Q: 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?

A: 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:

1. free from control by the employee’s employer (or another bargaining representative); and
2. 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.

Please note: The answer is correct at the time of publishing. Be aware that laws may change over time. Refer to Enterprise bargaining for current advice.