ResMed Limited v AMWU

[2015] FWC 848

[2015] FWC 848

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
ss 589, 615 and 615A - Application for the President to direct a Full Bench to perform a function

ResMed Limited
v
Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (AMWU)
(C2015/1008)

JUSTICE ROSS, PRESIDENT MELBOURNE, 9 FEBRUARY 2015

Referral to a Full Bench - Fair Work Act 2009 (Cth) - ss 589, 615 and 615A - application granted.

[1] ResMed Limited (ResMed) has applied for a direction that two matters be dealt with by one Full Bench of the Commission. The two matters in question are:

(i) Matter C2015/1008 an application filed by ResMed on 5 January 2015 for a representation order under s.137A of the Fair Work (Registered Organisations) Act 2009 (Cth) (FW (RO) Act); and

(ii) Matter D2014/70 an application filed by the AMWU on 12 November 2014 for consent to the alteration of its eligibility rules, pursuant to s.158 of the FW (RO) Act.

[2] In essence ResMed’s application seeks,:

(i) a direction under s.615A (or in the alternative s.615) that in respect of D2014/70 the powers and functions of the Commission be performed and exercised by a Full Bench;

(ii) that a Full Bench be constituted to hear and determine C2015/1008; and

(iii) a direction, pursuant to s.582(2) and/or s.582(4)(c), that C2015/1008 and D2014/70 be dealt with by the same Full Bench.

[3] The application filed by the AMWU in matter D2014/70 seeks the consent of the Commission to an alteration of its eligibility rules to insert a new rule, ‘1N’, which relevantly provides as follows:

“1N. Without in any way limiting or being limited by subrules 1A, 1B, 1C, 1D, 1E, 1F, 1G, 1H and 1I, the Union shall consist of:

(a) an unlimited number of persons who are employed or whose usual occupation is that of an employee of the employer hereinafter prescribed or the successor, assignee of transmittee of that employer's business, or any subsidiary or joint venture of that employer:

ResMed Limited.”

[4] ResMed and the AWU have filed objections to the AMWU’s application.

[5] The application filed by ResMed in Matter C2015/1008 seeks an order as follows:

“The AMWU is not to have the right to represent under the Fair Work (Registered Organisations) Act 2009 (Cth) or the Fair Work Act 2009 (Cth)the industrial interests of the employees employed by ResMed Limited(ResMed).”

[6] Both applications concern the ability of the AMWU to represent the industrial interests of ResMed’s employees. If the application in Matter D2014/70 was granted the eligibility rule alteration this would allow the AMWU to represent the industrial interests of all ResMed’s employees. The other application, in Matter C2015/1008, is for an order that the AMWU not be entitled to represent the interests of ResMed’s employees.

[7] It is relevant to observe at the outset that Matter C2015/1008 must be dealt with by a Full Bench as s.138 of the FW (RO) Act provides that the Commission’s powers under s.137A are only exercisable by a Full Bench. In relation to Matter D2014/70 the powers under s.158 of FW (RO) Act are only exercisable by a Presidential Member (ie the President, a Vice President or a Deputy President) 1 and this matter has been allocated to Deputy President Lawrence.

[8] It is also relevant to observe that there is a considerable history of litigation between ResMed and the AMWU regarding the latter’s capacity to represent the industrial interests of ResMed employees (see AMWU v ResMed Limited[2014] FWCFB 3501 and Federal Court matters NSD 846 of 2014 and NSD 915 of 2014, which are being dealt with jointly).

[9] I now turn to that aspect of ResMed’s application which seeks to refer Matter D2014/70 to a Full Bench pursuant to s.615A.

[10] Section 615A of the FW Act states:

615A When the President must direct a Full Bench to perform function etc.

(1) The President must direct a Full Bench to perform a function or exercise a power in relation to a matter if:

(a) an application is made under subsection (2); and

(b) the President is satisfied that it is in the public interest to do so.

Note: The President gives directions under section 582.

(2) The following persons may apply to the FWC to have a Full Bench perform a function or exercise a power in relation to a matter:

(a) a person who has made, or will make, submissions for consideration in the matter;

(b) the Minister.

[11] I am satisfied that ResMed has the requisite standing under s.615A(2)(a) to make the application that Matter D2014/70 be referred to a Full Bench pursuant to s.615A. As mentioned earlier, ResMed has filed an objection to the AMWU’s application and accordingly has the opportunity to be heard, and may therefore make submissions, in relation to the matter. 2

[12] Applications for directions under s.615A have recently been decided in Lend Lease Building Pty Ltd and others [2014] FWC 5026 (Lend Lease), Collinsville Coal Operations Pty Limited [2014] FWC 3129 (Collinsville) and Metropolitan Fire & Emergency Services Board[2014] FWC 2498 (MFESB). In Collinsville I set out the considerations which are relevant to the determination of such applications, as follows:

“[5] The issue for determination is whether I am satisfied that it is in the public interest to refer the agreement approval application to a Full Bench. The expression 'in the public interest', when used in a statute, imports a discretionary value judgment to be made by reference to undefined factual matters and confined only by the subject matter, scope and purpose of the relevant statute. [O'Sullivan v Farrer [1989] HCA 61; (1989) 168 CLR 210 at 216 per Mason CJ, Brennan, Dawson and Gaudron JJ]

[6] Sections 577 and 578 of the FW Act are relevant to the exercise of the President’s powers under s 615A.

[7] Section 577 provides as follows:

"The FWC must perform its functions and exercise its powers in a manner that:

(a) is fair and just; and

(b) is quick, informal and avoids unnecessary technicalities; and

(c) is open and transparent; and

(d) promotes harmonious and cooperative workplace relations.

Note: The President also is responsible for ensuring that the FWC performs its functions and exercises its powers efficiently etc. (see section 581)."

[8] Section 578 directs the Commission to take into account, among other things, the objects of the FW Act and ‘equity, good conscience and the merits of the matter’.

[9] Section 581 is also apposite. It provides, relevantly, that the President is responsible for ensuring that the Commission performs its functions and exercises its powers in an efficient manner.”

[13] Similar observations were made in Lend Lease at [5] - [8], and MFESB at [8] - [13].

[14] In support of its application ResMed submits that if the matters are dealt with and heard by separate members (or Full Benches) of the Commission, there will be a duplication of the resources of the Commission because both proceedings relate to the interpretation of the AMWU eligibility rules and their application to ResMed employees, and whether those rules should have an expanded application to ResMed employees. Further, it is submitted that if matters C2015/1008 and D2014/70 were dealt with and heard separately, there is a potential for inconsistency in the determination of the matters involving the scope and application of the rules of the AMWU by separate members or Full Benches of the Commission. It is also submitted that there will be increased legal costs for the parties, as well as duplication in witnesses, the cross examination of those witnesses, and legal issues addressed in submissions.

[15] The AMWU and AWU (the Unions) oppose ResMed’s application to refer Matter D2014/70 to a Full Bench and to have the same Full Bench deal with Matter C2015/1008. It is submitted, in essence, that such an application is premature as the extent of any overlap between the two applications is not yet known. The Unions also express concern that if granted ResMed’s application may complicate the usual process in contested eligibility rules matters whereby facilitated discussions take place in an effort to resolve or narrow objections prior to arbitration. The Unions also point to the fact that there are (or are likely to be) different parties interested in each of the applications.

[16] I accept that the question of the AMWU’s current coverage is one of the matters which may arise in both of these applications. Indeed given the history between ResMed and the AMWU I think that it is likely that such a matter will arise. If Matter D2014/70 were to be dealt with by a single Member (as is presently the case) and Matter C2015/1008 were to be dealt with by a Full Bench (as required by s.137A of the FW (RO) Act) there is a significant likelihood that they will deal with some similar issues and evidence. This, in turn, gives rise to a risk of inconsistent evidentiary findings or inconsistent decisions in respect of the AMWU’s coverage of ResMed’s employees.

[17] It is in the public interest that there is consistency and an avoidance of conflict between decisions of Members of the Commission and on this basis I am persuaded that it is in the public interest to refer matter D2014/70 to a Full Bench and specifically to the Full Bench to be constituted to deal with Matter C2015/1008.

[18] As I am satisfied that it is in the public interest to direct a Full Bench to hear and determine Matter D2014/70, ResMed’s s.615A application must be granted (s.615A(1)).

[19] Counsel for ResMed further submits that any Full Bench constituted to deal with matter D2014/70 (together with matter C2015/1008) should only consist of presidential members of the Commission (namely, the President, or any of the Vice Presidents or Deputy Presidents of the Commission). This submission is put on the basis that s.162 of the FW (RO) Act provides that ‘[t]he powers of the FWC under this Division are exercisable only by the President, a Vice President or a Deputy President.’

[20] I am not persuaded that the Full Bench constituted to deal with this matter must only consist of Presidential Members. In this regard, I note that s.615 relevantly provides:

615 The President may direct a Full Bench to perform function etc.

(1) A function or power of the FWC may be performed or exercised by a Full Bench if the President so directs.

Note: The President gives directions under section 582.

(2) The President may direct that the function or power be exercised by a Full Bench generally, or in relation to a particular matter or class of matters.

(3) To avoid doubt, a reference in this section to a Full Bench includes a reference to more than one Full Bench. (emphasis added)

[21] Section 618 deals with the constitution of Full Benches and s.618(1) provides that a Full Bench ‘consists of at least 3 FWC Members, including at least one FWC Member who is the President, a Vice President or a Deputy President.’

[22] The power to consent to an alteration of the eligibility rules of an organisation pursuant to s.158 of the FW (RO) Act is a ‘power of the FWC’ within the meaning of s.615(1) and s.615A(1). It follows that despite the terms of s.162 of the FW (RO) Act such a power may be exercised by a Full Bench ‘if the President so directs’ pursuant to s.615. Further, s.615A(1) provides, relevantly, that the President ‘must direct a Full Bench to ... exercise a power in relation to a matter if ... the President is satisfied that is it in the public interest to do so.’ I also note that in two other matters in which Full Benches were constituted to deal with applications for consent to the alteration of organisations eligibility rules the Full Benches in question were not solely comprised of Presidential Members. 3

[23] For the reasons given I direct, pursuant to s.615A of the FW Act, that the functions and powers of the Commission be performed and exercised by a Full Bench of the Commission in respect of Matter D2014/70.

[24] I also propose to constitute a Full Bench to hear and determine Matter C2015/1008. For the reasons given I am satisfied that it is appropriate that the same Full Bench deal with Matters C2015/1008 and D2014/70. Accordingly, I will issue a direction, pursuant to s.582(2), that the Full Bench constituted to hear and determine Matter C2015/1008 also hear and determine Matter D2014/70.

[25] I wish to make it clear that the directions I have made are not intended to formally join Matters D2014/70 and C2015/1008. I acknowledge the concern advanced by the Unions that if the matters were formally joined then that may expand the scope of the parties who may be heard in relation to Matter D2014/70 and that it is not my intention. Any joinder application will have to be made to the Full Bench constituted to deal with these matters.

[26] I would also note that despite the referral of Matter D 2014/70 to a Full Bench there is no impediment to the Full Bench adopting the usual process of facilitating discussions between the interested parties with the objective of resolving or narrowing the issues between the parties.

[27] For completeness I would also indicate that I am not persuaded that it is necessary to issue the ancillary directions set out at paragraph 15 of ResMed’s submissions, having regard to the terms of s.615B of the FW Act.

PRESIDENT

Appearances:

The Applicant: Mr A. Moses of Senior Counsel and Mr T. Sebbens

The Respondent: Ms L. Saunders

Hearing details:

Sydney

9 February 2015

 1   See s.162 of the FW (RO) Act

 2   See Reg 125(1)(b) of the FW (RO) Regulations 2009 (Cth)

 3   See The GEO Group Australia Pty Ltd [2010] FWAFB 9624 and Liquor, Hospitality and Miscellaneous Union [2010] FWAFB 9594

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