ResMed Limited v Australian Manufacturing Workers' Union

ResMed Limited, an employer engaged in manufacturing products for people with sleep disordered breathing and other respiratory disorders, contested the validity of an application for a majority support determination made by the Australian Manufacturing Workers' Union (the Union) under section 236 of the Fair Work Act 2009 (Cth). The Union filed an application for a majority support determination concerning a proposed single-enterprise agreement that would cover some, but not all, of ResMed's employees. ResMed argued that the Union's application was invalid because the proposed agreement covered employees who were not eligible for membership in the Union. The court was required to decide whether an employee organisation can validly apply for a majority support determination under section 236 if the proposed agreement covers employees who are not eligible for membership in the organisation.

The court found that the only express criterion for standing to apply for a majority support determination in section 236(1) is that the bargaining representative must be a representative of an employee who will be covered by the proposed agreement. As the Union had at least one member in each of the categories of employees covered by the proposed agreement, it had standing to make the application. Furthermore, there was no textual support for the restriction that all employees to be covered by the proposed agreement must be eligible for membership in the employee organisation. The court concluded that making a section 236 application is an act of representing the interests of the employees to be covered by the proposed agreement, regardless of their eligibility for membership in the employee organisation. The authorities considering the capacity of employee organisations to make claims to give rise to an "industrial dispute" were not relevant to the capacity of an employee organisation to make a section 236 application for a proposed enterprise agreement covering employees not eligible for membership in the organisation.

The court held that the Union's application for a majority support determination was valid, and dismissed ResMed's application for judicial review. The question of costs was reserved to allow the parties to make submissions. The court's decision reinforces the importance of the detailed, carefully structured regulatory environment provided by the Fair Work Act for the making of enterprise agreements and the maintenance of the integrity of the system of collective bargaining.