Right to union representation: an important right for SDA members

March 14, 2022 News

It is often the case that SDA members will rely not only on the advice of the SDA but its ability to provide representation at meetings. Most requests for representation relate to disputes or when a member faces a disciplinary action. At these times some employers might inform the member that their representative is acting in a support role only and is to be a ‘silent witness’ without any ability to speak on the member’s behalf.

The SDA has always maintained and enforced (when needed) its right to ‘represent’ so when a Shop Steward, Delegate or Union Official acts in the role they maintain the ability to talk, clarify, question and argue on the member’s behalf.

Importantly, the Federal Court in Vong v Sika Australia Pty Ltd has approved the position taken by the SDA.

In this case the employee was terminated for refusing to attend a disciplinary process where the Human Resources manager had refused the Union Organiser the right to represent the employee. The HR Manager knew the employee had concerns with the process and was not fully capable of understanding it but went as far as to insist that the Organiser sign a form stating that he would be a ‘silent witness’ without any ability to talk for the member.

The Federal Court found that the actions of the HR manager constituted an unlawful reason to terminate as it prevented the employee from having appropriate and requested union representation. Also, the HR manager breached the legislation that applied at the time by terminating an employee as a direct result of them having a lawful union association

The decision firmly supports the notion that the employee has an entitlement to have a person/union of their choice to act as a ‘representative’ in these matters and that the person has the right to refuse to have a meeting if this entitlement is not allowed. The bottom line is that an employee cannot be forced to relinquish their right to the assistance or representation of the union.

If you find yourself in this position it is important to note what transpires. Keep notes of conversations and the reasons the employer provides if they refuse you representation.

Remember you do have the right to refuse to be involved in the meeting if representation is unreasonably refused.

Members may be surprised to learn the contents of this article. It is another important reason to belong to the SDA and to always read your SDA News.

For further information please ring or email the union office.