Media, Entertainment and Arts Alliance

[2014] FWC 8898

[2014] FWC 8898

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.236—Majority support determination

Media, Entertainment and Arts Alliance
(B2014/892)

COMMISSIONER CRIBB MELBOURNE, 19 DECEMBER 2014

Application for a majority support determination re Australian Football League.

[1] The Media, Entertainment and Arts Alliance (MEAA, the union) has made an application for a majority support determination under section 236 of the Fair Work Act 2009 (the Act). It is in relation to a proposed enterprise agreement between the Australian Football League (AFL) and a group of employees in the Media Department, in Victoria, NSW, SA, WA, Queensland and Tasmania, who are substantially engaged in an editorial and/or editorial/video production capacity. 1

[2] The AFL vigorously opposed the application on three principal grounds:

• Whether a majority of the employees want to bargain and whether the petition is a reliable source of support.



• Whether the group of employees has been fairly chosen.



• Whether it is reasonable in all of the circumstances to make the determination. 2

1. Legislative Framework

[3] The relevant sections of the Act in relation to this application are sections 236 and 237. They set out the matters about which the Fair Work Commission (FWC, the Commission) must be satisfied before making a majority support determination, in the following terms:

“236 Majority support determinations

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

(2) The application must specify:

(a) the employer, or employers, that will be covered by the agreement; and

(b) the employees who will be covered by the agreement.

237 When the FWC must make a majority support determination

Majority support determination

(1) The FWC 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 FWC is satisfied of the matters set out in subsection (2) in relation to the agreement.

Matters of which the FWC must be satisfied before making a majority support determination

(2) The FWC 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 FWC; 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) that 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.

(3) For the purposes of paragraph (2)(a), the FWC may work out whether a majority of employees want to bargain using any method the FWC considers appropriate.

(3A) If the agreement will not cover all of the employees of the employer or employers covered by the agreement, the FWC must, in deciding for the purposes of paragraph (2)(c) whether the group of employees who will be covered was fairly chosen, take into account whether the group is geographically, operationally or organisationally distinct.

Operation of determination

(4) The determination comes into operation on the day on which it is made.”

[4] I will deal with each of the legislative requirements in turn.

(a) Section 237(1)(a)

[5] It was not disputed that the MEAA has made an application for a majority support determination. In relation to the requirement under section 236(1), that the application is to be made by a bargaining representative of an employee who will be covered by a proposed single enterprise agreement, the MEAA stated that, by virtue of section 176(1)(b), it is an employee organisation who is a bargaining representative of an employee who is a member of the organisation. 3

[6] In its written submissions, the AFL stated that it took no substantive issue with this particular statement. 4 However, during cross examination of the union’s witnesses, questions were asked in relation to whether they had nominated the union, in writing, as their bargaining representative. In response, the union argued that none of the witnesses is required to appoint the MEAA as their bargaining representative. This was because they are members of the union and the union is their bargaining representative by default under section 176(1)(b).5

[7] Taking all of this into account, I find that an application has been made by a bargaining representative of an employee who will be covered by the proposed agreement, namely, the MEAA.

[8] The MEAA’s application contains those matters specified in sections 236(2)(a) and (b) of the Act.

[9] It was also common ground that there is a proposed single-enterprise agreement. This is supported by various pieces of correspondence between the union and the AFL. 6

(b) Section 237(1)(b)

[10] This section requires that the FWC is satisfied of the matters set out in section 237(2).

(c) Section 237(2)(a) - a majority of employees want to bargain

[11] As set out in paragraph [2] above, this is the first ground on which the AFL opposed the granting of the application.

[12] At the beginning of the first day of hearing, it became evident that it was necessary for the AFL to be made privy to the confidential information provided to the Commission by the MEAA in accordance with the Commission’s Directions. The document disclosed whether or not a majority of the employees who will be covered by the agreement, want to bargain with their employer. A process was agreed whereby the Commission adjourned for a short private conference with the legal representatives of both parties. 7 As indicated above, the Commission had been provided by the union, on a confidential basis, with a copy of the petition signed by their members.8 Following the private conference, a confidentiality order was issued, as amended, under section 594 of the Act, in relation to the petition.9 Further, an undertaking10 was given, by counsel and instructing solicitors for the respondent, to keep confidential Attachments LRB-7 and LRB-23 to the statements11 of Mr Batchelor.

[13] The remaining issue then to be dealt with in relation to s.237(2)(a), during the hearing, was whether the Commission should accept the petition as a valid method of establishing a majority. 12

(i) Union’s evidence and submissions

[14] It was submitted by the MEAA that the Commission should accept the petition as a valid method of establishing a majority. The union argued that this submission is supported by the evidence of the organiser, Mr Batchelor, and the three delegates, Mr McNicol, Mr Dunstan and Mr Walsh. 13

Witness evidence

[15] Mr McNicol’s evidence was that:

• Notice of the workplace meeting on 6 May 2014 was sent by email, in advance, to about 40 - 50 people. The meeting was to discuss a number of workplace issues. He had drafted the email. The email invitation was sent to people within the scope. The email was not sent to people who work unsociable hours but who are not connected to editorial. 14



• The meeting was addressed by Ms Dunbar of the MEAA and Mr Batchelor. He attended the meeting and there were about 20 - 30 people there. 15



• He introduced the MEAA officials and gave an update on how things were going in relation to talking to the AFL. 16



• The union officials had explained that a majority of editorial staff would need to support bargaining which could be done by signing a petition. 17



• The petition was passed around about halfway through the meeting so that people could sign it or gain an understanding about what the petition entailed. 18



• About half a dozen people at the meeting did not sign the petition. Probably four people did sign later but two people never did. No one said that they felt any pressure to sign the petition. 19



• The reason for the petition was explained and then it was up to people whether they wished to sign it. 20



• No one told anyone to sign the petition. He and the other delegates asked people if they would like to sign it. He was the lead delegate in charge of the petition.



• Mr Batchelor had explained about the petition but it was up to the elected delegates to ask people to sign the petition. 21



• He knew, at the end of the meeting, that they did not have the numbers to support the application. He thought that around 20 people had signed. With six people not signing, he thought there may have been 26 - 30 people at the meeting. 22 It was agreed that it took a further six weeks to get the numbers.23



• The petition contains some single pages for people not in Melbourne (these were emailed to them). 24



• For Melbourne people, he would physically stand next to people and ask them if they wished to sign the petition. The four people who initially declined were asked once again if they would like to sign it. 25



• He had been circulating in the central communal area seeking signatures four times in six weeks. Most of the time, he was on his own. Sometimes he had either Mr Dunstan or Mr Walsh with him. 26



• When he approached people, he explained what the petition was about and why it may be required. He showed them the petition, allowed them to read it and then asked them if they wished to sign it. 27



• When showing the petition to people, he did not cover up the signatures. 28



• He confirmed the dates and number of signatures on the petition. He indicated which of the people he had approached (as opposed to Mr Dunstan). 29



• The single pages had been emailed and then those people were telephoned. He told them how many signatures there were and how many more were needed to make a majority. This had also been the case in relation to other people. 30



• Notice of the meeting on 17 June 2014 was emailed to everyone who had signed the petition. People who had not signed the petition were not invited to the meeting. In addition, about six other people who had shown some interest in the process were also invited. Around 40 people were invited and about 25 attended. 31



• By the meeting on 17 June 2014, he believed they had a majority. Obtaining more signatures was discussed and oral instructions about how to do this were given. 32



• After the meeting, he pursued further signatories. The previous signatures were not covered up. 33

[16] Mr Dunstan gave evidence that:

• He was voted in (by a show of hands) as a delegate on 6 May 2014. He has not authorised the MEAA, in writing, to be his bargaining representative. 34



• He was informed by email, and in person, of the meeting on 6 May 2014. 35 A good 30 people (but he was not sure of the exact number) attended the meeting.36 Mr Batchelor, Ms Dunbar and Mr McNicol spoke at the meeting.37



• He confirmed that the petition was handed around at the meeting with staff having the option to sign or not sign it. He did not know who signed it then. 38



• The next day, he saw that there were 20 signatures on the petition. Even though he did not know exactly how many signatures were needed, he knew that 20 signatures was not enough. 39



• Following the meeting, he obtained further signatures and he indicated which of the signatures on the petition he had obtained. 40



• He spoke individually to each person and was quite clear that they had the option to sign or not to sign. He had presented signing from an “opting-in” approach. He was generally standing at the door of the person’s room and was not looking over their shoulder as they signed. 41 Several people elected not to sign the petition.42



• He did not cover up the previous signatures which were in full view to the next signatory. 43



• He had publicised the meeting on 17 June 2014 as much as possible by email and verbally. He did not send out the invitation emails. 44

[17] Mr Batchelor gave the following evidence:

• In relation to Mr Walsh and Mr Dunstan appointing the MEAA as their bargaining representative, this is something that happens with the notice of representational rights. 45



• It was acknowledged that the petition had left out “and/or editorial video production capacity” as set out in the union’s majority support determination application. 46



• Notice of the meeting on 6 May 2014 was not sent to all AFL Media employees. It was only sent to those he had email addresses for (about one third to a half of AFL Media employees). The email would have included a statement saying that the meeting is open to all employees if they wish to attend. He also relied on word-of-mouth. 47 It was his usual practice to send out the meeting invitation email but he could not be sure whether or not he did.48



• He thought about 70 people had been invited to the meeting. It was not accepted that the other employees were not invited. Rather, he was unable to inform them. 49



• Between 20 - 30 people turned up at the meeting on 6 May 2014. 50



• The petition remained open until the delegates believed they had had an opportunity to talk to as many staff who wanted to have a discussion. These were probably confined to the video and editorial teams. 51



• He gave Mr McNicol, Mr Dunstan and Mr Walsh the message/instructions about what they should be talking to other employees about. It was stated that the dot points on top of the petition served as a guide. 52



• He made attempts to communicate with other employees (50 plus) who might be working unsociable hours but conceivably, they may not have been contacted by the union. The union’s greatest contact was with editorial employees. He did make himself available in the lunch room for interested staff members to talk to, on one occasion. 53

[18] Mr Walsh’s written evidence 54 was that:

• He has been a delegate since May 2014. 55



• He attended a workplace meeting on 6 May 2014 where Mr Batchelor and Ms Dunbar spoke about negotiating an enterprise agreement with the AFL. 56



• A petition was circulated at the meeting. After the meeting, he, Mr McNicol and Mr Dunstan circulated the petition to other employees including those interstate. 57



• When he met with employees about the petition, he explained the purpose of the petition in essentially the same terms as the numbered paragraphs on the petition. 58



• There was a further workplace meeting around mid June 2014 where the process for making a majority support determination was discussed. 59

Submissions

[19] The MEAA submitted that the petition should be accepted as a valid method of establishing a majority. 60 A number of authorities were referred to where the FWC has accepted a petition as establishing that a majority of employees want to bargain.61

[20] Secondly, the union contended that the petition is clearly expressed 62 and that the Commission has witness evidence in relation to administration of the petition.63

[21] With respect to the first issue raised by the respondent, during cross examination of the union’s witnesses, it was argued that the union is not aware that there is a requirement that the prior signatures be covered up when the petition is presented to an employee. To contend that this should be the case was said to be contrary to common experience of how petitions are administered. It was stated that there is no evidence that an employee was influenced by other signatures on the petition. In any event, the union submitted that there is nothing improper for someone to be motivated to sign a petition because they can see it has the support of other employees in the workplace. 64

[22] The second issue was described as employees having felt pressured because of the one-on-one interaction between the delegate and the employee. It was stated that all of the witnesses were emphatic that employees were given a choice about whether to sign the petition. Further, the delegates were described as non intimidatory and reasonable people. 65 Further, the union argued that the workforce in question is not a vulnerable workforce but a media operation staffed by people who are capable of understanding what they are doing. It was contended that the fact that some employees took their time before deciding to sign and some, ultimately, did not do so, confirms that the employees were freely choosing whether or not to sign the petition.66

[23] In terms of the length of time the petition was open, it was argued that this was not remarkable and that the delegates were not out with the petition every day. No adverse inference should therefore be drawn. 67

[24] With respect to the fact that not all AFL Media staff were invited to the meetings or to sign the petition, it was contended that the evidence is that no-one was excluded from the meetings. The union argued that it is understandable that not everyone was invited to the meetings as Mr Batchelor said that he did not have contact details for everyone and that he relied, in part, on word-of-mouth. 68

[25] Finally, the Commission was referred to three authorities to support the principle that it is not sufficient for an employer to simply submit that the Commission should not accept a petition without cogent or persuasive evidence to support their contention. 69

[26] In relation to the respondent’s argument regarding the change in the composition of the workforce, the union submitted that it is reality that the composition of a workforce may change. It was also contended that the union was not required to provide an accurate prediction of the group of employees. The Full Bench decision in CBI Constructors Pty Ltd v CFMEU 70 (CBI Constructors) was referred to in support of these submissions.71

[27] Finally, with respect to the submission by the respondent that the length of the delay in determining the application necessitated an updating of the petition or other document, the MEAA stated that the length of time does not provide a basis for inferring that the majority no longer wants to bargain. It was stated that the AFL has not put forward any evidence to support such an inference. 72

(ii) AFL’s evidence and submissions

[28] Mr Campbell, General Manager of AFL Media, gave evidence that there is the ability in the email system to send a group email to all employees of AFL Media. 73

[29] It was submitted by the AFL that it is likely that at least six months will have passed since some of those who signed the petition last indicated their choice in that regard. The AFL argued that time delay, the changes in the composition of the workforce (eg. employees resigning) 74 and changes in the culture of the organisation75 are highly likely to have influenced the views of those who signed the petition.76 Therefore, it was contended that there are circumstances which cast legitimate doubt on the “expression of will” of the signatories on the petition. The AFL submitted that an updated petition or other form of evidence demonstrating majority support was necessary.77

(iii) Considerations and conclusions

[30] I have considered all of the material before me and I am satisfied that a majority of the employees, who are employed by AFL Media and who will be covered by the agreement, want to bargain (section 237(2)(a)). Taking into account the adjustments made to the number of employees who will be covered by the agreement 78, a majority of the proposed group of employees to be covered by the proposed agreement signed the petition circulated by the MEAA.

[31] There are a number of decisions of the Commission where a petition has been accepted as an appropriate means of establishing a majority employee position. There is nothing before me which would persuade me to not follow the “usual” approach of the Commission in this regard.

[32] It is my view that the petition that was circulated made it quite clear, to those who were considering signing it, as to the purpose of the petition and that, in signing it, they were indicating that they want to bargain for an enterprise agreement with their employer. It also states that they have signed the petition freely. 79

[33] With respect to the relevant time for ascertaining whether a majority exists (s.237(2)(a)(i)), there have been different approaches adopted within the Commission. The signatures on the petition in question were collected between 6 May 2014 and 20 June 2014. Having considered the various decisions of my colleagues, I am of the view that the relevant time is the time at which the petition was signed.

[34] As well, in relation to the issue regarding the changes in the workforce, I adopt the comments made by the Full Bench in CBI Constructors where it was observed that the composition of a workforce will vary over time. 80 The Full Bench also concluded that the words “employees who will be covered by the agreement” does not require a prediction of which particular employees will be covered by the agreement at the point in time it is made.81

[35] With respect to the cultural changes referred to extensively by the respondent’s witnesses, there is no evidence before me that any or all of these changes have influenced any of the group of employees such that there is no longer a majority who wish to bargain.

[36] For these reasons, I have not been persuaded that too much time has elapsed between the time of the signatures and this decision to warrant a further process of determining whether a majority want to bargain.

[37] In relation to the issue raised by the respondent that the prior signatures on the petition were not covered, I have not been persuaded that this is an improper way of obtaining signatures on a petition. There has been no evidence brought forward by the respondent that an employee felt pressured to sign the petition after having seen the previous people’s signatures.

[38] With regard to the criticism of the way in which the delegates approached individual employees, I have formed the view that it was left up to the individual as to whether or not they signed the petition. There is evidence before me that some individuals never signed the petition and that other employees did not do so when the petition was first circulated. This points to employees being able to make up their own minds about whether to sign. In addition, the evidence of the delegates about how they approached people and what they said to them, paints a picture whereby people were not intimidated or pressured into signing the petition.

[39] In relation to the union’s failure to contact/invite all AFL Media employees to the meetings/sign the petition, it is accepted that the union did not have the contact details for employees other than for their members. Mr Batchelor’s evidence that the union also relied on word-of-mouth to inform people about the meetings is noted. There is nothing before me which would suggest that the union was trying to prevent employees attending the meetings or signing the petition. For the union to have properly had the contact details for all of AFL Media’s staff, the union would have had to have had total coverage of all of the employees. It was Mr Batchelor’s evidence that the union did not have coverage to that extent.

[40] Accordingly, for the reasons set out above, the petition submitted by the MEAA is considered to be an appropriate means of determining whether or not a majority of the group of employees want to bargain with their employer. As stated earlier, the petition establishes that a majority of the proposed group want to bargain. Therefore, I am satisfied that the requirements of s.237(2)(a) of the Act have been met.

(d) - section 237(2)(b) - employer not agreed to/initiated bargaining

[41] The AFL did not take substantive issue with the MEAA’s submission that the evidence shows that the employer who will be covered by the agreement has not yet agreed to bargain, or initiated bargaining, for the agreement. 82

[42] It was submitted by the union that, on the basis of the correspondence between the parties, the AFL has not yet agreed to bargain or initiated bargaining, for the agreement. 83

[43] Taking into account all of the material before me, I am satisfied that section 237(2)(b) is met. This is on the grounds that the AFL has not yet agreed to bargain, or initiated bargaining, for the proposed agreement.

(e) - section 237(2)(c) - the proposed group was fairly chosen

[44] Whether or not the group of employees proposed by the union to be covered by the agreement was fairly chosen was the subject of extensive evidence and submissions by both parties. It was the second ground on which the AFL opposed the application.

(i) Union’s evidence and submissions

[45] Mr Batchelor gave evidence that:

• He accepted that the AFL is a sporting organisation which employs journalists 84 and that its core focus is on activities during the football season.85



• He acknowledged that a significant proportion of AFL employees work non traditional hours. 86 These included corporate affairs employees, product and development employees, the sales and distribution manager, football operations and game development employees, digital producers, AFL events employees and commercial operations employees.87



• Designers within the operations team are only required to work unsociable hours on very rare occasions. 88



• He agreed that employees are required to work significant overtime and to travel outside traditional business hours. 89



• All employees at the AFL are subject to the demands of the AFL season. Only editorial employees are subject to the demands of a 24 hour/7 day a week news cycle. When the football season is over, it is not over for the journalists even though there are no games on the weekend. However, there is the trade period which creates news content and material pretty regularly every day of the week. 90



• Other employees in AFL Media work unsociable hours during the football season but not to the same extent as the proposed group. 91 He has been advised by his delegates that the proposed group are required much more readily to work unsociable hours and different unsociable hours to other AFL Media employees.92



• He did not accept that a significant number of AFL Media employees are required to work non traditional hours when matches are held. 93



• The union could represent the other employees in AFL Media but they are not included in the proposed group for this application. 94



• He had not spoken with the 30-50 people he does not have contact details for, about their unsociable working hours. 95



• It is quite common in a newsroom for employees to work across several functions and on projects involving various teams. Employees are also required to work in cross-departmental teams with other departments of the AFL. 96



• He gave details of the degree of engagement in editorial and/or editorial/video production functions for the positions in the proposed group. 97



• Four editorial senior management positions are not to be covered by the proposed agreement. Neither are employees who are engaged in substantially non editorial functions eg sales, client liaison. 98



• The union has a broader view of what constitutes “editorial” activity than Mr Campbell. “Editorial” includes the gathering, creating, editing and curating of news content and material generally requiring an element of editorial or creative judgements. 99



• A significant focus of AFL Media is on the provision of news and media content directly to the public. 100

[46] The union submitted that the purpose of a majority support determination is not to determine the scope nor the content of an agreement. Rather, its purpose was said to be to bring an unwilling employer to the bargaining table. 101 The Commission was referred to the Full Court of the Federal Court decision in J.J. Richards & Sons102 in support of this proposition.103

[47] In relation to the relevant principles to be applied in determining whether a group of employees has been “fairly chosen”, the union discussed a number of Commission decisions which dealt with this issue. Amongst others, the Commission was particularly referred to the Full Bench decision in Cimeco Pty Ltd v CFMEU 104 (Cimeco) and CFMEU v ResCo Training and Labour Pty Ltd105(RescCo Training). In applying the relevant principles, it was argued by the union that the proposed group of employees to be covered are those substantially engaged in an editorial and/or editorial/video production capacity.106 It was stated that the union does not propose that the agreement covers employees in substantially non editorial functions eg sales, promotions, client liaison. Neither are the editorial senior management positions of Head of Content, Head of Operations, Executive Producer and Head of Production sought to be covered.107 The proposed agreement would, therefore, not cover all employees of the AFL’s Media Department or the AFL.108

[48] The task for the Commission to determine was stated to be - whether the group is geographically, operationally or organisationally distinct. The union submitted that the group is operationally and organisationally distinct. This was said to be on two levels. The first level was that the group are engaged in the AFL Media Department which was established as an in-house media production business. The Media Department was described as providing an editorially independent news service providing news and commentary to the public across print and digital media platforms. Secondly, AFL Media was said to be a commercial business which provides print and digital media content to commercial clients. Further, it was argued that public statements by the AFL establish it as an operationally and organisationally distinct unit with the AFL. 109

[49] Secondly, the union contended that the proposed group is also organisationally and operationally distinct within AFL Media. This was because the proposed group are substantially engaged in editorial and/or editorial/video production functions, principally within the Editorial Video and Production teams. Employees in the Editorial team were described as almost exclusively engaged in editorial functions, with those in the Photography team substantially engaged in editorial functions. 110 Employees in the Video team were said to be substantially engaged in video production and, depending on their work assignments, engaged in editorial functions.111

[50] Further, the MEAA submitted that whether a group is operationally or organisationally distinct is only one of the relevant considerations. It was argued that it does not determine conclusively whether a group has been fairly chosen. Even if there might be an alternative way of fairly choosing, this was said to not mean that the proposed group has not been fairly chosen. In addition, the union argued that the composition of the group can be a matter for bargaining. It contended that there is an objective basis for the selection of the group by the MEAA. 112

[51] In response to the respondent’s submissions, the MEAA argued that the AFL organisational chart supports the distinctiveness of the group which was described as being concentrated on four pages of the chart. It was said that all of the positions on page 2 except for 3; all of the positions on page 6 except for 5 and 7 positions on page 4 are the proposed group. The union stated that it is willing to bargain about the scope of the agreement eg whether or not designers are included. 113

[52] Secondly, the union indicated that the AFL takes issue with whether the particular positions are “substantially editorial” and that it seeks to distinguish itself as a sporting organisation rather than a media organisation. It was argued, in response, that there is an objective criterion for the selection of the group, namely, it is editorial in nature. Where the parties have a difference of view about the extent to which certain positions have editorial functions, it was contended that this could be addressed in bargaining. 114

[53] In addition, the MEAA argued that, being a sporting organisation does not take away the editorial character of the positions. Reference was made to Mr Batchelor’s evidence about the growing trend of non media organisations to develop a substantial in-house media operation. 115 Further, it was contended that it is clear from the AFL’s evidence that AFL Media is a news organisation providing news directly to the public and employing journalists and other media professionals. This was said to have been what journalists and others have traditionally done for mainstream organisations. However, with the advent of digital technology, organisations like the AFL, have been able to set up their own media operations. This was stated not to detract from the fact that these are still editorial employees doing the traditional work of journalists and other media professionals.116

[54] The union also responded to the respondent’s submissions that employees in the proposed group interact with other employees and are not physically separate from other AFL Media employees. Mr Batchelor’s evidence that this is normal in digital news environments was referred to. 117 In addition, the union submitted that the fact that the employees in question interact with other employees within AFL Media is commonplace and typical of any workplace. It was argued that it cannot be the case that a group is not organisationally or operationally distinct simply because they interact with others in the workplace.118

[55] With respect to the AFL’s coloured organisation chart, the MEAA stated that overwhelming impression is that the proposed group is organisationally distinct, albeit not absolutely distinct. Reference was made to the design group, the two statisticians in the editorial group and video production but it was argued that the evidence did not demonstrate that the latter positions should be included in the group. It was stated that the Commission is not required to reach a conclusion about these positions. 119 However, the main debate in this regard was said to concern the position of designers. The evidence of Mr Batchelor was recalled to be that sometimes this group is in and sometimes it is not. The union indicated that it is prepared to bargain about this.120

[56] In relation to the issue of a number of other employees also working non traditional hours, the union argued that the hours of the employees’ in question are not just determined by the match cycle but also by the demands of the 24/7 media cycle. This cycle was also said to make it more likely that these employees will be required to work unsociable hours at short notice both during and outside the football season. 121 It was stated that it is an essential feature of these employees’ employment that they are required to work unsociable hours at short notice by reason of the media cycle. The union acknowledged that there are other employees within the AFL who, from time to time, will be required to work non-standard or unsociable hours, sometimes at short notice. This may reduce the degree of distinctness but it was stated that distinctness is not an absolute concept. Reference was made to Commissioner Roe’s decision in NUW v Cotton On Group Services Pty Ltd122 (Cotton On) in support of this and other contentions in relation to the fairly chosen requirements.123

[57] Further, the MEAA stated that the AFL’s position is not that there is a fairer group for the purposes of an enterprise agreement but that there should be no enterprise agreement. It was submitted that the group proposed by the union satisfies the relevant requirements of the Act. This is because the group has been objectively selected on the basis of employees who are substantially employed in editorial and/or editorial/video production work. In applying this criterion, it was argued that the union’s and the AFL’s list, both done independently, only differ by four in overall number. The union argued that, therefore, there is no lack of clarity about the group. 124 It was stated that there can be a legitimate debate about which particular employees meet this criterion. This was said to legitimately be a matter for bargaining but it was stated that this does not detract from the objectively of the criterion.125

[58] It was also contended by the union that the group was not the result of cherry picking to achieve a majority. It was stated that the group has been chosen using an objective criterion and that it is typical of the coverage of enterprise agreements to which the MEAA is a party. 126

[59] Finally, the union distinguished the decision in Jenkins v Captain Cook Cruises 127 (Jenkins) from this matter, on the facts.128 This was because the Jenkins case concerned a workforce that was governed by an existing enterprise agreement, where the employer was proposing to break the agreement up into numerous agreements.129

(ii) AFL’s evidence and submissions

[60] Extensive evidence was given by Mr Campbell and Ms Hisgrove on the issue of whether the proposed group is fairly chosen.

[61] It was Mr Campbell’s evidence that:

• AFL Media is a revenue generating department within the AFL due to one of its functions being the sale of media services to external organisations. 130



• There are broadly seven teams within AFL Media which are structured to provide formal reporting lines between employees and management and to administer operational budgets. In practice, each team relies on other teams to produce the products and services required by the Telstra Digital Rights Agreement. 131



• Many employees are expected to work across several functions and most employees work on projects or tasks that span the various teams within AFL Media and also other departments of the AFL. 132



• In a situation such as the recent Essendon Board meeting, called at 7.00pm, he was not sure if he would describe 7.00pm as unsociable hours. He said that editorial staff, product and development staff and other staff who ensured that the digital platform was operating correctly would have been working to ensure that whatever transpired was able to be communicated to AFL supporters through the AFL’s digital assets. 133 The entire process was said to be an editorial process.134



• Employees in the proposed group are not all substantially engaged in an editorial and/or editorial/video production capacity. Positions associated with video production are not necessarily “editorial”. The Video Editor position has some independence to make judgements about video content but within the limits of their brief of instructions. Other employees engaged in video related roles also substantially respond to a brief of instructions from a producer, client or editorial staff. 135



• The product and development team runs and operates the digital platform. One of the team, a support analyst, would have been working during the Essendon Board meeting situation, to ensure that the story was published correctly and in a timely fashion and that the platform was working. There would also have been a designer (and/or a photographer) who would have treated the image to ensure that there was a visual representation on the website and on the app. 136



• The support analysis position is substantially a technical role which also ensures that the story was fully published in its entirety. 137



• From time to time, video production employees are involved in an editorial process but not always. Rather, they are engaged in a video production role. 138 Mr Campbell disagreed that the video producers self identify, and are identified by their colleagues, as editorial staff.139 It was agreed that having a brief of instructions was not inconsistent with a video producer being creative or editorial.140



• The designer’s position designs and ensures that the image chosen works with the headline, how the image is best treated and its position in relation to the headline. They also work with the sub editor in terms of what the headline will be. 141 The designer would work with the photo editor on the best image to use. If the photo edition is not there, the designer would do this.142



• He considers the support analysts and designers to be part of the editorial process which ensures that the story and video are actually published. This process was said to involve the journalist, video producer and/or video editor, a person in the master control area who is receiving the feed from the location, designer, photographic editor, support analyst and platform support person. 143

• Photographers are also engaged in non editorial functions eg commercial.



• It is essential that all employees work across teams as the process outlined above requires a range of people who have to talk to each other. 144



• There are about 116 full time staff within AFL Media and he has five functional direct reports, each of whom have functional teams reporting to them. 145



• The very vast majority of employees within AFL Media work unsociable hours at various times ie. before 6.00am and after 8.30pm. 146



• The news cycle at AFL Media is ordinarily 16 hours a day/7 days a week, with incidents occurring outside of those hours on occasion. In the shoulder period of the AFL season, it can extend out a little bit further. In the off season, it is a 12-14 hour daily news cycle. 147



• The roster for the 16 hours news cycle would ordinarily be from 7.00am until 10.00pm/11.00pm. This can sometimes extend out further but when this will occur is unpredictable. It is unlikely that something will come through at 1.00am or 2.00am but if it does, it is addressed by the Head of Content and Editorial at 5.30am/6.00am. 148



• In terms of breaking news on early morning radio, this would begin to be monitored around 6.00am. 149



• Employees within AFL Media work differing rosters and spread of hours based on the nature of their roles. For example, editorial/reporting staff work a weekly roster and may be required to work one weekend day per round of the AFL season. Video production staff work a fortnightly roster and may be required to work a weekend shift depending on business requirements. 150



• Other employees eg support analysts, digital producers, designers, the sales and distribution manager, media sales sub group and developers work on call on weekends during the AFL season or work extended hours as required. 151 Therefore, on the basis of their non traditional hours, the proposed group is not operationally and organisationally distinct.152



• AFL Media provides services and content to the AFL so that it can fulfil its contract with Telstra. The services include the delivery of digital content to supporters and others. 153



• He confirmed the contents of the AFL Media section of the AFL’s 2013 Annual Report and stated that one of AFL Media’s core operations is getting news to the public. 154 Rather than characterising AFL Media as competing with traditional media organisations, Mr Campbell preferred to describe it as “adding to the mix”.155



• One aim of what AFL Media does is to perform a function traditionally performed by mainstream media organisations (providing news directly to the football public) both during and outside the AFL match season. 156



• The news cycle is naturally reduced after the Grand Final such that the amount of unsociable hours lessens. Mr Campbell did not agree that non editorial employees had more predictable hours than editorial employees. This was on the basis that part of AFL Media’s function is a commercial one in relation to non AFL clients. 157



• The organisational chart shows that employees in the proposed group report directly to employees outside the proposed group. If the proposed group is covered by an enterprise agreement, the result will be that certain Manager’s sub groups are split between employees covered by the enterprise agreement and others who are not covered. This was said to be in the context of all of the employees having functional roles which cross over and are interdependent on each other. This therefore demonstrates that the proposed group is not operationally or organisationally distinct. 158

[62] Ms Hisgrove, General Manager - People, Customer and Community gave the following evidence:

• Editorial staff are not considered organisationally distinct from the other AFL Media staff because, irrespective of their role, they have an absolute need to connect/interact with all of the other departments. There is no difference between the proposed group and the other AFL Media employees in terms of the work requirements and output and the need for connection. 159



• Employees within AFL Media may be required to work/interact with employees in other departments, for example, Football Operations, Commercial Operations, Broadcasting and Scheduling and Legal, Integrity and Compliance. 160



• Most, if not all, employees are required to work unsociable hours of a similar type to employees in the proposed group eg Game Development staff, Corporate Affairs team and Football Operations employees. 161 The sporting cycle necessitates the working of unsociable hours which has nothing to do with the media cycle but everything to do with the timing of the games every weekend etc. It was agreed that employees not subject to the media cycle are driven by the match cycle and any other event.162



• If there is a breaking story, editorial employees are no different, in having to cover it, to other employees having to do the same eg Corporate Affairs and Legal, Integrity and Compliance. 163



• Interaction between people/across departments is normal in any digital newsroom. This could include the in-house Legal Department, Broadcast or Scheduling teams. However, the AFL was said to be different to other organisations because it is first and foremost a sporting organisation which is different to a pure newsroom. This results in a high degree of interconnectedness across the business due to having to put the same product to market every week. 164



• Editorial employees are subject to the sporting cycle rather than the media cycle. This is because the operations are in the context of delivering a product that is completely sports related, hence it is about the sporting cycle. It was said to be all about the football product and that editorial employees are governed by the product that is put to market every week. 165



• The predominant focus of AFL Media is the provision of news directly to the football public. In doing this, it competes directly with other mainstream news organisations in terms of the content that goes on the website. However, in the context of a sporting business, there are also a myriad of other products delivered through media. 166

[63] The AFL submitted that the group of employees proposed by the MEAA was not fairly chosen. This was on the following grounds:

• The MEAA has selected just over half of the employees of AFL Media. 167



• The group is not geographically, operationally or organisationally distinct. 168



• The group was not chosen in any objective or other well organised manner. There are as many differences as the similarities identified by the union. The similarities and differences extend equally to those positions not included in the group. 169



• The Commission was referred to the decision in Jenkins in support of this contention.



• This is not a case of particular or clearly delineated vocations being included. Rather, it was said to be a carefully selected group of employees which is defensible in a general but not a particular sense. 170



• While section 237(3A) cannot be decisive in terms of the “fairly chosen” question, it is clearly significant. There would therefore need to be very good reasons for not selecting a group along distinct geographical, operational or organisational lines. 171



• The evidence does not support the union’s ground, in its application, that the group of employees is operationally distinct due to being required to work unsociable hours. The oral and written evidence of Mr Campbell and Ms Hisgrove was referred to in this regard and should be accepted by the Commission. 172



• “Unsociable hours” are worked by substantially all employees. 173



• Given the inter and cross departmental work undertaken by AFL Media employees, a fairly chosen group would be all employees in AFL Media. 174

(iii) Considerations and conclusions

[64] It was strongly submitted by the AFL that the union has failed to prove that the proposed group of employees is fairly chosen. There was much debate and evidence in relation to this requirement.

[65] Where the proposed agreement will not cover all the employees of the employer, the FWC must take into account whether the group is geographically, operationally or organisationally distinct (s.239(3A)). As acknowledged by the AFL in its submissions, this factor alone is not decisive in relation to the fairly chosen question.

[66] In this matter, the union has argued that the proposed group is operationally and organisationally distinct. This is on the basis that the proposed group of employees are substantially involved in an editorial and/or editorial/video production capacity (an objective criterion) and work unsociable hours and at short notice, due to the requirements of the media cycle.

[67] I have carefully considered all of the material before me. I have been persuaded that the proposed group of employees is operationally and organisationally distinct. This is due to a combination of the factors - that the employees are substantially involved in an editorial and/or editorial/video production capacity and that their unsociable hours and the requirement to work at short notice are due to the necessity to respond to the media cycle.

[68] It is understood that the parties have a different view of what the word “editorial” means. However, it would appear that the AFL understood this criterion sufficiently to do its own reckoning of the likely positions to be covered. The result of this is that the difference between the MEAA’s and that of the AFL is four positions.

[69] With respect to the coloured organisational charts that were provided, I agree that, when viewed way, the proposed group is distinct but not absolutely so. Commissioner Roe, in his decision in Cotton On, made this observation:

“A group of employees within an enterprise will rarely be operationally distinct in an absolute sense. It will often be a matter of degree.”

[70] I concur with this view. In doing so, I have taken account of the decision in Jenkins, which the AFL referred the Commission to on a couple of occasions. The facts of the Jenkins case and this matter are quite different and I prefer the approach taken in the Cotton On case to that in Jenkins.

[71] Further, this application is not a scope application and the issue of the scope of the Agreement is legitimately the subject of negotiation. The Full Bench in ResCo Training made some observations about the scope of an agreement and the “fairly chosen” requirement:

“In our view the scope of the Agreement is primarily a matter for the parties in the negotiation for an agreement. Enterprise agreements commonly cover sub-groups of employees in the workforce. Indeed it is very rare in our experience that all employees of a private sector employer would be covered by a single enterprise agreement. A common basis for differentiation is employees of a particular occupation or group of occupations that are considered to be sufficiently similar to warrant coverage under one agreement. We caution against the assumption that because an agreement does not cover all employees there are therefore grounds for challenging approval of the agreement on the basis that the coverage is unfair. It is likely that cases involving unfair coverage will not be common.” 175

[72] In the Cotton On decision, it was also found that:

“In making a majority support determination the Fair Work Commission determines the starting point of the bargaining and the group for the notice of representational rights. The Fair Work Commission is not determining the scope of any final agreement.” 176

[73] There was evidence from Ms Hisgrove to the effect that AFL Media responds to the sporting cycle and not to the media cycle. However, I have not been convinced that the work of the proposed group of employees is not arranged and performed to the needs of the 24/7 media cycle. The product that is the content of the enterprise is football. However, in terms of the way the product/content is produced to the public the timeframes within which this happens, these are ultimately determined by the media cycle. The AFL department within which the proposed group of employees is located is AFL Media.

[74] With respect to the argument that the proposed group interacts with others in AFL Media, thereby diminishing their distinctiveness, it is surely a requirement in workplaces for employees to interact with members of their own team and with other teams. It is the purpose of this interaction (performing substantially an editorial function) that distinguishes the proposed group from other employees who are required to do the same thing but for a non editorial purpose.

[75] Therefore, on the basis of the evidence of the roles of the positions in the propose group of employees, I am satisfied that they substantially perform an editorial and/or editorial/video production functions. As set out above, the proposed grouping will rarely be perfect and the extent of coverage of the Agreement may be the subject of bargaining. However, on the material before me, it can reasonable be said that the employees in the group perform those functions as set out by the union and that they have a sufficiently common basis (i.e. substantially editorial and/or editorial/video production) to distinguish them, operationally and organisationally from the other employees in AFL Media.

[76] Secondly, these employees are governed by the media cycle in regard to the football product which is the reason d’être or of the organisation. The employees in the proposed group appear to be the principal employees in AFL Media who substantially perform editorial and/or editorial video production functions and who are required to be responsive to the media cycle. On this basis, I am satisfied that the proposed group is fairly chosen on the basis that it is operationally and organisationally distinct.

[77] It was common ground that the vast majority of employees in AFL Media work unsociable hours. However, what distinguishes the proposed group is that they work unsociable hours and are substantially involved in editorial and/or editorial/video production functions.

[78] Accordingly, for the reasons set out above, I find that the proposed group of employees is operationally and organisationally distinct. In making this finding, I am therefore satisfied that, for the purposes of section 237(2)(c), the proposed group of employees will be covered by the agreement, was fairly chosen.

(f) - section 237(2)(d) - it is reasonable in all of the circumstances

[79] This was the third key ground of the AFL’s opposition to the application. Extensive evidence was given, particularly by Ms Hisgrove but also by Mr Campbell in relation to the AFL’s operational, practical and cultural difficulties with an enterprise agreement.

(i) Union’s evidence and submissions

[80] Mr Batchelor gave evidence that:

• He is aware of the survey but not the detail of the One-Team values and policy. 177



• He has discussed this with the members and not all employees are keen on it. 178



• It is not unusual for different industrial arrangements to exist in a digital news environment which may result in differences in rostering, conduct performance and remuneration reviews. The MEAA is not insensitive to these issues and views the scope of the agreement as a matter of bargaining. 179



• He disagreed that one of the consequences of an enterprise agreement is that high performing employees cannot be rewarded or that flexibility and harmony are lost. It was stated that the MEAA is party to many enterprise agreements covering editorial employees in digital news environments. These were said to be, ultimately, matters for the AFL to raise in bargaining. 180



• The AFL’s Annual Reports, from 2010 - 2013, indicated that collective bargaining occurs between the AFL and the AFL Players’ Association and the AFL and the AFL Umpires’ Association. The result of this collective bargaining was said to be collective agreements signed by each of the organisations. 181



• An example of industrial disputation was given as the issue regarding annual leave for editorial employees at AFL Media. 182



• He disagreed that there would be negative consequences as the result of an enterprise agreement only applying to certain employees. It was stated that there is no basis to suggest that employees sitting next to each other, whose terms and conditions are individually determined, have identical terms and conditions. Therefore, it could not be said that an enterprise agreement will impose differences where none previously existed. 183



• He disagreed with the AFL’s view that having an enterprise agreement will create cultural difficulties. It was stated that the MEAA is a party to enterprise agreements in situations where there are multiple industrial arrangements. He also disagreed that an enterprise agreement is incompatible with the culture to which the AFL aspires. 184



• He further disagreed that an enterprise agreement would have negative outcomes for remuneration or that it is incompatible with rewarding individual performance. The particular remuneration provision was said to be a subject for bargaining. 185



• The AFL might have to do some things differently if an enterprise agreement was agreed to. 186

(ii) AFL’s evidence and submissions

[81] It was Mr Campbell’s evidence that:

• The existence of an enterprise agreement could create tensions because of different terms and conditions. He confirmed that all employees’ terms and conditions are currently individually determined by contracts of employment and organisational policies. The policies applied across the board and within them, there is provision for management to exercise its discretion in relation to whether a particular employee is granted an entitlement under that policy. 187



• There are currently employees working side by side who have different terms and conditions. Having an enterprise agreement would not be different in that regard but some employees want to still have a one on one discussion without being governed by an enterprise agreement that sets their baseline terms and conditions. 188



• The AFL wants to continue the dialogue and discussion with their employees rather than through the MEAA. The best way of determining an employee’s pay is through a one on one relationship with that employee which takes into account their concerns, skill levels and the work they do. 189 Movement away from the current performance based pay model is likely to lead to a reduction in morale and productivity.190



• In relation to rosters, there are some employees within the proposed group who do not work to rosters but work to the job requirements at hand. 191 The loss of flexibility in rostering arrangements would cause operational and practical difficulties in an industry where flexibility is critical.192

[82] Ms Hisgrove gave evidence that:

• An organisation-wide culture values survey was undertaken in June 2014. The survey sought feedback from employees on their perception of the AFL’s organisational culture and for employees to set out their desired organisational culture values for the future. 193



• A key theme that emerged from the survey was that a significant number of employees sought a greater level of teamwork with a move away from working in silos. These trends were strongly demonstrated by employees with AFL Media. 194



• The survey results, for AFL Media employees, showed that the top current organisational cultural values were cost reduction, hierarchy, bureaucracy, silo mentality. 195 It was Ms Hisgrove’s view that these are reflective of an organisation on a cultural journey to change with a new CEO who is determined to drive a culture of collaboration and cohesiveness and to work with people.196



• Ms Hisgrove confirmed that the top desired cultural value (as found by the survey) is employee recognition, followed by humour, fun and creativity, then employee fulfilment, with teamwork at equal fourth. 197



• Following the results of the survey, the People, Customer and Community team worked towards developing the “One Team” values driven approach which emphasizes all employees within the AFL working together to achieve common goals and objectives. This approach will be incorporated into all of the AFL’s training and development activities. 198 The survey results were said to show that people want to work more collaboratively.199

• A move to collective bargaining and structured pay review mechanisms away from individual performance review and recognition would significantly disadvantage high performing employees which would, in turn, negatively impact on productivity and staff morale. 200



• It is important to organisations to be able to recognise and reward for performance. 201 She believed that people want to be rewarded for performance and to have flexibility around work/life balance.202



• She did not believe that, if the AFL agreed to bargain with editorial and production staff for an enterprise agreement, it would help address the perception amongst employees that the current values are dominated by cost reduction, hierarchy, bureaucracy and control. This was on the basis that harmony and workforce cohesiveness is built through a values based culture where teamwork and performance is rewarded. 203



• Enterprise bargaining is antithetical to the premise of teamwork. This is due to the end result of enterprise bargaining being that employees sitting beside each other would have different sets of employment agreements - individual contracts and a collective agreement. A collective agreement would run contrary to the organisation genuinely trying to reward employees for performance and for teamwork. 204



• The collective bargaining process between the players and the AFL clubs is not an exception to the individual contracts of employment approach of the AFL. This is because the collective agreement is not an enterprise agreement under the Fair Work Act. Also, the players are not employees of the AFL. 205 Rather, it is about the rules within which the players and clubs operate.206



• The role of the AFL in the bargaining for a collective agreement was described as leading the negotiations on behalf of the clubs and also the AFL arbitrates between the players and the clubs. The AFL was said to act as a mediator to broker an agreement with the players who are then on individual contracts with the respective clubs. 207 It was confirmed that the AFL Players’ Association bargains on behalf of the employees.208



• Ms Hisgrove acknowledged that the AFL’s Annual Report stated that the agreement it reaches with the Players’ Association is a collective agreement. However, her personal view was that it was markedly different to a collective bargaining agreement. 209



• The AFL engages in a collective bargaining process with the AFL Umpires Association on behalf of Match Umpires. 210 It was accepted that the AFL’s 2013 Annual Report stated that a new collective agreement had been signed between the AFL and the AFL Umpires Association.211



• The outcome of the collective bargaining process is not a formal agreement but those terms and conditions are written into individual employment contracts (1 year fixed term). 212



• The umpires are employees of the AFL but they are not within he AFL’s system (award and performance systems and policies) because it is not their primary employment. Their primary employment was said to be elsewhere. 213



• Ms Hisgrove distinguished between players and umpires and the AFL’s people on the basis that the people are in a performance life cycle from the time they commence employment with the AFL. This performance life cycle was said to include pay and incentives (rewarding and recognising the right behaviours) and career development opportunities. Umpires and players do not come to work every day. 214



• In relation to the issues raised in September 2013 by editorial staff about annual leave, the AFL had met with their employees and had a conversation with them. The AFL did not agree to providing the media industry standard. Ms Hisgrove did not view the conversation had with staff on this issue as a disputation conversation. 215



• Philosophically, the AFL wishes to have direct conversations with their people without the necessity for third party involvement. A request from the MEAA to meet with the AFL was refused on the principle that the AFL wants to maintain the ability to have one on one conversations with their people. The AFL would prefer not to have a discussion with the MEAA because it would prefer to have direct discussions with their employees. 216



• The AFL has met with the MEAA and asked them what they wanted but they refused to articulate it. 217



• The concerns raised about rostering, rewarding individual performance and flexibility were said to be due to an enterprise agreement being inconsistent with the ability to have one on one conversations with people. 218

[83] It was submitted by the AFL that there are a range of reasons why, in the circumstances of this particular case, the making of a determination is not reasonable. 219 These included:

• The strong history of individual negotiation and regulation of employment matters and the historical lack of any collective bargaining among employees of the AFL. The Commission was referred to the Jenkins case in this regard. 220



• The lack of any collective industrial disputation and the strong likelihood that the making of a determination would create disputation. 221



• The individual flexibilities inherent in AFL Media’s approach to individual contract negotiations in the past. 222



• The potential negative consequences of splitting a closely aligned workforce down the middle in terms of their industrial and employment regulation. This would have cultural, operational and remuneration/recognition consequences. 223



• The “One Team” organisational focus of the AFL and the cultural views of the employees. 224

(iii) Considerations and conclusions

[84] I have considered the various arguments put forward by the AFL as the basis for submitting that it is not reasonable, in all of the circumstances, to make the determination. However, I have formed the view that it is reasonable, in all of the circumstances, to make the determination.

[85] Ms Hisgrove (and Mr Campbell) put forward a number of reasons why enterprise bargaining is perceived to be not in the AFL’s best interests. The organisation’s current approach to the employment of staff is through the use of individual contracts. The argument that collective bargaining is alien to the culture of the AFL is not accepted. Although the outcomes regarding umpires and players do not result, technically, in enterprise agreements approved by the FWC, the process engaged in by the AFL is one of collective bargaining. This is reflected, publicly, in the AFL’s 2013 Annual Report. Therefore, the process of negotiating and reaching an agreement (collectively) is not foreign to the AFL and has been undertaken with employees of the AFL, namely, umpires.

[86] In addition, I have not been persuaded that it is unreasonable to make the determination on the basis of the AFL’s concerns about the loss of flexibilities. There is no evidence before me that enterprise bargaining will necessarily result in a loss of flexibility. As well, a workplace with different employment arrangements, providing different terms and conditions is not uncommon. There was evidence given that, currently, two people sitting side by side, may be on different terms and conditions depending on the content of their respective individual contracts of employment.

[87] Further, there is no evidence before me that the making of an enterprise agreement will impact negatively on the AFL’s “One Team” focus. I have not been convinced that they are necessarily incompatible. The current method of determining an employee’s pay and conditions is on an individual rather than a group basis. It appears to me that the presence of a collectively bargained set of terms and conditions for a particular group would not, in and of itself, be any more contrary to the “One Team” focus than the negotiating of an employee’s terms and conditions on a one-on-one individual basis.

[88] VP Watson made the following comments in Australian Licensed Aircraft Engineers Association v Panasonic Avionics Corporation 225

“If all other criteria are satisfied I do not consider that there is any reason why a determination should not be issued. The objects of the Act clearly encourage bargaining when a majority of employees wish it to occur. It is not sufficient in my view for an employer to oppose bargaining on the grounds that it considers it to be undesirable when a majority of its employees want it to occur.” 226

[89] I concur with VP Watson and there is nothing in the material before me that would persuade me that VP Watson’s considerations are not applicable in this matter. Therefore, I am satisfied that it is reasonable in all of the circumstances to make the determination (s.237(2)(d)).

[90] Accordingly, having been satisfied as to the matters set out in sections 237(2)(a), (b), (c) and (d), and, as I have found that an application has been made (s.237(1)(a), the FWC is required to make the majority support determination sought by the MEAA (s.237(1)).

[91] A majority support determination 227 will be issued separately. The determination will come into operation on the day on which it is made, namely, 19 December 2014.

COMMISSIONER

Appearances:

Mr K Kirkwood, of Counsel for Media, Entertainment and Arts Alliance

Mr P Wheelahan, of Counsel for the AFL

Hearing details:

2014.

Melbourne:

October 13, 16.

 1   Exhibit A7 at paragraph 73

 2   Exhibit R4 at paragraphs 8 and 11

 3   Exhibit A7 at paragraphs 13 - 16 And Exhibit A3 at paragraph 10

 4   Exhibit R4 at paragraph 9

 5   Transcript PN 1238 - 1239

 6   Exhibit R4 at paragraph 9 and Exhibit A7 at paragraph 11

 7   Transcript PN 41 - 80

 8   Ibid at PN 35 and Exhibit A3 at Attachment LRB7

 9   Ibid PN 117-118

 10   Ibid PN 115

 11   Exhibit A3 and Exhibit A4

 12   Transcript PN 1240

 13   Ibid PN 1240

 14   Ibid PN 153 - 170

 15   Ibid PN 171 - 175 and Exhibit A1 at paragraph 7

 16   Ibid PN 177 - 185 and ibid at paragraph 3

 17   Ibid at paragraph 8

 18   Ibid at paragraph 9 and Transcript PN 197 and 204

 19   Ibid PN 198 - 203 and 225 - 227

 20   Ibid PN 204 - 205

 21   Ibid PN 209 - 214 and 216

 22   Ibid PN 218 - 225 and 259 - 261

 23   Ibid PN 228

 24   Ibid PN 229 - 231 and 237

 25   Ibid PN 240 - 242

 26   Ibid PN 242 - 250 and Exhibit A1 at paragraph 10

 27   Ibid PN 251 - 254 and 257 and ibid at paragraph 11

 28   Ibid PN 255 - 256, 258 and 280

 29   Ibid PN 262 - 276 and 278 - 282

 30   Ibid PN 283 - 287

 31   Ibid PN 291 - 293 and 296 - 298 and Exhibit A1 at paragraph 13

 32   Ibid PN 294 - 295 and 302 - 309

 33   Ibid PN 310 - 311

 34   Ibid PN 355 - 361 and Exhibit A2 at paragraph 3

 35   Ibid PN 362 - 367

 36   Ibid PN 371 and 383

 37   Ibid PN 373 - 375 and Exhibit A2 at paragraph 6

 38   Ibid PN 377 - 380 and ibid at paragraph 7

 39   Ibid PN 382 and 385 - 387

 40   Ibid PN 395 - 400 and Exhibit A2 at paragraph 8

 41   Ibid PN 401 - 402, 406 and 417 and ibid a paragraph 9

 42   Ibid PN 407 - 410

 43   Ibid PN 403 - 405 and 420

 44   Ibid PN 410 and 412 - 413

 45   Ibid PN 488 - 489 and 500 - 501 and Exhibit A3 at paragraph 10

 46   Ibid PN 507 - 511 and 667

 47   Ibid PN 594, 595, 609, 614 - 615, 617 - 618 and 673 - 675

 48   Ibid PN 603 - 604

 49   Ibid PN 611 - 613

 50   Ibid PN 616 and 672 and Exhibit A3 at paragraph 14

 51   Ibid PN 651 - 652 and Exhibit A3 at paragraph 13

 52   Ibid PN 665 - 666

 53   Ibid PN 669 - 671 and 676 - 678

 54   Exhibit A5

 55   Ibid at paragraph 3

 56   Ibid at paragraph 6 and 7

 57   Ibid at paragraphs 8 and 9

 58   Ibid at paragraph 10

 59   Ibid at paragraph 12

 60   Exhibit A7 at paragraph 26 and Transcript PN 1240

 61   Ibid at paragraphs 27 - 30

 62   Ibid at paragraph 39 and Transcript PN 1240

 63   Ibid at paragraphs 36 - 37 and ibid PN 1240

 64   Ibid PN 1241

 65   Ibid PN 1242

 66   Ibid PN 1243

 67   Ibid PN 1244

 68   Ibid PN 1245 - 1246

 69   Ibid PN 1247 - 1250

 70   [2011] FWAFB 7642

 71   Exhibit A8 at paragraph 8(b)

 72   Ibid at paragraph 8(3) and 9

 73   Transcript PN 767 - 769

 74   Exhibit R3 at paragraph 47 - 48

 75   Ibid at paragraph 49

 76   Exhibit R4 at paragraph 13 and 15

 77   Ibid at paragraph 15

 78   Exhibit A8 at paragraphs 7 - 8 and Transcript PN 82 - 91

 79   Exhibit A3 at Attachment LRB 6

 80   [2011] FWAFB 7642 at [21]

 81   Ibid at [23]

 82   Exhibit R4 at paragraph 10

 83   Exhibit A7 at paragraphs 58 - 59 and Exhibit A3 at paragraphs 20 - 33

 84   Exhibit A4 at paragraphs 22 and 32 and Transcript PN 485 - 488

 85   Ibid PN 554

 86   Ibid PN 556 and Exhibit A4 at paragraphs 17 and 33

 87   Ibid PN 557 - 569, 620 - 622, 629 and 636

 88   Ibid PN 630 - 632 and Exhibit A4 at paragraph 17

 89   Ibid PN 568 and 695

 90   Ibid PN 700 - 702

 91   Ibid PN 577 - 578 and 696

 92   Ibid PN 622 and Exhibit A4 at paragraph 17

 93   Ibid PN 644

 94   Ibid PN 591 - 592

 95   Ibid PN 628

 96   Ibid PN 648 - 649 and Exhibit A4 at paragraphs 12 - 13, 20 and 24

 97   Exhibit A3 at paragraphs 39 - 41

 98   Ibid at paragraphs 33 - 34

 99   Exhibit A4 at paragraphs 11, 13 and 21

 100   Ibid at paragraph 23

 101   Transcript PN 20 and 1237

 102 [2012] FCAFC 53

 103   Transcript PN 20 and 1231

 104   [2012] FWAFB 22066

 105   [2012] FWAFB 8461

 106   Exhibit A7 at paragraph 73

 107   Ibid at paragraphs 73 - 74 and Exhibit A3 at paragraphs 33 - 34

 108   Ibid at paragraph 75 and Exhibit A8 at paragraph 13

 109   Ibid at paragraphs 76 - 79

 110   Ibid at paragraphs 82 - 83

 111   Ibid at paragraph 83 and Exhibit A3 at paragraph 38 - 41

 112   Ibid at paragraph 88 and Exhibit A8 at paragraphs 14 - 15

 113   Exhibit A8 at paragraphs 13 - 14 and Exhibit A4 at paragraph 14

 114   Exhibit A8 at paragraph 16

 115   Ibid at paragraph 17, Exhibit A4 at paragraph 22 and Transcript PN 1271 - 1272

 116   Transcript PN 1271 - 1272

 117   Exhibit A8 at paragraph 18 and Exhibit A4 at paragraphs 12 - 13, 16, 20 and 24

 118   Transcript PN 1272

 119   Ibid PN 1273 - 1275

 120   Ibid PN 1278

 121   Ibid PN 1276, Exhibit A8 at paragraph 19 and Exhibit A4 at paragraph 85

 122   [2014] FWC 6601

 123   Transcript PN 1254 - 1263

 124   Ibid PN 1266 - 1267

 125   Ibid PN 1270

 126   Ibid PN 1266 and 1270, Exhibit A8 at paragraph 21 and Exhibit A4 at paragraph 87

 127   [2014] FWC 6321

 128   Exhibit A8 at paragraph 20

 129   Transcript PN 1286 - 1287

 130   Exhibit R2 at paragraph 18

 131   Ibid at paragraphs 14 - 15

 132   Ibid at paragraphs 22 - 26

 133   Transcript PN 771 - 772

 134   Ibid PN 892

 135   Exhibit R2 at paragraph 40

 136   Transcript PN 773 - 774 and 836 - 837

 137   Ibid PN 838

 138   Ibid PN 893 and Exhibit R2 at paragraph 42

 139   Ibid PN 912

 140   Ibid PN 913 - 914

 141   Ibid PN 839

 142   Ibid PN 840

 143   Ibid PN 775

 144   Ibid PN 780

 145   Ibid PN 782 - 784

 146   Ibid PN 785

 147   Ibid PN 833 and 841

 148   Ibid PN 842 - 844

 149   Ibid PN 845 - 847

 150   Exhibit R2 at paragraphs 33 and 41

 151   Ibid at paragraphs 34 - 35

 152   Ibid at paragraph 36

 153   Ibid at paragraph 41 and Transcript PN 853 - 854

 154   Ibid PN 855 - 872

 155   Ibid PN 873 and 883

 156   Ibid PN 884 - 886

 157   Ibid PN 887 - 889

 158   Exhibit R2 at paragraphs 29 - 31 and 37 - 38

 159   Transcript PN 986 and 1160

 160   Exhibit R3 at paragraph 11

 161   Ibid at paragraphs 23 - 24 and Transcript PN 987

 162   Ibid PN 1176 - 1178

 163   Exhibit R3 at paragraph 11

 164   Transcript PN 1161 - 1165

 165   Ibid PN 1172 - 1175

 166   Ibid PN 1168 - 1171

 167   Exhibit R4 at paragraph 16

 168   Ibid at paragraph 17 and Exhibit R5 at paragraph 5

 169   Ibid at paragraph 19 and Transcript PN 1302

 170   Ibid at paragraph 20

 171   Ibid at paragraph 21

 172   Exhibit R5 at paragraphs 2 - 4 and Transcript PN 1299 - 1301

 173   Ibid at paragraph 5

 174   Ibid

 175   [2012] FWAFB 8461 at [33]

 176   [2014] FWC 6601 at [19]

 177   Transcript PN 681

 178   Ibid PN 687 - 688

 179   Exhibit A4 at paragraphs 16 and 18

 180   Ibid at paragraphs 19 and 25

 181   Ibid at paragraph 26

 182   Ibid at paragraphs 27 - 31

 183   Ibid at paragraph 34

 184   Ibid at paragraph 35

 185   Ibid at paragraph 36

 186   Ibid at paragraph 37

 187   Transcript PN 917 - 919 and Exhibit R2 at paragraph 39(a)

 188   Ibid PN 920 - 921

 189   Ibid PN 923 - 926 and 958

 190   Exhibit R2 at paragraph 39(b)

 191   Transcript PN 927

 192   Exhibit R2 at paragraph 39(c)

 193   Exhibit R3 at paragraph 28 and Transcript PN 1031 - 1033

 194   Ibid at paragraphs 29 - 30 and ibid PN 1034 - 1036

 195   Ibid PN 1040 - 1059

 196   Ibid PN 1060

 197   Ibid PN 1061 - 1065

 198   Exhibit R3 at paragraph 30

 199   Transcript PN 1060

 200   Exhibit R3 at paragraphs 32 - 34

 201   Transcript PN 1069 -and 1073 - 1074

 202   Ibid PN 1083

 203   Ibid PN 1084 - 1085

 204   Ibid PN 1091

 205   Ibid PN 1096 and Exhibit R3 at paragraph 21

 206   Ibid PN 1096

 207   Ibid PN 1096, 1097 and 1128

 208   Ibid PN 1093 - 1095

 209   Ibid PN 1099 and 1125 - 1127

 210   Ibid PN 1136 and Exhibit R3 at paragraph 21(b)

 211   Ibid PN 1139

 212   Ibid PN 1137 and Exhibit R3 at paragraph 21(b)

 213   Ibid PN 1135 and 1138 - 1139

 214   Ibid PN 1139

 215   Ibid PN 1143 - 1146

 216   Ibid PN 1151, 1154 - 1159, 1181 and 1191

 217   Ibid PN 1190 - 1193

 218   Ibid PN 1196 and Exhibit R3 at paragraphs 23 - 24 and 32 - 34

 219   Exhibit R4 at paragraph 24

 220   Ibid at paragraph 24(a)

 221   Ibid at paragraph 24(b)

 222   Ibid at paragraph 24(c)

 223   Ibid at paragraph 24(d)

 224   Ibid at paragraph 24(e)

 225   [2013] FWC 4267

 226   Ibid at [13]

 227   PR559115

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