Health Services Union v Clinical Laboratories Pty Ltd
[2024] FWC 1288
•16 MAY 2024
| [2024] FWC 1288 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.236 - Application for a majority support determination
Health Services Union
v
Clinical Laboratories Pty Ltd
(B2023/1112)
| COMMISSIONER MATHESON | SYDNEY, 16 MAY 2024 |
Application for a majority support determination
The Health Services Union (Applicant) has applied to the Fair Work Commission (Commission) pursuant to s.236 of the Fair Work Act 2009 (Cth)(Act) for a determination that a majority of the employees who will be covered by a proposed enterprise agreement (Proposed Agreement) want to bargain with the employer that will be covered by the Proposed Agreement.
The employer who will be covered by the Proposed Agreement is Clinical Laboratories Pty Ltd (Respondent) and the employees who will be covered by the Proposed Agreement are customer service (call centre) employees employed by the Respondent.
The Respondent opposes the application on a number of grounds including:
1. A majority of employees who are employed by the Respondent do not want to bargain.
2. The group(s) of employees who will be covered by the agreement was not fairly chosen.
3. It is not reasonable in all the circumstances to make the determination.
Background
There is a timeline of events in the lead up to the application that goes back a considerable period. In particular:
On 20 July 2023 the Applicant made a request via email seeking to bargain with the Respondent for an enterprise agreement.[1] In this regard an email from Brendan Roberts, an Organiser for the Applicant, to Christopher Brownlow dated 20 July 2023 was attached to the Applicant’s submissions[2] and states.
“Dear Chris
The Health Services Union is requesting Australian Clinical Lab NSW entry (sic) in to (sic) good faith bargaining negotiations for a single interest Enterprise Agreement capturing Pathology Couriers, Pathology Collectors, Customer Service / Administration Staff.
Please advise by 28 July 2023 if Australian Clinical Labs NSW are willing to enter into good faith bargaining with the Health Services Union.”
On 26 July 2023 the Respondent responded in writing to that request and declined to bargain.[3] In this regard a copy of the correspondence from Mr Brownlow to Mr Roberts was attached to the Applicant’s submissions[4] and stated:
“Dear Brendan
We have considered your request for Australian Clinical Labs (ACL) to commence good faith bargaining for a single enterprise agreement applying to couriers, pathology collectors, customer service and administrative employees.
We advise that ACL declines your request. ACL does not wish to negotiate an enterprise agreement for the specified employees.”
On 8 September 2023 the Applicant made an application to the Commission (First Application) pursuant to s.236 of the Act, seeking that the Commission make a majority support determination.[5]
On 8 September 2023, being the same day that the Applicant made the First Application, the Respondent wrote to the Applicant indicating that it wanted to meet with the Applicant. In particular, a letter from Mr Brownlow to Gerard Hayes (the Applicant’s NSW Secretary and National President) was attached to the Applicant’s submissions[6] and stated, among other things:
“The purpose of the meeting would be three-fold:
1. To understand your intention for the EBA process and allow dialogue between us directly on this;
2. Hear directly any immediate issues; and
3. Discuss how we can work together on a long-term solution for the challenges facing Pathology.
I will make myself available in Sydney for the meeting and would (pending diaries) bring Daren McKennay (ACL Chair), Chris Brownlow (NSW Manager) and Sam Dastyari (Corporate Affairs) to the meeting.”
On 11 September 2023 the Applicant withdrew the First Application.[7]
On 13 September 2023 a meeting took place between the Applicant and Respondent[8] and following that meeting, on 15 September 2023 the Applicant emailed the Respondent.[9] Attached to the application was a copy of that email from Mr Howarth which states:
“Dear Melinda,
Thank you for taking the time to meet on Wednesday 13th September, it is greatly appreciated.
In terms of the proposed Enterprise Agreement, I have outlined the core components of what I would see as to the inclusions, inclusive of proposed timeline.”
The email set out a proposed timeline, a list of matters the Applicant wanted to include in the Proposed Agreement and its position in relation to wages.
On 4 October 2023, having not received a reply from the Respondent in relation to its email of 15 September 2023, the Applicant emailed the Respondent seeking to understand its position on bargaining by 5pm on 5 October 2023, foreshadowing another application for a majority support determination.[10] A copy of an email from Mr Howarth of the Applicant to the Respondent was filed with the application and states:
“Good afternoon all,
Following discussions in previous weeks the Health Services Union is seeking a response to the proposed enterprise bargaining in relation to the couriers and customer service within ACL or indeed a collective. The HSU and delegates are requesting the official position of ACL by COB Thursday 5th October 2023. Outlining a pathway inclusive of setting dates and times – HSU and Delegates are ready for commencement. Please keep in mind that the HSU had withdrawn the Majority Application in good faith given ACL entered conversations to commence discussions on an EA. I feel that this is now a fate of complete.
Failure of Australian Clinical Labs to provide a response outlining ACL’s position inclusive of dates and times commencing the process, the Health Services Union will be escalating and making further applications to the Fair Work Commission by way of a Majority Support Friday 6th October 2023 at 9am.
Given the amount out (sic) time that has now passed, surely Australian Clinical Labs are in a position to either accept or reject bargaining for an enterprise agreement – I would remind the organisation that the majority of your staff, and our HSU members are requesting this to occur.
I will await further communication up to an including 5pm, Thursday 5th October 2023.”
On 17 October 2023, the Applicant made the current application to the Commission pursuant to s.236 of the Act seeking that the Commission make a majority support determination.[11] In that application the Applicant indicated that it had:
“…asked members who wished to commence enterprise bargaining to sign a written statement demonstrating their support. A majority of employees who would be covered by the proposed agreement have now signed a written statement indicating that they wish to bargain for an enterprise agreement. This can be made available to the Commission upon request.”
On 16 November 2023 the Respondent responded to that application stating:
It has not agreed to bargain or initiated bargaining;
It opposed the application on the basis that:
oa majority of employees who are employed by the Respondent do not want to bargain;
othe group(s) of employees who will be covered by the agreement are not fairly chosen;
oit is not reasonable in all the circumstances to make the determination.
The above grounds of opposition are consistent with the Respondent’s submissions filed in relation to this matter.
Hearing
The Respondent filed a response to the application on 16 November 2023[12] and the matter was the subject of in person conciliation on 21 November 2023 in an attempt to resolve the matter. The parties were unable to resolve the matter and a timetable was set for arbitration taking into account the views of the parties.
A hearing was held across 15 and 16 January 2024 to determine the application. The hearing also dealt with a concurrent application (B2023/1111) (Concurrent Application) made by the Applicant in respect of courier employees employed by the Respondent.
The Applicant filed a statutory declaration of Brendan Chistopher Roberts, an Industrial Organiser of the Applicant who gave sworn evidence during the hearing.
The Respondent filed an unsigned statutory declaration in respect of Christopher Luke Brownlow, the Respondent’s Chief Executive Officer. I refer to the statutory declaration as a ‘statement’ in this decision. Mr Brownlow also gave sworn evidence during the hearing.
Initial matters
Applicant’s standing to bring the application
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 majority support determination.
It is not disputed that the Applicant, by virtue of s.176(1)(c) of the Act, is a bargaining representative of an employee who will be covered by a proposed single-enterprise agreement.
I find that the Applicant is a bargaining representative of an employee who will be covered by a proposed single-enterprise agreement and has standing to bring the application.
Form of application
Section 236(2) of the Act provides that the application must specify the employer or employers as well as the employees who will be covered by the agreement.
The application specifies that the Respondent and customer service (call centre) employees employed by the Respondent will be covered by the Proposed Agreement and I am satisfied that the requirements of s.236(2) have been met.
Legislation
Section 237 considerations
Section 237(1) of the Act provides that the Commission must make a majority support determination in relation to a proposed single enterprise agreement if:
(a)an application for the determination has been made; and
(b)the Commission is satisfied of the matters set out in subsection (2) in relation to the agreement.
Section 237(2) of the Act provides that the Commission must be satisfied that:
(a)a majority of the employees:
(i)who are employed by the employer or employers at a time determined by the Commission; and
(ii)who will be covered by the agreement;
want to bargain; and
(b)the employer, or employers, that will be covered by the agreement have not yet agreed to bargain, or initiated bargaining, for the agreement; and
(c)the group of employees who will be covered by the agreement was fairly chosen; and
(d)it is reasonable in all the circumstances to make the determination.
I deal with these considerations below.
Section 237(2)(b) – Has the Respondent agreed to bargain or initiated bargaining for the agreement?
It is not in contention that the Respondent has not yet agreed to bargain or initiated bargaining for the agreement. I am satisfied that the requirement in s.237(2)(b) has been met.[13]
Section 237(2)(c) – Was the group of employees who will be covered by the agreement fairly chosen?
Section 237(2)(c) of the Act has the effect that the Commission is not permitted to make a majority support determination unless it is satisfied that the group of employees who will be covered by the agreement was fairly chosen.
A decision as to whether or not a group of employees was “fairly chosen” involves a degree of subjectivity and the exercise of very broad judgment.[14]
Section 237(3A) provides that if the agreement will not cover all of the employees, the Commission must, in deciding whether the group of employees who will be covered was fairly chosen, take into account whether the group is geographically, operationally or organisationally distinct.
In INPEX Australia Pty Ltd v The Australian Workers’ Union the Full Bench accepted the submission that:
“…distinctiveness within the meaning of s.237(3A) of the Act is necessarily a relative, not absolute, concept, and necessarily requires a comparison between employees who will be covered by the proposed agreement and those who will not.”[15]
In Cimeco Pty Ltd v Construction, Forestry, Mining and Energy Union and Ors[16]the Full Bench said:
if a group of employees covered by the Agreement is geographically, operationally or organisationally distinct this would be a factor telling in favour of a finding that the group was fairly chosen;
conversely, if a group of employees covered by the Agreement is not geographically, operationally or organisationally distinct this would be a factor telling against a finding that the group was fairly chosen;[17]
whether or not the group is geographically, operationally or organisationally distinct is not decisive but is a matter to be given due weight having regard to all other relevant considerations.[18]
This reasoning was followed in QGC Pty Ltd v Australian Workers’ Union which the Full Bench accepted the Appellant’s submissions that:
“…where the group is not geographically, operationally or organisationally distinct, it
is necessary to identify what, if any, factors outweigh the absence of such characteristics and to give significant weight to the lack of distinctiveness in deciding whether the group was fairly chosen.”[19]
The Applicant submitted that the group of employees who will be covered by the Proposed Agreement, being customer service (call centre) employees, is fairly chosen.[20]
The Respondent submitted:
that the Applicant has failed to furnish the Commission with any evidence as to how it chose the employees to be covered;[21]
the Applicant has failed to produce evidence that the employees have been fairly chosen and the strongest case should be presumed against it;[22]
in failing to produce any evidence as to how it has chosen the employees the Applicant has denied the Respondent the right to procedural fairness and natural justice in that the Respondent is unable to test the evidence;[23]
although the Commission is not bound by the rules of evidence, it must make findings of fact with reference to rationality, probative material and the law, including the rules of procedural fairness and natural justice.[24]
The Respondent also noted that the Applicant had deviated from the grounds it had originally set out in the application, which relied solely on the grounds that the group of employees is ‘operationally distinct’ because they ‘perform the same duties’.[25]
Are the group of employees who will be covered geographically distinct?
The Applicant submits the customer service (call centre) employees are all based at the Bella Vista site and are all employed within New South Wales and are therefore geographically distinct from other employees of the Respondent who perform similar roles around the country.
Mr Brownlow’s evidence was that:
· the Respondent’s primary operations are located at 14, 18 and 20 Lexington Drive, Bella Vista, New South Wales in a campus style (Bella Vista);[26]
· staff work regularly across these premises.
Mr Brownlow also gave evidence that the Bella Vista site:
houses the main laboratory for the State, which also houses all State based administrative, managerial and functional support;
houses data entry, couriers, stores, customer service representatives and pathologists;
accommodates functional support areas including but not limited to IT, HR, sales and marketing and management.[27]
The Respondent submitted that the customer service (call centre) staff are not geographically distinct on this basis and instead work with other employees at the Bella Vista campus in a highly integrated manner.[28]
During cross examination, Mr Roberts was asked whether the addresses of 14, 18 and 20 Lexington Drive, Bella Vista were interconnected to which he responded:
“Well, they’re connected – joining office blocks or industrial complexes, yes.”[29]
In The Australian Workers’ Union v BP Refinery (Kwinana) Pty Ltd the Full Bench found that the Commissioner at first instance fell into error in finding that operators and laboratory technicians were geographically distinct and said:
‘[13] It was accepted that all of the employees in question work at the BP Refinery at Kwinana. The laboratory technicians work in a laboratory building within the refinery site some 200m distant from where the operators work. Geographical distinctness under s.238 (4A) is concerned with the geographical separateness of the employer’s various worksites or work locations, not a separation of a few hundred metres within the same worksite.’[30]
The problem with the Applicant’s primary submission as set out above is that it has not chosen all employees at the Bella Vista campus, nor all employees employed within New South Wales. Rather, it has stated in its application that:
“The proposed enterprise agreement will cover customer service (call centre) staff employed by the Respondent.”
While it does not identify a geography, it is not in contention that the above described employees work at the Respondent’s Bella Vista campus.
As noted above, distinctiveness within the meaning of s.237(3A) of the Act is necessarily a relative, not absolute, concept, and necessarily requires a comparison between employees who will be covered by the proposed agreement and those who will not.[31] The Applicant has chosen a group of employees at the Bella Vista campus where other employees work and those other employees will not be covered by the Proposed Agreement.
During cross examination Mr Roberts indicated that the customer service employees operated in a room in the corner of 18 Lexington Drive Bella Vista (one of the addresses at the Bella Vista campus) however the location of these employees in a dedicated room in the building is not in my view enough to establish geographical distinctiveness.
I cannot be satisfied based on the evidence before the Commission that the group of employees who will be covered by the proposed agreement are geographically distinct. This weighs against a conclusion that they were fairly chosen.
Are the group of employees who will be covered operationally distinct?
The Applicant submitted that customer service staff are operationally distinct as the work they perform involves call centre duties, receiving inbound and making outbound calls and administrative duties.[32]
In relation to the Applicant’s submissions that the employees chosen are operationally distinct, the Respondent submitted that:
the term ‘operational’ refers to an industrial or productive activity[33]and the industrial or productive activity performed by the Respondent is providing pathology services including the collection, transport and testing of specimens and reporting of pathology results for doctors, hospitals, patients and corporate clients;[34]
the performance of a different role, task, skill or function is not sufficient to establish operational distinctiveness;[35]
the Applicant’s assertion that the employees chosen are operationally distinct because the work they perform involves call centre duties, receiving inbound and making outbound calls and administrative duties [36] is wrong in principle and law.[37]
Operational distinctiveness, as pointed out by the Respondent, refers to the industrial or productive activity carried out by an employer, and does not refer to the differences in role, skill, task or function of individuals or groups of employees.[38]
The Applicant provided little in the way of submissions and evidence as to the nature of the work and the industrial activity of the employees who will be covered by the Proposed Agreement and those who will not be covered.[39]
The Respondent noted in its closing submissions that in the application the Applicant clearly states that the industry that the Respondent is an employer for is ‘health care’. It was not in contest that the Health Professionals and Support Services Award 2020 (Award) applies to the group of employees the subject of the application. It is not contested that other employees of the Respondent also fall within the coverage of this Award, including the employees the subject of the Concurrent Application.
Mr Brownlow’s evidence is that the operational purpose of the Respondent is to provide pathology services including the collection, transport and testing of specimens and reporting of pathology results for doctors, hospitals, patients and corporate clients.[40] Based on this limited information before the Commission it seems likely that this is the Respondent’s ‘industrial or productive’ activity.
Mr Brownlow gave evidence that the functions within the Respondent work closely together, for example:
the laboratory operating hours and courier runs are closely tied together through time and sample integrity interdependencies;
the laboratory and collection teams work together on processes such as collection device and sample handling requirements;
stores work with the laboratories on the supply of testing consumables and work with sales and collections on the supply of collection consumables;
the pre-analytical functions comprised of data entry, customer service, collection, sales and courier teams work together on tests that need to be processed and results to be phoned out and transport of samples and delivery of reports to doctors which are managed via an integrated client/courier portal and management system.[41]
During cross examination Mr Brownlow was asked what his understanding was of the work that customer service (call centre) staff perform to which he responded:
“They have various responsibilities. They may take calls from doctors or patients. They may call out results to doctors. But so do other staff take calls from doctors. We have lab assistant staff within hospitals that take calls from doctors. We have scientific staff and lab assistant staff who also call out results to doctors. We also have collection staff that sometimes can give out results to doctors if they’re aware of the results within their centre. As I said we are highly integrated to (indistinct) our purpose”.[42]
When Mr Roberts was asked what the key task of the call centre was, he replied:
“The key task of the call centre is to answer phone calls from the national call centre. They are to take inquiries from doctors, patients, general public, that provide results through their systems. …”[43]
It is apparent that the work of the customer service employees feeds into the organisation’s industrial purpose ‘to provide pathology services including the collection, transport and testing of specimens and reporting of pathology results for doctors, hospitals, patients and corporate clients’.[44] When the work described by Mr Roberts is considered in the context of the above-identified industrial activity, the evidence suggests customer service (call centre) employees are involved in that activity as a part of the broader service lifecycle delivered through employees in the broader organisational structure.
As such, I am not satisfied based on the evidence before the Commission that the customer service employees are operationally distinct from employees that would be excluded from the Proposed Agreement’s coverage. This weighs against a conclusion that they were fairly chosen.
Are the group of employees who will be covered organisationally distinct?
The Applicant submitted that customer service employees are organisationally distinct as they are all within the same team structure within the organisation.[45]
The Respondent submitted:
the term ‘organisational’ refers to the manner in which the employer has organised its enterprise in order to conduct its operations;[46]
the mere performance by a group of employees of different tasks or roles to others may not be sufficient to render it organisationally distinct where the employees work in an integrated way with the other employees to perform a particular business function;[47] and
most businesses have organisation structures which will allow organisationally distinct groups to be identified;[48]
the Applicant’s submission that the employees chosen are organisationally distinct as they are all within the same team structure[49] is wrong in principle and in law as qualitative differences in the duties, takes or roles performed by employees within the workplace is not sufficient to establish organisational distinctiveness;[50]
the evidence of the Respondent shows that the customer (call centre) employees are not organisationally distinct because they work in a highly integrated structure for nationally managed but locally based and operationally reasonable functions such as customer service and diagnostic staff in order to meet the Respondent’s operational purpose of providing pathology services including the collection, transport and testing of specimens and reporting of pathology results for doctors, hospitals, patients, and corporate clients.[51]
In Aerocare Flight Support Pty Ltd t/a Aerocare Flight Support v Transport Workers’ Union of Australia; Australian Municipal, Administrative, Clerical and Services Union[52]the Full Bench identified that the following propositions are relevant in interpreting and applying the expression ‘organisationally distinct’:
the term ‘organisation’ refers to the manner in which the employer has organised its enterprise in order to conduct its operations;[53]
the performance by a group of employees of duties which are qualitatively different from duties performed by other employees may justify a conclusion that the group is organisationally distinct;[54]
however the mere performance by a group of employees of different tasks or roles to others may not be sufficient to render it organisationally distinct where the employees work in an integrated way with the other employees to perform a particular business function;[55] and
most businesses have organisation structures which will allow organisationally distinct groups to be identified.[56]
Duties of employees
The Applicant provided little evidence as to the nature of the work and the duties of the employees who will be covered by the Proposed Agreement and those who will not be covered so as to enable any meaningful comparison between them.[57]
As noted above, during cross examination Mr Brownlow was asked what his understanding was of the work that customer service (call centre) staff perform to which he responded:
“They have various responsibilities. They may take calls from doctors or patients. They may call out results to doctors. But so do other staff take calls from doctors. We have lab assistant staff within hospitals that take calls from doctors. We have scientific staff and lab assistant staff who also call out results to doctors. We also have collection staff that sometimes can give out results to doctors if they’re aware of the results within their centre. As I said we are highly integrated to (indistinct) our purpose”.[58]
During cross examination Mr Roberts was asked whether it was correct that customer service representatives answer phones and field inquiries from customers to which Mr Roberts responded:
“From a dedicated phone system which is only managed by that group of people, because that’s where the lines go. It’s a national call centre to my understanding. It’s a dedicated number where doctors have - patients or doctors are given to get information from, get test results. It’s the number which is provided to all your customers and all your - I think it’s a 1300 number if I’m not mistaken and that is where that volume of calls is answered from if people go through that process.
That’s the number which you provide the doctors, you provide the specialists, you provide patients, you provide any other group of people who may need to contact. That is the number and that is answered by and managed by that group of employees, which is their core function. They also potentially do some bookings, they - not to say that other people may not, but their core function of that is that’s where that work goes through and that’s this group of people, and the customer service representatives is what they’re called. That’s where it’s managed from.”[59]
When Mr Roberts was asked what the key task of the call centre was, he replied:
“The key task of the call centre is to answer phone calls from the national call centre. They are to take inquiries from doctors, patients, general public, that provide results through their systems. They are managed by Victoria. Their manager is based in Victoria. …”[60]
Mr Roberts indicated that he was aware that the Respondent employed employees as administration staff[61] and it was put to Mr Roberts that customer service representatives and administrative staff share the same duties or tasks however Mr Roberts disagreed with this proposition.[62] Specifically, during cross examination Mr Roberts indicated:
roles in other parts of the Bella Vista campus do not integrate with customer service;[63]
an administrative staff member does not interchange with a customer service representative and perform the function they perform.[64]
As noted earlier, on 20 July 2023 the Applicant made a request via an email from Mr Roberts seeking to bargain with the Respondent for an enterprise agreement “capturing Pathology Couriers, Pathology Collectors, Customer Service / Administration Staff”.[65]
During cross examination Mr Roberts was asked whether, at the time he wrote the email, a majority of employees employed by the Respondent as administration staff supported a single enterprise agreement to which Mr Roberts replied:
“Again, administrative staff – we are unclear as to how people were classified and again it was in relation to customer service staff that we were trying to cover. We weren’t exactly sure how the organisation classified the customer service, whether customer service was admin so it was really capturing that group, so staff outside customer service, again we wouldn’t – again we are unclear about numbers, so that could have – we were not sure about, but customer service, yes, and that was in the context that we weren’t a hundred per cent sure how the employer classified that group of people, so we covered the base there.”[66]
It was put to Mr Roberts that he wrote ‘customer service/administration staff’ in his email of 20 July 2023 because the Applicant’s position at the time he wrote the email was that the occupations have commonality between them to which Mr Roberts stated:
“The reason that was written is were unclear as to how the structure worked at that time of writing the email for that. That’s why it’s written that way. It’s customer service and we’ve subsequently become more acquainted with your structure. So at the time that was what the intent was. To cover that group of people – customer service people, 16 or so – who are based at Bella Vista.”[67]
It was put to Mr Roberts that customer service representatives and administrative staff perform the same tasks and duties to which Mr Roberts responded:
“I don’t believe that to be the case. The customer service people referred to perform a specific role. The admin staff you refer to, I believe would probably be your receptionists and other people in the context – it is the customer service people who are the only ones to our understanding who perform the role in which they perform – the duties which they perform. There may be some overlap but the core base duty of customer service is only performed by that group of people based at Bella Vista. That is our understanding.”[68]
Mr Roberts was asked whether he accepted there was some overlap to which he responded:
“There may be some email stuff, but in terms of the core functions – which I’m happy for you to ask questions on that, but the core functions of customer service are only performed to our understanding by that small group of people.”[69]
Mr Roberts was asked whether he accepted that there were other employees employed by the Respondent who answer phone calls and field inquiries from customers to which he responded:
“Not through that dedicated process and that dedicated line, no, because there is a dedicated phone system and number which they are responsible for. There may be other phone calls and other - but not from this group of people that are employed to take inquiries from that dedicated 1300 number which ACL provides, as I said, to your specialists, your doctors, any of your other people that need to contact - that is where - they are the only ones to my knowledge that deal with that work and that’s why they are unique, and that’s why they are chosen, is because they are the ones that get their work through that system which is a national system…”[70]
An integrated structure?
Mr Brownlow’s evidence was that the Respondent’s operations are organised in accordance with its NSW Management Structure, a copy of which was attached to his statement.[71] That high level structure depicts Mr Brownlow’s role as ‘CEO NSW’ reporting into the Group CEO, Melinda McGrath. Feeding into the ‘CEO NSW’ role are nine roles/functions across a flat structure with the names of the incumbents in those roles or head of function listed. The nine roles/functions are:
‘Lab Operations & Quality’;
‘Hospital & Regional Labs’;
‘Commercial/Marketing’;
‘Sales Manager’;
‘Pre-Analytics and Business Improvement’;
‘Finance Business Partner’;
‘HR Business Partner’;
‘Pathologists’;
‘National Support Functions’.
Mr Browlow’s evidence was that he has four direct reports:
the NSW Laboratories and Quality Manager (incorporating all Bella Vista laboratory departments);
Hospitals and Regional Laboratories Manager (incorporating all other labs outside of Bella Vista);
Head of Pre-analytical (incorporating Couriers, Collectors, Stores/Warehousing and data entry);
Sales and Marking manager NSW/ACT (incorporating the sales and marketing functions as well as client EDI support, reception and property).[72]
During cross examination Ms Mohammad asked Mr Browlow what he meant when he said that the Respondent is a highly integrated structure to which he replied:
“What I was trying to say was that we wouldn't operate - all work groups are required to meet the operational purpose that we have, which is to collect samples, transport samples, test them and provide a report to our doctors, hospitals, corporate clients and patients. I actually think my paragraph 18 is a good summary of answer to your question, 'We essentially operate as one integrated team to provide an (indistinct) service to the doctor and patient.' The service (indistinct) in any one area will have an upstream impact to another area. That's what I mean as integrated”.[73]
During cross examination Mr Brownlow confirmed that customer service (call centre) employees sit under a “supporting national line”[74] and said:
“So we have some operations that might report through to my line of reporting, but we also have some nationally based - nationally managed, but locally based in operational responsible functions such as customer service and courier despatch. But they work closely with their colleagues in New South Wales.”
During its closing submissions the Applicant submitted that as only groups that Mr Brownlow described as being managed nationally were the couriers and customer service representatives this means they have a different managing structure and different reporting lines to the rest of the New South Wales employees. The Applicant submitted that the conclusion can be drawn, from the evidence of Mr Brownlow, that these work groups are organisationally distinct.[75]However I do not accept that it can be drawn from Mr Brownlow that these groups are the sole groups that are national managed and that this somehow makes them distinct. It seems more likely that Mr Browlow was using the customer service and courier despatch functions as some of the functions that that report through to a national reporting line but for which someone is operationally responsible at the state level. This may explain in part Mr Brownlow’s evidence that he only has four operational direct reports[76] when there are nine roles or functions depicted on the organisational chart.
Mr Brownlow’s evidence was that the organisation’s functions work closely together, for example:
the laboratory operating hours and courier runs are closely tied together through time and sample integrity interdependencies;
the laboratory and collection teams work together on processes such as collection device and sample handling requirements;
stores work with the laboratories on the supply of testing consumables and work with sales and collections on the supply of collection consumables;
the pre-analytical functions comprised of data entry, customer service, collection, sales and courier teams work together on tests that need to be processed and results to be phoned out and transport of samples and delivery of reports to doctors which are managed via an integrated client/courier portal and management system.[77]
Mr Brownlow also said that:
the Respondent operates a highly integrated matrix structure for nationally managed but locally based and operationally responsible functions such as customer service and courier dispatch;[78]and
these functions work closely with their colleagues within NSW and across the operational areas described above.[79]
Mr Brownlow said that a service failure in any one area will have an upstream impact to another area.[80]
Mr Brownlow also said that the Respondent has:
a single laboratory information system accessed by pathologists, laboratory staff, and administration support areas including data entry, customer service, and sales support for sample testing and reporting; and
other integrated operational systems across laboratories, couriers, and collections for the handling of sample pick-up and delivery.[81]
Same work as employees covered by the Victorian Enterprise Agreement?
The Respondent has made an enterprise agreement with its employees who are employed in Victoria and who are within the classifications of that agreement. That agreement is the Australian Clinical Labs (Victoria) Pathology Enterprise Agreement 2020-2024 (Victorian Agreement) which was approved by Commissioner McKinnon on 12 November 2020 and which has a nominal expiry date of 5 June 2024. Clause 2.1(b) of the Victorian Agreement states that it covers employees of the Respondent who are employed in Victoria in the classifications in Schedule 1 or as trainees or apprentices. Schedule 1 of the Victorian Agreement sets outs the classifications of employees covered by it which includes:
Pathology Collectors;
a ‘Clerical Classification Structure’ within which the ‘Call Centre (CC) Stream’ sits;
Couriers;
under the ‘Laboratory Classification Structure;
Laboratory Assistants (Grade 1 – 3);
a ‘Maintenance Classification Structure’.
During cross examination it was put to Mr Roberts that a dedicated phone line was not sufficient to create operational, organisational or geographical distinctiveness to which Mr Roberts replied:
“In relation to that I would say that where it becomes - or where - my understanding in relation to this work is that those workers perform the exact same work as their colleagues in Victoria. Their manager, Mr Dean Hartman, is from Victoria. Mr Dean Hartman reports through Victorian line management and the crux of where this all started from, Mr Berry, is because our workers in New South Wales performing the exact same tasks as their colleagues who are managed by the same management structure in Victoria and were paid under an enterprise agreement to which I believe you’ve - which is what their main concern was, because they were wanting to know why they were paid differently for performing the same work their colleagues in Victoria were doing, in the same team, in the same management structure.
That’s where our customer services people came to the union, to understand why. Obviously we had needed to explain to them the difference between the modern awards and an agreement, but that was what our members were saying they were experiencing leading up to these discussions, is that their colleagues managed by the same management structure in Victoria, performing the same work, were getting paid for having different structures, different career progress opportunities, different conditions of employment and rates of pay”.[82]
Mr Roberts was asked whether he was aware that the Victorian enterprise agreement categorises customer service representatives and administration staff together to which he responded:
“I’m aware what the agreement says and again the conversation was - again going back to your previous questions about the first email, we were aware of that agreement and certainly our members initially - well, they wanted an agreement that we pay the same as their colleagues in Victoria utilising that agreement as, I guess, a bit of a base of our claims.
Their main focus is what - they were asking us the question, ‘Why am I employed by the same employer, why am I getting paid doing the same job and the same function as my colleagues in Victoria, I’m part of the same team. Why are we getting paid less than my colleagues in Victoria? Why do we not have a career structure and definition about our role.’ That was what our members came to the union - trying to rectify that anomaly”.[83]
When pressed for a response as to whether he accepted that in the enterprise agreement in Victoria administration staff and customer service representatives are referenced together Mr Roberts indicated he was aware of what that agreement says and did accept this[84] but was not aware of the history of how that came about.[85]
Conclusion about organisational distinctiveness
The Applicant’s evidence before the Commission turning to organisational distinction is limited to assertions of Mr Roberts during cross examination. In relation to the Respondent’s evidence, the organisational chart accompanying Mr Brownlow’s statement is at a ‘high level’ and is of little utility in understanding precisely where customer service employees sit in the structure and whether the duties they perform are qualitatively different from duties performed by other employees. In closing submissions the Applicant submitted that the Commission can go beyond a Jones v Dunkel[86] inference that the inclusion of a structure depicting how couriers and customer services representatives are managed would not have assisted the respondent's case and that the only conclusion to be drawn from the respondent's own evidence, is that the inclusion of such a structure would have been adverse to the Respondent's case.[87] The Respondent submitted that no such inference was put to Mr Browlow at the time of cross examination and no such conclusion should be drawn. I am not persuaded that the inference the Applicant is asking me to draw can be made, particularly in the absence of such a proposition being put to Mr Brownlow. Mr Browlow’s evidence suggests the organisational chart was provided in the context of his explanation about the Respondent’s NSW management structure.
Mr Roberts acknowledged there is overlap between the duties of customer service employees and other administrative employees. The extent of that overlap to me is unclear from the evidence and a dedicated phone line would not, in and of itself, be sufficient to create operational, organisational or geographical distinctiveness. The conflation of ‘customer service/administration staff’ in Mr Roberts’ email of 20 July 2023 raises some questions about this and it seems likely that Mr Roberts was unable to draw the organisational distinction between customer service and other administrative employees in July 2023 when he requested the Respondent bargain with the Applicant. Mr Roberts indicated during cross examination that he has since become ‘more acquainted’ with the Respondent’s structure since then and understands that the key task of the call centre is to answer phone calls from the national call centre and that the core base duty of customer service is only performed by that group of people based at Bella Vista.[88] However the basis for this understanding is unclear.
Mr Roberts’ evidence suggests there are other employees performing the same duties but who are based in Victoria and covered by the Victorian Agreement. The Victorian Agreement includes a ‘Clerical Classification Structure’ within which the ‘Call Centre (CC) Stream’ sits. However, that classification structure provides little assistance. While there is a ‘Call Centre’ stream which might point to some distinctiveness it also sits under the ‘Clerical Classification Structure’ which points to integration.[89] A closer examination of the classification descriptors in that agreement suggests overlap between the descriptors for the ‘Call Centre (CC) Stream’ and for the general ‘Clerk’ classifications (see for example Clerk Grade 2 which includes ‘answering telephone, visitor and patient enquiries’ and ‘basic switchboard operation’). Based on the limited evidence before me, I am not persuaded that the customer service employees are organisationally distinct from employees employed by the Respondent in other clerical administrative roles.
There is no sound evidentiary basis upon which I can be satisfied that the duties of customer service (call centre) employees are qualitatively different from duties performed by other employees so as to justify a conclusion that the group is organisationally distinct. I am therefore not satisfied that the group is organisationally distinct and this weighs against a conclusion that they were fairly chosen.
Other considerations
I am not satisfied that the employee cohort selected by the Applicant is geographically, operationally or organisationally distinct. This weighs against a finding that the group of employees is fairly chosen but as noted above, in Cimeco Pty Ltd v Construction, Forestry, Mining and Energy Union and Ors[90]the Full Bench said whether or not the group is geographically, operationally or organisationally distinct is not decisive but is a matter to be given due weight having regard to all other relevant considerations.[91] The Full Bench went on to say:
the ‘other relevant considerations’ will vary from case to case and will need to be demonstrated to the satisfaction of the tribunal;
the word ‘fairly’ suggests that the selection of the group was not arbitrary or discriminatory;
selection based upon employee characteristics such as date of employment, age or gender would be likely to be unfair;
selection based upon criteria which would have the effect of undermining collective bargaining or other legislative objectives would also be unlikely to be fair;
it is appropriate to have regard to the interests of the employer, such as enhancing productivity;
it is appropriate to have regard to the interest of employees and in this regard it is not only the interests of the employees covered by the agreement that are relevant but the interests of the employees who are excluded from coverage.[92]
During closing submissions the Applicant submitted that the group of employees the subject of the application was chosen by the employees of the Respondent themselves[93] and a decision by the Commission that the groups that workers have chosen to collectively organise themselves into is not fairly chosen should not be made lightly.[94] In this regard the Applicant submitted that in The Australian Workers’ Union v BP Refinery[95]the Full Bench had held that the views of the workers are a paramount consideration and, prima facie, carry greater weight than the subjective views of the employer.[96]
The Respondent submitted that:
· in determining whether employees are fairly chosen consideration should be given to the conduct of the Applicant prior to it filing its applications for majority support determination;[97]
· the conduct of the Applicant constitutes evidence, which at the very least shows by way of inference, that the Applicant has arbitrarily selected the groups of employees that would be covered by an enterprise agreement, if the Applicant’s application was granted.[98]
The Respondent specifically invited the Commission to refer to the email sent by the Applicant on or about 20 July 2023 which stated:
“The Health Services Union is requesting Australian Clinical Lab NSW entry (sic) in to (sic) good faith bargaining negotiations for a single interest Enterprise Agreement capturing Pathology Couriers, Pathology Collectors, Customer Service / Administration Staff” (emphasis added).
In this regard the Applicant submitted that:
all that is required in this matter is to determine whether the work groups, which are subject to the current application, is fairly chosen, not that they are more or less fairly chosen than any other possible group, even groups previously negotiated for;
the inclusion of other work in previous negotiations for an enterprise agreement cannot have any bearing on the question of whether or not the current group is fairly chosen;[99]
the entirety of the evidence related to all enterprise agreement discussions outside the current application cannot form the basis of any consideration of the question of whether the current group is fairly chosen.[100]
I deal with these matters below.
Consideration
The parties have competing positions about whether the group the of employees who the Applicant has chosen to be covered by the Proposed Agreement is fairly chosen in circumstances where the Applicant has made the Concurrent Applicant and had sought an agreement with broader coverage in earlier discussions with the Respondent prior to making this application.
I agree with the Applicant’s submission that all that is required in this matter is to determine whether the group of employees, which are subject to the current application, is fairly chosen, not that they are more or less fairly chosen than any other possible group, even groups previously negotiated for. As noted in The Australian Workers’ Union v BP Refinery (Kwinana) Pty Ltd there may be more than one way of fairly choosing the group of employees to be covered by a proposed enterprise agreement.[101]
However, the Applicant’s submission that the ‘group of employees the subject of the application was chosen by the employees of the Respondent themselves’ warrants engagement with the circumstances around how the group was chosen.
Mr Roberts gave evidence during the hearing that prior to 20 July 2023, and probably in May or June, there was a meeting held at the Applicant’s office involving Mr Roberts, Mr Brownlow, Sam Dastyari (a representative of Cresent Capital), the Applicant’s Assistant Secretary Lauren Hutchins and the Applicant’s Regional Secretary Josh Howarth.[102]Mr Roberts said that in that meeting it was discussed that the Respondent wanted the Applicant’s help to campaign for greater funding in the pathology sector and there was a presentation discussion about the Respondent’s plans.[103] Mr Roberts’ evidence was to the effect that Mr Dastyari indicated that once the Applicant was ready to negotiate an agreement, the Respondent would commence negotiations.[104] However while Mr Roberts’ evidence suggests that Mr Dasytari was at this meeting representing Crescent Capital, a shareholder of the Respondent,[105] I am not satisfied on the evidence before me that Mr Dastyari had the authority at that meeting to commit the Respondent to bargaining and as noted above it is not in contention that the Respondent has not yet agreed to bargain or initiated bargaining for the agreement. Mr Dastyari is not a party to these proceedings and is unable to attest to whether he made these representations or not. I do however appreciate that if such representations were made, it may have led to some expectation on the part of the Applicant that if it was to assist the Respondent with its objectives the Respondent would bargain with the Applicant.
Mr Roberts’ evidence was that:
on or around 31 March 2023 he became aware that customer service (call centre) staff in Victoria had an enterprise agreement;[106]
he had conversations with customer service (call centre) members about this and they started asking him why they were paid differently compared to their colleagues employed in Victoria that were doing the same work;[107]
he explained to them that they are employed under the Health Professionals and Support Services Award 2020 and their colleagues in Victoria are employed under an enterprise agreement;[108]
members informed him that they have the same manager as their Victorian colleagues;[109]
in or about May 2023 he met with customer service (call centre) members at Wenty Leagues Club.[110]
On 20 July 2023 Mr Roberts made a request to the Respondent that it bargain “for a single interest Enterprise Agreement capturing Pathology Couriers, Pathology Collectors, Customer Service / Administration Staff”.
It was put to Mr Roberts during cross examination that at the time he made the request on 20 July 2023 he did not have majority support from employees employed within the Respondent’s organisation to bargain.[111]Mr Roberts said:
“we weren’t working towards majority support at that point in time. We were asking the employer to begin negotiations for a single interest agreement;”[112]
“It was only after Mr Brownlow refused to bargain upon our request that we decided we would – with our members, decided that that would be the avenue we’ll take;”[113]
“In some of the classifications we had more support than others, yes. So not in all - in some of the areas we may not have, but in other areas we believed we did if we were – yes”.[114]
Clarification was sought from Mr Roberts as to whether he was saying he did not have support within the entire cohort to which Mr Roberts said:
“…In some areas we believe we would have, in other areas we may not have, but again that was not our primary focus at that time to seek majority support because we were hoping, as we put in our email, that the employer would enter into those negotiations with the union and our members in its workforce”.[115]
Mr Roberts was asked whether at the time of writing the email on 20 July 2023 he had majority support within those employed as customer services representatives to which Mr Roberts responded: “Within customer service, yes.”.[116]
I am satisfied based on the evidence of Mr Roberts that as at 20 July 2023:
the Applicant sought to bargain for an agreement covering ‘Pathology Couriers, Pathology Collectors, Customer Service / Administration Staff’;
Mr Roberts was unsure as to whether the Applicant had support for an agreement with that coverage;
Mr Roberts believed support for bargaining was stronger among some employee cohorts than others;
Mr Roberts believed that a majority of customer service employees wanted to bargain as at 20 July 2023.
On 26 July 2023 the Respondent responded in writing to that request and declined to bargain “for a single interest Enterprise Agreement capturing Pathology Couriers, Pathology Collectors, Customer Service / Administration Staff”.[117] In particular the Respondent said it did “not wish to negotiate an enterprise agreement for the specified employees.”.
Mr Roberts’ evidence was that:
after the Respondent declined to bargain he met with members employed as customer service (call centre) employees over the period of 8, 9 and 12 August and collected written statements,[118] speaking to them in groups of 2 to 3 people at a time;[119]
during these meetings he informed those in attendance that:[120]
othe Respondent has refused to commence good faith bargaining for an enterprise agreement;
othe Respondent currently employs staff under the Health Professionals and Support Services Award 2020;
othis modern award sets the legal minimum standard in relation to wages and conditions;
oan enterprise agreement is an agreement negotiated between and employer and employees which results in a new set of minimum standards for wages and conditions which are above the modern award;
oin order to pursue a majority support determination they would need to prove to the Commission that a majority of employees covered by any proposed enterprise agreement wanted to commence bargaining with their employer. Mr Roberts’ evidence was that he explained this using the simple example that if there were 100 employees at least 51 of these would need to sign a petition or letter indicating this support;
oduring his conversations and meetings with members he was able to identify there were 16 employees and he was able to get 12 written statements from customer service (call centre) employees employed in New South Wales;[121]
osigned written statements never left his possession.[122]
Before making the First Application, the Applicant had further discussions with employees. In particular, Mr Roberts was taken to a meeting held with employees on 13 August 2023.[123] Mr Roberts confirmed that “the meeting was attended by customer service representatives, lab staff and pathology collectors.”[124]Mr Roberts proceeded to collect further statements in respect to a group of employees that are the subject of the Concurrent Application. It seems likely that, having satisfied itself that a majority of customer service/call centre employees want to bargain the Applicant then decided it would try and garner support from other groups in order to seek majority support before it decided upon the final form of its majority support application or applications. Being uncertain about the question of majority support in relation to that broader cohort, it decided to pursue an application confined to the customer service (call centre) employees.
It is unclear to me as to what the Applicant discussed with the customer service (call centre) employees about the group to be chosen for the purposes of the application before they provided the signed statements to the Applicant. Mr Roberts’ evidence suggests that the explanation was not specific about this.
During cross examination it was put to Mr Roberts that the occupation of the employees was the basis for choosing that the group be covered by the enterprise agreement to which he responded:
“One of the reasons, the other reason being that there was an enterprise agreement in Victoria which covered their colleagues who are the same team, managed by the same people in Victoria, who in New South Wales were - the appropriate modern award and they were doing the same - - - The type of work they do and the fact that their colleagues doing the exact same work, in the exact same team, in the exact same management structure based in Victoria were on different rates of pay and conditions in New South Wales”.[125]
I accept that customer service (call centre) employees may have perceived some inequity upon learning that their colleagues in Victoria had an enterprise agreement and they did not. However, it seems likely based on the Applicant’s conduct before and after the collection of the statements that at the time of collecting the statements it was working toward establishing support for bargaining among a broader group.
The role of the Commission is not to determine the scope of the agreement, but rather to guard against unfairness by being satisfied that the group can be described, in all the circumstances as being fairly chosen.[126]
In Cimeco Pty Ltd v Construction, Forestry, Mining and Energy Union and Ors the Full Bench the Full Bench considered the word “fairly” and said:
“[13] The word “fairly” is derived from the adverb “fair” and is a word of wide import. What is fair in a particular context is largely a matter of impression and judgment. Of the various definitions of “fairly” in The Oxford Dictionary the most apt in this context are:
“by proper means, legitimately, impartially, justly;” and
“with due regard to equity, candidly, impartially; without undue advantage on either side”;[127]
Generally, the selection of the group of employees to be covered by an agreement on some objective basis (as opposed to an arbitrary or subjective basis) is likely to point to a conclusion that the group was fairly chosen.[128]
In the matter of Independent Education Union of Australia v Sirius College Ltd T/A Sirius College[129] the Applicant made an application in respect of teachers and support staff falling within the coverage of the relevant awards. In its submissions it put forward two alternatives to its primary position regarding the group to be covered by the determination.[130] In this regard Commissioner Bissett said:
‘[38] I do not intend to consider this alternative position put by the IEU. The IEU approached employees of the College on the basis that it wished to bargain for an agreement covering teaching and non-teaching staff. To now seek to narrow the scope to teaching staff only may well mean that employees have signed the petition for a proposed enterprise agreement that is no longer being sought.
[39]Further, it cannot be that the intention of s.236 of the FW Act is that a bargaining representative should canvass for an agreement with a broad scope and then be able to narrow that scope on application for a majority support determination until such time as it has a majority of employees who have indicated they wish to bargain and have the Commission make such a determination (all other requirements having been met). It seems to me that there needs to be confidence in the method by which employees are canvassed to determine if they wish to bargain. To consider this alternative position of the IEU leaves the system of seeking majority support for bargaining open to manipulation that I am not satisfied was intended. Should the IEU wish to seek a majority support determination for a proposed enterprise agreement covering only those employees of the College covered by the Teachers Award then it is proper that they do so in a transparent manner. Even if I was to accept this submission and find that a majority of employees covered by the Teachers Award wished to bargain I could not, for these reasons, be satisfied that it would be reasonable in the circumstances to make the determination within the meaning of s.237(2)(d).’[131]
Unlike the application in Independent Education Union of Australia v Sirius College Ltd T/A Sirius College[132]there is only one group of employees who are the subject of the current application and I do not hold the view that this matter is relevant to the question of majority support in the current circumstances. Further, there is no requirement that employees who are asked to indicate their support for bargaining be informed of the precise cohort that they will be a part of.[133] While I take a more nuanced approach than the Commissioner in Independent Education Union of Australia v Sirius College Ltd T/A Sirius College, in order for the Applicant to assert that the ‘group of employees the subject of the application was chosen by the employees of the Respondent themselves’ I agree with the sentiments expressed by the Commissioner in that if the Applicant wished to apply for a majority support determination to which the group chosen would be confined to customer service (call centre) employees it should have done so in a transparent manner when canvassing support. I am not satisfied that the ‘group of employees the subject of the application was chosen by the employees of the Respondent themselves’ but rather, it appears to me that the group was selected for the purposes of this application for the simple reason that it was within this group that the Applicant firmly believed it had established a majority.
I have earlier found that I cannot be satisfied that the group of employees the subject of the application is geographically, organisationally or operationally distinct. In order to be satisfied that the group has been fairly chosen I would need to be satisfied of the existence of factors that outweigh these considerations. I am not satisfied of the existence of any additional factors that would outweigh the lack of distinctiveness and, in these circumstances, I am not satisfied that the group of employees selected to be covered by the Proposed Agreement is fairly chosen.
Section 237(2)(a) - Do a majority of employees want to bargain?
Applicant’s submissions
The Applicant submitted that it has established that the requirements in s.237(2)(a) have been met and relies on the written statements with signatures collected from employees.[134]
By way of summary the Applicant submitted that:
It was approached by its members from the relevant group of employees indicating they wanted to bargain for an enterprise agreement after they became aware that their colleagues in Victoria who were performing the same work have different wages and conditions as an enterprise agreement applies to them.[135]
Multiple meetings with members took place from May 2023.[136] The Applicant submitted this demonstrates the interest of its members in wanting to bargain.[137]
The voluntary interest of employees wanting to bargain is evident through approaching the union and signing the written statements.[138]
A total of 12 out of 16 customer service (call centre) staff have signed written statements and shown that they want to bargain with the Respondent.[139]
Respondent’s submissions
The Respondent does not accept that a majority of employees wish to bargain.
The Respondent raised the concern that the Applicant:
submitted its evidence ‘in Camera’ and submitted that it has been denied an ability to make submissions on the form and content of the ‘written statements’ submitted by the Applicant;[140]
has not tendered into evidence the pro forma written statement or letter, that was used by the Applicant to gather support, which denies the Respondent the ability to test the evidence and is a breach of its rights to procedural fairness and natural justice.[141]
The Respondent indicated that it “holds grave concerns” in relation to how the statements were obtained, alleging it received complaints about the Applicant using the personal information of employees without consent.[142]
The Respondent rejected the Applicant’s submission that attendance at a meeting ‘demonstrates members interest in wanting to bargain’[143] submitting that:
the Applicant did not file evidence in support of this proposition;
the meetings that the Applicant references took place in May 2023, some time away from October 2023 when the Applicant filed its application;
mere attendance at meetings could, if supported by evidence, be construed as interest in obtaining information about the topics that were discussed but it could not be construed as demonstrating ‘members interest in wanting to bargain.[144]
Time to be determined by the Commission
Section 237(a) requires that the Commission be satisfied that a majority of employees who are employed at a time determined by the Commission, and who will be covered by the proposed enterprise agreement, want to bargain.
The Commission’s power to determine a time under s.237(2)(a) is confined to the question of which employees are employed by the employer at a particular time. The Commission’s task is to fix in time the cohort of employees from which the question of majority is to be determined. The Commission has a discretion to determine this date, but not the date on which a majority wishes to bargain. The latter question is to be assessed as at the date of the decision, using the most recently available information.[145] The Applicant submitted that the ‘time to be determined by the Commission’ should be the time the application was made in November. The Respondent submitted that the ‘time to be determined by the Commission’ should be the time of the hearing in January.
The time determined for the purposes of s.237(2)(a) is 19 December 2023 being the date that the Respondent submitted its list of relevant employees to the Commission in accordance with the directions.
Method of working out whether a majority want to bargain
Following an unsuccessful attempt to resolve the matter during a conference, it became apparent that the matter would need to be arbitrated.
The Applicant was directed to file in the Commission and provide to Chambers on a confidential basis an unredacted version of the statements of employees who it says want to bargain in respect the proposed agreement and it did so on 5 December 2023 in accordance with the Directions. At the same time, it was directed to file any materials it wished to rely upon in support of its application and did so.
At the same time of filing its materials the Respondent filed with the Commission, in accordance with the Commission’s Directions, a statutory declaration of Mr Brownlow, dated 19 December 2023, attaching a list of employees Mr Brownlow said were employed as customer service (call centre) employees by the Respondent as at the date of that declaration.
The materials provided to the Commission by the parties on a confidential basis are the subject of confidentiality orders.
The Respondent’s submissions raise the question of whether signed statements provided to the Commission on a confidential basis is an appropriate method for the Commission to determine whether there is majority support for bargaining and whether the Commission’s reliance on such material would amount to a denial of procedural fairness and natural justice.
The Commission has broad discretion to determine the method of working out whether a majority of employees want to bargain as s.237(3) of the Act provides that the Commission may use ‘any method [that it] considers appropriate’. The Explanatory Memorandum to the Fair Work Bill 2008 (Cth) states:
“It is at the discretion of FWA what method it uses to work out whether a majority of the employees want to bargain (subclause 237(3)). Methods might include a secret ballot, survey, written statements or a petition…”[146]
Reliance on written statements as a means of working out whether a majority of employees want to bargain is a common practice of the Commission and the Explanatory Memorandum suggests this was contemplated. Such an approach also accords with the objects of Part 2-4 of the Act to provide a “simple, flexible and fair framework that enables collective bargaining in good faith” (s.171(a)) and is consistent with the requirement in s.577 that the Commission performs its functions and exercises its powers in a manner that is quick and informal, avoiding unnecessary technicalities.
Of the 12 names appearing in the statements filed by the Applicant, 10 of these were able to be matched to names appearing on the Respondent’s list of employees. In addition to those 10 I note that there were two other employees named in that list that may have been on the Respondent’s list of employees but because their first names differed to those on the statements filed by the Applicant I could not be certain about this. 10 employees constitutes a prima facie majority, taking into account the total number of customer service (call centre) employees on the list attached to the statutory declaration of Mr Brownlow.
The Respondent did not object to the use of statements in ascertaining majority support as a general proposition but as noted above, the Respondent raised concern that the Applicant has submitted its evidence ‘in Camera’ and submitted that it has been denied an ability to make submissions on the form and content of the ‘written statements’ submitted by the Applicant.[147] These concerns are dealt with below.
Confidentiality considerations
In NUW v Lovisa Pty Limited the Deputy President observed that it would be natural for employees to be apprehensive about their identities being revealed to their employer in circumstances where they are taking a position aligned with a union in an effort to have their employer agree to something it does not want to do (i.e. bargain).[148]
While many employers accept the Commission’s reliance on confidential materials in order for the Commission to determine whether majority support exists, in this case the Respondent submits it would be denied procedural fairness.
In NUW v Lovisa Pty Limited the Deputy President stated:
‘[55] Ordinarily, all material produced to the Commission by a party in a proceeding should be provided in full, un-redacted and unedited, to the other side, and only such material would be relied on by the Commission in reaching its decision. However, occasionally the interests of justice may require the Commission to take a different course. It is important then to consider how and to what extent the other party might be adversely affected and what measures can be taken to minimise any adverse effect.’[149]
Turning first to the issue of confidentiality of the identity of the employees signing the petition, in CFMMEU v J Blackwood & Son Pty Ltd, the Deputy President observed:
“[229] In circumstances where a first agreement is being sought, where the employer holds a view that bargaining is unnecessary and where the employer has taken the step of conducting its own ballot, it is not unremarkable that an employee may have a reasonably held apprehension about its support for a union sponsored petition being made known to its employer or fellow employees.
[230] Industrial relationships are dynamic. They exist in the real world of work, where employment, employment security and harmonious relationships matter. Whether it be membership of an industrial association or support for collective bargaining rights advanced by an industrial association, participation in these activities can reasonably be seen as controversial by some employees or managers and with potential impact on day to day work and relationships with their employer or other employees.
[231] Requiring the provision of unredacted petitions to an employer, as some general rule of procedural fairness in a contested majority support determination, is capable of dissuading employees from participating in petitions sought to be used to establish support for collective bargaining. Given that a statutory object of Part 2-4 of the FW Act is to “facilitate good faith bargaining and the making of enterprise agreements”, it would be undesirable, as some form of general rule, to mandate the provision of unredacted petitions to employers in contested applications under section 236 of the FW Act.”[150]
The observations of the Deputy President apply to this matter and I consider that the prejudice employees would incur if their identifies were required to be disclosed requires the Commission to take a different course in the case of a matter such as this, in maintaining the anonymity of those employees purported to have expressed support for bargaining.
The statements
The Respondent has also raised the concern that the Applicant has not tendered into evidence the pro forma written statement or letter, that was used by the Applicant to gather support, submitting that this denies the Respondent the ability to test the evidence and is a breach of its rights to procedural fairness and natural justice.[151] As noted above the Respondent has also indicated that it “holds grave concerns” in relation to how the statements were obtained, alleging it received complaints about the Applicant using the personal information of employees without consent.[152]
As noted earlier in this decision, a complexity arises in this matter in that the application was filed concurrently with another application. It became apparent early in these proceedings that these applications would need to be arbitrated as the assertion of a majority would not be enough to persuade the Respondent to bargain given the nature of its objections to the application.
The Applicant bears the evidentiary burden under s.237(2)(a) and when directions were set, the Applicant was directed to file any materials it wished to rely on in support of its case, along with unredacted versions of the statements it said it had collected on a confidential basis. The Applicant did not file redacted versions of the statements at this or any stage even though it was on notice that the Respondent had raised that it did not believe there was a majority in its response to the application in November as well as in its submissions filed over a month prior to the hearing. It was a matter for the Applicant to file the material it wished to rely upon to establish that it did in fact have a majority. That material consists of the statements filed with the Commission on a confidential basis and the evidence of Mr Roberts.
In this regard, Mr Roberts’ evidence was that:
· on or around 31 March 2023 he became aware that customer service (call centre) staff in Victoria had an enterprise agreement;[153]
· he had conversations with customer service (call centre) members about this and they started asking him why they were paid differently compared to their colleagues employed in Victoria that were doing the same work;[154]
· he explained to them that they are employed under the Health Professionals and Support Services Award 2020 and their colleagues in Victoria are employed under an enterprise agreement;[155]
· members informed him that they have the same manager as their Victorian colleagues;[156]
· in or about May 2023 he met with customer service (call centre) members at Wenty Leagues Club;[157]
· when the Respondent declined to bargain he met with members employed as customer service (call centre) employees over the period of 8, 9 and 12 August and collected written statements,[158] speaking to them in groups of 2 to 3 people at a time.[159]
during these meetings he informed those in attendance that:[160]
othe Respondent has refused to commence good faith bargaining for an enterprise agreement;
othe Respondent currently employs staff under the Health Professionals and Support Services Award 2020;
othis modern award sets the legal minimum standard in relation to wages and conditions;
oan enterprise agreement is an agreement negotiated between and employer and employees which results in a new set of minimum standards for wages and conditions which are above the modern award;
oin order to pursue a majority support determination they would need to prove to the Commission that a majority of employees covered by any proposed enterprise agreement wanted to commence bargaining with their employer. Mr Roberts’ evidence was that he explained this using the simple example that if there were 100 employees at least 51 of these would need to sign a petition or letter indicating this support;
during his conversations and meetings with members he was able to identify there were 16 employees and he was able to get 12 written statements from customer service (call centre) employees employed in New South Wales;[161]
signed written statements never left his possession.[162]
The evidence before the Commission in the current matter does not substantiate an allegation that the Applicant was using employees’ personal information without their consent and it is unclear whether the persons said to have raised such concern are within the group of employees the subject of the application. Mr Brownlow also said that the Applicant has “publicly pilloried the Respondent on its Facebook page stating, amongst other things, that the Respondent was using ‘cheap intimidation tactics’ to prevent bargaining occurring”.[163]Mr Brownlow attached to his statement:
a Facebook post made by the Applicant on 18 October 2023;[164]and
an Instagram post dated 15 December 2023.[165]
This does little more than confirm the Applicant’s dissatisfaction that the Respondent had not agreed to bargain with it and the dates of these posts are a considerable period after the period between which Mr Roberts said he collected the statements.
I am not satisfied that the group of employees to be covered by the Proposed Agreement has been fairly chosen, it is not necessary to make a finding regarding the existence of a majority, however some observations can be made.
The Respondent did not file an order for production to enable it to access the statements provided to the Commission on a confidential basis in either a redacted or unredacted form. In Inpex Australia Pty Ltd v The Australia Workers’ Union[166]the Full Bench said:
“[11] We agree that a mere application under s 236 of the FW Act, or a bald assertion in an application that majority support exists with no proffered justification, may not be sufficient to provide the Commission with a jurisdictional basis to make orders to ascertain whether majority support for bargaining exists. There is force in the proposition that an application under s 236 is for a determination that majority support exists, not a speculative investigation into whether it exists. The provision appears to us to operate upon a premise that the bargaining representative applying for a determination has a reasonable hypothesis that there is majority support for bargaining. The materials before the Commission should bear out a reasonable foundation for such a hypothesis.”[167]
In the current matter, the Applicant’s evidence extends beyond mere assertion in that Mr Roberts has given sworn evidence about the context in which the statements were collected and the following can be drawn from that evidence:
Mr Roberts explained to employees that in order to pursue a majority support determination a majority of employees would need to sign a petition or letter indicating this support to commence bargaining;
after explaining this to them he was able to collect 12 written statements from customer service (call centre) employees to this effect;
the employees did so in the context of an enterprise where their colleagues in another state were paid in accordance with an enterprise agreement and they were paid in accordance with the Award;
the statements he collected were at all times under his custody and control.
While attempts were made to discredit the evidence of Mr Roberts at various junctures throughout the proceedings in relation to the above matters, Mr Roberts was consistent in his evidence about the above matters. Further, as I have earlier noted, 10 of the signed statements filed with the Commission identify names of employees that also appear on the Respondent’s list of employees that are customer service (call centre) employees.
I would observe the statement of Asbury DP that “[i]f an employer intends to advance an argument inferring that pressure was placed on employees in relation to a petition or other process to gauge support for bargaining or that there was a lack of understanding about what employees were agreeing to, more than required than a bare assertion”.[168] If the Respondent had sought to establish that the statements collected did not accord with Mr Roberts’s evidence it had an opportunity to seek out further materials and did not do so. Similarly, if the Applicant had sought to assert that the Respondent’s list of employee names provided to the Commission on a confidential basis was somehow improperly derived for the purposes of the question of majority, it would have needed to make out its case.
Section 237(2)(d) – Is it reasonable in all the circumstances to make the determination?
The Applicant did not point to grounds addressing s.273(2)(d) in its written submissions but during closing submissions in the hearing submitted:
the surrounding circumstances are that the applicant and the respondent have been in various discussions around enterprise bargaining for a significant period of time, with the respondent steadfast in its objection to bargaining;
the respondent has been presented with and rejected various different scopes of enterprise agreements;
it is unlikely, in the circumstances, that the respondent would ever agree to bargaining for an enterprise agreement without the order of the Commission inviting them to do so and this factor weighs in favour of granting the determination.[169]
The Respondent submitted that it is not reasonable in all the circumstances to make the determination and put forward a number of additional grounds in this regard. As noted above, this application is made concurrently with another application made by the Applicant in respect of courier employees employed by the Respondent. By way of summary, the Respondent submitted that bargaining for two or more agreements would:
result in the inefficient use of resources;
not align with its organisational structure;
result in unnecessary complexity and administration costs for the Respondent;
involve a degree of duplication of process and negotiation and thus be less efficient than bargaining for a single agreement;
increase the potential for clerical errors and interpretive mistakes for managers and payroll in respect of employees that all perform work within the same pre-analytical function of the organisation.[170]
In this regard the Applicant submitted that the Commission cannot determine the scope of any enterprise agreement through these proceedings and any consideration that the making of the determination sought by the Applicant would lead to increased complexity or costs or resources of the Respondent can be disposed on this basis.[171]In particular, the Applicant submitted that the making of a majority support determination:
does not oblige the respondent to agree to any particular content of an enterprise agreement and does not determine the scope of the enterprise;
does not mean that an enterprise agreement will ultimately be made or agreed to;
simply allows the workers, subject to the application, to have the opportunity to exercise a fundamental right recognised in both domestic and international law.[172]
The Respondent submitted that if the determination is made it would unfairly affect other employees as the employees not covered by the application may be worse off than other groups of employees.[173]The Respondent submitted that such unfairness would be compounded as:
the employees not covered by the application work alongside the employees that would be covered by the Proposed Agreement in an integrated way to perform the pre-analytical/post analytical functions;
the majority of employees work at the Respondent’s Bella Vista premises;
often the employees who would and would not by covered by the application do the same or similar work and many of these employees can work between areas such as data entry, customer service and laboratory work.[174]
I have earlier found that the group of employees to be covered by the Proposed Agreement are not fairly chosen and as I am not satisfied about the requirement in s.237(2)(c) I am unable to make the determination sought and am not required to make a finding in respect of s.273(2)(d).
However, in respect of the submissions of the parties as set out above, I accept the Applicant’s submission that the scope of an enterprise agreement is not set through the making of a majority support determination[175] and nor does it mean that an agreement will be made or that it will have any particular content.
I would also observe that the Respondent’s submissions relating to the impacts of negotiating multiple agreements appears to be premised on the assumption that bargaining for a single agreement (i.e. covering all 1165 of the Respondent’s employees in New South Wales[176] rather than separate groups of employees) is an appropriate comparator. In relation to the Applicant’s general contention that it is unlikely that the Respondent would ever agree to bargaining for an enterprise agreement without the order of the Commission inviting them to do so I note that the Respondent is an organisation that has entered into bargaining with other cohorts as evident from the existence of the Victorian Agreement although the reasons for it doing so are unclear. It appears that Mr Brownlow has at least contemplated the possibility of agreements with differing coverage in NSW. During cross examination it as put to Mr Brownlow that he expressed a preference for a single enterprise agreement for all employees and was asked why he held such a preference.[177] Mr Brownlow responded:
“A few reasons. One is I think it would be fairer because if there is an agreement for some and not others - they work in a highly integrated environment alongside each other, so it may be unfair to ones not covered - any staff not covered by an agreement. Also it would add complexity to the administration of those agreements and the managers who have to work with those agreements and apply them to the staff.”
It is not apparent based on this statement or any other evidence before the Commission that any agreement to bargain for such an agreement currently exists. Indeed, had the Respondent made such a commitment it seems very unlikely that this application would be before the Commission. Notwithstanding this, that an employer has not agreed to bargain would not, in and of itself, mean that a determination should follow as this would be contrary to the purpose of s.237 which requires consideration of a range of criteria beyond the absence of an employer’s agreement to bargain.
Conclusion
As I am not satisfied that the requirement in s.237(2)(c) have been met I am unable to make the determination. The application is therefore dismissed.
COMMISSIONER
Appearances:
Ms S Mohammad on behalf of the Health Services Union.
Mr A Berry on behalf of Clinical Laboratories Pty Ltd.
Hearing details:
2024.
Sydney.
15 and 16 January.
[1] Applicant’s Outline of Submissions filed 5 December 2023 at [2].
[2] Applicant’s Outline of Submissions filed 5 December 2023 at Annexure A.
[3] Applicant’s Outline of Submissions filed 5 December 2023 at [3].
[4] Applicant’s Outline of Submissions filed 5 December 2023 at Annexure A.
[5] Applicant’s Outline of Submissions filed 5 December 2023 at [4].
[6] Applicant’s Outline of Submissions filed 5 December 2023 at Annexure B.
[7] Applicant’s Outline of Submissions filed 5 December 2023 at [6].
[8] Applicant’s Outline of Submissions filed 5 December 2023 at [6].
[9] Applicant’s Outline of Submissions filed 5 December 2023 at [7].
[10] Applicant’s Outline of Submissions filed 5 December 2023 at [8].
[11] Applicant’s Outline of Submissions filed 5 December 2023 at [9].
[12] Respondent Response filed 6 November 2023.
[13] Transcript of Proceedings, 15 January 2024, PNs 43, 70.
[14] Aerocare Flight Support t/a Aerocare Flight Support v Transport Workers’ Union of Australia; Australian Municipal, Administrative, Clerical and Services Union [2017] FWCFB 5826 at [26].
[15] [2021] FWCFB 1038 at [33].
[16] [2012] FWAFB 2206.
[17] [2012] FWAFB 2206 at [19].
[18] [2012] FWAFB 2206 at [20].
[19] [2017] FWCFB 1165 at [43].
[20] Applicant’s Outline of Submissions filed 5 December 2023 at [21].
[21] Submissions of the Respondent filed 20 December 2023 at [18].
[22] Submissions of the Respondent filed 20 December 2023 at [19] with reference to Armory v Delamirie (1722) 1 Strange 505, 93 ER 663.
[23] Submissions of the Respondent filed 20 December 2023 at [20].
[24] Submissions of the Respondent filed 20 December 2023 at [21].
[25] Submissions of the Respondent filed 20 December 2023 at [17] with reference to the Applicant’s application dated 17 October 2023 at para 2.2.
[26] Statement of Christopher Luke Brownlow at [8].
[27] Statement of Christopher Luke Brownlow at [12].
[28] Submissions of the Respondent filed 20 December 2023 at [26].
[29] Transcript of Proceedings, 15 January 2024, PNs 788 – 790.
[30] [2014] FWCFB 1476 at [12] –[13].
[31] [2021] FWCFB 1038 at [33].
[32] Applicant’s Outline of Submissions filed 5 December 2023 at [25].
[33] Submissions of the Respondent at [28] with reference to INPEX Australia Pty Ltd v The Australian Workers’ Union [2021] FWCFB 1038 at [35].
[34] Submissions of the Respondent at [28].
[35] Submissions of the Respondent at [29] with reference to INPEX Australia Pty Ltd v The Australian Workers’ Union [2021] FWCFB 1038 at [35].
[36] Applicant’s Outline of Submissions filed 5 December 2023 at [25].
[37] Submissions of the Respondent at [31].
[38] Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia vSouth32 Worsley Alumina Pty Ltd v South32 Worsley Alumina Pty Ltd [2021] FWC 3784 at [144].
[39] [2021] FWCFB 1038 at [33].
[40] Statement of Christopher Luke Brownlow at [6].
[41] Statement of Christopher Luke Brownlow at [16].
[42] Transcript of Proceedings, 16 January 2024, PN 2051.
[43] Transcript of Proceedings, 15 January 2024, PN 260.
[44] Statement of Christopher Luke Brownlow at [6].
[45] Applicant’s Outline of Submissions filed 5 December 2023 at [27].
[46] Submissions of the Respondent at [33] with reference to INPEX Australia Pty Ltd v The Australian Workers’ Union [2021] FWCFB 1038 at [37] and QGC Pty Ltd v Australian Workers’ Union, The [2017] FWCFB 1165 at [44].
[47] Submissions of the Respondent at [34].
[48] Submissions of the Respondent at [34] with reference to Aerocare Flight Support t/a Aerocare Flight Support v Transport Workers’ Union of Australia; Australian Municipal, Administrative, Clerical and Services Union [2017] FWC FB 5826 at [27].
[49] Applicant’s Outline of Submissions filed 5 December 2023 at [27].
[50] Submissions of the Respondent at [36].
[51] Submissions of the Respondent at [37].
[52] [2017] FWCFB 5826 at [27].
[53] QCG Pty Ltd v Australian Workers’ Union [2017] FWCFB 1165 at [44].
[54] United Firefighters’ Union v Metropolitan Fire & Emergency Services Board [2010] FWAFB 3009, 193 IR 293 at [60]
[55] QCG Pty Ltd v Australian Workers’ Union [2017] FWCFB 1165 at [44] – [45].
[56] Australian Workers’ Union v BP Refinery (Kwinana) Pty Ltd [2014] FWCFB 1476, 242 IR 238 at [15]; see also National Union of Workers v Cotton On Group Services Pty Ltd [2014] FWC 6601 at [15]- [16] (permission to appeal refused in [2014] FWCFB 8899) and ASU v Shine Lawyers Pty Ltd [2017] FWC 4158 at [68]- [71] as examples of where the employer’s organisational structure was used to determine organisational distinctiveness.
[57] [2021] FWCFB 1038 at [33].
[58] Transcript of Proceedings, 16 January 2024, PN 2051.
[59] Transcript of Proceedings, 15 January 2024, PNs 260 -261.
[60] Transcript of Proceedings, 15 January 2024, PNs 258.
[61] Transcript of Proceedings, 15 January 2024, PN 248.
[62] Transcript of Proceedings, 15 January 2024, PNs 248 - 250.
[63] Transcript of Proceedings, 15 January 2024, PN 792.
[64] Transcript of Proceedings, 15 January 2024, PN 793.
[65] Applicant’s Outline of Submissions filed 5 December 2023 at [2].
[66] Transcript of Proceedings, 15 January 2024, PN 245.
[67] Transcript of Proceedings, 15 January 2024, PNs 243 - 254.
[68] Transcript of Proceedings, 15 January 2024, PNs 255.
[69] Transcript of Proceedings, 15 January 2024, PNs 256.
[70] Transcript of Proceedings, 15 January 2024, PNs 263.
[71] Statement of Christopher Luke Brownlow at Attachment A
[72] Statement of Christopher Luke Brownlow at [15].
[73] Transcript of Proceedings, 16 January 2023 PN2049.
[74] Transcript of Proceedings, 16 January 2024, PN 2145.
[75] Transcript of Proceedings, 16 January 2024, PN 2357.
[76] Statement of Christopher Luke Brownlow at [15].
[77] Statement of Christopher Luke Brownlow at [16].
[78] Statement of Christopher Luke Brownlow at [16].
[79] Statement of Christopher Luke Brownlow at [17].
[80] Statement of Christopher Luke Brownlow at [18].
[81] Statement of Christopher Luke Brownlow at [11].
[82] Transcript of Proceedings, 15 January 2024, PNs 264 -265.
[83] Transcript of Proceedings, 15 January 2024, PNs 266 -267.
[84] Transcript of Proceedings, 15 January 2024, PN 270.
[85] Transcript of Proceedings, 15 January 2024, PNs 274 - 275.
[86] (1959) 101 CLR 298.
[87] Transcript of Proceedings 16 January 2025 at PN2364..
[88] Transcript of Proceedings, 15 January 2024, PNs 255 -257.
[89] Australian Clinical Labs (Victoria) Pathology Enterprise Agreement 2020-2024, Schedule 1.
[90] [2012] FWAFB 2206.
[91] [2012] FWAFB 2206 at [20].
[92] [2012] FWAFB 2206 at [21].
[93] Transcript of Proceedings, 16 January 2024, PN2377.
[94] Transcript of Proceedings, 16 January 2024, PN2381.
[95] [2014] FWCFB 1476.
[96] Transcript of Proceedings, 16 January 2024, PN 2378.
[97] Submissions of the Respondent at [48].
[98] Submissions of the Respondent at [49].
[99] Transcript of Proceedings, 16 January 2024, PN 2370.
[100] Transcript of Proceedings, 16 January 2024, PN 2370.
[101] [2014] FWCFB 1476 at [14].
[102] Transcript of Proceedings, 15 January 2024, PN 331.
[103] Transcript of Proceedings, 15 January 2024, PN331.
[104] Transcript of Proceedings, 15 January 2024, PN333.
[105] Transcript of Proceedings, 15 January 2024, PN334.
[106] Statutory Declaration of Brendan Chritopher Robers dated 4 November 2023 at [3].
[107] Statutory Declaration of Brendan Chritopher Robers dated 4 November 2023 at [4].
[108] Statutory Declaration of Brendan Chritopher Robers dated 4 November 2023 at [5].
[109] Statutory Declaration of Brendan Chritopher Robers dated 4 November 2023 at [4].
[110] Statutory Declaration of Brendan Chritopher Robers dated 4 November 2023 at [6].
[111] Transcript of Proceedings, 15 January 2024, PN167.
[112] Transcript of Proceedings, 15 January 2024, PN192.
[113] Transcript of Proceedings, 15 January 2024, PN193.
[114] Transcript of Proceedings, 15 January 2024, PN197.
[115] Transcript of Proceedings, 15 January 2024, PN199.
[116] Transcript of Proceedings, 15 January 2024, PN245
[117] Applicant’s Outline of Submissions filed 5 December 2023 at [3].
[118] Statutory Declaration of Brendan Chritopher Robers dated 4 November 2023 at [8] – [9].
[119] Statutory Declaration of Brendan Chritopher Robers dated 4 November 2023 at [9].
[120] Statutory Declaration of Brendan Chritopher Robers dated 4 November 2023 at [12].
[121] Statutory Declaration of Brendan Chritopher Robers dated 4 November 2023 at [11].
[122] Statutory Declaration of Brendan Chritopher Robers dated 4 November 2023 at [13].
[123] Transcript of Proceedings, 15 January 2024, PN352.
[124] Transcript of Proceedings, 15 January 2024, PN354.
[125] Transcript of Proceedings, 15 January 2024, PN363.
[126] Construction, Forestry, Mining and Energy Union v ResCo Training and Labour Pty Ltd [201] FWAFB 8461 at [35].
[127] [2012] FWAFB 2206 at [13].
[128] Cimeco Pty Ltd v Construction, Forestry, Mining and Energy Union [2012] FWAFB 2206 [16].
[129] [2018] FWC 7680.
[130] [2018] FWC 7680 at [9].
[131] [2018] FWC 7680 at [38] – [39].
[132] [2018] FWC 7680.
[133][133] Association of Professional Engineers, Scientists and Managers Australia T/A Collieries Staff Division[2023] FWC 217 at [185].
[134] Applicant’s Outline of Submissions filed 5 December 2023 at [16].
[135] Applicant’s Outline of Submissions filed 5 December 2023 at [17].
[136] Applicant’s Outline of Submissions filed 5 December 2023 at [19].
[137] Applicant’s Outline of Submissions filed 5 December 2023 at [19].
[138] Applicant’s Outline of Submissions filed 5 December 2023 at [19].
[139] Applicant’s Outline of Submissions filed 5 December 2023 at [20].
[140] Submissions of the Respondent filed 20 December 2023 at [5] – [6].
[141] Submissions of the Respondent filed 20 December 2023 [6].
[142] Submissions of the Respondent filed 20 December 2023 at [7].
[143] Submissions of the Respondent at [9].
[144] Submissions of the Respondent at [10].
[145] Kantfield Pty Ltd (t/as Martogg & Company) v The Australia Workers’ Union [2016] FWCFB 8372 at [35] – [37], National Union of Workers v Lovisa Pty Ltd [2019] FWC 2885.
[146] Explanatory Memorandum to the Fair Work Bill 2009 (Cth) para 979.
[147] Submissions of the Respondent filed 20 December 2023 at [5] – [6].
[148] National Union of Workers v Lovisa Pty Limited [2019] FWC 2885 at [33].
[149] National Union of Workers v Lovisa Pty Limited [2019] FWC 2885 at [55].
[150] [2021] FWC 3029 at [229] – [231].
[151] Submissions of the Respondent filed 20 December 2023 [6].
[152] Submissions of the Respondent filed 20 December 2023 at [7].
[153] Statutory Declaration of Brendan Chritopher Robers dated 4 November 2023 at [3].
[154] Statutory Declaration of Brendan Chritopher Robers dated 4 November 2023 at [4].
[155] Statutory Declaration of Brendan Chritopher Robers dated 4 November 2023 at [5].
[156] Statutory Declaration of Brendan Chritopher Robers dated 4 November 2023 at [4].
[157] Statutory Declaration of Brendan Chritopher Robers dated 4 November 2023 at [6].
[158] Statutory Declaration of Brendan Chritopher Robers dated 4 November 2023 at [8] – [9].
[159] Statutory Declaration of Brendan Chritopher Robers dated 4 November 2023 at [9].
[160] Statutory Declaration of Brendan Chritopher Robers dated 4 November 2023 at [12].
[161] Statutory Declaration of Brendan Chritopher Roberts dated 4 November 2023 at [11].
[162] Statutory Declaration of Brendan Chritopher Roberts dated 4 November 2023 at [13].
[163] Statement of Christopher Luke Brownlow at [36].
[164] Statement of Christopher Luke Brownlow at Attachment G.
[165] Statement of Christopher Luke Brownlow at Attachment H.
[166] [2020] FWCFB 5321.
[167] [2020] FWCFB 5321 at [11].
[168]Association of Professional Engineers, Scientists and Managers Australia T/A Collieries Staff Division v Ensham Resources Pty Ltd[2023] FWC 217 at 186.
[169] Transcript of Proceedings, 16 January 2024, PNs 2384 – 2385.
[170] Submissions of the Respondent at [45] – [49].
[171] Transcript of Proceedings, 16 January 2024, PN 2387.
[172] Transcript of Proceedings, 16 January 2024, PN 2388.
[173] Submissions of the Respondent at [50].
[174] Submissions of the Respondent at [51] – [52].
[175] Construction, Forestry, Mining and Energy Union v ResCo Training and Labour Pty Ltd [201] FWAFB 8461 at [35].
[176] Statement of Christopher Luke Brownlow at [32].
[177] Transcript of Proceedings, 16 January 2024, PN 2281.
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