The Full Bench of the Fair Work Commission has confirmed in a significant decision this week that a union’s right to represent workers is subject to its membership eligibility rules.
The Full Bench of the FWC rejected an appeal by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) against an earlier FWC ruling that the CEPU was not able to represent employees of a vegetation clearance company because they were not captured by the CEPU eligibility rules.
The CEPU had sought to represent the employees of Active Tree Services in bargaining for an enterprise agreement. The company, which clears trees and vegetation in a wide range of circumstances, including around power lines, streets, gardens and infrastructure projects, currently has individual contracts with its employees.
The CEPU attempted to challenge the FWC’s November decision on the basis that while “working in the vicinity” of power lines may not make the employees eligible to be CEPU members, there were broader considerations about whether or not vegetation clearing “was incidental to the electrical industry”.
The CEPU also argued that such work had historically been performed by electricity linesmen and that a broad interpretation of the CEPU’s rules could lead to a conclusion that people performing power line maintenance could be defined as “linesmen”, or that the work is peculiar to the electrical industry.
The Full Bench of the FWC disagreed and dismissed the CEPU’s right to appeal.
In its judgement, the Full Bench said the CEPU had failed to show that “the scope of its rules extended to embrace the employees” of Active Tree Services.
It added that “it is clear that the eligibility for membership of the (CEPU) is not simply based on any calling in the electrical industry but on those callings which are peculiar, in the sense of exclusive, applicable only, to the electrical industry”.
The Full Bench also said that the CEPU’s view that Active Tree Services’ employees could be regarded as electrical labourers or linesmen “was considered and expressly rejected” in the earlier hearing.
Business SA workplace relations senior consultant Vikki Hinton represented Active Tree Services, a Business SA member, in the initial hearing and appeared with legal counsel in the appeal. Hinton said the Full Bench decision was a significant ruling.
“Employers should be aware that union eligibility rules enable them to represent certain workers but by no means all workers and this should be a preliminary point of consideration when negotiating with unions,” Hinton told Business Insight.
“In this case, the CEPU approached our member on behalf of the employees with the aim of negotiating an enterprise agreement,” she said.
“We advised that the union did not have coverage of our member’s employees and the Fair Work Commission has agreed, on two occasions, with Business SA’s view.
“We would encourage all employers to seek expert advice if they find themselves in a similar situation.”
Business SA’s workplace relations advisers can be contacted on (08) 8300 0000.
