Published: 16 Jun 2011
MUA WA official Will Tracey has won the right to be the bargaining representative for a group of oil & gas employees (ROV Operators) whose work is outside the union's coverage, with Fair Work Australia holding there was nothing in the Fair Work Act that prevented it.
The AMMA (Australian Mines and Metals Association), representing Technip Oceania Pty Ltd, had argued that MUA WA branch assistant secretary Will Tracey was a "front" for the union. It maintained that appointing him to represent ROV (Remotely Operated [sub-sea] Vehicles Operators) - whose work is covered by the AMOU - was prohibited by s176(3), under which a union couldn't be a bargaining representative unless it was entitled to represent the employees in the work to be performed.
But Commissioner Danny Cloghan said that when an employee appointed "another person" as their bargaining representative under s176, the only precondition was that the appointment be in writing.
He continued that, subject to Regulation 2.06,"any person can literally be any person. Section 176(1) of the FW Act does not set what classes of persons are within or excluded from the ordinary meaning of 'person'" - which was "in my view, not a defect or omission in the FW Act, but illustrative of the fundamental parties to enterprise agreements".
He continued that: "Simply put, employees are at the heart of collective enterprise agreements. Further, they have a 'right' (s173(1) of the FW Act) to be represented by a bargaining representative. Further, employees can generally appoint whoever they wish as a bargaining representative."
Commissioner Cloghan said that the dispute settlement provision in the current deal covering the employees in any case provided that the company or employee "may be represented by a person before the AIRC", while neither the Fair Work Act nor the model consultation term in the regulations contained exclusions or inclusions on who could be a representative.
On the s176(3) prohibition on appointing an employee organisation unless it was entitled to represent the employees, the AMMA argued that Tracey was a "front" for the MUA, with all communication from him bearing the union letterhead, logo, or his title, and his phone and contact details the same as the MUA's.
But Commissioner Cloghan said that Tracey was "between a 'rock and a hard place'" on this, and that if he didn't attempt to disguise his role as a MUA official, which he hadn't done, employers would assert he and the MUA were indistinguishable, whereas if he had it was "likely that the Employer will assert that he is engaging in subterfuge, and his actions disingenuous".
In summary, he said that: "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 AMMA in the hearing argued that Commissioner Bruce Williams in Canning v Fremantle Port Authority had allowed Tracey to be a bargaining representative for a group of workers, but the decision could be distinguished. It went on to maintain that Deputy President Brendan McCarthy reached a "diametrically opposed conclusion" in Mr Douglas Heath v Gravity Crane Services Pty Ltd), but Commissioner Cloghan disagreed with the employer group's assessment, saying "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."
The latest decision by Commissioner Cloghan means all three WA commissioners have a found that a union official can be appointed an individual bargaining representative.
Will Tracey on May 12 applied for s229 bargaining orders after AMMA wrote to him following his appointment as bargaining representative by a number of Technip's employees, saying it was not prepared to recognise him and that it was "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".
