"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU)
[2024] FWC 526
•7 MARCH 2024
| [2024] FWC 526 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.236 - Application for a majority support determination
"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU)
(B2023/1340)
| COMMISSIONER MCKENNA | SYDNEY, 7 MARCH 2024 |
Application for a majority support determination – Cochlear Limited.
The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) (the “AMWU”) has made an application, pursuant to s.236 of the Fair Work Act 2009 (the “Act”), for a majority support determination in relation to certain production employees of Cochlear Limited (“Cochlear”). The employees are covered by the Cochlear Limited Enterprise Partnership Agreement 2005, which reached its nominal expiry date on 30 June 2007 and is a zombie agreement. The relevant modern award would be the Manufacturing and Associated Industries and Occupations Award 2020.
Section 237 of the Act provides that the Commission must make a majority support determination in relation to a proposed single-enterprise agreement if: (a) an application for the determination has been made; and (b) the Commission is satisfied of the matters set out in s.237(2) in relation to the agreement. As to the matters in s.237(2)(a)-(d) of the Act:
(a) I am satisfied that a majority of the employees who were employed by Cochlear at a time that was determined by the Commission (with the consent of the AMWU and Cochlear) and who will be covered by the proposed agreement want to bargain. In such respects, I conducted an analysis, on the usual confidential basis, of petition documents, the number employee petitioners and the number of employees in the cohort. On my analysis/count, there is clear majority support for bargaining for the agreement among the cohort of several hundreds of employees.
(b) It is common ground, and I am satisfied, that Cochlear has not yet agreed to bargain, or initiated bargaining, for the proposed agreement.
(c) It is also common ground, and I am satisfied, that the group of employees who will be covered by the agreement was fairly chosen. The AMWU’s Form F30 application form indicated that the employees to be covered by the agreement are geographically, operationally and organisationally distinct, and there was no contest from Cochlear in such respects, i.e., the group comprises Cochlear’s production workers who are employed across two workplaces in New South Wales, namely, Lane Cove and Macquarie Park (“Macquarie”).
(d) Cochlear contends that the Commission could not be satisfied “it is reasonable in all the circumstances to make the determination” and that the application should be dismissed, effectively due to the time of the day when some employees signed the petition pages offered to them by AMWU officials, given the operation of the right of entry provisions in the Act. In such respects, Cochlear’s case drew attention to aspects of the Act concerning right of entry. By operation of s.490(1) of the Act, a right of entry permit holder may exercise a right of entry “only during working hours” and, by operation of s.490(2), “only during mealtimes or other breaks”. Moreover, s.492(1) of the Act provides that the permit holder must conduct interviews or hold discussions in the rooms or areas of the premises agreed with the occupier of the premises; and s.492A provides that the permit holder must comply with any reasonable request by the occupier of the premises to take a particular route to reach a room or area of the premises described in s.492.
By way of a short background to the application before the Commission, the evidence and/or submissions indicated matters including the following:
· The AMWU took steps to engage the right of entry provisions set out in s.484 of the Act in relation to five AMWU officials entering the two Cochlear workplaces/premises on 27 November 2023, to hold discussions with employees.
· The morning shift “working hours” at the two workplaces commence at 6.00am and conclude at 2.06pm. The employees’ meal breaks are staggered over the timespan of 10.55am-12.50pm.
· An AMWU official and right of entry permit holder, Ms Linda Everingham, together with an AMWU colleague and permit holder, Ms Victoria Harper, accessed Cochlear’s Lane Cove premises on 27 November 2023. Specifically, they accessed the non-secure rooftop carpark for the workplace, where they held discussions with some employees; they also held discussions with employees near one of the employee entrances to the workplace. This access commenced from about 5.30am, i.e., approximately 30 minutes before the start of the working hours described in s.490(1) of the Act.
· Separately, another AMWU official/permit holder, Ms Peiyao Cheng, accessed the Macquarie premises or, more specifically, the secure/boom-gated carpark for the premises at about 5.40am on 27 November 2023, where she held discussions with employees in the carpark and outside the employee lifts. CCTV footage indicated that Ms Cheng entered the premises in an employee’s vehicle albeit she otherwise suggested that the boom gate was open. This access commenced from about 5.40am, i.e., approximately 20 minutes before the start of the working hours described in s.490(1) of the Act.
· Although there was no evidence to confirm the number, the AMWU’s submissions indicated that, across the two workplaces, approximately ten employees signed petition pages given to them by the AMWU officials on 27 November 2023 in the time before the morning shift working hours commenced at 6.00am.
· The AMWU officials were observed on-site by managerial employees at Lane Cove and Macquarie. That is, at Lane Cove, Mr Dave Martin (a morning shift Manufacturing Manager) observed Ms Everingham having some interactions with employees and he personally had discussions with her. At Macquarie, Mr Sidd Shah (also a morning shift Manufacturing Manager), observed Ms Cheng having some interactions with employees and he personally had discussions with her – including Ms Cheng initially inviting him to sign a piece of paper. Mr Niall Clancy (another Manufacturing Manager) joined the discussions.
· Based on the evidence of the managerial employees (on which they were not cross-examined), Ms Everingham and Ms Cheng, initially at least, seemingly purported to rely on right of entry notices concerning their presence in the carparks early on the morning of 27 November 2023. Following short and, judging by the tenor of what was in evidence, polite-sounding discussions between the AMWU officials and the Cochlear managers at the respective sites, the AMWU officials each promptly left the carparks without any ado.
· The way the AMWU officials accessed the two premises was not consistent with what had been the usual administrative practices for union officials’ right of entry visits to the Cochlear sites, including such things as signing-in/out at reception, being provided with visitor tags, and being accompanied by a managerial employee to and from the lunchroom for discussions with employees.
· Cochlear was otherwise expecting that the AMWU permit holders would be attending the two premises between about 11.00am-1.00pm, to broadly coincide with the s.490(2)-specified span of “mealtimes” for employees of between 10.55am and 12.50pm. The 11.00am-1.00pm timespan was consistent with earlier practice as to when the AMWU had visited the premises. As things transpired, a number of AMWU permit holders duly attended the two premises around 11.00am-1.00pm and, in the case of Ms Everingham and Ms Harper, again around 7.00pm (which I take to be around the mealtime or other break for the afternoon shift). The AMWU officials gathered employee signatures and identifying details on the petition pages in the lunchrooms.
· There was evidence of further attendances by AMWU officials at the Cochlear workplaces after 27 November 2023 in connection with obtaining petitioners’ signatures, and descriptions of other means by which signatures were collected. Those attendances and means of signature collection were not the subject of contention in the proceedings, except to the extent that Cochlear otherwise submitted that the petition in its entirety was the “fruit of the poisonous tree” - by virtue of the attendance of Ms Everingham and Ms Harper at the Lane Cove carpark, and the attendance of Ms Cheng at the Macquarie carpark, to hold discussions with employees related to the petition and/or commence collecting signatures. Cochlear’s written reply submissions included the following:
“16. In this case, reliance on a petition that was, even in part, obtained whilst on [Cochlear’s] premises unlawfully and thus without authorisation or through an abuse of power, undermines the bargaining process between the parties before it commences; eroding any good faith at the outset.
17. If the Commission was to grant the Application, it would be broadening the powers of s 484 beyond their scope and be ultra vires. Consequently, it is not reasonable in all the circumstances for the Commission to make the determination.”
Consideration
Cochlear’s submissions, in effect and/or in part, invited findings by me about matters including that the AMWU officials allegedly engaged in unlawful conduct under the Act, allegedly engaged in tortious trespass or statutory trespass, and/or potentially made intentional misrepresentations within the meaning of s.503 of the Act. The AMWU submitted that Cochlear’s contentions about alleged unlawfulness were wrong and/or, in any event, the AMWU officials had some other type of non-right of entry basis or bases to be in the carparks.
Making findings about matters such as alleged unlawfulness and trespass is plainly beyond the jurisdictional remit of the Commission either under the auspices of an application made pursuant to s.236 of the Act or otherwise. However, I will say this much. Cochlear noted, correctly, that the right of entry provisions in the Act are not unfettered. Here, I accept that the AMWU officials (seemingly) initially purported to rely on their entry notices concerning accessing the Cochlear carparks at Lane Cove and Macquarie to have discussions with employees and, for example, to hand out flyers and canvass employees to sign petition pages. At both Lane Cave and Macquarie, the AMWU officials promptly left the carparks following politely-conducted discussions with Cochlear’s management employees. I observe that the AMWU officials’ purported reliance on rights of entry was misplaced and was not conformable with the statutory scheme as set out in the sections of the Act to which reference was made and the authorities thereto in Cochlear’s submissions, such as Construction, Forestry, Mining and Energy Union v BHP Billiton Nickel West Pty Ltd [2017] FCA 991; 268 IR 355.
I do not have before me proceedings concerning the determination of allegedly unlawful conduct under the Act or alleged trespass. I have before me an application made pursuant to s.236 of the Act for a majority support determination. Cochlear questioned whether it would be reasonable, in all the circumstances, for the Commission to make a majority support determination where, Cochlear submitted, reliance on the petition as evidence of majority support “is inappropriate or unsound because an undetermined number of the signatures were obtained through conduct that was either not authorised or was an abuse of power”. However, as the AMWU submitted, the Act contains mechanisms by which employers may protect their legitimate interests in respect of the exercise of right of entry by permit holders and, at the time of the hearing, Cochlear had not availed itself of any of these mechanisms. I would add that even if it was properly within my jurisdictional remit to make findings concerning unlawfulness or trespass - and made the findings for which Cochlear contended - it would not be axiomatic that the employees’ petition should be rejected and the application for a majority support determination dismissed.
On the petition-related materials before me, there is clear majority support among the relevant cohort of employees – described by me during the proceedings as a “thumping majority”. There is nothing to suggest that the AMWU officials in the carparks engaged, for example, in some form of duress to obtain the signatures of approximately ten employees for the petition (again noting that there was no evidence as to the exact number). It is a self-evident proposition that the petition is the employees’ petition, even if the AMWU was corralling the collection of individuals’ signatures; and the petition is, I accept, indictive of the majority wish to bargain for an enterprise agreement with Cochlear. Even accepting that the AMWU officials’ attendance at the carparks was not conformable with the statutory scheme concerning the exercise of right of entry to hold discussions, no fault or criticism whatsoever can be transmitted to the employees who signed the petition because of the conduct of the AMWU officials in being in the carparks before work started on 27 November 2023 rather than during mealtimes or other breaks - such as to (however described) void the fact of the employees signing the petition in their hundreds.
I do not accept Cochlear’s description of the petition being the “fruit of the poisonous tree”. Rather, the petition is demonstrative of the fact that the majority of employees in this cohort of production workers want to bargain with Cochlear for an enterprise agreement. This is in circumstances where Cochlear has not agreed to bargain, or initiated bargaining, for an enterprise agreement - and otherwise seeks that this application for a majority support determination be dismissed. I am not persuaded by Cochlear’s submissions that the application should be dismissed on the grounds upon which it relied - which principally addressed the conduct of the AMWU officials on 27 November 2023. As the AMWU aptly submitted:
“… There is no suggestion that the fact that some workers spoke to their union organisers in the car park before starting work, rather than in the lunchroom while on break, made a scrap of difference to whether or not they signed the petitions, or their intent in doing so. Why should the timing and location of any conversations vitiate the will of hundreds of employees, and allow Cochlear to avoid entering into bargaining?”.
Conclusion
I am satisfied that the prerequisites in s.237(2)(a)-(c) of the Act have been met and, as to s.237(2)(d), I am also satisfied that it is reasonable in all the circumstances to make the determination - which will issue in conjunction with these reasons.
COMMISSIONER
Appearances:
L Saunders for the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU).
S McCarthy for Cochlear Limited.
Hearing details:
2024.
Sydney:
27 February 2024.
Printed by authority of the Commonwealth Government Printer
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