Right to belong, No right to be represented

A full bench of the WA Industrial Relations Commission has allocated 
union coverage at BHP's Pilbara operations on the basis of its and BHP's 
preference of unions, contrary to the wishes of the workers concerned.

The dispute centres around coverage of work traditionally done by members 
of the Australian Workers' Union (AWU).

In mid-1998 around 250 workers at BHP's port operations in the Pilbara 
resigned from the AWU.

After several months not in a union, they held discussions with the 
Construction Forestry Mining and Energy Union (CFMEU) and asked to join the 
CFMEU.

The CFMEU was not party to their agreement but agreed to admit them and try 
to do its best to represent them.

The CFMEU lodged an application to get coverage for them, and the AWU 
lodged an application seeking to reaffirm coverage of those particular 
areas.

The CFMEU sought orders for a ballot to determine their preference. This 
was was opposed by the AWU and BHP, and denied by the Commission.

The Commission heard the case and reaffirmed the AWU's exclusive coverage 
and denied the CFMEU coverage, despite the workers being dissatisfied with 
the AWU and wanting to be covered by a union they feel comfortable with..

In its decision (September 22) the Commission found that "the AWU has 
adequately represented its members in the Pilbara (particularly BHP 
employees) and has the capacity to continue to do so".

The Commission said that it was reluctant to change historical coverage.

Commission President Sharkey and Commissioners Coleman and Kenner were 
satisfied that the CFMEU "is seen as a more rigid organisation by the 
employer and an organisation that is more resolute by some of its members".

They described the CFMEU in WA as a shell deriving its "influence and 
impetus" from the federal organisation.

In making its decision the Commission took into consideration "Employer 
preference", "Industrial behaviour of the organisations concerned", "the 
effect it would have on work practices and award structures, and the 
potential for disputes".

In other words, the Commission was concerned with the militancy of the 
CFMEU and the likelihood of the union to stand up to management and 
represent its members' interests.

It opted for the notoriously tamer union in line with BHP's wishes.

BHP is looking for a climate in which it can replace collective agreements 
by non-union individual contracts.

The Commission in its decision admits that the CFMEU's claim that the 
overwhelming majority of the relevant BHP employees strongly wished to be 
represented by the CFMEU was not contradicted.

The CFMEU argued that the preference of the workers was clearly indicated. 
Not a single employee gave evidence that they wished to be covered by the 
AWU.

The Commission's decision does not deny Pilbara workers the right to join 
the CFMEU but it does deny them the legal right to be represented 
industrially by that union, the union of their choice.

Despite the decision, most of the CFMEU members have remained in the union.

The immediate priority now for the CFMEU and other unions at the Pilbara is 
to work as a single bargaining unit to put in place a collective agreement 
to ensure there is job security for all workers at BHP.

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