The Fair Work Commission ("FWC") has ruled that employees cannot nominate multiple bargaining agents to represent them in relation to the negotiation of a new enterprise agreement.
Three unions were bargaining with Spotless Facility Services Pty Limited for a new enterprise agreement following the nominal expiry of the Spotless Anglo Coal Facilities Management Enterprise Agreement 2012 on June 30, 2015. Various individual employees had signed letters of appointment purporting to appoint up to four bargaining representatives to represent them in the negotiations.
The unions applied to the FWC for bargaining orders under section 229 of the Fair Work Act 2009 (Cth) ("FWA") in relation to the letters of appointment. The unions argued that the nomination of multiple bargaining representatives to represent a single employee was not permitted under section 176(1)(c) of the FWA. Section 176(1)(c) provides that "a person is a bargaining representative of an employee who will be covered by the agreement if the employee appoints, in writing, the person as his or her bargaining representative."
The unions argued that the use of singular language in section 176(1)(c) makes it clear that an employee can appoint only one employee bargaining representative to represent him or her. Deputy President Sams of the FWC agreed with the unions and held that by virtue of section 176(1)(c), the employees could not properly appoint more than one bargaining representative. The Deputy President recommended that a written notice be issued under section 176(1)(c) stating that the nomination of a employee bargaining representative will have effect only if one employee bargaining representative is nominated.