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.
See Fair Work Act 2009 ss.176–177
The following people can be bargaining representatives for a proposed enterprise agreement:
An employee who will be covered by the agreement may appoint himself or herself as his or her bargaining representative for the proposed agreement.
A union is the default bargaining representative for an employee if:
However, the union will not be the employee's bargaining representative if:
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.
An example is provided in the Explanatory Memorandum:
This means, that during bargaining, an employee who is a member of a union may appoint their own bargaining representative with the effect that the automatic appointment of the union as that employee's bargaining representative will cease to apply.
The following persons can be bargaining representatives for a proposed enterprise agreement that is a greenfields agreement:
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:
See Fair Work Act s.178
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:
An appointment of a bargaining representative comes into force on the day specified in the instrument of appointment.
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.
A bargaining representative of an employee must be free from control by or improper influence from the employee's employer or another bargaining representative.
See Fair Work Act s.178A
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:
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.