A recent decision handed down by Fair Work Australia (FWA) rejected an attempt by the Maritime Union of Australia (MUA) to obtain a majority support determination. The attempted strategy by the MUA (via its organiser Mr Heath) represents a concerted effort to infiltrate significant projects in WA's northwest and attract members in workforces that have not traditionally been targeted by the MUA.
This is an important decision as the encroachment of unions into areas over which they do not have coverage under their rules is becoming a serious issue in many places, particularly in construction. Majority support determinations have proven to be very difficult to challenge.
A summary of the case
In a decision delivered on 5 October 2010, Douglas Heath v Gravity Crane Services Pty Ltd [2010] FWA 7751, FWA refused to make an application made by Mr Heath for a majority support determination against Gravity Crane Services Pty Ltd (Gravity). DLA Phillips Fox represented the respondent employer.
Gravity is based in Port Hedland and supplies taxi hire and dry hire mobile cranes to Jan De Nul on the BHP Billiton works known as the Rapid Growth Project. Mr Heath is an organiser employed by the MUA and, like Gravity, is based in Port Hedland. Mr Heath argued before FWA that he had been appointed in his personal capacity as a bargaining representative by a majority of Gravity's employees and had attempted to enter into bargaining with Gravity to negotiate a new enterprise agreement. Gravity refused to bargain with Mr Heath and Mr Heath brought an application for a majority support determination to force Gravity to begin bargaining. DLA Phillips Fox, on behalf of Gravity, argued that for all intents and purposes Mr Heath was the MUA and, as the MUA did not have coverage over Gravity's employees, he was precluded from being appointed as a bargaining representative under the Fair Work Act (FW Act).
FWA considered the purpose of the FW Act and accepted that Mr Heath was acting as the MUA and not in his personal capacity. FWA therefore refused to make the majority support determination.
If the application had been successful it would have caused considerable damage in lost time and profits to Gravity while a new agreement was negotiated at increased wage rates and benefits.
What should you do?
In light of the MUA's apparent new strategy employers should be wary of any request or demand by the MUA (or MUA employee) to enter into bargaining for an enterprise agreement. Before responding to any such request employers should seek advice on how to respond. Employer's should understand what rights a union has to represent its employees. It may not have any.
This case reflects a growing level of activity by unions. At DLA Phillips Fox we have observed first-hand the increased level of activity. This is also reflected in another recent matter in which DLA Phillips Fox acted for Boskalis Australia, a dredging contractor on the Gorgon project, in a successful application against the MUA in FWA to stop industrial action by MUA member employees (Boskalis Australia Pty Limited v Maritime Union of Australia [2010] FWA 7508).
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