Who can be a bargaining representative?

For all types of agreement, the representative of an employee must be independent. They cannot be under the control or influence of:

• the employee’s employer
• another bargaining representative.

See section 176 and section 177 of the Fair Work Act 2009.

The following people can be bargaining representatives for a single or multi-enterprise agreement:

• an employer that the agreement covers
• someone the employer appoints
• an employee that the agreement covers
• someone the employee appoints
• a union.

Note: The union is normally the bargaining representative:

• for employees who are members of the union
• if the union has the right to represent the employees for work they will do under the agreement.

If the employees do not want this, they may put in writing:

• the name of another person as their bargaining representative
• their decision that they do not want the union to be their bargaining representative.

The rules are different if a  supported bargaining authorisation is in place for a multi-enterprise agreement.

Unions may apply for a supported bargaining authorisation. This is a step at the start of the process that helps more low-paid employees take part in bargaining.

If a supported bargaining authorisation is in place, the union that applied for it is a bargaining representative. This is the case even if the union would not otherwise be a bargaining representative.

However, they are not a bargaining representative if the employee:

• is a member of another union that also applied for the authorisation
• appoints another person as their bargaining representative
• has stated in writing that they do not want the union as their bargaining representative.

See section 176 and sections 242 to 245 of the Fair Work Act 2009.

The following people can be bargaining representatives for a proposed greenfields agreement:

• an employer that the agreement covers
• a representative that the employer appoints in writing
• a union, if:
  • the union has the right to represent one or more employees who the agreement covers, for work those employees will do under the agreement AND
  • the employer agrees to bargain with that union for the agreement.