Bargaining representatives

Employers and employees may appoint any person as their bargaining representative for a proposed enterprise agreement.

Bargaining representatives are entitled to bargain for enterprise agreements and depending on the type of agreement will usually be entitled to apply to the Fair Work Commission for orders and determinations relating to enterprise bargaining. Bargaining representatives are also entitled to represent a person in other types of matter before the Commission.

Bargaining representatives are required to meet the good faith bargaining requirements.

Non-compliance with these requirements exposes a bargaining representative to bargaining orders. (This only applies to bargaining representatives for a single-enterprise agreement or bargaining representatives for multi-enterprise agreements in the low-paid bargaining stream.)

Once bargaining for a proposed enterprise agreement has commenced, all bargaining representatives are required to recognise and bargain with the other bargaining representatives for the proposed agreement.[1]

Related information

• Good faith bargaining requirements

• Bargaining orders

See Fair Work Act 2009 ss.176–177

For a proposed single-enterprise agreement (that is not a greenfields agreement)

The following people can be bargaining representatives for a proposed enterprise agreement:

• an employer that will be covered by the agreement
• a representative appointed by an employer
• an employee that will be covered by the agreement
• a representative appointed by an employee, or
• a union (by default if an employee is a member).[2]

Employee may appoint himself or herself

An employee who will be covered by the agreement may appoint himself or herself as his or her bargaining representative for the proposed agreement.

Role of unions

A union is the default bargaining representative for an employee if:

• the employee is a member of the union, and
• the union is entitled to represent the industrial interests of the employee in relation to work that will be performed under the agreement.

However, the union will not be the employee's bargaining representative if:

• the employee revokes the status of the union as his or her bargaining representative; or
• appoints another person, or appoints himself or herself, as bargaining representative for the agreement.[3]

A union or an official of a union (whether acting in that capacity or not) cannot be a bargaining representative of an employee unless the union is entitled to represent the industrial interests of the employee in relation to work that will be performed under the agreement.[4]

For a proposed single-enterprise agreement that is a greenfields agreement

The following persons can be bargaining representatives for a proposed enterprise agreement that is a greenfields agreement:

• an employer that will be covered by the agreement
• a person who 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
• a union:
  • that is entitled to represent the industrial interests of one or more of the employees who will be covered by the agreement, in relation to work to be performed under the agreement, and
  • with which the employer agrees to bargain for the agreement.[6]

For a proposed multi-enterprise agreement if a low-paid authorisation is in operation

If a union applied for the authorisation and the union would not otherwise be a bargaining representative of an employee who will be covered by the agreement, the union is taken to be a bargaining representative of the employee unless the employee:

• is a member of another union that also applied for the low-paid authorisation
• has appointed another person as his or her bargaining representative, or
• has revoked the status of the union as his or her bargaining representative.[7]

See Fair Work Act s.178

Notification in writing

For a person to be recognised as a bargaining representative for a proposed enterprise agreement, they must be appointed in writing (by an instrument of appointment), except in the case of a union that is a default bargaining representative.

A copy of the instrument of appointment must:

• for an appointment made by an employee who will be covered by the agreement – be given to the employee's employer
• for an appointment made by an employer that will be covered by a proposed enterprise agreement (that is not a greenfields agreement) – be given, on request, to a bargaining representative of an employee who will be covered by the agreement, and
• for an appointment made by an employer that will be covered by a proposed single-enterprise agreement that is a greenfields agreement – be given, on request, to a union that is a bargaining representative for the agreement.

When appointment of a bargaining representative comes into force

An appointment of a bargaining representative comes into force on the day specified in the instrument of appointment.

No limitations

There is no limitation within the Fair Work Act on when a person may appoint or change or revoke the appointment of a bargaining representative.

Independence

A bargaining representative of an employee must be free from control by or improper influence from the employee's employer or another bargaining representative.[8]

See Fair Work Act s.178A

For a proposed enterprise agreement (that is not a greenfields agreement)

The appointment of a bargaining representative for a proposed enterprise agreement, and the default representation by a union of a member, may be revoked by written instrument.

A copy of a revocation instrument:

• made by an employee who will be covered by the agreement – must be given to the employee's employer, and
• made by an employer that will be covered by a proposed enterprise agreement, other than a single-enterprise agreement that is a greenfields agreement – must be given to the bargaining representative and, on request, to a bargaining representative of an employee who will be covered by the agreement.

For a proposed single-enterprise agreement that is a greenfields agreement

The appointment of a bargaining representative made by an employer that will be covered by a proposed single-enterprise agreement that is a greenfields agreement may be revoked by written instrument.

A copy of a revocation instrument must be given to the bargaining representative and, on request, to a union that is a bargaining representative for the agreement.

Able to act as a bargaining representative

Union entitled to represent the industrial interests of employees

Uniting Church in Australia Property Trust (Q) T/A Blue Care and Wesley Mission Brisbane v Queensland Nurses’ Union of Employees [2014] FWCFB 1447 (Acton SDP, Drake SDP C, Booth C, 24 March 2014).

The employer engaged two types of employees, nurses and support and care employees, covered by two separate enterprise agreements. During bargaining for a new enterprise agreement in relation to care and support employees, the Commission made a bargaining order following an application from the Queensland Nurses' Union of Employees (QNU).

The employer appealed the decision to make the order on the basis the Commission had erred in finding that QNU was a bargaining representative for the proposed enterprise agreement.

At first instance, the Commission undertook an analysis of QNU's eligibility rules and concluded that the work performed by the two employees who were members of the QNU was of a type that entitled QNU to represent those employee's industrial interests..

The employer argued that the Commission had mischaracterised the work performed by the two QNU employees and that it could not meet the definition of the relevant work within the QNU's eligibilty rules. On that basis, the employer argued, QNU was not entitled to represent the industrial interests of the two employees

In finding that QNU was entitled to represent the industrial interests of the two employees, the Full Bench considered the work to be performed by the employees under the proposed enterprise agreement. The Commission was satisfied that the classification structure in the proposed agreement provided enough flexibility that the work to be performed by the two employees would include work that met the relevant definition in QNU's eligibility rules. QNU was therefore a bargaining representative for the proposed enterprise agreement.

NOT able to act as a bargaining representative

Employer bargaining representative not validly appointed

First application – Appeal: Kaizen Hospitals (Essendon) Pty Ltd v Australian Nursing Federation [2012] FWAFB 8866 (Boulton J, Kaufman SDP, Cribb C, 18 October 2012), [(2012) 224 IR 400].

Second application – Approval decisions: Re Australian Nursing Federation [2012] FWAA 10420, [2012] FWAA 10505, [2012] FWAA 10511 (Hamilton DP, 20 December 2012).

Appeal: Re Kaizen Hospitals (Malvern) Pty Ltd T/A Malvern Private Hospital and Others [2013] FWCFB 1846 (Watson SDP, Hamberger SDP, Cargill C, 26 March 2013).

Judicial review: Judicial review: Kaizen Hospitals (Essendon) Pty Ltd v Australian Nursing and Midwifery Federation [2014] FCA 428 (2 May 2014).

Full Court appeal: Australian Nursing and Midwifery Federation v Kaizen Hospitals (Essendon) Pty Ltd [2015] FCAFC 23 (5 March 2015).

The Commission, at first instance, approved three enterprise agreements covering nurses at the Essendon Private Hospital, Malvern Private Hospital and Melbourne Eastern Private Hospital in Victoria. In relation to the original applications, each application:

• was made in the name of the employing company at the relevant hospital
• identified SIAG Pty Ltd as the applicant’s representative
• stated that the applicant company appointed SIAG as its bargaining representative, and
• was signed by a representative of SIAG in the capacity/position as "Employer Bargaining Representative".

The appellants contended that the Commission erred in approving the agreements, because the hospitals did not agree to the terms of the relevant agreements, did not appoint the employer bargaining representative (SIAG) which made the applications for the approval of the agreements, and did not authorise the company representative who made the statutory declarations in support of approval to do so.

The Full Bench found that the applications for approval were not validly made. If the applications were made by an employer bargaining representative, then they were made by one who was not validly appointed in accordance with the Fair Work Act. There was no instrument of appointment or other written document or any other evidence produced in the appeal proceedings to show that SIAG had been appointed as the employer bargaining representative for the agreements. The mere lodgement of an application in the name of an employing entity but without authorisation to do so is not sufficient to meet the requirements of the Fair Work Act. Accordingly permission to appeal was granted in each matter, the appeals were allowed and the approval of the agreements set aside.

The Australian Nursing and Midwifery Federation (ANMF) made a second application, on the basis that the employers were acting as their own bargaining representatives. These were again approved at first instance. A Full Bench of the Commission denied the hospitals' permission to appeal. The hospitals then applied to the Federal Court for a judicial review which found an absence of authority for the agent to sign agreement on behalf of the employers, the approval by the Commission at first instance was quashed.

A subsequent appeal was made to the Full Court of the Federal Court by the ANMF. The Full Court found that the employer bargaining representative was acting within the scope of his ‘apparent authority’ and as a consequence each agreement could be considered signed by the employer as a matter of law. The Full Court upheld the appeal and set aside the orders made by the judge in the judicial review.

Union had no member who would be covered by the agreement

"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) v Inghams Enterprises Pty Ltd [2011] FWAFB 6106 (Acton SDP, Hamilton DP, Simpson C, 8 September 2011), [(2011) 212 IR 351].

The AMWU gave notice to Inghams of its intention to make an enterprise agreement with Ingham Enterprises Pty Ltd in respect of employees at Grant Road, Somerville covered by the Metal, Engineering and Associated Industries Award. Inghams replied to the AMWU advising that it only had two employees in its maintenance department and both employees were covered by individual agreement-based transitional instruments with nominal expiry dates that had not yet passed. Inghams went on to advise it did not agree to commence bargaining for an enterprise agreement.

Some time subsequently Inghams initiated bargaining with two of its employees employed to conduct engineering maintenance and repairs at its Somerville plant. The two employees each appointed a person other than the AMWU as a bargaining representative. The Somerville Agreement was made as a result of the two employees voting to approve it. The application for approval was accompanied by a conditional termination instrument.

The AMWU submitted it had a right to be notified of and/or appear in the proceedings before the Commissioner for approval of the Somerville Agreement and it was not notified of or given the opportunity to appear in those proceedings.

To be a bargaining representative, the AMWU had to have at least one member who would be covered by the agreement. Evidence indicated the AMWU had no such member. As a result the Commission was not satisfied the AMWU was a bargaining representative.