A Fair Work Australia Full Bench has recently reinforced the limitations around individuals seeking to act as bargaining representatives when they are also officials of unions not entitled to represent the industrial interests of employees involved in enterprise bargaining, and clarified when a union official will be regarded as acting in a private capacity or representing a union.
In Technip Oceania Pty Ltd v Tracey  FWAFB 6551, a Full Bench of Fair Work Australia held that Will Tracey, Assistant Branch Secretary for the Maritime Union of Australia (MUA), was acting in his capacity as a union officer and not as a private individual when representing employees in enterprise bargaining. Given the MUA was not entitled to represent the employees who were intended to be covered by the enterprise agreement, the employer was not required to recognise Mr Tracey as a bargaining representative.
Technip employ a number of people as casual employees to operate Remotely Operated Vehicles (ROV’s) in offshore oil and gas fields. They are employed under the ROV Casual Employee Collective Agreement 2009 (Agreement), which had a nominal expiry date of 27 July 2011. Will Tracey was appointed by the employees covered by the Agreement to bargain for the proposed replacement agreement. At the time, Mr Tracey was the Assistant Branch Secretary for the Maritime Union of Australia (MUA).
Technip refused to recognise Mr Tracey as the appointed bargaining representative, arguing that he was doing so in his capacity an MUA official, and it was the Australian Maritime Officer’s Union (AMOU) that covers ROV operators. Technip argued that section 176(3) of the Fair Work Act 2009 (Cth) (Act) prevented him from acting in the negotiations. Section 176(3) of the Act provides that a union cannot act as a bargaining representative unless the organisation is entitled to represent the industrial interests of the employee in relation to work that will be performed under the agreement. Here, the MUA was not entitled to represent the industrial interests of the ROV operators but the AMOU was.
Mr Tracey then made an application to Fair Work Australia (FWA) for bargaining orders under section 229 of the Act, seeking orders that Technip:
Commissioner Cloghan outlined the lack of limitations as to what class of “persons” could be bargaining representatives under section 176 of the Act, and said that considering employees are at the centre of the negotiation of an enterprise agreement, they should be able to determine who their bargaining representative is. Further, neither the required consultation clause in the Agreement, nor the model consultation term found in the Fair Work Regulations 2009 (Cth) provided for a particular type of representative.
Accordingly, the Commissioner said that there were only two limitations upon the appointment of a representative:
Mr Tracey was clearly independent, and the Commissioner was also satisfied that Mr Tracey was acting in his personal capacity, rather than in the capacity as an official of the MUA. Therefore, there was nothing to prevent him acting as the appointed bargaining representative.
Technip appealed, arguing the application under section 229 for bargaining orders was not made in Mr Tracey’s personal capacity but rather in his role as an MUA official.
The majority (consisting of His Honour Justice Giudice and Commissioner Blair) of the Full Bench of FWA found that the application that was made under section 229 of the Act was invalid because, at the time, Mr Tracey was acting in his capacity as a MUA official and not in a personal capacity. The majority considered relevant factors to include:
Senior Deputy President Drake dissented and considered that Mr Tracey was acting in a personal capacity. Her Honour considered that the majority's conclusion did not take into account what Mr Tracey was doing in his individual capacity as a bargaining representative, including in all his communications confirming his status as an individual acting as a bargaining representative.
As a result of this decision, permission to appeal was granted and the decision to make bargaining orders was quashed.