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RTBU hails “no names” ruling

Apr 28, 2017News

An FWC full bench has confirmed that unions can file disputes in their own names without having to identify the employees involved.

Vice President Adam Hatcher, Deputy President Lyndall Dean and Commissioner Tony Saunders upheld an appeal by the RTBU, accepting that while in “some circumstances ” the Fair Work Act required parties to be identified as belonging to a class of employees when an application is filed, it did not follow that they needed to be individually named.

Deputy President Peter Sams in his January decision (see Related Article) allowed Asciano Services Pty Ltd t/a Pacific National’s jurisdictional objection that the union could not lodge the dispute in its own right.

The deputy president said the s739 dispute filed by the RTBU last September did not satisfy the requirements of the agreement because it was made on behalf of unnamed members.

While the union had obtained written and verbal consent to represent its members, this did not “cure the defect” in its application or satisfy the “jurisdictional gateway” of s739, said Deputy President Sams.

The full bench found, however, that if the Commission required further information about which individuals belonged to a group of employees, it could issue directions.

This would allow an employer “as a matter of natural justice” to understand the case it has to meet to deal with a dispute, including the names and circumstances of employee parties to the dispute, the full bench said.

Dealing with disputes in this way is consistent with the Commission’s duty to “perform its functions and exercise its powers” in a way that is “quick, informal and avoids unnecessary technicalities”, it said.

“In our view, it would be contrary to the obligations imposed on the Commission pursuant to s577 of the [Fair Work Act] for s739 applications to be automatically dismissed on the basis that every employee party to the dispute was not identified by name in the application,” it said.

“In the present case, we accept that the parties to the dispute. . . were Pacific National and members of the RTBU who were impacted by the removal of planning unit positions located at Port Waratah or the Illawarra Bulk Terminal.

“It follows that the requirement under s739(6) of the FW Act for there to be an ‘application by a party to the dispute’ was satisfied in this case.”

In light of the “appealable errors” it identified, the full bench said it was in the public interest to ensure clarity around the Commission’s jurisdiction to deal with disputes brought by unions for their members.

For its part, the RTBU argued Pacific National failed to comply with the consultation and change provisions of the redundancy process set out in the Pacific National Coal NSW Enterprise Agreement or adequately consult with employees or the union about the proposed changes (see Related Article).

RTBU National lawyer Mark Diamond says the decision confirms employees can maintain their anonymity in disputes when they are adequately identified as a class or group.

He says unions can now be assured that they can “safely notify a company of a dispute in their own name as a representative and apply to the Commission”.

Australian Rail, Tram and Bus Industry Union v Asciano Services Pty Ltd t/a Pacific National [2017] FWCFB 1702 (24 April 2017)

Originally published in Workplace Express

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