Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union v Selborne Biological Services (Australia) Pty Ltd

Case •

[2023] FWC 1503

•

13 JULY 2023
[2023] FWC 1503

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
v

Selborne Biological Services (Australia) Pty Ltd

(B2023/47)

COMMISSIONER LEE

MELBOURNE, 13 JULY 2023

Selborne Biological Services (Australia) Pty Ltd – Tasmania-whether AMWU is entitled to represent the industrial interests of the employees to be covered by the proposed agreement-whether a majority of employees want to bargain-satisfied that AMWU entitled to be a bargaining representative-satisfied on the evidence that a majority of employees want to bargain- majority support determination made.

Introduction

  1. The Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers' Union (AMWU) is an organisation registered under the Fair Work (Registered Organisations) Act 2009 (RO Act) and purports to be a bargaining representative of the employees of Selborne Biological Services (Australia) Pty Ltd (Selborne) who will be covered by a proposed enterprise agreement. These employees are employed at premises operated by Selborne located at 1064 Pateena Road, Longford, Tasmania, 7301 (Longford site). The AMWU has applied to the Fair Work Commission (Commission) pursuant to s.236 of the Fair Work Act 2009 (Act) for a determination that a majority of employees who will be covered by the proposed enterprise agreement want to bargain with Selborne, that will also be covered by the proposed enterprise agreement.

  1. The proposed Agreement will not cover all employees of Selborne and is proposed to cover “all Employees of Biological Services (Australia) Pty Ltd engaged at the Company operations in 1064 Pateena Road Longford, Tasmania 7301 Australia except senior management.”[1]

  1. On 30 January 2023 I issued Directions. The Applicant was directed to file an unredacted version of the petition showing the names of signatories of all Employees of Selborne engaged at the Company operations in 1064 Pateena Road Longford, Tasmania 7301 Australia except senior management. This list was to be provided on a confidential basis to my chambers only. The Applicant was also directed to file any submissions, witness statements and other documentary material on which they intended to rely by no later than close of business, Monday, 6 February 2023. The Respondent was directed to file a list of names of employees of Selborne who are engaged at the Company operations in 1064 Pateena Road Longford, Tasmania 7301 Australia except senior management. This list was to be provided on a confidential basis to my chambers only. The Respondent was also directed to file any submissions, witness statements and other documentary material on which they intended to rely by no later than close of business, Monday, 13 February 2023

  1. On 23 February 2023 the matter was listed for hearing. At the conclusion of the hearing, I indicated to parties that further submissions were required on the matter of whether or not the AMWU was entitled to represent the industrial interests of any of the employees to be covered by the proposed agreement. On 3 March 2023 I issued Directions. The Applicant was directed to file in the Commission and serve on the Respondent their materials by no later than 5.00pm, Thursday, 9 March 2023. The Respondent was directed to file in the Commission and serve on the Applicant their materials by no later than 5.00pm, Thursday, 23 March 2023.

  1. A further hearing was held on 1 May 2023. Subsequent to that hearing, a list of the members of the AMWU employed at the site was supplied to my chambers. The list was also provided to the legal representative of Selborne on provision of an undertaking from them not to share that information with their client.

  1. After further consideration, on 4 May 2023 I requested that the Respondent provide the position descriptions and/or any other document describing the work performed by each of the 31 individuals who would be covered by the agreement identified in attachment C to the Statement of Mr Pope.

  1. On 11 May 2023 the Respondents Representative provided a schedule which set out the position descriptions that apply to all the employees identified in attachment C to the statement of Mr Pope, except employee number 12, as the Respondent is not in possession of a position description that matches the role employee number 12 performs.

  1. On 16 May 2023 I issued further directions to allow for further submissions in light of the additional material provided. I directed that the Applicant file in the Commission and serve on the Respondent, any submissions in relation to the additional material the Respondent provided on 11 May 2023, by no later than 5.00pm, Tuesday, 23 May 2023. The Respondent was to file in the Commission and serve on the Applicant, any submissions in relation to the additional material the Respondent provided on 11 May 2023, by no later than 5.00pm, Tuesday, 30 May 2023. Both the Respondent and the Applicant provided further submissions consistent with the directions.

Selborne’s opposition to a majority support determination

  1. Selborne opposes the making of a majority support determination. In summary these grounds are as follows:

  1. Firstly, that the AMWU has not evidenced that at least one employee who will be covered by the proposed agreement is a member of the AMWU and that employee has not nominated another person to be their bargaining representative.

  1. Secondly, even if the AMWU can overcome the failure to adduce evidence to deal with the first objection, it is not possible for the AMWU to establish that it is entitled to represent the industrial interests of the employees as the AMWU Rules do not provide coverage in respect of any employee of Selborne.

  1. Thirdly, that the Commission cannot be satisfied that, on the basis of the redacted petition provided, that the majority of employees who will be covered by the proposed enterprise agreement want to bargain. Further that the petition is “irredeemably flawed” because it refers to “manager/supervisor employees”[2] in contrast to Mr Wickhams evidence where he attests that he did not seek to engage with employees who were senior management. Further, that Mr Wickham should be found to be an “extremely unimpressive witness”.[3] and that there were “chain of custody” issues with the manner in which the signatures on the petition were collected.

  1. I deal with these each of these objections below.

Consideration

The right to represent the industrial interests of employees

  1. Only a bargaining representative of an employee who will be covered by a proposed enterprise agreement may make an application for a majority support determination.[4]

  1. Section 176 of the Act identifies the persons that are bargaining representatives for a proposed enterprise agreement relevantly as follows:

“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) an employer that will be covered by the agreement is a bargaining representative for the agreement;

(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

(ii) in the case where the agreement is a multi-enterprise agreement in relation to which a low-paid authorisation is in operation—the organisation applied for the authorisation;

unless the employee has appointed another person under paragraph (c) as his or her bargaining representative for the agreement, or has revoked the status of the organisation as his or her bargaining representative for the agreement under subsection 178A(2); or

(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.”

  1. The AMWU relies for its status as bargaining representative upon the default position in s.176(1)(b) of the Act. Selborne maintains that the AMWU cannot represent the industrial interests of any employee in relation to work that will be performed under the proposed enterprise agreement, because those employees are not eligible to be members of the AMWU under its registered Rules.

  1. The AMWU rely on AMWU Rule 1C (a)(vii) and (viii) and rule 1C(e) of the AMWU Rules as the basis of their entitlement to enrol as members, employees who work at the Selborne facility and who would be covered by the proposed agreement.[5]

  1. Rule 1C (vii) is as follows:

“All persons employed in any of the industries of Architecture, Chemistry, Engineering,

Science, Surveying and Draughting including Tracing as:

Foremen and Supervisors of Engineering Production;

Foremen and Supervisors of Manufacturing Processes…”[6]

  1. Rule 1C (viii) is as follows:

“Technical Assistants and Technical Officers other than those employed;

(a) in the Public Services of the States of Australia;

(b) in or by any of the following New South Wales Trusts, Commissions or Boards; Viz;
 The Maritime Services Board;
The Metropolitan Water, Sewerage and Drainage Board;
The Hunter District Water Board; The Public Transport Commission;
The Water Conservation and Irrigation Commission;
The Forestry Commission;

(c) in the Commonwealth Scientific and Industrial Research Organisation;

Provided that any person who is employed in the Commonwealth Scientific and Industrial Research Organisation as a Technical Assistant or Technical Officer in an area of employment which since 1 November 1970 has come within the area of operation of the Commonwealth Scientific and Industrial Research Organisation and who at the time of change over is a member, shall remain eligible for membership of the Union.

(d) in the Overseas Telecommunications Commission;

(e) in laboratory work in the Australian Public Service unless they are employed in any of the industries of Architecture, Chemistry, Engineering, Science, Surveying and Draughting including Tracing.

Providing that any person employed in or usually employed in any of the callings prescribed in clause (a) of sub-ule 1C undergoing a fulltime course of training the object of which is to further qualify him or her for employment in any one or more of the said callings shall be classified as a student member.”[7]

  1. Rule 1C (e) is:

“Persons who are employed in clerical or administrative work in any of the industries of Architecture, Chemistry, Engineering, Science, Surveying and Draughting including Tracing…”[8]

  1. As already stated, Selborne submits that the AMWU Rules do not give the AMWU the entitlement to represent the industrial interests of any of the employees of Selborne.

  1. The basis of the opposition can be summarised as follows:

·   That the union with coverage of its production employees is the Shop, Distributive & Allied Employees Association (SDA) which has Rules that provide coverage of employees engaged in the making of pharmaceutical goods. As Selborne operates in the pharmaceutical industry, the SDA has a clear entitlement to represent the employees. As an intention of AMWU Rules is to prevent demarcation disputes arising from overlap in coverage, this is an important consideration.

·   Selborne accepts that its business involves manufacturing processes but submits that it is not in the industry of “science” nor is it in the industry of “chemistry” but rather in the pharmaceutical industry.

·   That coverage of the Manufacturing and Associated Industries and Occupations Award 2020 provides a guide to construction in the relevant industries. That formulation means that “chemistry” and “science” as it appears in the AMWU Rules relates to the production of chemicals. However, Selborne processes are “in the nature of applied science where the application of the science occurs within a separate and distinct industry – in this case, the pharmaceutical industry.”[9]

·   That Selborne products are produced for application in the pharmaceutical industry in which Selborne is involved: they are not producing “science” or “chemical” products for use in the processes of others.

·   That the terms Technical Officer and Technical Assistant should be read as a position title rather than to the nature of the work. Selborne also submits that the AMWU has not identified at least one employee who will be covered by the proposed enterprise agreement who is a member of the AMWU.

  1. Both parties relied on the principles established in Australian Manufacturing Workers Union v ResMed Limited [2014] FWCFB 3501 (ResMed).

“The general principles applicable to the interpretation of union eligibility rules are well established. As relevant to this appeal, they may be summarised as follows[10]:

(1)        Union eligibility rules will be construed objectively: R v Williams; Ex parte Australian Building, Construction Employees’ and Builders Labourers’ Federation.[11]

(2)        The nature of union eligibility rules means that they should be construed liberally rather than narrowly or technically: R v Cohen; Ex parte Motor Accidents Insurance Board[12]; Co-operative Bulk Handling Ltd v Waterside Workers’ Federation of Australia[13]; Electrical Trades Union of Australia v Waterside Workers’ Federation of Australia (No. 2)[14].

(3)        It is permissible to have 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 the previous use of the words in the relevant organisation’s rules and in statutory provisions, decisions, determinations, awards, reports and other papers concerned with the relevant industry or industries: R v Williams; Ex parte Australian Building, Construction Employees’ and Builders Labourers’ Federation.[15] Federal awards, including consent awards, made by Commonwealth industrial tribunals at a time when the legislative award-making power was founded upon the industrial disputes power in s.51(xxxv) of the Constitution, are important sources in this respect since a union may only be a party to an industrial dispute involving employees eligible to be its members: Co-operative Bulk Handling Ltd v Waterside Workers’ Federation of Australia.[16]

(4)        If there is ambiguity as to the meaning of words in the eligibility rules, assistance may be sought in the terms of the industry rule (subject to it being understood that the scope of the eligibility rule is not restricted by the scope of the industry rule): R v Gough; Ex parte Municipal Officers’ Association.[17]

(5)        Words in an eligibility rule should not be read in isolation such as to give the rule a wide and indefinite scope of operation that is unlikely to have been intended: R v Gough; Ex parte Municipal Officers’ Association[18]; Construction, Forestry, Mining and Energy Union v CSBP Ltd.[19]

(6)         Terms used in union eligibility rules should not be interpreted statically in accordance with the meaning they bore at the time that they were first introduced into the rules. Although such terms will have a fixed connotation, they bear a changing denotation - that is, they may be interpreted in accordance with their appropriate current meaning, taking into account changing technologies and methods of work: Co-operative Bulk Handling Ltd v Waterside Workers’ Federation of Australia.[20] This may mean that eligibility rules may cover industries or callings not known when the rules were originally drafted: R v Isaac; Ex parte Transport Workers’ Union.[21]

(7)        The words “in or in connection with” are words of expansion. However, for the requisite connection to be established, the work of the employees in question must be referable or significant to the work of the second group of employees with whom there is said to be a connection. It is not sufficient that the work of the relevant employees makes it possible for an employer to conduct a business involving the performance of work by the second group of employees: Federated Miscellaneous Workers Union of Australia v Colonial Sugar Refining Co. Ltd.”[22]

  1. I agree these are the appropriate principles to apply in considering the matter.

Does Rule 1C (a)(viii) of the AMWU Rules entitle them to represent the industrial interests of the employees to be covered?

  1. I agree with the AMWU’s submissions that the words “Technical Officer” and “Technical Assistant” should be construed liberally rather than narrowly and technically, consistent with the ResMed principles. The terms should be considered against the work performed by the employees that the AMWU seeks to be covered by enterprise agreement, rather than be anchored to a position title as advanced by Selborne.

  1. While the terms are both capitalised, I do not accept that means those terms should be read narrowly so as to mean they are only relevant as a position title rather than referring to the nature of the work performed. There are a number of reasons to prefer that construction.

  1. Firstly, the reference to Technical Assistant and Technical Officer in the AMWU Rules does not appear to be related to a defined position in an organisation or industry.

  1. Secondly, the narrow construction urged by the employer would mean that a provision of the Rules where the calling referred to is capitalised would only operate where an employer specifically defined or anchored, as the AMWU says, a position to that term. It does not consider the nature of the work performed.

  1. Thirdly, the capitalisation of terms occurs in other parts of the Rules. For example, the Rule 1C(a)(vi) reads as follows:  Aircraft Inspectors and Examiners (other than inspectors and examiners and examiners employed inspecting or examining sheet metal work elsewhere that in the Directorate of Quality Assurance, RAAF) Certified Mine Managers, Engineering Inspectors, Building Inspectors, Testers of Engineering Materials; Production Planners, Planners of Engineering Production, Manufacturing Processes, Construction or Maintenance Work, Weather Officers. I do not accept that that the Rules of the AMWU would operate to only cover, for example, employees employed in the work of Aircraft Inspection or Weather Officer if that was the actual position title.

  1. There is no definition in the AMWU Rules as to what a “Technical Officer” or “Technical Assistant” means. The AMWU rely on the ABS definitions of Science Technician and Chemistry Technician / Technical Officer as a guide to construction.

  1. Those definitions are as follows:  

“Science Technicians

Science Technicians perform tests and experiments, and provide technical support functions to assist with research, design, production and teaching in chemistry, earth sciences, life sciences, and physical sciences.

Indicative Skill Level:
Most occupations in this unit group have a level of skill commensurate with the qualifications and experience outlined below.

In Australia:
AQF Associate Degree, Advanced Diploma or Diploma (ANZSCO Skill Level 2)

In New Zealand:
NZQF Diploma (ANZSCO Skill Level 2)
At least three years of relevant experience may substitute for the formal qualifications listed above. In some instances, relevant experience and/or on-the-job training may be required in addition to the formal qualification.

Tasks Include:

·   preparing materials for experimentation such as freezing and slicing specimens and mixing chemicals,

·   collecting information and samples,

·   conducting field and laboratory experiments, tests, and analyses,

·   presenting results in graphic and written form by preparing maps, charts, sketches, diagrams, and reports,

·   performing routine mathematical calculations, and computations of measurements,

·   controlling the quality and quantity of laboratory supplies by testing samples and monitoring usage,

·   checking, calibrating, and maintaining test equipment,

·   participating in fabricating, installing, and modifying equipment to ensure that critical standards are met,

·   preparing experiments and demonstrations for science classes.

Chemistry Technician/Technical Officer:
Performs laboratory tests on organic and inorganic chemicals, analyses test data and
carries out technical functions in support of Chemists or Chemical Engineers in a wide
variety of areas such as fuels, agricultural products, food, pharmaceuticals, paints,
metals, plastics, textiles, detergents, paper, fertilisers and cosmetics.”[23]

  1. The managing director of Selborne, Neville George Pope gave evidence as to the nature of the work performed at the Longford site. “The industry in which SBS operates is the manufacture of products of animal origin for the pharmaceutical, veterinary, biotech and diagnostics industries. The vast majority of Selbornes business is the production of Bovine Serum for use in vaccine manufacture (human and veterinary). This includes use in the manufacture of human Polio vaccine, and Foot and Mouth disease vaccine for animals, bovine serum represented about 95% of its production for the year ended 3l December 2022.”[24]

  1. The evidence of Mr Pope was “…the main production focus of the company was the production of Bovine serum for use in human and veterinary vaccines.[25] Given the nature of the product, the company is required to comply with cGMP regulations[26] and is licensed by the Therapeutic Goods Administration.[27] Under cross-examination, Mr Pope further outlined that Selborne does most of the analysis and testing on site, performing “basic biochemistry”.[28] The site also has a centrifuge and spectrometer for testing and quality control.”[29]

  1. The AMWU submits that the evidence shows that Selborne does quality control analysis and testing on site. They have a laboratory with testing capability and use scientific machinery such as centrifuges and spectrometers. When compared to the ABS definitions, technicians perform laboratory tests, check, calibrate and maintain equipment and/or carry out technical functions in support of professionals (such as Chemists or Chemical Engineers) in areas such as pharmaceuticals. Taking these functional definitions into account, the AMWU argues that Selborne employs workers whose job fall within the definition of “Technical Assistants” and/or “Technical Officers”.[30]

  1. Selborne submits that this approach should be rejected because it is tantamount to reading Technical Officer and Technical Assistant as synonyms for science technician and chemistry technician. However, I reject that argument. The AMWU are not seeking to establish that in any instance the word technician should be deemed to mean Technical Officer, or Technical Assistant.

  1. As set out above, Selborne provided position descriptions for all of the positions that would be covered by the proposed enterprise agreement.  Having regard to those position descriptions the AMWU submit that the positions of: Filtration/Protein Fractionation/Service Technician; Quality Assurance Technician and Quality Control Technician are likely to satisfy the ABS definitions of “Science Technician” and “Chemistry Technician” and would be able to be classified as “Technical Officer” and/or “Technical Assistant” for the purposes of Rule 1C(a)(viii).

  1. According to the position description supplied, the main duties of a Filtration/Protein Fractionation/Service Technician at Selborne include:

• processing of serum and or derived products,
• filtration, extraction, purification processes and cleaning duties,
• participate in the filtration of animal derived sera including sterilization,
• participate in other final sera processing activities including protein fractionation.,
• participate in routine maintenance of processing rooms, equipment, and associated services.[31]

  1. I agree these duties are similar to that of the ABS definition of Science/Chemistry Technician which include:

    • preparing materials for experimentation such as freezing and slicing specimens and mixing chemicals,
    • Collecting information and samples
    • checking, calibrating, and maintaining test equipment,
    • carries out technical functions in support of Chemists or Chemical Engineers in a wide variety of areas including pharmaceuticals.

  2. Some of the main duties of a Quality Control Technician include:

    • Quality control testing predominantly biochemical and microbiological,
    • Prepare routine environmental monitoring documentation,
    • Perform routine Animal Health Test on submitted samples,
    • Participate in laboratory calibration and maintenance activities.[32]

  3. These duties are similar to that of the ABS definition of Science/Chemistry Technician which include:

    • collecting information and samples,
    • conducting field and laboratory experiments, tests, and analyses,
    • checking, calibrating, and maintaining test equipment,

  4. According to the position description, some of the main duties of a Quality Assurance Technician at Selborne include:

    • Review of Quality Control Data and documentation,
    • Provide support in the maintenance/calibration program for facility, equipment and services including schedule maintenance.

  5. These duties are very similar to the duties of a Science/Chemistry Technician as set out in the ABS definition which include:

    • conducting field and laboratory experiments, tests, and analyses,
    • checking, calibrating, and maintaining test equipment,
    • participating in fabricating, installing, and modifying equipment to ensure that critical standards are met.

  6. I agree with the AMWU that when one takes these functional definitions into account, Selborneemployees who are classified as either Filtration/protein fractionation/service technician, or Quality Control Technician, and/or Quality Assurance Technician fall within the definition of “Technical Assistants” and/or “Technical Officers”.”[33]

  1. The evidence is that these characteristics will be covered under the proposed enterprise agreement.  I note that my finding in this regard is consistent with the fact that the AMWU has historical coverage of the kind of workers mentioned in Rule 1C(viii). The “Draughting, Production Planners and Technical Workers Award 1998 (DPPTW)” (to which the AMWU was the sole union party to Schedules C & E of that Award) applied to several pharmaceutical companies and laboratories, such as Core Laboratories, Australian Laboratory Services Pty Limited, Agro Nutritional Research Laboratory which were therefore bound by the Award. The relevant schedules from the Award were provided as evidence by the AMWU.[34]

  1. For the foregoing reasons I agree that the AMWU is entitled to be a bargaining representative for employees of Selborne who are engaged in work that falls within the definition of Technical Officer or Technical Assistant. according to Rule 1C(a)(viii) of the AMWU Rules.[35]

Does Rule 1C(a)(vii) of the AMWU Rules entitle them to represent the industrial interests of the employees to be covered?

  1. I also agree that the AMWU is entitled to enrol by virtue of Rule 1C(a)(vii), as members, workers who work at the Selbornefacility as “Foremen or Supervisors of Manufacturing Processes” as the Respondents business is in the Science and/or Chemical Industry.

  1. Firstly, I will consider the competing contentions as to whether Selborne is in the Science or Chemical industry. Selborne submits that it is not in either the Science or the Chemical Industry but rather is in the pharmaceutical industry. In my view, that requires the Rules to be construed such that if one is employed in the pharmaceutical industry, that it cannot be that they are also involved in the industry of science or chemistry. I disagree with that proposition. 

  1. The Macquarie dictionary definition of Science is:  

    “1. a. the systematic study of the nature and behaviour of the material and physical universe, based on observation, experiment, and measurement, often leading to the formulation of laws to describe the result of such procedures in general terms.

    b. the knowledge so obtained.
    2. a particular branch of this.
    3. systematised knowledge in general.
    4. Obs. skill; proficiency.”[36] 

  1. The Macquare Dictionary definition of Chemistry is:

    “1. the science concerned with the composition of substances, the various elementary

    forms of matter, and the interactions between them.
    2. chemical properties, reactions, etc.: the chemistry of carbon.[37] 

  2. “The AMWU submits that “Science” should be construed broadly and note that the ordinary meaning of science is quite broad and encompasses a range of disciplines and that the term "science” can refer broadly to any business or industry that is involved in scientific research, development, or production including industries such as pharmaceuticals, biotechnology, medical devices, aerospace, and defence, among others. The fact that Mr Pope stated that “basic biochemistry”[38] was performed in the laboratory suggests that what is broadly considered “science” is being performed on the premises.”[39] 

  1. In my view the industry in which Selborne is engaged is the pharmaceutical industry. However, the making of pharmaceuticals is to engage in a branch of Science or Chemistry. The evidence is that Selborne t is engaged in the production of Bovine serum for use in vaccine manufacture. The Biochemistry which is performed at the site should reasonably be considered a branch of Science or Chemistry. It follows that Selborne  is in both the Science and Chemistry industry. I agree with the AMWU submission that the Commission should reject Selbornes argument that “Pharmaceutical Industry” is not a component of the “Science” or “Chemistry” industry.[40]

  1. The AMWU also submits that this is a reasonable and objective definition of “science” for the purposes of interpreting the AMWU’s Rule concerning “Science Industry”. The AMWU submitted: “We are not seeking to expand the “science” definition to “cooking a cup of tea”[41]. We are asking the Commission to recognise that working in a laboratory environment that involves testing of products, use of technical equipment such as centrifuges and spectrometers and a range of quality control capabilities can and should be considered “Science”.[42] For the foregoing reasons, I agree that the evidence supports a finding that Selborne is engaged in the industries of Science and Chemistry as contemplated within the AMWU Rule 1C (a)(vii). 

  1. The AMWU Rule 1C (vii) provides that the employees to be eligible as members of the AMWU, must also be “foremen or supervisors of manufacturing processes in those industries”.

  1. “The Respondent at Paragraph 14 of their submission dated 13 February 2023 accepts that its business involves “manufacturing processes, and that for the manufacturing processes to occur, there must be employees who can be identified as supervising those manufacturing processes”[43]

  1. As already noted, Selborne has provided the relevant position descriptions for all of the positions that would be covered under the proposed enterprise agreement. Based on those positions, the AMWU made the following submissions:

“18. The AMWU submits that the following position descriptions are likely to fit within the scope of Rule 1C(a)(vii) of the AMWU, covering Foremen and Supervisors of Manufacturing Processes in the industries of Chemistry and Science:

a. Filtration/Protein Fractionation/Service Supervisor,
b. Quality Assurance Coordinator,
c. Clean room centrifugation supervisor

19. The AMWU notes the argument made by the Respondent that these positions are not explicitly titled “Supervisor of a manufacturing process”. The AMWU presses its submission that eligibility for membership is not solely determined by the job title (which is given by an employer) but more on the duties or role performed. In the case of a supervisor, this extends to what processes they are supervising.

20. It is the AMWU’s submission that these positions are supervising facets of the manufacturing process of the Respondent’s product and further that the work they are supervising fits in the industries of Science and/or Chemistry. For example:
a) The main duties of the Filtration/Protein Fractionation/Service Supervisor include overseeing and participating in filtration and other processing activities of animal derived sera, and it is desirable that they have qualifications in biological, science or engineering disciplines
b) the main duties of the Quality Assurance Co-ordinator supervise the quality assurance technicians and the co-ordination of maintenance for facility and equipment;  
c) The main duties of the Clean Room/Centrifugation Supervisor includes both supervision of activities such as filtration, blood processing and immunogen preparation, as well as necessary maintenance activities.[44]

21. The AMWU submits that the manufacture and processing of animal derived sera and protein fractionation, together with the quality assurance processes and scientific equipment (such as centrifuges) used satisfy the requirements of “manufacturing processes” in the Science or Chemistry industry. It is clear from the job descriptions of these roles that they are supervising, overseeing, and training workers in aspects of the manufacture of a scientific product.”[45]

  1. I agree that it would be a narrow and technical interpretation and inconsistent with the principles in ResMed, to construe the term “Foreman and Supervisors of Manufacturing Processes” as requiring the employees to have these titles. What is relevant is does the objective evidence show that employees are required to undertake tasks that could reasonably be considered those of a supervisory role of manufacturing processes in the relevant industry. It is clear from the evidence the positions identified do just that.

  1. I agree with the AMWU that it is clear from the job descriptions supplied that the positions referred to are supervising, overseeing and training workers in aspects of manufacture of a scientific product.  I agree that the AMWU are entitled to represent the interests of employees at Selborne, according to Rule 1C(a)(vii) who perform work equivalent to “Foremen and Supervisors of Manufacturing Processes”.”[46]

  1. The AMWU also submit that they have coverage of workers at the Selborne facility according to Rule 1C(e) with respect to clerical and administrative work employees.

  1. This Rule entitles the AMWU to enrol administrative employees that work in industries such as Architecture, Chemistry, Engineering, Science, Surveying, and Draughting and work in physical proximity to and in association with production, trade, technical, planning, drafting, or related supervisory employees who are also eligible for AMWU membership, and they must comprise 25% or less of the total number of employees in their workplace. Additionally, they must perform work incidental to the principal function of that workplace and not work in a separate and distinct head office.

  2. It is apparent from the list of employees contained in Mr Pope’s statement, employees classified as “Administration” number less than 25% of the employees of that workplace.

  3. I agree with the AMWU submissions that employees engaged in clerical and administrative work at Selborne perform work incidental to the principal function of that workplace, namely the manufacture of Bovine serum for use in vaccines, and work in physical proximity to and in association with technical and related supervisory employees who are otherwise eligible to be members of the AMWU under AMWU Rules.[47]

  1. The AMWU provided a list of employees who are members of the AMWU at Selborne. That list was provided to legal counsel of Selborne on the basis of an undertaking that they would not reveal any information about that list to their client. Having viewed that list and considered the positions in which those AMWU members are engaged, I am satisfied that at least one of those employees falls within the coverage of the Rules 1C(a)(vii) or 1C(a)(viii) or Rule 1C(e). The next section of this decision is redacted in order to maintain the confidentiality of the AMWU members. 

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  1. REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED

  1. For the foregoing reasons I am satisfied that the AMWU has the jurisdictional standing to bring an application for a majority support determination, as it has the ability to represent the industrial interests of one or more employees of Selborne and has enrolled members who are employed by Selborne.[48]

Whether employees who will be covered by the proposed enterprise agreement want to bargain with Selborne

  1. The AMWU provided a redacted and unredacted petition to the Commission. The petition includes in its heading the following wording:  

“I want to bargain for an enterprise agreement with Selborne Biological Services (Australia) Pty Ltd., 1064 Pateena Road, Longford, Tasmania, 7301

I agree to this petition being provided to the Fair Work Commission to prove that protein fractionation technicians, filtration technicians, clean room technicians and raw process technicians, logistics, quality assurance, quality control, administration and manager/supervisor employees who are employed at Selborne Biological Services (Australia) Pty Ltd's site at 1064 Pateena Road, Longford, Tasmania, 7301 who have signed this petition want to bargain for an enterprise agreement. This petition and the names of people who sign it will be kept confidential from senior management at Selborne Biological Services (Australia) Pty Ltd.”

  1. I am satisfied the description set out in the petition adequately specifies the group of employees to be covered by the proposed enterprise agreement. The wording in the petition is consistent with the position descriptions provided by the employer as to the positions that would be covered by the proposed enterprise agreement. The fact that the petition refers to manager/supervisor employees is not inconsistent, as submitted by Selborne, with Mr Wickhams evidence that he did not seek to engage with senior management. Positions such as Filtration/Protein Fractionation/Service Supervisor for example, are not senior management and would be covered by the proposed enterprise agreement.

  1. 20 employees have signed that petition in the original form as it was provided to my chambers. A further employee has filled out their name and address but not signed the petition. There is an SMS in evidence from that employee sent to another employee of Selborne providing an authority for them to sign the petition on their behalf. A further two employees signed a separate copy of the petition and emailed a copy of the petition with their details and signatures completed to Michael Wickham. Adding those two employees to the 21 names in the original petition, there are 23 employees who have indicated that they wish to bargain for an enterprise agreement. A further employee sent an email to authorise a fellow employee to put their name down on the petition bringing that number to 24.

  1. Mr Wickham, the AMWU state organiser gave evidence that around 20 December 2022, he held a meeting with employees of Selborne, both members and non-members of the AMWU. The meeting took place at the Selborne facility. At the meeting Mr Wickham personally collected a number of signatures on the petition.[49]

  1. Mr Wickham also left a number of petitions with a member (who does not wish to be identified) on site in order to collect more signatures The member then emailed a further copy of the petition with additional signatures for other employees. Mr Wickham then compiled the petition to include the additional signatures received by email and text message.

  1. Mr Wickham was somewhat vague in his evidence as to how many signatures he personally collected. However, on cross examination, Mr Wickham clarified that his email trail shows that he received two signatures on a petition via email[50] That evidence aligns with the unredacted material provided to me.

  1. There were some rather confused exchanges with Mr Wickham on cross examination, not aided by the fact Mr Wickham dropped out of connection repeatedly, and that he had trouble accessing his attachments to his statement. In any event, I am satisfied that the material Mr Wickham attested to was included with his statement, that is, a text message from an employee asking a fellow employee to sign the petition for him, an email attaching a copy of the petition with two signatures, and a further email from one employee asking that their name be put on the petition. This material was provide to the Commission only, consistent with the directions, in an unredacted form.

  1. Ultimately, despite Mr Wickham being a little confused on the day of the hearing, it is clear on the evidence that 21 employees names were included on the petition collected by Mr Wickham. Of those 21 names, one had not signed the petition, but that person has requested by text that they be included.

  1. I see no reason not to consider the email with the additional two signatures as representing the views of those employees. The same can be said of the indication by email by one additional person that they sought that their name be added to the petition. That means there is a total of 24 employees that have indicated their desire to bargain for an enterprise agreement.

  1. I am not satisfied that there is any particular chain of custody issue in circumstances where it is clear on the unredacted material before me that 20 of the signatures on the petition were collected by Mr Wickham. The fact that two of the signatures were collected by a AMWU member on site does not raise any concerns. While Mr Wickham did not wish to identify the person who collected and forwarded those signatures, it is clear on the unredacted document before me who that person was, and no adverse inference can be drawn from the failure of Mr Wickham to identify the individual during the hearing in those circumstances.

  1. Separately, Selborne provided a list of employees titled “Selborne employees excluding senior management” which contains 31 names. Two of the persons who have signed the petition do not appear on the list of employees provided by Selborne. That leaves a total of 22 employees of the 31 employees who have indicated they want to bargain for an enterprise agreement. There is no evidence of any coercion or pressure being applied to any person to sign the petition. No employee of Selborne was called to give evidence of any pressure or any other illegitimate conduct engaged in by the AMWU in order to procure a signature on the petition. There is no basis to question the legitimacy of the petition with the associated text message and email as an expression of the wishes of those who sent that communication. I am therefore satisfied that the petition method and the additional authorisation by SMS and email of two employees, utilised by the AMWU in this case is an appropriate basis to work out whether a majority of relevant employees want to bargain and I am satisfied that a majority (that is 22 of the 31 employees to be covered) do want to bargain for an enterprise agreement.

  1. For these reasons, I am satisfied that a majority of employees who will be covered by the proposed enterprise agreement, want to bargain for an enterprise agreement with Selborne.

Statutory criteria

  1. For the reasons already given, I am satisfied that a valid application has been made by the AMWU in its capacity as a bargaining representative for the proposed enterprise agreement and of the matters set out in s.237(2)(a) of the Act. It is not in dispute that Selborne has not yet agreed to bargain or initiated bargaining for the proposed enterprise agreement and I am so satisfied.

  1. As to the question whether the group of employees who will be covered by the proposed enterprise agreement was fairly chosen, there is no need for the group of employees to be the fairest group that could be chosen; it is sufficient that the group is fairly chosen. If, as is the position in the instant case, the proposed enterprise agreement will not cover all the employees of the employer, in deciding whether the group of employees who will be covered was fairly chosen, I must take into account whether the group of employees is geographically, operationally or organisationally distinct. The group to be covered are all employees at the relevant site, except senior management. It is reasonable to assume that senior management are separate and organisationally distinct from the remainder of the employees. There is no suggestion to the contrary. Further, the site is the only Australian operation of Selborne. In this application, the group of employees who will be covered by the proposed enterprise agreement appears on the material to be a distinct group of employees.

  1. I am therefore satisfied that the group of employees was fairly chosen.

  1. Apart from the objections discussed earlier in these reasons, Selborne does not identify any other basis on which it might be said that in the circumstances it would not be reasonable to make the determination, nor have I been able to identify any such reason. I am therefore satisfied that it is reasonable in all the circumstances to make the determination.

  1. The application for a majority support determination made by the AMWU should succeed and a determination[51] will separately be issued and will come into operation on 13 July 2023. 


COMMISSIONER


[1] Question 1.2.2 of the Form F30.

[2] Respondents outline of submissions at [27].

[3] Respondents supplementary submissions at [16].

[4] Section 236 (1) of the Fair Work Act 2009.

[5] AMWU outline of submissions at [5].

[6] Rules of the AMWU at [1C (vii)].

[7] Rules of the AMWU at [1C (viii)].

[8] Rules of the AMWU at [1C (e)].

[9] Respondents Outline of submissions at [18].

[10] See generally Hon. J W Shaw QC, Interpreting Trade Union Constitution Rules, (1988) 62 ALJ 690at 692-694, cited with approval in Brown v Health Services Union[2012] FCA 644at [81] and Australian and International Pilots Association v NetworkAviation Pty Limited[2013] FWCFB 5216 at [31].

[11] (1982) 153 CLR 402 at 407.

[12] (1979) 141 CLR 577 at 587.

[13] (1979) 141 CLR 577 at 587.

[14] (1982) 59 FLR 78 at 87.

[15] (1982) 153 CLR 402 at 407.

[16] (1980) 49 FLR 355 at 370.

[17] (1975) 133 CLR 59 at 69.

[18] Ibid at 68-69.

[19] (2012) 212 IR 206 at [52]-[53].

[20] (1980) 49 FLR 355 at 363-4.

[21] (1985) 159 CLR 323 at 331.

[22] Australian Manufacturing Workers Union v ResMed Limited [2014] FWCFB 3501 [26].

[23] Witness of Neville George Pope at [2] and [3].

[25] Statement of Pope [3].

[26] Ibid 4.

[27] Ibid 5.

[28] Oral evidence of Mr Pope 23 February 2023.

[29] Ibid.

[30] AMWU outline of supplementary submission at [14].

[31] Job description of Filtration/Protein Fractonation/Service Technician as submitted by Respondent via email to the Commission on 11 May 2023.

[32] Job descriptions for Quality Control Technician as submitted by Respondent via email to the Commission on 11 May 2023.

[33] AMWU outline of supplementary submission at [8] – [15].

[34] AMWU outline of supplementary submission at [16].

[35] AMWU outline of supplementary submission at [8] – [16].

[36] Susan Butler, Macquarie Dictionary (Macquarie Dictionary Publishers Pty Ltd, 5th ed, 2009).

[37] Ibid.

[38] Evidence of Pope 23 February 2023.

[39] AMWU outline of supplementary submission at [20].

[40] AMWU outline of supplementary submission at [23]

[41] 13 February 2023 Respondent’s submissions at [16].

[42] 23 May 2023 AMWU outline of supplementary submission at [23].

[43] Respondent’s submissions 13 Feb 2023 [14].

[44] Job description of Clean Room/Centrifugation Supervisor as submitted by Respondent via email to the Commission on 11 May 2023.

[45] AMWU outline of supplementary submission at [18] – [21].

[46] AMWU outline of supplementary submission at [24].

[47] AMWU outline of supplementary submission at [24] – [27].

[48] AMWU outline of supplementary submission at [25].

[49] Witness statement of Michael Wickham at [18].

[50] PN159.

[51] PR764202.

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Australian Manufacturing Workers' Union v ResMed Limited [2014] FWCFB 3501