Is it acceptable for a manager in a small business to be appointed by the staff as their bargaining representative or could the manager be seen to be influenced by the employer by virtue of being a manager?
As you have touched on, regulation 2.06 of the Fair Work Regulations 2009 provides that a bargaining representative may be appointed, so long as they are:
- free from control by the employee’s employer (or another bargaining representative); and
- free from improper influence from the employee’s employer (or another bargaining representative).
Case law appears to suggest that managers may be appointed as employee bargaining representatives.
In a recent case, Maritime Union of Australia v Sea Swift Pty Ltd and Ors (2016), the Full Bench of the Fair Work Commission upheld a decision that employees had genuinely agreed to an enterprise agreement, although the bargaining representative was a senior manager, for the following reasons:
- senior management was itself covered by the agreement; and
- the manager took all reasonable steps to ensure that the terms of the agreement were explained to relevant employees.