Fair Work Australia upholds workers’ rights to appoint MUA representative

Fair Work Australia has ruled that the Fair Work Act does not stop a Maritime Union of Australia official from representing a group of workers outside his union’s traditional area of coverage.

William Tracey, an official of the Maritime Union of Australia in Western Australia, has won the right to be the bargaining representative for a group of oil and gas employees, despite the group’s work falling outside MUA’s purview.

Industrial relations lawyers say Tracey’s decision to represent the workers as a private individual, rather than an MUA official, was key to the ruling, as well as the group’s decision to seek him out rather than vice versa.

The Australian Mines and Metals Association, working alongside Technip Oceania Pty Ltd, argued that Tracey was a “front” for the union, and his appointment as representative was not permitted under Labor’s Fair Work Act.

But Fair Work Australia ruled this month that there was nothing in the Fair Work Act that prevented him from representing the workers, with Commissioner Danny Cloghan saying when an employee appointed “another person” as their bargaining representative, the only precondition was that the appointment be in writing.

“Simply put, employees are at the heart of collective enterprise agreements. Further, they have a ‘right’ … to be represented by a bargaining representative,” Cloghan said.
“Further, employees can generally appoint whoever they wish as a bargaining representative.”

Cloghan added: “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.

The Australian Mines and Metals Association slammed the decision.

“Union access to workplaces has been completely opened up under the Fair Work Act. This has happened despite past promises made by the Labor Government to maintain a sensible balance and consider the interests of the 85% of workers who choose not be associated with a union,” AMMA chief executive Steve Knott said today.

“The potential for this type of decision to lead to union demarcation disputes and ‘turf wars’ should also not be underestimated.”

AMMA this month confirmed it was seeking fund to contest FWA’s rulings and “intervene and protect the interests of resource industry employers in a growing number of Fair Work Australia determinations that are adverse to employers’ interests.”

Industrial relations lawyer Andrew Douglas, of Macpherson + Kelley, described the ruling as “odd”, but said any appeal was unlikely to succeed given this was the third such ruling, and the Act does not prohibit a union official who doesn’t have coverage on the site from representing workers.

But he questioned the company’s decision to contest Tracey’s appointment by its employers, saying employers should be willing to work with whoever comes in front of them.

“The bottom line is, why would an employer fight about something like this, and empower on the union?” Douglas said.

“Why would you give voice to your fears of the union?”

Nonetheless, Douglas said business has genuine concerns about how the more aggressive unions could target employers, and the coverage unions could get from representing high-profile cases.