employees.
[28] In paragraph r16 of the Explanatory Memorandum which concerns Good Faith Bargaining, Mr Edmonds refers to the focus given to bargaining representatives assisting in good faith bargaining, rather than employee organisations.
[29] Turning to the clause notes, Mr Edmonds referred to paragraph 648 which begins:
“Employers and employees are entitled to appoint any person as their bargaining representative for a proposed enterprise agreement.” (my emphasis)
[30] According to counsel for Mr Tracey, this explanation on the clauses in the Bill is “pivotal” 1 as “there is no exclusion for officials of employee organisations”2.
[31] Mr Edmonds addressed the distinction in the FW Act, between a person who is a bargaining representative and an employee organisation 3. Further, Mr Edmonds highlighted the inability, under the FW Act, for an employee to appoint, as a bargaining representative, any employee organisation, unless that employee organisation is entitled to represent the interests of the employee in relation to work that will be performed by the employee under the agreement.4
[32] Mr Edmonds asserted that paragraph 696 of the Explanatory Memorandum, which makes it clear that employees have a choice as to their bargaining representative 5. Finally, Mr Edmonds referred to paragraph 715 of the Explanatory Memorandum which refers to “any person”6, and paragraph 716 which enables an employee, who will be a party to a proposed enterprise agreement, to appoint a bargaining representative at any time during bargaining.
[33] In summary, Mr Edmonds submits that Mr Tracey is entitled under the FW Act to be a bargaining representative for the relevant employees. Mr Edmonds submits that Mr Tracey is not undertaking this role in his capacity as a MUA official. The relevant employees have made their choice in appointing him as their bargaining representative and Technip should recognise and bargain with him for the replacement enterprise agreement. Finally, Mr Edmonds submits that Mr Tracey uses the MUA mobile telephone, email account and letterhead is irrelevant to his appointment as a bargaining representative.
THE EMPLOYER’S CASE
[34] At the further risk of simplicity, the Employer’s case is that it is the MUA that is seeking to place itself in the role of bargaining representative under the guise of Mr Tracey. That situation is explicitly prohibited pursuant to s.176(3) of the FW Act which provides that an employee organisation cannot be a bargaining representative unless the organisation is entitled to represent the relevant employees in relation to the work to be performed in the proposed replacement agreement. As the MUA is unable to represent the relevant Technip employees, it is unable to be a bargaining representative 7. To use the vernacular, as Mr Cameron did for the Employer, this is a case of a “wolf in sheep’s clothing”.
[35] Mr Cameron, for Technip, contended that, contrary to Mr Tracey’s assertions that he is acting in his own capacity:
“every single piece of correspondence that has been received from Mr Tracey states that it is in his capacity as the assistant branch secretary of the MUA. Now, that goes so far as to include the serving of the notices appointing him as a bargaining agent and indeed the notification that he had concerns as to how the bargaining was progressing” 8.
[36] Mr Cameron further argued that the Employer would not recognise and negotiate with Mr Tracey as it was clearly a breach of s.176(3) of the FW Act as the MUA cannot be a bargaining representative for employees as it is not entitled to represent the employees; the employee organisation who have the capacity to represent industrial interests of the employees is the AMOU.
[37] Shortly put, Mr Cameron submitted that the appointment of Mr Tracey is, in reality, the MUA in disguise and asserts that this is impermissible under the FW Act - the nexus between both entities is “crystal clear” 9
RELEVANT LEGISLATIVE FRAMEWORK
[38] The FW Act as it is applicable to the application and facts provides as follows:
3 Object of this Act
The object of this Act is to provide a balanced framework for cooperative and productive workplace relations that promotes national economic prosperity and social inclusion for all Australians by:
...
(e) enabling fairness and representation at work and the prevention of discrimination by recognising the right to freedom of association and the right to be represented, protecting against unfair treatment and discrimination, providing accessible and effective procedures to resolve grievances and disputes and providing effective compliance mechanisms; and
(f) achieving productivity and fairness through an emphasis on enterprise-level collective bargaining underpinned by simple good faith bargaining obligations and clear rules governing industrial action; and
...
171 Objects of this Part [Enterprise agreements]
The objects of this Part are:
(a) to provide a simple, flexible and fair framework that enables collective bargaining in good faith, particularly at the enterprise level, for enterprise agreements that deliver productivity benefits; and
(b) to enable FWA to facilitate good faith bargaining and the making of enterprise agreements, including through:
(i) makingbargaining orders; and
(ii) dealing with disputes where the bargaining representatives request assistance; and
…
172 Making an enterprise agreement
…
Single-enterprise agreements
(2) An employer, or 2 or more employers that are single interest employers, may make an enterprise agreement (a single-enterprise agreement):
(a) with the employees who are employed at the time the agreement is made and who will be covered by the agreement; or
...
173 Notice of employee representational rights
Employer to notify each employee of representational rights
(1) An employer that will be covered by a proposed enterprise agreement that is not a greenfields agreement must take all reasonable steps to give notice of the right to be represented by a bargaining representative to each employee who:
(a) will be covered by the agreement; and
(b) is employed at the notification time for the agreement.
Note: For the content of the notice, see section 174. (my emphasis)
…
174 Content of notice of employee representational rights
Application of this section
(1) This section applies if an employer that will be covered by a proposed enterprise agreement is required to give a notice under subsection 173(1) to an employee.
Content of notice—employee may appoint a bargaining representative
(2) The notice must specify that the employee may appoint a bargaining representative to represent the employee:
(a) in bargaining for the agreement; and
(b) in a matter before FWA that relates to bargaining for the agreement.
Content of notice—default bargaining representative
(3) If subsection (4) does not apply, the notice must explain that:
(a) if the employee is a member of an employee organisation that is entitled to represent the industrial interests of the employee in relation to work that will be performed under the agreement; and
(b) the employee does not appoint another person as his or her bargaining representative for the agreement;
the organisation will be the bargaining representative of the employee.
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:
(a) an employer that will be covered by the agreement is a bargaining representative for the agreement;
(b) an employee organisation is a bargaining representative of an employee who will be covered by the agreement if:
(i) the employee is a member of the organisation; and
(ii) in the case where the agreement is a multi-enterprise agreement in relation to which a low-paid authorisation is in operation—the organisation applied for the authorisation;
unless the employee has appointed another person under paragraph (c) as his or her bargaining representative for the agreement, or has revoked the status of the organisation as his or her bargaining representative for the agreement under subsection 178A(2); or
(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;
(d) a person is a bargaining representative of an employer that will be covered by the agreement if the employer appoints, in writing, the person as his or her bargaining representative for the agreement.
…
Requirement relating to employee organisations
(3) Despite subsections (1) and (2), an employee organisation cannot be a bargaining representative of an employee unless the organisation is entitled to represent the industrial interests of the employee in relation to work that will be performed under the agreement.
Employee may appoint himself or herself
(4) To avoid doubt, an employee who will be covered by the agreement may appoint, under paragraph (1)(c), himself or herself as his or her bargaining representative for the agreement.
Note: Section 228 sets out the good faith bargaining requirements. Applications may be made for bargaining orders that require bargaining representatives to meet the good faith bargaining requirements (see section 229).
178 Appointment of bargaining representatives—other matters
…
Regulations may prescribe matters relating to qualifications and appointment
(3) The regulations may prescribe matters relating to the qualifications or appointment of bargaining representatives.
178A Revocation of appointment of bargaining representatives etc.
(1) The appointment of a bargaining representative for an enterprise agreement may be revoked by written instrument.
(2) If a person would, apart from this subsection, be a bargaining representative of an employee for an enterprise agreement because of the operation of paragraph 176(1)(b) or subsection 176(2) (which deal with employee organisations), the employee may, by written instrument, revoke the person’s status as the employee’s bargaining representative for the agreement.
…
(4) The regulations may prescribe matters relating to the content or form of the instrument of revocation, or the manner in which the copy of the instrument may be given.
[39] Regulation 2.04 of the Fair Work Regulations 2009 provides:
2.04 Notice of employee representational rights — how notice is given
(1) For subsection 173 (5) of the Act, each of the following is a manner in which the employer for a proposed enterprise agreement may give employees who will be covered by the agreement notice of the right to be represented by a bargaining representative for the agreement.
...
DECISIONS OF THE TRIBUNAL
[40] Mr Cameron, for the Employer, conceded that there is “mixed case law” on “whether it is proper to have a union official of another union acting as a bargaining agent” 10.
[41] Mr Cameron acknowledged that Williams C in Canning v Fremantle Port Authority [2008] AIRC 309 found it permissible to have a union official of another union acting as a bargaining agent 11.
[42] Williams C, in his decision, found as follows:
“[34] ... The Act does not circumscribe who may act as a bargaining agent for employees who are seeking an Employee Collective Agreement under s.327 of the Act in any way that assists the FPA in these circumstances.
[35]If it was the intent of Parliament that a representative of an organisation of employees that is not entitled to represent the industrial interests of a particular employee was barred from being appointed as that employee’s bargaining agent, the legislation could easily have expressly stated this. The legislation does not.”
[43] Mr Cameron submitted that that Decision was made under a different legislative regime and can be distinguished from the matter currently before the Tribunal.
[44] Secondly, Mr Cameron referred to Mr Douglas Heath v Gravity Crane Services Pty Ltd [2010] FWA 7751.
[45] While Mr Cameron contended that McCarthy DP “reached a diametrically opposed conclusion” 12 to Williams C, I am unable to agree with his assessment.
[46] Mr Cameron highlighted to me the first sentence of paragraph [35] of the Decision, which, when extracted in its entirety, is as follows:
“[35] As stated above, the main contention of the Respondent is that the Applicant is really MUA in disguise. I note that there is nothing in the FW Act that prevents an employee or a group of employees from appointing a person who happens to be an employee of an employee organisation from being appointed as a bargaining representative.”
[47] Clearly, McCarthy DP came to the conclusion that there is no prohibition in the FW Act preventing the appointment of a person from an employee organisation to be a bargaining representative for employees. However, for reasons associated with the particular application he was dealing with, he considered the appointment, in that case, unsuitable or inappropriate. Notwithstanding the particular circumstances, McCarthy DP’s primary position is clear; there is no obstacle to employees appointing a person from an employee organisation, which is not the “default” bargaining representative, to be their bargaining representative.
CONSIDERATION
[48] The Tribunal, in these proceedings, is dealing with two key provisions of the FW Act relating to bargaining representatives.
[49] Section 176(1) of the FW Act outlines who are bargaining representatives for a proposed agreement that is not a greenfields agreement. The employer that will be covered by the proposed agreement is a bargaining representative. An employee organisation is a bargaining representative if the employee organisation has members who will be covered by the proposed agreement unless the employee has appointed another person as a bargaining representative in writing (which can include him or herself).
[50] At first instance, it is necessary to state that Mr Cameron for the Employer, did not attempt to persuade the Tribunal that s.176(1) contained a number of meanings or any ambiguity. In my view, that was the correct approach, because if we examine the words in s.176(1) of the FW Act, as it relates to bargaining representatives, they are clear and connected. In hierarchical order, s.176(1)(b) of the FW Act provides firstly, that the employee organisation of employees who will be covered by the proposed agreement who will be the bargaining representative. However, should an employee not wish an employee organisation to be their bargaining representative, the employee must actively (in writing) “opt out” and nominate either themselves or another person.
[51] Where an employee appoints “another person” as their bargaining representative, the only precondition is that the appointment be in writing. Importantly, s.176(1) of the FW Act does not contain any further condition to make the enabling appointment operative.
[52] While the word “person” is not contained within the Dictionary to the FW Act, I have taken its meaning from the Oxford Online Dictionary which provides the following definition of “person” “(in legal or formal contexts) an unspecified individual”.
[53] In my view, subject to Regulation 2.06 of the Fair Work Regulations 2009 any person can literally be any person. Section 176(1) of the FW Act does not set what classes of person are within or excluded from the ordinary meaning of “person”.
[54] The fact that there are no classes of persons who are admitted or excluded from the meaning of “any persons”, is, in my view, not a defect or omission in the FW Act, but illustrative of the fundamental parties to enterprise agreements.
[55] Part 2-4 of the FW Act provides for collective enterprise agreements between an employer and the relevant employees who are employed at the time. These are the primary parties.
[56] With the exception of greenfields agreements, agreements are not made between employers and employee organisations.
[57] The proposed agreement subject to this application is a single enterprise agreement between Technip and its employees.
[58] Employees are at the centre of collective enterprise agreements and, with that in mind, it is they who should determine who their bargaining representative is. Negotiation for a collective agreement, pursuant to s.176(1)(b) of the FW Act commences with the relevant employee organisation being considered the “default” bargaining representative for employees, but that situation only remains until the employee positively decides to the contrary.
[59] Simply put, employees are at the heart of collective enterprise agreements. Further, they have a “right” (s.173(1) of the FW Act) to be represented by a bargaining representative. Further, employees can generally appoint whoever they wish as a bargaining representative.
[60] Further, as stated previously in paragraph [19] of this Decision, the current industrial instrument applicable to the employees provides at Clause 13. Settlement of Disputes, that, “The Company or the employee may be represented by a person before the AIRC”. The nomination of a “person” in the employee’s current agreement neither includes nor excludes who can represent the employee.
[61] I now turn to other provisions in enterprise agreements generally which provide for representation. It is a mandatory term of enterprise agreements that they include a consultation term. The consultation terms, pursuant to s.205(1)(b) of the FW Act, “allow for the representation of those employees for the purposes of that consultation”. Neither the provisions of the FW Act nor the model consultation term contained in the Fair Work Regulations 2009, exclude or include who can be a representative. Further, once the employees have advised their employer, they “must recognise the representative” 13. There is no constraint upon employees when exercising a choice as to who they wish to represent them in the consultation term.
[62] There is also a requirement, pursuant to s.186(6) of the FW Act that, before the Tribunal can approve an enterprise agreement, it must be satisfied that the agreement contains a term about settling disputes. The term must include a provision which allows for the representation of employees. Similar to the consultation term in enterprise agreements, there is no prohibition on which person or which organisation can represent an employee in any dispute settling procedure.
[63] Apart from these intrinsic provisions relating to enterprise agreements in the FW Act, Mr Edmonds referred to several paragraphs in the Explanatory Memorandum to the Fair Work Bill 2008 should there be any uncertainty regarding the provisions contained in s.176(1) of the FW Act.
[64] In particular, Mr Edmonds made reference to paragraph 648 of the Explanatory Memorandum which, in relation to “Bargaining and representation during bargaining” reads:
“Employers and employees are entitled to appoint any person as their bargaining representative for a proposed enterprise agreement”. (my emphasis)
[65] Further, under the same heading in Division 3, the following is contained in paragraph 696:
“Division 3 sets out the rights of employers and employees to appoint a person of their choice as their bargaining representative”. (my emphasis)
[66] At paragraph 715, the Explanatory Memorandum provides:
“Any employee may appoint any person (including himself or herself) as his or her bargaining representative... If a member of an employee organisation appoints a bargaining representative other than the organisation, the employee must notify the employer but need not advise the employee organisation.” (my emphasis)
[67] While Mr Edmonds referred to the above extrinsic material in support of his argument, in my view it was unnecessary, as the words contained in s.176(1) of the FW Act should be given their plain and ordinary meaning. The provisions in s.176(1) of the FW Act are not inconsistent with provisions elsewhere in the FW Act in relation to enterprise bargaining. Nor are the provisions in s.176(1) of the FW Act absurd or repugnant to the scheme of the FW Act.
[68] The scheme of the FW Act provides for employees to be the principle party to enterprise agreement. Representation is an integral part of enterprise bargaining and the relevant employees are required to make a positive choice if they do not want the relevant employee organisation to represent them in that bargaining.
[69] Finally, the employee’s positive choice is only restricted by two reasons. Firstly, the appointed bargaining representative being free from control and improper influence of the employee’s employer or another bargaining representative 14. Secondly, the employee is prohibited in accordance with s.176(3) of the FW Act, from appointing:
“an employee organisation unless the employee organisation is entitled to represent the industrial interests of the employee in relation to work that will be performed under the proposed enterprise agreement” 15
[70] I now turn to the provisions of s.176(3) of the FW Act.
[71] It is not contested by Technip that their relevant employees have appointed Mr Tracey as a bargaining representative. It is a matter of fact that the employees have not appointed the MUA as a bargaining representative.
[72] According to Mr Cameron for Technip, the dispute comes down to the question of whether the MUA is placing itself in the role of a bargaining representative under the guise of Mr Tracey.
[73] Adopting a straight forward, literal approach to the words of s.176(3) of the FW Act, it is plain and certain that Mr Tracey is not an employee organisation and therefore there is no prohibition to his appointment as a bargaining representative.
[74] However, the Employer argues (and it is uncontested) that as the MUA does not have industrial coverage of the relevant employees, Mr Tracey is simply a “front” for the MUA. To demonstrate that Mr Tracey is a “front” for the MUA, Mr Cameron refers to each and every communication from Mr Tracey bearing either the MUA letterhead, logo or his title as an officer of the Union. In addition, Mr Tracey’s telephone contact and email address are the same as he possesses with his position with the MUA.
[75] In my view, Mr Tracey is between a “rock and a hard place” in trying to distinguish between his role as a MUA official and himself as a bargaining representative. If Mr Tracey, as he has done, does not attempt to disguise his role as a MUA official, the Employer asserts that Mr Tracey and the MUA are one and indistinguishable.
[76] Alternatively, if Mr Tracey distances himself from his role as a MUA official by utilising another mobile telephone number and email address, I think it likely that the Employer will assert that he is engaging in subterfuge, and his actions disingenuous.
[77] The option of which course of action to adopt in communicating with the relevant employees, the Employer and AMMA, is for Mr Tracey to choose. Mr Edmonds considered the manner of communication by Mr Tracey “irrelevant” 16 or “static”17. I am unable to agree with that assessment.
[78] Fundamental to the Applicant’s argument and the legislation is that Mr Tracey and the MUA are distinguishable. Ordinarily, if a piece of correspondence comes from an organisation and is signed by a person in his capacity in that organisation, the inference is that you are dealing with the organisation. While, to date, for convenience or transparency, Mr Tracey has communicated using his official MUA email address.
[79] While, as set out in paragraph [13] of this Decision, Technip asserted that Mr Tracey’s appointment as Bargaining Representative was in his role of Assistant Branch Secretary of the MUA, the Employer acknowledged his appointment by a number of employees and “may decide to have discussions with you” 18 about the proposed replacement agreement in the future. On 11 May 2011, the AMMA advised Mr Tracey that it did not have any obligation to Mr Tracey and the Employer would engage directly with the workforce.
[80] In summary, the relevant employees have made an active choice to have Mr Tracey represent them. Having done so, Mr Tracey must present and act as an individual despite any negative inferences from the Employer. In this case, Mr Tracey’s openness in a fairly small, specialised and close industry has for the Employer, led to a negative inference. Notwithstanding these circumstances and any allegations of subterfuge, Mr Tracey must take steps as a private individual to distance himself from his role as Assistant Branch Secretary of the MUA.
[81] The approach adopted by the Employer’s representative regarding union officials as bargaining representatives appeared to vary depending upon the material circumstances. Mr Cameron asserted that if the “purported appointment of an individual is in reality a union in disguise that is precluded under the Act” 19. However, when I questioned him regarding the appointment of an official from the Shop, Distributive and Allied Employees Association, he was equivocal and said it depended upon whether there was a “genuine divorce and disconnect between the official and the union”20.
[82] For Mr Cameron, the key to understanding s.176(3) of the FW Act is to conclude that a union official and the union are indistinguishable and it is for, in this case, Mr Tracey, to demonstrate that they are distinguishable and he is a person who can be a bargaining representative pursuant to s.176(1) of the FW Act.
[83] For Mr Edmonds, the key to understanding s.176(3) of the FW Act is that, as a matter of fact and law, Mr Tracey is not and cannot be an employee organisation (MUA). Further, it is for the Employer to demonstrate, as a matter of law, that any person, including a union official, is prohibited from being a bargaining representative pursuant to s.176(3) of the FW Act.
[84] An analysis of Mr Cameron’s argument for the Employer can be reduced to the following with certainty. An employee organisation cannot be a bargaining representative for an employee unless the organisation is entitled to represent the industrial interests of the employee in relation to the work that will be performed under the agreement.
[85] Moving from the relative certainty of the above position, Mr Cameron moves to the assertion that because Mr Tracey is a MUA official, he cannot be a bargaining representative because the MUA is not entitled to represent the industrial interests of the employees subject to the proposed industrial agreement.
[86] Mr Cameron’s assertion is uncertain as it is based upon the condition that Mr Tracey is an employee organisation or acting on behalf of the MUA. The submission I have from Mr Edmonds is that Mr Tracey is acting as an individual and the MUA concedes that it cannot be a bargaining representative and it does not have constitutional coverage of the relevant employees.
[87] However, Mr Cameron concedes, when moving from the particular premise to the general, his argument becomes much weaker when he states:
“There might be other scenarios where a union official actually is not acting in his capacity as an official for that other union” 21.
[88] Mr Cameron makes some suggestions regarding when an official is not “acting in his capacity as an official for that other union” such as the official not being paid by the union, the official being on a sabbatical, clearly on his time off or “acting off his own bat” 22.
[89] With such an argument, Mr Cameron is moving from the precise and uncontested language of s.176(3) of the FW Act, to a series of scenarios which are intended to infer whether a person is also an employee organisation.
[90] In my view, Mr Cameron’s submission goes against the primary legislative context of s.176 of the FW Act, Part 2-4 of the FW Act and the mandatory content requirements of enterprise agreements which is the right of employees to make a positive choice as to who they wish to have to represent them.
[91] The Employer’s submission is that its particular construction of s.176(3) relating to employee organisations, should take precedent over the choice of an individual employee as to who should represent them in bargaining for a proposed enterprise agreement. This particular submission, is all the more interesting given that under the current enterprise agreement, where Mr Tracey could be appointed as the employee’s representative in the settlement of disputes before this Tribunal.
[92] For the above reasons, I find that there is no legislative impediment to Mr Tracey’s appointment as a bargaining representative for the Technip employees who have nominated him. The orders sought shall be, with modification, granted.
COMMISSIONER
Appearances:
Mr Edmonds of counsel for the Applicant
Mr Cameron of counsel for the Respondent
Hearing details:
2011
Perth
30 May
1 PN 107
2 PN 109
3 PN 117
4 PN 118
5 PN 125
6 PN 128
7 PN 208 and 209
8 PN 220
9 PN 263
10 PN 210
11 PN 214
12 PN 214
13 Schedule 2.3(4)
14 Regulation 2.06
15 Explanatory Memorandum paragraph 718
16 PN 204
17 Ibid
18 Agreed Statement of Facts
19 PN 249
20 PN 253
21 PN 263
22 PN 263
Printed by authority of the Commonwealth Government Printer
<Price code C, PR510212>
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