Employers warned on employee representation rights as employer group wins Fair Work Australia appeal

Fair Work Australia will take a fresh look at an agreement between a steel business and its six employees, after the Full Bench overturned a previous ruling yesterday, raising concerns over the decision itself and how it was reached.

Galintel operates a rolling mill in Yagoona New South Wales and has six operational employees. It is part of the larger Graham Group and was represented by the Australian Industry Group, which has described yesterday’s decision as a “victory for commonsense and natural justice.”

The case relates to the legality of a slip within a form to employees that allowed them to nominate a bargaining representative, with unions arguing it was not in accordance with the Fair Work Act.

In a decision yesterday led by Vice President Watson, FWA concluded that a decision by Commissioner Ryan in July had been made “without providing procedural fairness to the parties to the agreement.”

“Further, the decision did not properly apply the provisions of the [Fair Work] Act regarding the requirements for approval. For the reasons above we grant permission to appeal and allow the appeal,” FWA said.

“As there are other matters regarding the approval requirements under the Act which have not been addressed by the Commissioner or in this appeal we will remit the application for approval to the head of the relevant panel for reallocation and consideration of the remaining approval requirements.”

Industrial relations lawyer Peter Vitale says FWA found that Commissioner Ryan “failed to allow the company a reasonable opportunity to address the concerns that he had expressed about the agreement.”

“The commissioner had expressed some concerns about how they [Galintel] reached the agreement with their employees and had asked the manager a series of questions during the hearings, and the difficulty was he didn’t give the company a further opportunity to respond to questions and therefore to address the commissioner’s concerns,” Vitale says.

“Secondly, they found that the Commissioner was wrong to determine that the notice of employee representational rights was not in the accordance of the [Fair Work] Act, as had been argued by the union and as reflected in the decision of the commissioner.”

Vitale says the lessons out of this case are “you shouldn’t stray too far from the proscribed terms of the notice of employee representation rights within the Act.”

“There have been a few cases about whether or not a notice complies with the Act, and if the notice doesn’t comply the agreement has not been validly made.”

“The last thing employers would want is their agreement to be tripped up because they’ve failed over probably one of the most basic hurdles.”

Vitale adds that employers cannot suggest to employees that they shouldn’t engage a union as a representative or that they should prefer other representation.

“It’s a question of being careful if you’re going to be cute.”