“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers' Union (AMWU) v ResMed Limited

[2013] FWC 9725

[2013] FWC 9725

The attached document replaces the document previously issued with the above code on 19 December 2013.

To correct the numbering of headings

Associate to Commissioner Bull

Dated 20 December 2013

[2013] FWC 9725 [Note: An appeal pursuant to s.604 (C2014/9725) was lodged against this decision - refer to Full Bench decision dated 17 July 2014 [[2014] FWCFB 3501] for result of appeal.]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.236—Majority support determination

“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU)
v
ResMed Limited
(B2013/742)

COMMISSIONER BULL SYDNEY, 19 DECEMBER 2013

Application for a majority support determination - interpretation of ss. 176, 236 - meaning of bargaining representative - organisation coverage by bargaining representative - jurisdiction of Commission to make determination.

Contents

1. Background 2

2. Issues to be Determined 3

3. Summary of Conclusions 4

4. Site Inspections 4

5. AMWU Rules 5

6. Interpretation of Union Rules 7

7. ResMed Witnesses 10

8. AMWU Witnesses 11

Analysis of Submissions and Evidence 11

9. Employees sought to be covered by the proposed agreement 12

a) Patient Interface work group - Production Operators, Line Leaders or Line Coordinators 12

b) Ventilation work group - Production Operators, Line Leaders or Line Coordinators 15

c) Machines work group - Production Operators, Line Leaders or Line Coordinators 16

d) Warehouse work group - Warehouse Operators, Line Leaders or Line Coordinators 17

e) Manufacturing Equipment and Tooling Support (METS) work group - employees who hold a trade certificate or equivalent, or are undertaking an apprenticeship or traineeship, other than any/or any employee who is engaged as a supervisor, manager or equivalent. 18

10. Is the application a valid one under s.236 of the Act? 22

11. Does the Commission have jurisdiction to make a determination in respect of the application under s.237 of the Act? 25

1. Background

[1] On 25 March 2013, the “Automotive, Food Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) applied pursuant to s.236(1) of the Fair Work Act 2009 (the Act) to the Fair Work Commission (the Commission) for a majority support determination. The application was made following the AMWU’s failed attempts to engage the employer ResMed Limited (ResMed) in bargaining for an enterprise agreement at its Bella Vista site 1. The grounds of the originating application include at point 3.5:

“As a matter of fact, the AMWU submits that ResMed have not yet agreed to bargain, or initiated bargaining, for the agreement.”

[2] Should a majority support determination be made, the AMWU may then apply to the Commission for bargaining orders as per s.229 of the Act.

[3] Section 236(1) of the Act provides that a bargaining representative of an employee who will be covered by a proposed single-enterprise agreement may apply to the Commission for a determination that a majority of the employees who will be covered by the agreement want to bargain with the employer that will be covered by the agreement.

[4] Section 236(2) of the Act requires such an application to specify the employer and the employees who will be covered by the agreement. The AMWU has named ResMed as the employer and specified the coverage of the agreement to be negotiated to:

“Employees of ResMed Limited who work at the Bella Vista site, who are covered by the Manufacturing and Associated Industries and Occupations Award 2010 and who are engaged as:

a) Production Operators, Line Leaders or Line Coordinators in the Patient Interface work group; or
b) Production Operators, Line Leaders or Line Coordinators in the Ventilation work group, or
c) Production Operators, Line Leaders or Line Coordinators in the Machines work group; or
d) Warehouse Operators, Line Leaders or Line Coordinators in the Warehouse work group; or
e) An employee in the Manufacturing Equipment and Tooling Support (METS) work group who holds a trade certificate or equivalent, or who is undertaking an apprenticeship or traineeship, other than any team leader(s) and/or any employee who is engaged as a supervisor, manager or equivalent.

For the avoidance of doubt, any employee engaged as a team leader, supervisor, manager or equivalent will not be covered by the proposed enterprise agreement.”

[5] In simple terms the proposed agreement would cover non leadership roles in the production, warehouse and tooling support areas at ResMed’s Bella Vista site.

[6] The AMWU submit it is a bargaining representative as per s.176 of the Act that provides for employee organisations to be default bargaining representatives for employees who will be covered by the agreement that are members of the employee organisation and whose industrial interests the organisation may cover. The AMWU contends that it has a least one member employed by ResMed in each of the work groups proposed to be covered by the agreement. 2

[7] Conferences were held before the Commission on 28 March, 15 April, 1st and 15 May 2013, where the issues were ventilated and various directions were issued to the parties.

[8] ResMed’s consistent position has been to oppose the application made by the AMWU on a number of grounds which have included jurisdictional objections. The parties agreed that ResMed’s jurisdictional objections should be determined first by the Commission.

2. Issues to be Determined

[9] Two fundamental jurisdictional issues are to be determined by the Commission as agreed between the parties. These issues are summarised in the following terms:

Issue One

Whether, under s.176 of the Act, the AMWU is a bargaining representative for one employee who will be covered by the proposed single enterprise agreement.

Issue Two

(i) Is the AMWU entitled to represent the industrial interests of all employees referred to in its application in relation to work that will be performed under the proposed agreement?

(ii) If the answer to (i) above, is no:

(a) Is the application a valid one under s.236 of the Act? And

(b) Does the Commission have jurisdiction to make a determination in respect of the application under s.237 of the Act?

[10] Simply put, ResMed submits that the relevant employees to be covered by the proposed agreement, based on the AMWU’s Rules, are not eligible to be members of the AMWU. Therefore the AMWU cannot be a bargaining representative and make an application under s.236 for a majority support determination. In the alternative, even if it is held that the AMWU has coverage of some of the employees, unless the AMWU has constitutional coverage of all the occupations referred to in its application, the application is not valid and the Commission cannot make the determination as sought.

[11] The AMWU argue that it has constitutional coverage of all the occupations covered by its proposed agreement, but in any event, it is not required to have constitutional coverage of every occupation sought to be to be covered by its proposed agreement. Following an exercise conducted between the parties and the Commission it was demonstrated that the AMWU has accepted as its members, employees at Bella Vista who work as Production Operators, Warehouse Operators and in the Manufacturing Equipment and Tooling Support (METS) work group.

3. Summary of Conclusions

Issue One

Whether, under s.176 of the Act, the AMWU is a bargaining representative for one employee who will be covered by the proposed single enterprise agreement.

Answer: Yes

Issue Two

(i) Is the AMWU entitled to represent the industrial interests of all employees referred to in its application in relation to work that will be performed under the proposed agreement?

Answer: No

(ii) If the answer to (i) above is no:

(a) Is the application a valid one under s.236 of the Act? And

(b) Does the Commission have jurisdiction to make a determination in respect of the application under s.237 of the Act?

Answer: Yes to (a) and (b).

[12] The basis for the above conclusions is set out below.

4. Site Inspections

[13] ResMed requested that inspections of its operating plant located in Bella Vista, New South Wales, be undertaken, this occurred with all parties in attendance on 29 August 2013.

[14] ResMed is a world leading manufacturer of medical equipment for the diagnosis, treatment and management of sleep disordered breathing and other respiratory disorders. Sleep apnea 3 being the predominant sleep disorder. ResMed submits that they are in the industry of researching and producing medical devices and do not operate in the metal trades industry. The AMWU does not dispute that ResMed operates in the medical devices industry 4 but adds that a business may operate in several industries simultaneously and is also in the engineering, metal and fabricating industries.

[15] The site inspections revealed a modern well laid out and impressive worksite, set amongst landscaped gardens where over 1,000 employees are engaged. The production of the various medical devices was viewed first hand by the parties. This mainly consisted of continuous positive airway pressure machines (CPAP) and their components, for example, nasal and face masks, humidifiers, accessories and spare parts.

[16] A casual workforce provided by a labour hire company supplements the permanent workforce and is used to meet variations in customer demand.

[17] The Bella Vista site was purpose built between 2005/6 and comprises a manufacturing centre and an innovation centre. There is also a sleep centre which is not operated by ResMed. The manufacturing centre houses the liquid silicone rubber (LSR) area, the mask assembly and spares area and the machine and ventilation area. Also contained within the manufacturing centre are the quality control, logistics, warehousing, engineering and administrative functions.

[18] A research and new product development facility also operates at the Bella Vista site in the Innovation Centre. New product development teams comprise of mask, machines and ventilation design groups and related disciplines, however, this area of work does not relate to the AMWU application.

[19] Much of the component parts and materials used in the final product are received at the Bella Vista site from external suppliers, for example, the circuit boards, moulded plastic chassis, liquid crystal display interface, batteries, positive pressure pumps, tubes and seals. The evidence from ResMed was that any of the components of its products created at the Bella Vista site which contain metal are not produced or manufactured on site 5 nor is the soldering of any parts undertaken on site.

[20] All products undergo a quality and functional inspection test. The final product is then packaged and delivered to the despatch warehouse for delivery to customers.

[21] The site inspections enabled the Commission to more fully comprehend the work undertaken by the relevant employees and the context in which the work is performed as opposed to relying solely on the written context of an occupation as it appears in the AMWU Rules or in the ResMed position descriptions. In applying and interpreting the AMWU Rules as necessary in this decision the site inspections provided additional assistance not otherwise available from the oral and written evidence.

5. AMWU Rules

[22] The ResMed jurisdictional objection is based on the operation of the Act together with the AMWU Rules. As stated by the Federal Court in Federated Tobacco Workers Union of Australia v Amalgamated Metal Workers Union and Anor 6 (Tobacco Workers Case) the eligibility rule is contained at rule 1A which is long and complicated and reflects the consequences of successive amalgamations of different organisations of employees. The genesis of the rules originates from registration of The Amalgamated Society of Engineers in 1905, said to be registered in the engineering industry. The rules have been subject to various iterations since 1905, many of the changes relate to amalgamations.

[23] The current eligibility rule 1A (a) is extracted below:

“RULES OF THE “AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION” KNOWN AS THE AUSTRALIAN MANUFACTURING WORKERS’ UNION (AMWU).

1 - NAME OBJECTS AND CONSTITUTION

The Union formed under these Rules (hereinafter called the “Union”) shall be named the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU). It shall be a registered Trade Union.

1A. Without in any way limiting or being limited by sub-rules 1B, 1C, 1D, 1E, 1F, 1G, 1H and 1I the Union shall consist of an unlimited number of persons who are employed or usually employed in or in connection with the following trades or calling or branches thereof:

(a) Smiths, ship smiths, angle iron smiths, drop-hammer smiths, spring smiths, oliver smiths, spring fitters, swaging machine operators, operators on smithing machines similar to swaging machines, nut and bolt makers, windmill erectors, motor, motor cycle, and cycle mechanics, tuners and testers in motor industry, enamellers, typewriter mechanics, well-borers, scale-makers, metal safe makers, locksmiths, forge hammermen, forgemen, strikers, drop-hammer stampers, forging machine workers, forge, iron, and brass furnace-men, ship’s plumbers, fitters, turners, grinders, whetstone grinders and glazers, sea-going engineers, shift engineers, roll turners, patternmakers, model makers, millwrights, mechanical draughtsmen, technical assistants, planners, borers, slotters, machine drillers, milling machine workers, shapers, machinists, brass founders, brass finishers, brass smiths and operators of machines in connection with same, coppersmiths, armature winders, equipment examiners, and electrical engineers generally, radio workers, mechanical and scientific instrument makers and optical glassmakers, linotype mechanics, press mechanics, machine joiners employed in the construction of cotton, silk, flax, woollen or other machines, die sinkers, press tool makers and stampers, electroplaters, polishers, electroplate makers up, sheet metal spinners, assemblers, skilled acetylene and electrical welders, aero mechanics, duralium workers, including forgers, fitters, and all other aircraft workers who are employed on the fuselage or engine work, and all workers engaged in the engineering, shipbuilding and kindred trades.”

(My emphasis)

[24] Rule 2 describes the industry of the AMWU and rule 2(a) is extracted below:

“2 - DESCRIPTION OF INDUSTRY

(a) The engineering and metal industries and in or in connection with the engineering, boilermaking, shipbuilding and structural work with metals industry and in or in connection with the iron and steel, shipbuilding, engineering, rolling stock, agricultural implement making, coach building, mining, quarrying, railway, construction, building, sawmilling industries or any industry where smiths are employed and in or in connection with tinplate, tinsmithing, sheet metal (including motor car building so far as panel-beating and sheet metal working is concerned and also sheet metal trunk and box making), gas meter making and canister making industries, the industries of manufacturing, assembling, dismantling, erecting, replacing or repairing of agricultural implements; manufacturing, erecting assembling, dismantling, replacing or repairing of ovens, stoves, ranges, grates, registers, copper casings or other heating apparatus (or parts thereof); the manufacturing, erecting, replacing or repairing of metal bedsteads or fenders (or parts thereof); porcelain enamelling of steel and iron plates and hollow-ware, baths, sinks, cisterns, household utensils, and builders’ materials and the manufacture of frit; the industries of manufacturing, making, repairing of jewellery and the industries of manufacturing, making repairing of watches and clocks.”

(My emphasis)

6. Interpretation of Union Rules

[25] The rules of the AMWU determine the occupations of employees whom it is eligible to enrol as members and thus represent those members in workplace issues arising under the Act.

[26] In R v Dunlop Rubber Australia Limited; Ex parte Federated Miscellaneous Workers Union 7 (Dunlop Case ), the High Court referred to the representational status of a union in the following terms:

“...you cannot have a body, whether incorporated or not, standing in the place of the industrial group or class and formulating demands in its interest unless that body occupies such a place because it is constituted for the purpose and is recognised as representing the group or class.”

[27] Twenty five years later the High Court referring to the Dunlop case above, restated the principle again in R v Williams; Ex parte Australian Building Construction Employees’ and Builders Labourers’ Federation, 8 (Williams Case ) in the following terms:

“The eligibility provisions in the rules of a registered organization of employees serve the function of defining the general area or areas of industry or industrial pursuit from which members can legitimately be drawn and with which the organization can legitimately be concerned.”

[28] In regards to ascertaining the meaning of union rules the High Court in the Williams Case went on to state:

“Since such eligibility provisions constitute a reference point for courts, commissions, employers, employees and other organizations in determining or ascertaining an organization’s proper coverage and field of operation, they must be construed objectively. In so construing them, however, it is permissible to pay regard to any common understanding among people concerned with relevant industries and particularly with industrial matters of the ordinary application of the words used and to take account of evidence of that common understanding furnished by the previous use of the words in the relevant organization’s rules and in statutory provisions, decisions, determinations, awards, reports and other papers concerned with the relevant industry or industries.” 9

(References omitted)

[29] The Full Court of the Federal Court in Construction, Forestry, Mining and Energy Union v CSBP Ltd 10, espoused the principle that in the construction of union rules they should be looked at as a whole:

“One should seek to understand the rule by considering it as a whole so that its parts may shed light on each other”

[30] I intend to apply these principles in this decision, that is, objectively having regard to any previous determinations, applying the common understanding of persons concerned with the industry and the ordinary application of the words contained in the rules. See also the comments of the Full Bench in Australian and International Pilots Association v Network Aviation Pty Limited (Network Aviation Case) at paragraph 33. 11

[31] The AMWU rules in their various iterations have been previously considered by Courts and industrial tribunals.

[32] In 1988, the AMWU rules were examined in detail by a Full Court of the Federal Court in the Tobacco Workers Case 12. The Full Court held that the opening words of rule 1A are on their face words of expansion:

“In particular the words “in or in connection with” show that in addition to the listed trades or callings, persons who are “employed” in connection with those trades or callings are eligible to become and remain members of the Metal Workers Union ...

...

Thus, it is quite appropriate to say of a person who is employed by an employer which is not engaged in the engineering industry, but is employed to assist another employee who is performing the tasks of a metal worker for example, a fitter, that the first person is engaged, or employed, in or in connection with the trade or calling of that fitter.” 13

...

As has been indicated, it is not necessary to be eligible for membership, that a person spend the whole of his or her time engaged in the activities of the requisite type. The test is based on whether the person is engaged substantially in those activities.” 14

[33] In 1991, Munro J in United Dairies Ltd v Amalgamated Metal Workers Union and Ors 15 (United Dairies Case) examined the AMWU rules in respect of process workers engaged in plastic blow-moulding operations. In that decision, Munro J found that the work of operators and process workers was within the eligibility rule of the National Union of Workers. The particular AMWU rules being examined were 1A(c) (i) and (ii). His Honour declined to hold that workers who operated blow-moulding machines which produced plastic milk bottles or who operated a bagging machine could be conceived as falling within the scope of any references in the AMWU rules to process workers, moulders or machinists or that the occupations were linked to industries involved in production processes for tin plate, sheet metal working, motor car building and the like metal manufactures industries as described in rule 1A(c)(i).

[34] In 1996, in Rope, Cordage, Thread Etc. Industry Award, 1983 16 (Rope Case) a matter dealing with s.118A of the Industrial Relations Act 1988, Deputy President Watson (as he then was) was required to consider the eligibility rule of the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (AFMEPKIU). The AFMEPKIU submitted that its rules provided eligibility to enrol machinists and/or assemblers employed by the relevant employer. It was argued that the capacity to enrol production workers as machinists and/or assemblers arose from rule 1A(a).

[35] The Deputy President drew to an extent on the authority of the Tobacco Workers Case above, when considering whether production employees of the employer were “machinists” or “assemblers” within rule 1A of the eligibility rule and found that those circumstances did not apply.

“The interpretation advocated by the AFMEPKIU ascribes too broad a meaning to machinist and assemblers within Rule 1A(a).

...

The broad meaning of machinists and assemblers relied on by the AFMEPKIU would result in extensive coverage within the AFMEPKIU of employees working on or in connection with a wide range of machinery, an application of its rules which would not accord with the ordinary meaning given by people concerned with industrial matters in relevant or related industries and which would not accord with established representation of production employees outside of the industry described in Rule 2 of the AFMEPKIU rules.” 17

[36] The Deputy President found the AFMEPKIU did not have coverage of machinists and/or assemblers and that the dictionary meanings of the terms relied upon by the AMWU were too broad and must be confined by reference to the relevant industrial context and the ordinary meaning given by persons concerned in relevant and related industries.

“In my view the relevant industrial context, as referred to in the definitions of machinists within the Metal Industry Award 1994 - Part I, and the broader context of Rule 1A(a) do not support the extended meaning claimed by the AFMEPKIU, having regard to evidence as to the nature of work undertaken by Donaghys production employees.” 18

[37] His Honour also relied on the decision in Ex parte Pavlic; Re Federation of Industrial, Manufacturing and Engineering Employees (Tasmanian Branch)  19(Pavlic Case)which is discussed below.

[38] In the 1997 case of Automotive, Food, Metals and Engineering Union and Phillip Morris Limited and another 20 (Phillip Morris Case) Senior Deputy President Williams dealt in part with the AMWU Rules under a s.118A application. His Honour stated at page 10 of the decision:

“On the other hand, as I understand its submissions, the AMWU does not claim that it is entitled under its eligibility rules to enrol as members all the relevant employees. It does, however, claim an entitlement to enrol persons employed as Team Leaders and/or maintenance supervisors and/or any other employees who exercises trade skills as a substantial part of their employment. That claim relies upon its eligibility to enrol persons employed in or in connection with the trade or calling of fitters [sub-rule 1A of Rule 1 - Name, Objects and Constitution] and/or persons employed in, usually employed in or qualified to be and desirous of being employed in the calling of foremen and supervisor of manufacturing processes [sub-rule 1C of Rule 1].

...

The mere fact that some Team Leaders or others may have relevant trade qualifications and may perform minor maintenance work as part of their duties does not bring such employees within the purview of the AMWU’s eligibility rules. On the other hand, the supervisory role of Team Leaders may well bring them within the description of foremen and supervisors of manufacturing production.”

(My emphasis)

[39] In the Pavlic Case, Justice Gray of the Federal Court of Australia, considered the meaning of “machine operator” as contained in the Federation of Industrial Manufacturing and Engineering Employees rules.

“It is plain from its context that the phrase “Machine Operator” has a particular meaning, commonly understood in relation to what are known colloquially as the “metal trades”. It means a person operating a machine designed for the manufacture of articles from solid materials, usually metals. Examples are metal presses, milling machines and lathes, although there are no doubt many more. “ 21

[40] The fact that an employee performs a task that is listed in a union’s eligibility rule will not automatically result in union coverage of that occupation. As Gray J stated the use of the term “Machine Operator” must have a restricted context otherwise it:

“... would be broad enough to encompass any person, employed in any industry, operating a machine word processor operators, gardeners using lawnmowers, clerks using calculators, people making garments, canteen staff making expresso coffee and all truck and car drivers would be included. It is plain from its context that the phrase ‘Machine Operator” has a particular meaning, commonly understood in relation to what are known colloquially as the “metal trades”. It means a person operating a machine designed for the manufacture of articles from solid materials, usually metals.” 22

7. ResMed Witnesses

[41] In addition to the inspections and written submissions, ResMed called evidence from the following employees:

• Andrew Cameron - Vice President - Manufacturing, Sydney
• Yvonne McCarthy - Supervisor, Mask Assembly and Spares
• Mario Zotti - LSR Supervisor
• Graeme Scott - Director, Global Logistics
• Colin Mitchell - Production Supervisor, Machines and Ventilators
• David Kitcher - Head of METS

8. AMWU Witnesses

[42] In support of its case the AMWU called a number of employees and a union organiser to give evidence:

• Muhandiram Bandara - AMWU Organiser
• Barton Smith - Production Operator
• Shakeel Wahid - Production Operator
• Anh Tran - Production Operator

Analysis of Submissions and Evidence

[43] As stated above the AMWU submits that under its rules it is entitled to cover all occupations in the proposed agreement, but in any event this is not necessary, provided that at least one occupation is covered by their rules thus allowing it to apply for a majority support determination. The AMWU acknowledge that rule 1A(a) directs attention to occupations or callings rather than industries.²³

[44] By way of background there are three primary levels of operator across each of the work areas:

• Entry (Level 1)
• Competent (Level 2)
• Multi-Skilled (Level 3)

[45] The skills and responsibilities of operators at each level are set out in the various position descriptions. 24

[46] Production operators in each of the work areas undertake specialised on the job training for the work they perform. Their tasks centre on the assembly and inspection of the products. There is a degree of rotation of production operators across the various work areas. Production operators are supervised by Line Coordinators who are advanced level production operators, Team Leaders and Supervisors. An operator commences at Level 1 and after being assessed as competent moves to a Level 2 operator.

[47] In respect of the AMWU application, the work groups to whom the proposed agreement is said to cover are listed from (a) to (e) in the originating application. Each of these categories is examined below in respect to the AMWU Rules.

[48] The AMWU Outline of Submissions dated 2 August 2013, at paragraph 8, align the particular rule it is applicable to the ResMed classification sought to be covered by the proposed agreement. All occupations in the proposed agreement are said by the AMWU to be covered by their rules under rule 1A(a).

9. Employees sought to be covered by the proposed agreement

a) Patient Interface work group - Production Operators, Line Leaders or Line Coordinators

[49] The Patient Interface work group consists of three work areas:

1. Liquid Silicone Rubber (LSR)
2. Mask Assembly
3. Accessories and Spares

[50] The AMWU argues that this work group generally fits in Rule 1A(a) on the basis that the employees “are engaged in the engineering, shipbuilding and kindred trades.” Further LSR employees are also covered as “machinists” and mask assembly employees are covered in Rule 1A(a) under the occupation “assemblers.”

1) LSR work group

[51] The LSR work group comprises of production operators who produce the silicone rubber face cushion and the chassis seals for the flow generators. The operators follow specific work instructions for each task for which training is provided. The operators produce the rubber faced cushions from machines which mould the silicone rubber into cushions, the machines inject liquid silicone rubber into a mould called a “tool/die.” On a single cavity machine this is done by an operator pushing a button, on a double cavity machine liquid silicone rubber is dispensed automatically. An operator is stationed at a machine and manually de-moulds the cushion from single cavity machines, while on multi-cavity machines a robot de-moulds the cushion. The moulding machines are semi or fully automatic. Operators visually examine the cushion after de-moulding to check for any blemishes, an engineer (not subject to this application) is called if any defects are identified. There is limited decision making for an operator in this process.

[52] Operators conduct minor cleaning of the machines, but do not make any adjustments to the machine settings, which is a role for the engineers. Operators not working on the machines bring the raw materials and components to the machines and remove the finished product to be collected by warehouse operators.

[53] Training for production operators in the LSR is said to take around six weeks. 25

[54] The commencement point to construction of the rule 1A(a) is to apply the plain meaning of the words used and apply the meaning to the relevant industrial context. Clearly neither these employees nor any ResMed employees are engaged in the shipbuilding trades, leaving the question, are they engaged in engineering and kindred trades? Nothing in the evidence or anything gleaned from the site inspection demonstrated that the LSR employees are engaged in the engineering trades or are employed in connection with a listed trade or calling in the rule 1A(a) even where a broad meaning is applied.

[55] The LSR operators produce the silicone rubber face cushion and the chassis seal for the flow generators. Little assembly work is undertaken by these employees, the skill level is minimal and repetitive. Any decision making is nominal, adjustments and settings for the machines is undertaken by others. The rubber face cushions and the chassis seals are not fabricated; their manufacture by the LSR operators consists of an operator pushing a button on a single cavity machine, whereas on a double cavity machine liquid silicone rubber is dispensed automatically. I am unable to see how an LSR operator can be described as being engaged in engineering and kindred trades or is connected to these trades.

[56] The occupation of machinist in the rules cannot be as broad to cover any employee who operates a machine of any kind. This much was established in the cases referred to above, as DP Watson remarked in the Rope Case:

“The interpretation advocated by the AFMEPKIU ascribes too broad a meaning to machinist and assemblers within Rule 1A(a).” 26

[57] A similar principle was referred to in The Federated Engine Drivers & Firemen’s Union of Workers of Western Australia v Mt. Newman Mining Company Pty. Ltd. 27, where Burt CJ observed that not every worker, who drives an engine while employed is an engine driver within the meaning of the union’s rules:

“… The question in any particular case is, I think, whether the worker is employed to drive an engine so that he earns his wages by doing that, or whether he is employed to do something else. And if the answer is that he is employed to do something else then he is not an engine driver merely because he operates a machine and drives the engine of that machine so as to do what he is employed to do.

...

The decision upon such cases will be a decision of fact and not of law.” 28

[58] A reading of rule 1A(a) as a whole creates a context in which the meaning of the occupation of machinist can be ascertained. In rule 1A(a) machinist is surrounded by occupations such as “... machine drillers, milling machine workers, shapers, brass founders, brass finishers, brass smiths, and operators of machines in connection with same, ... .” The other occupations in rule 1A(a) are repeated in full above. Looking at the genus of these occupations, and having regard to the tasks performed by an LSR operator, the occupation is not a comfortable fit within rule 1A(a). No material is “machined” in the sense that a product is made, shaped or modified by the process of machining.

[59] The historical origin of the occupation of machinist is well traversed by Justice Higgins in Amalgamated Society of Engineers v Adelaide Steam-Ship Company Limited. 29 Even allowing for the significant workplace changes that have occurred since that decision, an operator in the LSR Work Group bears no resemblance to that of machinists described by Higgins J in his decision30:

“Some of the most perplexing problems that I have had to face in this Court arise under the claims for “machinists”. In recent years the work done by the fitters and turners (in particular) has been greatly aided in output in speed and in finish by divers ingenious machines worked by “machinists” “operatives” - men not having the full craftsman’s training, but placed by employers, as to pay and position, somewhere between the tradesman and labourer.” 31

[60] His Honour went on to divide the occupation of machinist with the consent of the union into three classes; first, second and third class. 32

[61] Having regard to the industrial context and the rule as a whole, the pushing of a button on a single cavity machine to dispense silicone and manually de-moulding the cushion and finally visually examining the cushion to check for any blemishes is not in my view a trade or calling as envisaged by rule 1A(a) or an occupation connected to such trade or callings in rule 1A(a).

2) Mask assembly work group

[62] The AMWU rely on the coverage of this work group under Rule 1A(a) by reference to “all workers engaged in the engineering, shipbuilding and kindred trades” and the occupation assemblers as listed in the rule.

[63] As its name suggests production operators who work in the mask assembly work area, assemble masks from the various components received from outside suppliers and the cushions made in the LSR work area. A variety of masks are assembled across a number of production lines. There are a team of operators who assemble each mask on the production lines. Each operator performs a single task and after 30 minutes rotates to another task. For example, one operator will click parts onto the mask frame, a second operator applies a cushion and cushion clip, a third operator will place the head gear onto the mask frame and at the end of the line an operator will fold up the mask, place instructions sheets into a bag and heat seal it. 33

[64] The mask assembly operators use jigs which hold components in place and fixtures which assist in the assembly process. Their tasks include clipping components together, threading head gear onto clips and then onto headgear frames. Depending on the particular mask being assembled the number of parts ranges between 5 and 14. Once assembled, air flow tests and visual inspections are conducted and the finished product is placed into a heat sealed bag ready for despatch.

[65] The training for a mask assembly operator is said to take around two weeks 34

[66] As with the LSR operators I am unable to conclude that the work of mask assembly is work engaged in engineering and kindred trades or is connected to these trades. The work performed is not of an engineering nature, nor does it have a relevant connection to engineering or kindred trades. While ResMed does employ engineers and trade qualified persons in the METS area, there is no meaningful interaction or connection between these positions and LSR operators.

[67] The AMWU argues that these employees are assemblers in the ordinary industrial meaning. I am of the view that the comments of Deputy President Watson in the Rope Case are apposite in that the occupation of mask assembler vis a vis assemblers in Rule 1A(a):

“... would not accord with the ordinary meaning given by people concerned with industrial matters in relevant or related industries and which would not accord with established representation of production employees outside of the industry described in Rule 2 of the AFMEPKIU rules.” 35

[68] There are many occupations that involve assembly work but the term must be given its ordinary industrial meaning ascertained within the context of the rules as a whole. The tasks of mask assembly operators ascertained on the inspection of the work site appeared to be generally that of clipping or pushing component parts together.

3) Accessories and Spares work group

[69] The accessories and spares work group is responsible for bagging up spare parts for the mask assembly and is located next to the mask assembly work group. These operators review spare part work orders, select the appropriate spare part and place them in an auto bagger which also seals the bag.

[70] Of the three occupations in the Patient Interface work group the submission that the Accessories and Spares work group is engaged in engineering and kindred trades or is connected to these trades, has the least force. Reviewing spare part orders and placing spare parts related to ResMed’s products into an auto bagger would not accord with the ordinary meaning and application of rule 1A(a). Such employees are not assemblers in the ordinary industrial sense for the purposes of rule 1A(a) or connected to this calling.

b) Ventilation work group - Production Operators, Line Leaders or Line Coordinators

[71] For this work group the AMWU apply the same argument that the occupations generally fit all within rule 1A(a) on the basis that the employees “are engaged in the engineering, shipbuilding and kindred trades.” It is further put that operators in the ventilator work group are also covered in rule 1A(a) under the occupation “assemblers”.

[72] Ventilators are assembled from components sourced from external suppliers and are used as life support for patients in hospitals and private care. Due to their life saving purpose ventilators are subject to thorough testing and inspection which takes longer for than other products. The work of the Ventilator group is similar to that of the Machines work group discussed below. The main difference is that ventilators contain more components and thus their assembly takes longer, less ventilators are assembled vis a vis flow generators. 36 There is no doubt that a ventilator is an electrically controlled device in the sense that it contains a 9 volt socket that can be connected to a power outlet. The component parts of the Stellar 150 model ventilator were tendered by ResMed and marked as exhibit A9. During the assembly process an electric screw driver is used to insert screws where necessary. The ventilator components are not made on site and are sourced externally, the parts which contain a metal component have been preassembled on arrival at the site, for example, any motors or circuit boards are supplied externally and arrive as a completed unit.

[73] Ventilators are the most intricate in terms of assembly of the ResMed products. However, like all ResMed products their components other than the silicone rubber components, are made elsewhere. The ventilation work group assembles components to produce a final product of which its components are not manufactured or fabricated at the ResMed worksite. The ventilation work group are not in my view engaged in the engineering or kindred trades, albeit a limited basic use of tools are required during the assembly process. Nor are the operators “assemblers” for the purposes of the rules, as I again apply the ordinary meaning given by people concerned with industrial matters and find the context in which the work is performed is unrelated to or connected with the engineering or metal industries.

c) Machines work group - Production Operators, Line Leaders or Line Coordinators

[74] It is again argued that rule 1A(a) employees “are engaged in the engineering, shipbuilding and kindred trades” and the occupation of “assemblers” enables employees in the Machines work group to join the AMWU under its rules.

[75] The Machines work group are responsible for assembling flow generators 37, which blow air though a tube into a mask worn by a patient to keep their airways open when sleeping. Humidifiers heat and increase the humidity of air, which is then drawn by the flow generator for delivery to a mask when worn. The components for these products include circuit boards, moulded plastic chassis, tubes and seals and a liquid crystal display interface. None of these parts are made by ResMed but supplied by external suppliers. Each operator is assigned a specified task while on the production line which they perform for 30 minutes before being rotated along the production line to perform a different task.

[76] Each operator has an instruction sheet which covers all the procedures including checking for defects. Operators clip the components together and use hand presses, jigs, fixtures, electric screw drivers and anti static dust removal guns to assist with the assembly process. A computer tells the operator if the machine is functional, it is then placed into a carry bag with a user manual and placed on a conveyer belt. Jigs are used by the operators to stop components from moving or sliding during the assembly process. For the reasons provided above in relation to the Ventilator work group whose work is similar to the Machines work group, I am not satisfied that this work group falls within the AMWU Rules.

[77] As with all the production operator positions, the site inspections revealed rather monotonous and simplistic tasks that belied the more elaborate position descriptions allocated to the roles. In Joyce v Christoffersen 38 Gray J stated: “the primary function of an employee must be determined by looking at what he or she does in the context of the employer’s organisation of work.”

[78] In examining the intrinsic nature and ultimate purpose of the work of production operators as a whole, I am unable to conclude that they fit comfortably with, or at all, within the eligibility rules of the AMWU. The vast majority of component parts handled by operators were made of rubber and plastic. Production operators are not required to hold any trade qualification and are not employed in or in connection with any trade or calling, nor are they engaged in the engineering, shipbuilding and kindred trades. They are not required to become involved with or provide assistance to METS employees. Even accepting as expressed by the Full Court in “Co-Operative Bulk Handling Ltd v Waterside Workers’ Federation of Australia” 39 that it is inevitable that there will be a continuing change in the manner work is done. The work in question has not evolved from the trades or callings listed in the rules.

d) Warehouse work group - Warehouse Operators, Line Leaders or Line Coordinators

[79] The AMWU’s position in respect to the warehouse employees in their initial outline of submissions 40 is that they are workers “engaged in the engineering, shipbuilding and kindred trades.” In further written submissions of 11 September 2013, it is said they are employed in the metal and engineering industries and their work is related to the work of production employees41, thus they are employed in connection with these trades or callings.

[80] ResMed’s warehousing operations are divided into Raw Materials and Despatch of the finished product. Warehouse operators rotate between these two areas depending on workloads of the two warehouses. The finished product is sent to destinations such as Asia Pacific, Europe and the United States. Warehouse operators have three classifications which are slightly different from the classification structure for production operators:

1) Entry level

2) Multi-skilled/Multi-area competent

3) Line leader

[81] Raw Materials receive parts from external suppliers by truck which can arrive in shipping containers. Operators who hold forklift tickets unload the pallets from the trucks and place the product on warehouse racks in positions determined by logistic operators. Warehouse operators then retrieve the product according to work orders. Production operators are allocated the role of material handler to deliver items to the production line to fulfil work orders. 42

[82] Assembled products are sorted by region and category and placed on pallets and either stored or directly loaded into shipping containers in the despatch dock. The main role of warehouse operators is to store, pack and move parts or the finished product. Warehouse operators also handle waste that emanates from the production areas. Their work is driven by logistics/production planners who issue work/despatch orders.

[83] The AMWU rely on the Tobacco Workers Case to support their argument. My reading of this decision reveals a different factual context to this matter. It was held that the persons engaged in the classifications in issue spend a substantial part of their working time in assisting tradesmen in performing their duties. 43

[84] The AMWU state that if it is accepted that any employees in the main production areas are covered by rule 1A(a) then warehouse employees are employed in connection with these trades or callings. I have not found that the various production operators are covered by the AMWU rules, therefore the warehouse employees cannot be employed in connection with eligible employees. In any event there was no evidence produced to suggest that warehouse employees work closely with or assist Production Operators. Despite my conclusions below about the eligibility of employees in the METS work group, I do not find that there is an adequate or sufficient link between these two work groups to be able to hold that warehouse employees are employed in connection with METS employees.

e) Manufacturing Equipment and Tooling Support (METS) work group - employees who hold a trade certificate or equivalent, or are undertaking an apprenticeship or traineeship, other than any/or any employee who is engaged as a supervisor, manager or equivalent.

[85] Coverage by the AMWU rules for METS employees is put on the basis that the METS employees are “engaged in the engineering, shipbuilding and kindred trades” and the occupation of Fitter in rule 1A(a).

[86] The METS group consists of employees with an appropriate trade/technical qualification and/or background. These employees provide continuous repair and site maintenance to all plant, equipment and tools needed for the production of ResMed’s products. METS employees work in different areas.

[87] Technicians engaged in repair and maintenance of the production lines are based in either the workshops, LSR, masks, ventilation or machines work areas. Generally METS technicians do not interact with the production operators. 44

[88] METS employees are categorised based on their skills and experience as 45:

a) METS LSR Senior Tooling Technician
b) METS LSR Tool Technician
c) Tooling Technician - LSR
d) METS Electrical Specialist
e) METS Tooling Trainee
f) METS Production Support

[89] METS LSR Tooling Technicians ensure that the tool machines operate correctly and produce a quality product; the work includes installing and removing the tools (moulds) from the tool machines and resolving quality and production issues relating to the tool machines. 46

[90] LSR Tool Maintenance Technicians maintain the tools after they are taken out of the LSR tool machines which are removed using a gantry crane and slings. The tool is then taken to one of two workshops. A small workshop is located next to the LSR work area.  47

[91] METS Production Support Technicians perform preventative maintenance on the production lines, conveyor belts, and electric trolleys and maintain the calibrations on screwdrivers and jigs, their work includes fabricating items when necessary. Production Support Technicians use a range of mechanical, electrical, electronic and hydraulic systems. 48 Where required simple design, fabrication and modification work is undertaken.49

[92] LSR Machine Maintenance Technicians conduct preventative and breakdown maintenance on the equipment associated with the tool machine and the production of the silicone rubber products other than the LSR tool machines themselves. 50

[93] In undertaking repair work METS employees must either undertake the repair or seek assistance from the engineers or external providers. Mr Kitcher the Head of METS in his evidence stated that Production Support Technicians are required to have a trade certificate in fitting and machining, or similar qualification, and LSR Tooling Technicians a Certificate III or IV in Plastics (Injection Moulding). 51 Most Machine Maintenance Technicians have a background in fitting, turning or tool making.52 They are required to undertake minor fabrication and modification work.

[94] The position descriptions for the METS classifications 53 list a set of minimum and preferred qualifications and experience for the position, a portion of which is reflected below:

METS LSR Senior Tooling Technician APD-257

Minimum -

• Significant experience in mechanical environment
• Certificate IV in Plastics (injection moulding)

Preferred
• Experience in robotic programming
• Trade Certificate in toolmaking

METS LSR Tool Technician APD-258

Minimum -

• Trade Certificate in toolmaking
• 3 year experience with injection moulding tools

Tooling Technician - LSR APD-249

Minimum -

• Significant experience in mechanical environment
• Certificate III in Plastics

Preferred -

• Trade Certificate in toolmaking

METS Electrical Specialist APD-252

Minimum -
• Completion of an electrical trade apprenticeship that includes a Certificate III in Electrotechnology Electrician
• Certificate of proficiency as an Electrician or an Electrical Mechanic
• 5 years relevant electrical wiring installation work experience in industrial situations

METS Tooling Trainee APD-250

Preferred -

• Engineering Certificate
• Workshop Tools and Equipment Usage
• Previous Engineering Roles

METS Production Support APD-286

Minimum -

• Trade Certificate in Fitting and Machining,
• Electrical Trade Certificate
• PLCC and electronic control circuit experience
• A minimum of 5 years experience in a similar role
• Experience in Facility repairs including Electrical and Plumbing

[95] I accept the proposition of the AMWU that in relation to areas of their traditional coverage such as mechanical tradespersons, the industry in which the employee works as opposed to their calling is not a deciding factor. 54 It appeared abundantly clear during the inspections that employees in the METS group were required to not only hold trade or equivalent skills but to also utilise these skills in their day to day work.

[96] The larger workshop viewed on the inspection contained equipment normally associated with the work of a fitter or engineering or kindred trade, that is a lathe, metal bender, welding facility, various mechanical saws, a press, and pedestal drill. Also kept in the workshop are the necessary oils and grease required for machinery maintenance. A gantry crane and slings are used by Tool Maintenance Technicians to remove moulds weighing up to 1,410 kg.

[97] As stated by Mr Cameron, METS employees conduct checks and perform preventative maintenance to ensure that all machines, tools, jigs and fixtures perform at an optimal level. In managing machine breakdowns, METS employees either undertake the repair themselves, including locating parts and tools to perform the repair or seek assistance from engineers or external providers to assist in the repair. 55

[98] Mr Kitcher stated that METS employees are required to have experience and knowledge beyond their required trade qualifications and that there is a considerable amount of on the job training plus in house training. It is not possible for a METS employee to rely on their trade or outside training alone to perform their role. 56

[99] ResMed submitted that the Commission should be guided by the decision of Senior Deputy President Williams in the Phillip Morris Case where his Honour held that Team Leaders and/or maintenance supervisors and/or any other employees who may have relevant trade qualifications and may perform minor maintenance work as part of their duties does not bring them within the purview of the AMWU eligibility Rules. Senior Deputy President Williams found that such employees could not be properly described as being employed in or in connection with the trade or calling of fitters. 57 I have no hesitation in accepting that the simple holding of trade qualifications and/or the performance of minor mechanical work would not of itself satisfy the AMWU eligibility rules. However, the work of METS employees is entirely devoted to the continuous repair and site maintenance to all plant, equipment and tools. The holding of a trade qualification or equivalent is either the minimum or preferred qualification required.

[100] I do not find it necessary to determine what industry/s ResMed is engaged in to determine the eligibility of the METS employees under Rule 1A(a). Rule 1A(a) refers to trades or callings and makes no qualifying reference to the industry engaged in by the nominated trades or callings. As such, it is an occupational rule not an industry rule.

[101] In the Tobacco Workers Case the Full Court stated in respect to Rule 1A(a):

“For present purposes, it is sufficient to say that on a consideration of Rule 1A(a) of the Metal Workers’ Union, there is nothing to support the contention that the words “the engineering, shipbuilding and kindred trades” in the final part of that sub-rule refer to trades of employers.” 58

(My emphasis)

[102] This approach was adopted by Munro J in Re Austral Group Manufacturing.  59

[103] The work of METS employees is that of employees who are employed in or in connection with the trade or fitter or are engaged in an engineering or kindred trade. This follows having found that the work of METS employees is wholly devoted to the continuous repair and site maintenance to all plant, equipment and tools needed for the manufacturing of ResMed’s products. Further, the holding of trade qualifications is a minimum requirement for some of the positions and others require significant experience in a mechanical environment and/or a preference for previous experience in engineering roles.

10. Is the application a valid one under s.236 of the Act?

[104] ResMed argue that the AMWU application for a majority support determination cannot be properly made where the proposed agreement would cover employees whose industrial interests the AMWU is not entitled to represent. In essence, the argument is that the AMWU cannot propose an agreement to cover employees whose industrial interests it cannot represent. I am unaware that this proposition has ever been put to the Commission previously and no direct case law was referred to by either party concerning s.236 of the Act.

[105] The Network Aviation Case was cited by ResMed as being on point despite not concerning s.236. While Network Aviation Case dealt with whether the applicant union was a bargaining representative per se for the proposed enterprise agreement, it did not address whether the union was required to be able to represent the industrial interests of all employees covered by the proposed agreement to be able to seek bargaining orders. The issue did not arise in the circumstances of the case as the union were held not to have coverage of any employee (Pilots) under the proposed agreement.

[106] As held above, I have found that only ResMed employees engaged in the METS work group are covered by the AMWU rules. Whereas the application states that in addition to METS employees, the proposed agreement will cover production and warehouse employees.

[107] The ResMed jurisdictional objection proceeds on the basis that employee organisations can only act on behalf of employees whom the organisation has constitutional coverage. It is put that any application can only be made where the proposed agreement is limited to coverage of classifications within the eligibility of the AMWU rules. Reliance is placed on s.176 of the Act and in particular subsections (1) and (3) which are extracted in part below:

“176 Bargaining representatives for proposed enterprise agreements that are not greenfields agreements

Bargaining representatives

(1) The following paragraphs set out the persons who are bargaining representatives for a proposed enterprise agreement that is not a greenfields agreement:

(a) ...

(b) an employee organisation is a bargaining representative of an employee who will be covered by the agreement if:

(i) the employee is a member of the organisation; and

...

(c) a person is a bargaining representative of an employee who will be covered by the agreement if the employee appoints, in writing, the person as his or her bargaining representative for the agreement;

...

(3) Despite subsections (1) and (2):

(a) an employee organisation; or

(b) an official of an employee organisation (whether acting in that capacity or otherwise);

cannot be a bargaining representative of an employee unless the organisation is entitled to represent the industrial interests of the employee in relation to work that will be performed under the agreement.”

[108] There is no dispute between the parties that an employee organisation can only be a bargaining representative for employees it may legitimately represent under its rules. This does not in my view support the extended proposition that an employee organisation may only propose an enterprise agreement for the purposes of a s.236 majority support determination, which covers employees whose industrial interests it is entitled to represent.

[109] It is not uncommon for enterprise agreements to cover more than one employee organisation. An acceptance of the ResMed proposition would preclude an employee organisation from making a s.236 application where the proposed agreement also covered employees it was not entitled to act for as their bargaining representative. To accept the argument that an employee organisation is statute barred from proposing an agreement to cover employees it may not have constitutional coverage of would mean that employee organisations are limited in comparison to other types of bargaining representatives in making applications under s. 236. This much is accepted by ResMed. 60

[110] Section 237 of the Act requires the Commission before making a majority support determination to be satisfied that the group of employees covered by the agreement was fairly chosen. This would provide an additional hurdle for majority support determination applications if the proposed agreement coverage could only relate to a union’s constitutional coverage as opposed to the employer’s enterprise generally.

[111] In my view, the matter is simply dealt with by disposing of the argument that in filing a s.236 application, an employee organisation is purporting to be the bargaining agent for all employees the proposed agreement would cover. The section requires the bargaining representative to specify the employees who will be covered by the agreement. There is no warrant to equate such specification regarding coverage of the agreement in the application, with the bargaining representative purporting to represent all the employees to be covered by the proposed agreement as their bargaining representative. In this case the AMWU are simply stating who should be covered by the proposed agreement, provided they are the bargaining representative of an employee who would be covered by the proposed agreement they have sufficient standing to make the application.

[112] Section 236 is in the following terms:

“236 Majority support determinations

(1)A bargaining representative of an employee who will be covered by a proposed single-enterprise agreement may apply to the FWC for a determination (a majority support determination) that a majority of the employees who will be covered by the agreement want to bargain with the employer, or employers, that will be covered by the agreement.

(2) The application must specify:

(a) the employer, or employers, that will be covered by the agreement; and
(b) the employees who will be covered by the agreement.”

[113] This section cannot be read as imposing a requirement that an employee organisation is restricted to proposing an agreement to cover only employees it is entitled to represent. If such was the case it would provide bargaining representatives who are not employee organisations and not bound by eligibility rules the right to propose an agreement covering an employer’s workforce unrestrained by any limitation on coverage. Or in the alternatative only being able to propose an agreement to cover the employee/s that had appointed the bargaining representative to act on their behalf, either outcome cannot be supported from a plain reading of s.236.

[114] While ss. 176 and 236 both refer to the “proposed” agreement and this term should be given the same meaning in both sections unless the Act indicates otherwise, I am unable to agree that s.176 limits s.236 to the extent that is put on behalf of ResMed.

[115] In determining this question I have had regard to the Fair Work Bill’s Explanatory Memorandum at r.166 and item 975 and can find nothing to contradict the plain reading of s.236. The amendment to s.176(3) brought about by the Fair Work Amendment Act 2012 effective from 1 January 2013, prohibiting an official of an employee organisation from being a bargaining representative of an employee unless the organisation is entitled to represent the industrial interests of the employee in relation to work that will be performed under the proposed agreement does not result in viewing s.236 in a different light.

[116] I am further not convinced that this approach is inconsistent with the thrust of the Fair Work (Registered Organisations) Act 2009 which ResMed also relied upon. I accept the argument put by the AMWU that there is a distinct difference between acting as a bargaining representative and seeking a majority support determination. Provided the Applicant is a bargaining representative of an employee who will be covered by the proposed agreement there can be no jurisdictional objection based on not being a bargaining representative for all employees under the proposed Agreement, as seeking a s.236 majority support determination is not without more a purported attempt to act as the bargaining representative for all employees proposed to be covered by the Agreement.

11. Does the Commission have jurisdiction to make a determination in respect of the application under s.237 of the Act?

[117] I have found that AMWU has the constitutional right to represent the industrial interests of some employees in the proposed agreement and not others. ResMed submit such a finding invalidates the application on the basis that the grounds put forward by the AMWU to support the application state they wish to bargain for an enterprise agreement in respect of all the employees the proposed Agreement would cover. On this basis a new application would need to be filed removing this assertion. 61 I do not consider this fatal to the application. There are seven grounds put forward in support of the AMWU application, non acceptance of some of the grounds or all of them may or may not be relevant to the tests under s.236 and s.237. In any event, the AMWU has put on the record that it does not intend to bargain on behalf of employees whom it is unable to represent.62

[118] As the jurisdictional point taken by ResMed while partly successful, has still left the application on foot, the matter will be relisted at the convenience of the parties to be dealt with pursuant to requirements of s.237.

[119] During this case ResMed submitted that some of the exhibits, witness statements, written submissions and transcript contained confidential material impacting on their intellectual property rights, a separate consent order will be issued to address ResMed’s concerns. This decision has also been written in a manner so as to avoid any breach of the confidentiality orders and on the instructions of ResMed does not do so. 63

COMMISSIONER

Appearances:

A Mosses of Counsel and T Sebbens Solicitor for ResMed Limited.

C Howell of Counsel for the AMWU

Hearing details:

2013.

Sydney:

September 2, 3, 4 and 20.

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 1   Bella Vista in Western Sydney, New South Wales

 2   AMWU correspondence to ResMed of 5 April 2013

 3  The Australian spelling “apnoea” is not used by ResMed

 4   AMWU Outline of Submissions 2 August 2013 at 26

 5   Witness statement A Cameron 20 August 2013 at 3

 6 (1988) 29 IR 263 at 264

 7 (1956-1957) 97 CLR 71 at 84-85

 8 (1982) 153 CLR 402 at 408

 9   Ibid at 408

 10 (2012) 212 IR 206 at 215-216

 11   [2013] FWCFB 5216

 12 1988 29 IR 263

 13  Ibid at 271

 14   Ibid at 275

 15 (1991) 42 IR 295

 16   Print N3501 23 July 1996 page 11

 17   Ibid at page 12

 18   Ibid

 19 (1993) 51 IR 31

 20   Print P3382, 24 July 1997

 21 (1993) 51 IR 34 - 35

 22   Ibid

23 AMWU Outline of Submissions 2 August 2013 at 16

 24   Witness Statement of A Cameron 23 April 2013 at 31-32

 25   Witness statement A Cameron 23 April 2013 at 44

 26   Print N3501 23 July 1996 at page 11

 27   (1977) 57 WAIG 794

 28   Ibid at 794

 29 [1921] 15 CAR 297

 30   See Co-Operative Bulk Handling Ltd v Waterside Workers’ Federation of Australia (1980) 49 FLR 355 as an authority for words in rules not having a static meaning

 31   Ibid at 312

 32   Ibid at 315

 33   Witness statement Y McCarthy 24 June 2013, at 25-28

 34   Witness statement A Cameron 23 April 2013, at 52

 35   Print N3501 at page 11

 36   Witness statement C Mitchell 24 June 2013 at 51

 37   An example of a product produced within the Machines work area is the “S9” flow generator

 38 (1990) 26 FCR 261 at 279

 39 (1980) 49 FLR 355

 40   AMWU Outline of Submissions 2 August 2013 at 8

 41   AMWU Outline of Submissions 11 September 2013 at 52

 42   Witness Statement G Scott 20 June 2013 at 19(b)

 43 29 IR 263 at 27

 44   Witness statement Y McCarthy 24 June 2013 at 48

 45   Witness statement A Cameron 23 April 2013 at 88

 46   Witness statement D Kitcher 24 June 2013 at 12

 47   Witness statement D Kitcher 24 June 2013 at 77-84

 48   Witness statement D Kitcher 24 June 2013 at 25

 49   Witness statement D Kitcher 24 June 2013 at 50-53

 50   Witness statement D Kitcher 24 June 2013 at 57

 51   Witness statement D Kitcher 24 June 2013 at 18

 52   Witness statement D Kitcher 24 June 2013 at 59

 53   As attached to witness statements of Respondent A Cameron Exhibit R2 23 April 2013 at AC 7

 54   AMWU Outline of Submissions 2 August 2013 at 16

 55   Witness statement A Cameron Exhibit R2, 23 April 2013, at 86-87

 56   Witness Statement of D Kitcher 24 June 2013 at 20

 57   Print P3382, 24 July 1997

 58 (1988) 29 IR 263 at 273

 59 (1989) 31 IR 421 at 428-9

 60   ResMed Outline of Submissions 20 August 2013 at 71 and transcript at PN3068 and 3562

 61   Transcript at PN3033

 62   Transcript at PN3212

 63   ResMed and the AMWU were provided with an unpublished version of the decision in advance.

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