Australia: FWA encourages competitive unionism – demarcation disputes to follow?

Introduction

A recent decision of the Full Bench of FWA has sparked speculation of a return to the dark days of significant demarcation disputes between competing unions.

In SDA -v- NUW [2012] FWAFB 461, the FWA Full Bench expressly abandoned the tradition of "one workplace, one union", and instead emphasised the freedom of employees to join the union of their choice.

Background

The Shop, Distributive and Allied Employees Association (SDA) and the National Union of Workers (NUW) are both able to represent employees in retail distribution centres. In Queensland, the SDA has tended to cover distribution centres operated by retailers, and the NUW has tended to cover wholesale warehouses.

Woolworths operates a distribution centre in Brisbane. The SDA has a long history of enrolling and representing employees at that site, stretching back to at least 1977. The NUW, in comparison, started to become involved on the site in 2005, leading the Australian Council of Trade Unions (ACTU) to issue a statement in 2005, and again in June 2011, confirming that in its view, the SDA was to have sole coverage of the worksite, and the NUW should desist from having active organisers on the site.

In August 2011, Woolworths began bargaining for an enterprise agreement to cover the worksite. Both the SDA and the NUW participated in the negotiations as bargaining representatives. SDA and Woolworths reached agreement on a new enterprise agreement, but the NUW does not support the proposed Agreement.

The claim to Fair Work Australia

The SDA applied to the Full Bench of FWA for a "representation order" under the Fair Work (Registered Organisations) Act 2009 (Cth). The SDA sought an order that would exclude the NUW from being able to recruit members at the site, effectively giving the SDA exclusive rights to recruit those employees.

At the time of the application, the worksite had approximately 1,200 employees, 561 of which were SDA members, and 273 were NUW members.

The SDA argued that the NUW was frustrating and impeding the process of the negotiations, in breach of a long-standing demarcation agreement and in defiance of the ACTU's determination.

The NUW contended that it had never reached any agreement with the SDA over demarcation, that the ACTU's determinations were irrelevant as the ACTU did not participate in the proceedings, and further provided a petition signed by 325 employees (some of whom were SDA members) supporting the right of the NUW to represent employees at the worksite.

Decision by Fair Work Australia

The Full Bench stated that, if the case turned on choosing the best union to exclusively represent the site, then the SDA's arguments would carry considerable weight. However, it said that the question was not "choosing the best union" to exclusively represent workers on the site, but whether an exclusivity order should be granted at all.

The Full Bench found that the Fair Work Act (Cth) had changed the traditional approach of discouraging competition between unions for members. Instead, the Fair Work Act emphasised the right of an employee to choose whatever bargaining representative they wished. The Full Bench stated:

"The freedom of employees to choose their bargaining representatives and provisions of the FW Act that support the right to freedom of association significantly reduce the significance of the historical assumptions that have applied in matters of this type. In our view a strong case needs to be presented for an order to be made which would have an effect to modify current statutory rights. We do not consider that the SDA has established a sufficiently strong case".

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