[Note: Judicial review of this decision [NSD127/2016] pending.]  

[2016] FWCFB 22
FAIR WORK COMMISSION

DECISION


Fair Work (Registered Organisations) Act 2009
s.158(1) RO Act - Application for alteration of eligibility rules
s.137A RO Act - Orders about representation rights of organisations of employees

Australian Manufacturing Workers' Union (AMWU)
v
ResMed Limited
(D2014/70)
ResMed Limited
v
Australian Manufacturing Workers' Union (AMWU)
(C2015/1008)

VICE PRESIDENT HATCHER
DEPUTY PRESIDENT LAWRENCE
COMMISSIONER JOHNS



SYDNEY, 18 JANUARY 2016

Applications for consent to alteration of eligibility rules and an order about representation rights of an organisation of employees.

Introduction

[1] This decision concerns two applications relating to the industrial representation of employees of ResMed Limited (ResMed). The first, which was filed by the Australian Manufacturing Workers’ Union (AMWU) on 7 November 2014, sought the Commission’s consent under s.158 of the Fair Work (Registered Organisations) Act 2009 (RO Act) to the addition of the following new sub-rule to rule 1, Name Objects and Constitution of the AMWU’s Rules:

[2] The second application was filed by ResMed on 5 January 2015. In that application, ResMed sought an order under s.137A(1)(b) of the RO Act the substantive part of which was as follows:

[3] After the two applications had been filed, ResMed applied for both applications to be referred to a single Full Bench of the Commission for determination. In a decision issued on 9 February 2015 1, the President of the Commission (Ross J) directed, pursuant to s.615A of the Fair Work Act 2009 (FW Act), that the functions and powers of the Commission be performed and exercised by a Full Bench in respect of the AMWU’s rules alteration application (AMWU rules application), and further directed that a Full Bench be constituted to hear the ResMed representation orders application (ResMed representation application) and, pursuant to s.582(2) of the FW Act, that this be the same Full Bench as would hear the AMWU rules application.

[4] This Full Bench was constituted pursuant to this decision. The AMWU rules application and the ResMed representation application were heard together, and evidence in one application was treated as evidence in the other. At ResMed’s request we undertook an inspection of its facility at Bella Vista in Sydney during the course of the hearing.

[5] We consider that in deciding the applications, the appropriate course is to first determine the AMWU rules application and then, by reference to the extent of the AMWU coverage which results from that determination, to determine the ResMed representation application. Neither party took issue with us taking this course. However before we turn directly to the applications, it is necessary to describe the factual background and make findings in relation to contested matters which are common to both applications.

ResMed’s operations

[6] ResMed’s business activities are the research, design and manufacture of medical devices for the treatment of sleep disordered breathing and cardio-respiratory disorders. It is part of the ResMed group of companies and its parent company is headquartered in the United States. ResMed operates the Bella Vista facility in Sydney. The Bella Vista facility is the headquarters of the group’s Asia-Pacific operations. The AMWU rules application and the ResMed representation application are concerned with employees working at that facility. There are about 1160 employees at Bella Vista employed by ResMed, and in addition there are a number of labour hire employees and contractors.

[7] The Bella Vista site is divided into four physically separated parts: the Manufacturing Centre, the Innovation Centre, the Gate House and the Sleep Centre/Service Centre. The Manufacturing Centre contains about 570 ResMed employees who work in operational and engineering work groups. About 333 of these are Production and Warehouse employees who carry out the work of producing ResMed’s medical devices. They are divided into the following functional workgroups:

[8] Another approximately 240 employees are Professional and Administrative (P&A) employees who provide support to the production and warehouse functions. They are contained in the following workgroups:

[9] The Innovation Centre contains about 600 employees. It houses the ResMed Group’s Asia-Pacific regional corporate headquarters. It contains Professional and Administrative employees in the following categories:

[10] The Gate House contains ResMed’s Facility Management group. The employees in that group oversee building maintenance and manage contractors in areas such as site security and surveillance, ground maintenance and repairs.

[11] The Sleep Centre provides facilities for the clinical and diagnostic support of patients who are referred to the Sleep Centre by a medical practitioner to treat sleep apnea and sleep-related disorders. The Service Centre provides after-sales support and repairs of ResMed products. Neither contains any ResMed employees.

The industry of ResMed

[12] ResMed submitted that it operated in the medical devices industry. In support of this submission it placed into evidence a report prepared by Dr Peter Spencer, who has business and biomedical engineering qualifications and who has worked for a number of medical device companies in various capacities. He referred as a reference point for his report to the definition of the expression “medical device” in s.41BD of the Therapeutic Goods Act 1989 (Cth) as follows:

[13] In his report he described the medical devices industry in the following way:

[14] The AMWU accepted that ResMed was in the medical devices industry (and in doing so implicitly accepted that such an industry existed). However it pointed out that the medical devices being manufactured by ResMed were mechanical and electrical devices and, as such, ResMed fell within the broader metal and engineering industry.

[15] The issue of what constitutes an “industry” is somewhat elusive. Neither party elucidated any criteria by which the existence of a particular industry could be identified. We have some doubt as to whether the putative “medical devices industry” is a useful or illuminating concept. Many medical devices are so radically different in nature that their manufacturers are unlikely to have a lot in common in terms of their production processes. For example there would be little in common between the bionic ear manufactured by Cochlear and the type of breathing devices manufactured by ResMed. Dr Spencer’s report assumed more than demonstrated the existence of a medical devices industry, and the main cohesive feature of the putative industry which may be discerned in his report appears to be the common regulatory regime. His report otherwise described a broad diversity of business activities including medical technology, dental equipment, dental products, in vitro diagnostics and consumer healthcare products, and he identified five different industry associations as being involved.

[16] Nonetheless on the basis that the issue was not in dispute between the parties, we are prepared to accept for the purposes of this decision the existence of a medical devices industry. If such an industry exists, it is obvious that ResMed must be part of it. However, it is well-established that an employer may operate in more than one industry and that industries may overlap or be subsets of each other. In AMWU v ResMed Limited, the Full Bench characterised the ventilators and flow generators produced by ResMed as “mechanical and electrical appliances or devices” 2, and neither party contended before us that we should not adopt that characterisation for the purpose of these proceedings. As such, ResMed may also be regarded as a manufacturer of mechanical and electrical appliances or devices operating within the broader engineering and metals industry.3

The AMWU

[17] The AMWU is a large national union representing manufacturing and engineering workers across major sectors of the economy including in metal and food manufacturing, vehicle manufacturing, repair and service, mining, building and construction, printing and graphic arts, aircraft and airline operations and laboratory and technical services. Its members range from unskilled process workers and trades assistants to tradespersons and technicians and to professionals and white-collar workers. It engages in the usual types of representational activities of a large union: participation in award-making proceedings; acting as a bargaining representative for enterprise agreements; representing employees in disciplinary and dismissal matters at the workplace level and in industrial tribunals; advising, assisting and representing employees in workplace grievances and disputes; providing training in dispute resolution and occupational health and safety; and engaging in public campaigns on issues of relevance. It operates with a structure of full-time officials and workplace delegates. Day-to-day issues are generally dealt with by delegates.

[18] Having regard to our earlier discussion regarding the medical devices industry, the AMWU currently represents employees engaged by a number of manufacturers of medical devices including Cochlear, Baxter Healthcare, Becton Dickinson, Coviden and Hospira. The extent of its representation of ResMed employees is dealt with below.

[19] The AMWU has experience in dealing with conflicts of interest between its members, including those that may arise between its members who are supervisory and technical staff and those members who are supervised by them. The AMWU manages such conflicts by means such as providing separate representation where necessary, being aware of and sensitive to the different needs of groups during enterprise bargaining, and ensuring that non-supervisory staff have a prospect of career progression to supervisory roles.

General history of AMWU representation at ResMed

[20] The AMWU has had members employed by ResMed since at least 1996. At the time of the hearing it had 132 members. These members are overwhelmingly Production and Warehouse employees or METS employees in the Manufacturing Centre. There was no evidence that the AMWU has or has had any members in the Innovation Centre or the Gate House.

[21] The AMWU’s records concerning its representation of ResMed employees do not pre-date 2006. Those records, combined with the evidence of Mr Tim Ayres, the AMWU’s NSW State Secretary and Mr Vincent Surra, ResMed’s Director, Employee Relations, demonstrate the following representational activities on the part of the AMWU at ResMed:

[22] There is no evidence that any of the activity described above concerned any employees of ResMed outside the Manufacturing Centre.

Attempts by the AMWU to collectively bargain and subsequent litigation

[23] The evidence disclosed that the AMWU attempted to engage ResMed in collective bargaining in late 2009. On 23 November 2009 Mr Paul Bastian, then the AMWU’s NSW State Secretary (and currently the National Secretary), wrote to ResMed requesting a meeting with senior representatives of ResMed in order to “develop an agreed approach to collective bargaining”, with the objective being “to develop a collective agreement that reflects their aspirations and contributes to the further development of a workplace culture based upon innovation, productivity and respect”. This approach was substantially based upon the contention that “A significant majority of ResMed employees have told the AMWU that they wish to begin a process of bargaining with ResMed where they are represented by the AMWU”. It is apparent from Mr Bastian’s evidence that the majority he was referring to was not of the entire ResMed workforce, but of the production section of the workforce.

[24] ResMed’s reply to the correspondence, dated 26 November 2009, which was signed by Mr Stephen Tatt, HR Manager - Operations but evidently drafted by a lawyer, stated:

[25] The AMWU’s reply, dated 4 January 2010, was signed by Mr Ayres, then the AMWU’s NSW Assistant State Secretary. He said that the contention of majority support was based on a petition signed by 210 production employees which stated “We, the undersigned employees of ResMed Holdings Pty Ltd, want to bargain with our employer for an enterprise agreement under the provisions of the Fair Work Act 2009”. Mr Ayres declined to provide a copy of the petition so as not to identify the individuals who had signed it, and indicated his availability for meetings with ResMed in January or early February 2010.

[26] ResMed’s letter in reply, dated 29 January 2010, contended that ResMed understood through direct contact with its employees that there was not a majority who wanted to bargain for an enterprise agreement, and that “As such, without further information we see no reason to meet”. It further stated that the AMWU should not be afraid to provide further information (that is, the petition) because ResMed treated all employees equally and with respect.

[27] The AMWU took no further action in relation to the matter at that time. When asked why that was the case, Mr Ayres said:

[28] There was some criticism by ResMed that, in circumstances where the AMWU believed that there was a majority of production employees who wanted to bargain for an enterprise agreement, the AMWU had failed as a representative of its members by not taking further action to pursue enterprise bargaining with ResMed. There is a significant degree of approbation and reprobation in that criticism in that ResMed denied that a majority of employees wanted to bargain for an enterprise agreement and in any event was consistently opposed to such bargaining occurring. Given that an employer cannot under the FW Act be compelled to enter into an enterprise agreement, we consider that the AMWU was entitled to make the judgment at that time that taking further steps to pursue an enterprise agreement with ResMed would be fruitless. Subsequent events have certainly confirmed the reasonableness of that judgment.

[29] The next series of events commenced in December 2012. On 18 December 2012, Mr Adam Walkaden, then the Legal Officer for the AMWU, wrote to Mr Surra seeking the commencement of enterprise bargaining with ResMed. He contended in his letter that “a majority of employees who will be covered by the enterprise agreement have demonstrated that they wish to commence bargaining” and that “Should ResMed remain unwilling to bargain, we will make an application for a majority support determination”. The letter was referring to a new petition in support of bargaining for an enterprise agreement which the AMWU had circulated amongst Production and Warehouse employees and METS employees. Mr Ayres’ evidence, which we accept, was that the petition was signed by 212 employees, but that 8 employees subsequently emailed the AMWU requesting that their names be removed.

[30] Mr Surra gave an initial response on behalf of ResMed in a letter dated 4 January 2013, in which he indicated that he was consulting with senior executives and seeking instructions. On 16 January 2013, Mr Surra sent a response in which he stated that in order that “ResMed can properly consider the invitation by the AMWU and make an informed decision, ResMed requests that the AMWU responds to the following questions ...”. Those questions related to the group of employees to be covered by the enterprise agreement, the number of employees in the group who had indicated their desire to bargain, the basis upon which the AMWU said the group was fairly chosen, and the nature of the evidence as to the number of employees supporting bargaining (with a copy to be provided in confidence to Mr Surra).

[31] Mr Walkaden responded on behalf of the AMWU on 25 January 2013. In that letter Mr Walkaden stated, among other things, that “We seriously doubt that such information is sought to enable ResMed to make an informed choice about whether to commence bargaining. In our view, such information has been sought to oppose any application for a majority support determination ...”. He identified the group of employees to be covered by the proposed enterprise agreement as being employees at the Bella Vista site who were covered by the Manufacturing and Associated Industries and Occupations Award 2010 5 (Manufacturing Award) in either the trade or engineering/manufacturing fields of that Award. He was unwilling to disclose the numbers in support, but repeated the assertion that it was a majority. The group was said to be geographically, operationally and organisationally distinct. The majority, Mr Walkaden said, was evidenced in a petition which he was not able to provide to ResMed for privacy reasons. The letter asked for ResMed to confirm by 30 January 2013 whether it was willing to bargain for an enterprise agreement; otherwise a majority support determination application would be made.

[32] Mr Surra replied on behalf of ResMed on 30 January 2013. In this letter Mr Surra challenged the capacity of the AMWU to act as a bargaining representative on behalf of any employee, contended that the group of employees to be covered by the proposed agreement was indistinct, and indicated serious concerns about the way in which the AMWU went about obtaining alleged support for the commencement of enterprise bargaining. He stated that ResMed had not made any decision about whether to bargain, and reiterated its request for the information conveyed in its letter of 16 January 2013. It may be noted that this appears to be the first time that ResMed had challenged the capacity of the AMWU to enrol and represent as members employees of ResMed.

[33] The AMWU lodged an application for a majority support determination under s.236(1) of the FW Act in this Commission on 31 January 2013. It subsequently withdrew that application and lodged a revised majority support determination application on 25 March 2013. What followed was extensive litigation between ResMed and the AMWU.

[34] The AMWU’s revised application identified five categories of employees at the Bella Vista site who would be covered by its proposed enterprise agreement:

[35] When the Commission (Bull C) came to hear the AMWU’s application, ResMed contended that the Commission had no jurisdiction to grant the application. This contention was based on the proposition that an application under s.236(1) of the FW Act could only validly be made by a registered employee organisation such as the AMWU if it had the capacity to enrol as members under its eligibility rules and therefore represent all those employees specified in the application who would be covered by the proposed agreement. ResMed submitted that none of the employees were eligible to be members of the AMWU and therefore the AMWU had no standing to make the application. The AMWU resisted this jurisdictional objection on two bases: first, that s.236(1) only required that an applicant organisation have coverage of, and be the bargaining representative for, one employee who would be covered by a proposed enterprise agreement; and second that in any event the AMWU had coverage of all the five categories of employees identified in its application.

[36] ResMed’s jurisdictional objection was rejected in a decision issued by Commissioner Bull on 19 December 2013. 6 The Commissioner determined that s.236(1), properly construed, did not require that an applicant employee organisation have constitutional coverage of all employees who would be covered by the proposed enterprise agreement. He found that the AMWU had coverage in respect of the fifth category of employees identified in its application (METS employees), and had at least one member in that category, and determined that this was sufficient to confer standing on the AMWU to make the application. He also found that the AMWU did not have coverage of the first four of the five categories of employees identified in the application.

[37] ResMed applied for permission to appeal and appealed the Commissioner’s decision rejecting its jurisdictional objection under s.604 of the FW Act. ResMed’s appeal did not challenge the Commissioner’s conclusion that the AMWU had constitutional coverage of METS employees in the fifth of the five categories of employees identified in its application for a majority support determination, but involved the proposition that it was necessary for the AMWU to have constitutional coverage of all five categories in order for it to have standing to make the application, which it did not. The AMWU subsequently also applied for permission to appeal and appealed the Commissioner’s decision that it did not have constitutional coverage of four of the five categories of ResMed employees.

[38] The appeals were determined in two separate decisions by the same Full Bench (Hatcher VP, Drake SDP, Cargill C). ResMed’s appeal was dealt with in a decision issued on 11 April 2014 7 (first appeal decision). In that decision the Full Bench granted ResMed permission to appeal, but then went on to affirm the Commissioner’s decision that the AMWU had standing to make its application for a majority support determination and to dismiss ResMed’s appeal. In relation to the AMWU’s appeal, the Full Bench issued its decision on 17 July 20148 (second appeal decision). The Full Bench granted permission to appeal and upheld the appeal to the extent that it found that the AMWU had constitutional coverage in respect of all employees in the second and third categories of employees and mask assemblers in the first category. It remitted to a single member of the Commission for further hearing the question of coverage of employees in the Accessories and Spares work group in the first category, and otherwise affirmed the conclusions concerning coverage in the decision under appeal.

[39] ResMed then filed an application in the Federal Court of Australia for prerogative relief in relation to the first appeal decision and the Commissioner’s decision concerning the AMWU’s standing to apply for a majority support determination. In a decision issued on 20 April 2015 9, a single member of the Court (Perry J) dismissed that application. ResMed then appealed that decision. On 23 December 2015 a Full Court of the Federal Court (Jessup, Tracey and Reeves JJ) dismissed that appeal.10

[40] On 15 September 2014 ResMed also made an application to the Federal Court (ResMed court application) in which it sought: (1) a declaration that the AMWU “is not entitled to represent the industrial interests of the production operators, line leaders and line coordinators employed by ... ResMed to perform work in the Liquid Silicone Rubber, Mask Assembly, Spares and Accessories, Machines, Ventilator and Warehouse work groups at the Bella Vista site of ResMed” (that is, employees in the four categories which the Commissioner had determined were not constitutionally covered by the AMWU); and (2) prerogative relief in relation to the second appeal decision. In response to this application the AMWU also made an application to the Federal Court seeking a declaration that it was entitled to represent the industrial interests of the four categories of employees which ResMed contended that it was not entitled to represent (AMWU court application). Both the ResMed court application and the AMWU court application were allocated to Perry J.

[41] In relation to the ResMed court application, the AMWU on 8 October 2014 filed an interlocutory application seeking to dismiss that part of it which sought prerogative relief against the second appeal decision on the basis that it had no reasonable prospects of success. In a decision issued on 22 April 2015, Perry J dealt with the AMWU’s interlocutory application in respect of the ResMed court application by dismissing those parts of the application in which prerogative relief was sought. 11 The gravamen of her Honour’s reasoning in respect of that determination was that the second appeal decision did not have any operative legal effect but constituted only an expression of opinion, with the result that the orders in the nature of certiorari and mandamus sought by ResMed were not available.12

[42] In a further judgment issued on 29 May 2015 13 Perry J, on application by the AMWU, determined that the balance of the ResMed court application and the AMWU court application would be temporarily stayed pending the determination by this Commission of the AMWU rules application and the ResMed representation application. ResMed sought leave to appeal from this decision. Leave to appeal was refused by Jessup J on 19 June 2015.14

[43] For completeness, one other aspect of the litigation was that, prior to the hearing of these applications, ResMed applied for the presiding member of this Full Bench (Hatcher VP) to recuse himself on the ground of apprehended bias. The basis of this application was that the presiding member had, as part of the Full Bench in the second appeal decision, expressed views about the extent of the AMWU’s coverage of ResMed Production and Warehouse employees, and this was said to be a critical issue in the AMWU rules application and the ResMed representation application. This application was refused in a decision issued on 23 June 2015. 15 ResMed applied to the Federal Court for prerogative relief in respect of that decision. On 12 August 2015 a Full Court of the Federal Court (Jessup, Buchanan and Wigney JJ) dismissed ResMed’s application.16

[44] From about December 2014, consistent with its position in the above litigation, ResMed has refused to recognise the AMWU as a representative of any of its employees (with the possible exception of METS employees). This has extended to refusing to allow individual employees to be represented by AMWU officials at disciplinary, grievance and workplace injury meetings, refusing to accept employees nominating the AMWU as a representative for the purpose of consultation about redundancies, and objecting to the AMWU’s standing to access this Commission on behalf of members for dispute resolution purposes.

Aspects of AMWU conduct impugned by ResMed

[45] In connection with both applications, ResMed contended that the AMWU had engaged in certain conduct which should disqualify it from having the right to represent ResMed employees. It is necessary therefore to identify that conduct and make findings about it.

[46] The primary contention in this respect was that the AMWU had distributed leaflets which, as Mr Surra put it, contained “information that is incorrect” and had “caused or potentially caused unnecessary confusion, concern and angst for ResMed employees”. There were eight leaflets identified in this respect. Taken in chronological order, the first was issued in January 2011. It was headed “ResMed - AMWU Fact Sheet - What are my redundancy entitlements at ResMed?”. The first two paragraphs of the leaflet then read:

[47] The leaflet then set out the scale of redundancy entitlements in the Manufacturing Award, which were the same as those in the National Employment Standards. The leaflet then referred to higher redundancy benefits in other businesses with enterprise agreements such as Luxottica (a manufacturer of eye glasses) and concluded: “The AMWU believes workers at ResMed should receive 4 weeks a year, based on what we have achieved in other Enterprise Agreements. This is what we will be fighting for in any negotiations with ResMed”.

[48] Mr Surra’s criticism of this leaflet was that it might cause “angst and fear amongst employees about their employment”. He also said that ResMed had written to the AMWU in late 2010 explaining that the Malaysian Facility was about “...adding to ResMed’s manufacturing operations”. The context of this was that an AMWU industrial officer, Mr Keith Brown, had sent a letter to Mr Surra dated 29 November 2010 which referred to ResMed’s announcement that it intended to set up a manufacturing facility in Malaysia and which stated “Our members have asked the AMWU what redundancy provisions they would be entitled to should the Company make employees redundant at the Bella Vista Manufacturing facility”. ResMed’s reply, dated 1 December 2010, explained that the proposal for a manufacturing facility in Malaysia arose from the recent acquisition of technology and equipment from an existing ResMed supplier of certain components, so that these components would be manufactured “in house” in the Malaysian facility. It stated: “Therefore this proposed business activity has no relevance to the information requested within your correspondence and I trust that I have clarified the issue for you”.

[49] We do not consider that any significant criticism of the AMWU’s leaflet is warranted. The evidence demonstrated that the episode began when the AMWU’s members raised a question about their redundancy entitlements should there be redundancies at the Bella Vista site. This occurred in the context of ResMed’s proposal to establish a manufacturing facility in Malaysia. While it may be accepted that ResMed never intended that this facility would displace any employees at Bella Vista, nonetheless it is understandable that employees at Bella Vista would have sought assurances about redundancy entitlements in the light of this development. It is not as if offshoring of manufacturing jobs has not been a significant feature of the Australian economy in recent years, and ResMed had previously outsourced aspects of its operations albeit without there having been compulsory redundancies. 17 Further, we do not consider it unreasonable for employees to seek information and reassurance about their redundancy entitlements even if there is no immediate threat to their jobs. The AMWU responded to this inquiry by writing to ResMed management seeking an answer. Although ResMed, in reply, gave a somewhat oblique assurance that the Malaysian operation would not threaten Bella Vista, it chose not to reply to the request concerning information about redundancy entitlements. It is not clear that ResMed at that time had any redundancy entitlements policy for its employees at Bella Vista. That being ResMed’s response, we consider that the AMWU was entitled to report to its members what had occurred via a leaflet, and we consider that the leaflet is a reasonably accurate summary of what had occurred. There is no evidence that ResMed made any complaint about the leaflet at the time.

[50] ResMed’s criticism was next directed at a series of leaflets which appeared in the period December 2012-February 2013. The second leaflet complained about was distributed on 6 December 2012. It set out some figures for ResMed’s profit and revenue (which were not suggested to be inaccurate) and then had the headline “But this isn’t good enough ... Peter Farrell wants more!” The leaflet then said:

[51] The remarks in at least the first two paragraphs above, which were attributed to Mr Farrell (the founder and Chairman of ResMed), came from an article published in the Sydney Morning Herald on 27 October 2012. The first sentence of that article included: “...ResMed has flagged a continued shift of production offshore while also hunting for acquisitions”. It was not suggested that any of the remarks attributed to Mr Farrell in that article or in the leaflet were inaccurate. The leaflet then said “Secure Jobs, Better Future @ ResMed” and said:

[52] Mr Surra said that this leaflet had the tendency to suggest that ResMed was looking to outsource its production functions from Bella Vista to Singapore, which was not correct, and that it thereby had the potential to cause angst and concern amongst employees about their jobs. ResMed responded to this leaflet with one of its own, which stated among other things that “We are committed to staying in Sydney”, “Singapore was built for future growth and risk mitigation” and “We are running at capacity here with extra growth to Singapore”, and referred to further investment in plant and equipment in Sydney.

[53] The third AMWU leaflet was distributed on 16 January 2013. It was headed “Congratulations” and went on to say:

[54] The leaflet went on to advise that the AMWU had written to ResMed notifying it of the AMWU’s intention to bargain an agreement, and was awaiting a response. It also referred to an intention to hold a meeting to discuss a log of claims for bargaining, and urged involvement and membership of the AMWU in that connection.

[55] Mr Surra said that this leaflet was misleading because the AMWU had not won the right to bargain a union agreement, and that ResMed was concerned that it might cause confusion and uncertainty.

[56] In the week beginning 21 January 2013 ResMed in its regular communication to employees entitled “Team Talk” referred to the earlier AMWU leaflets, and invited employees to talk to their team leaders, supervisors or management if they had any questions or concerns. This publication also gave assurances about the continuation of the current level of manufacturing capacity at Bella Vista. There was no evidence that any employee raised any questions or concerns arising from the AMWU leaflets after this publication was issued.

[57] The fourth AMWU leaflet was distributed on 25 January 2013. It was headlined “Did you join the union?” and stated:

[58] Mr Surra’s criticism of this leaflet was that it again falsely suggested that Bella Vista employees might lose their jobs due to increased production in Singapore and that the AMWU had won the right to bargain. He also said that the reference to “they may try to intimidate” and the “practices of the past” unfairly placed ResMed in a bad light and might adversely influence how ResMed employees viewed their employer.

[59] Prior to the appearance of the fifth leaflet, and shortly after the AMWU filed its first majority support determination application, an article appeared in the Australian Financial Review newspaper on 5 February 2013 which was headlined “ResMed warns union push may spur move offshore” and concerned the AMWU’s application. That article contained, among other things, various statements directly or indirectly attributed to ResMed and Mr Farrell, including the following:

[60] There was no suggestion by ResMed that the article misrepresented its position or that Mr Farrell had been misquoted.

[61] The fifth leaflet, distributed by the AMWU in February 2013 not long after the above newspaper article, was entitled “You have the right to be represented at work”. It made a number of statements concerning the right of ResMed employees to join a union and bargain collectively which it is not necessary to set out. The statements objected to by ResMed were: “Now the company is threatening to move its production overseas if it has to bargain collectively with you ... It’s very disappointing ResMed won’t talk to us but instead has threatened your jobs - just because it doesn’t want to do the right thing by you and by the law”. Mr Surra said this statement had the potential to damage ResMed’s employment relationships with its employees because it might create unnecessary uncertainty, concern and angst among employees by suggesting that their jobs were insecure.

[62] With one exception, we consider that most of the criticism of these leaflets is unfounded. Although the AMWU was unable to identify precisely the author of these leaflets, we think the evidence makes it clear that the concerns about job security expressed or implied by the leaflets were not self-generated by AMWU officials but reflected concerns genuinely held by employees in the workplace. In particular, Mr Paul Francis, who works in the receiving warehouse and is an AMWU delegate, said that there were rumours in the workplace about ResMed moving its production overseas, that one manager in the past had threatened that “if you all carry on like this” this might occur 18, and that he had reported this to the AMWU. This might not of itself have been a sufficient basis to raise the issue, but additionally ResMed was, we consider, giving very mixed signals about the future of manufacturing at Bella Vista. We accept that it gave firm official assurances to its workforce that manufacturing at Bella Vista was not threatened by its offshore operations, but the statements made to the press communicated a very different message that the future was not secure. We consider that the AMWU’s leaflets were not an unreasonable response to these developments. In particular we consider that the fifth leaflet, which we infer was directly responsive to the Australian Financial Review article of 5 February 2013, constituted fair comment on the remarks reported to have been made by Mr Farrell. Those remarks clearly communicated the possibility that union activity on behalf of employees might lead to manufacturing at Bella Vista being moved offshore.

[63] The claim by the AMWU that it “won the right to bargain a union agreement” was, in isolation, clearly premature, it having not yet obtained a majority support determination, but the leaflet of 16 January 2013 went on to explain the basis for this statement, namely the completion of the AMWU’s majority support petition intended to support its forthcoming application. However we consider that one aspect of the 25 January 2013 leaflet was worthy of criticism, namely the reference to “they may try to intimidate”. Although this was undoubtedly a rhetorical flourish rather than a specific allegation, it was nonetheless unfair and irresponsible. To suggest that an employer has tried to intimidate its employees is a serious matter, and should not lightly be done. The AMWU acted unfairly and irresponsibly by including that reference in the leaflet.

[64] There was no evidence that ResMed complained to the AMWU about the leaflets at the time or sought that it desist. It was able to robustly respond to the AMWU’s leaflets with communications of its own. The conduct substantially pre-dated the applications before us. Apart from the specific criticism that we have made about one leaflet, the worst that can be said about them was that they were somewhat confrontational in tone. In this connection we note that Mr Ayres gave evidence that in about early 2013 he became concerned about the quality of the AMWU’s publications at ResMed in that they were not conducive to building a constructive working relationship with ResMed. Since then he has required that publications be produced by the publications officer and approved by him.

[65] The sixth and seventh leaflets produced by the AMWU which were the subject of criticism were distributed in August and September 2014 respectively. The sixth leaflet was concerned with the second appeal decision, which was issued on 17 July 2014. It was headed “A win for ResMed Workers”, and stated:

[66] The seventh leaflet was headed “ResMed Workers Update” and said in a sidebar: “Workers in the Machines, Ventilators and Mask Assembly areas are eligible to be members of the AMWU”. The actual text of the leaflet said:

[67] Mr Surra criticised these leaflets on the ground that they had a tendency to lead the categories of employees to the view that they were eligible to be members of the AMWU, in circumstances where the Full Bench’s second appeal decision only represented its opinion about the matter and was not a legally binding determination on the question. In this connection, Mr Surra pointed to proceedings in the Federal Court on 15 October 2014 before Perry J in which counsel for the AMWU made the submission that the second appeal decision was not amenable to prerogative relief because it was not legally binding.

[68] We reject this criticism. The AMWU was entitled to communicate with its members and ResMed employees generally concerning the result of the second appeal decision of this Commission and the ongoing Federal Court proceedings. We consider that the leaflets provided completely accurate statements about those matters. The text of the seventh leaflet clearly explained that the statement in the sidebar was the finding of this Commission, and that the finding was under challenge in the Federal Court. It is unrealistic and verging on the ridiculous to suggest that the AMWU should have provided employees with a legal dissertation explaining the difference between a Chapter III court and an arbitral tribunal, with perhaps the addition of a footnote reference to Re Cram; Ex parte Newcastle Wallsend Coal Co Pty Ltd. 19 

[69] The eighth leaflet was headed “ResMed Continues to Refuse to Bargain” and said in the first paragraph:

[70] The leaflet went on to describe the then current state of play with the Federal Court proceedings. Mr Surra’s criticism was that the claims that ResMed was refusing to talk to workers and have an open and fair discussion with them were false and baseless, given that ResMed had various mechanisms whereby employees could have input and give feedback about matters and were encouraged to speak directly with their managers and Human Resources.

[71] We reject this. It is quite clear that when the leaflet referred to ResMed “refusing to sit down and talk to workers”, it was talking about collective bargaining for an enterprise agreement. There is no doubt that ResMed’s position is that it does not want to engage in any such bargaining with its employees.

[72] ResMed also expressed some criticism about the manner in which the AMWU had sought signatures for its majority support petition in late 2012. This was based upon some employees having expressed concern to ResMed management that they were confused about what the petition was for and had signed it without knowing what it was about. However, there was no direct evidence from any witness to establish that this actually occurred or that, if it did, it was the fault of the AMWU. ResMed tendered a handwritten note from Mr Joel McLean, a ResMed LSR employee, in which it was alleged that when he was approached to sign the petition by Ms Anh Tran, an AMWU workplace delegate who also worked in LSR, he asked her whether it was for “fundraising” and she agreed. It was only after he signed the petition, according to the note, that she told him that it was about a union issue. Ms Tran, unlike Mr McLean, gave evidence before us and denied this allegation. 20 We see no reason not to accept her evidence. It may be noted that Ms Tran spoke Chinese as her first language and was less than proficient in English, so it is possible that there was a misunderstanding between her and Mr McLean.

[73] ResMed also put in evidence an email exchange between Mr Russell Merricks, a ResMed production employee, and Mr Walkaden in early 2013. In the first email dated 29 January 2013, Mr Merricks said: “I am not a union member. I signed a petition without knowing the full details and would like to remove my name from the petition please.” In Mr Walkaden’s reply dated 30 January 2013, Mr Walkaden asked him how he found out about the “full details” of the petition, why the email had been sent to him (Mr Walkaden) and who had provided his email address. Mr Merricks replied: “I sent the email to three people at the union and you are the only one to reply. The petition was passed around at a dinner outside of work. The management have asked me for names, I refused. I wish not [to] give out names and just wish to take my name off the list”. Mr Merricks was subsequently sent a letter dated 7 February 2013 about the petition by the AMWU, which was evidently a standard-form letter sent to all those who had signed the petition. From this it might be inferred that Mr Merricks’ name had not at the date the letter was prepared been removed from the petition.

[74] We do not consider that much can be gleaned from this email exchange except that someone in ResMed management was trying to find out the names of those who had signed the petition. It is not evidence that Mr Merricks was misled by the AMWU. There is no evidence that the text of the petition was itself misleading, or that anyone who read it before signing it might fail to understand its purpose. We further note that the AMWU received eight emails from employees who had signed the petition requesting that their names be removed, which does not suggest that any significant proportion of those who signed the petition later felt moved to recant on the basis that they did not understand what they had done.

[75] We do not consider therefore that there is any proper basis for an adverse finding to be made in respect of the AMWU’s conduct in obtaining signatures for its petition.

AMWU’s current coverage

[76] ResMed contended that it was necessary to determine the extent to which employees of ResMed were eligible to be members of the AMWU in order to properly determine both the AMWU rules application and the ResMed representation application. The AMWU did not agree. We discuss later the significance of the AMWU’s current coverage with respect to each application, but before we do so we will express our opinion about this matter to the extent we can based on the evidence before us.

[77] We will firstly deal with Production and Warehouse employees in the Manufacturing Centre. We have earlier referred to the conclusions reached by the Full Bench in the second appeal decision about the AMWU’s current coverage in this area. The critical conclusions reached by the Full Bench in that case were that mask assemblers in the Patient Interface work group and all employees in the Ventilation and Machines work groups were “assemblers” within the meaning of the AMWU’s eligibility rule and also worked in the engineering trades. 21 These conclusions were reached on the basis that “assembler” in the AMWU’s eligibility rule, upon an analysis of the meaning of that term taken in its historical industrial context, referred or at least included an employee engaged in the assembly of parts of mechanical appliances or other metallic articles as part of the process of the manufacture of mechanical or electrical appliances, and that the “engineering ... and kindred trades” in the eligibility rule referred to or included persons engaged in occupations or functions which formed part of the process of the manufacture of mechanical and electrical appliances.22

[78] ResMed submitted that the conclusion and analysis of the Full Bench in the second appeal decision in this respect was “plainly wrong” and should not be followed. It advanced three reasons why this was said to be so:

[79] We will deal with each of the above aspects of the submission in turn, but the overall gravamen of the submission was that an “assembler” was an assembler of metal parts only, and because the products manufactured by ResMed were not substantially made of metal, those who were involved in their assembly were not “assemblers”. However one observation must be made at the outset about that submission, namely that it does not involve a challenge to the conclusion made in the second appeal decision about the meaning of the expression “engineering ... and kindred trades”. We have earlier set out that conclusion. The relevant part of the AMWU’s eligibility rules provides (emphasis added):

[80] It is clear therefore that employees who may be characterised as employed in or in connection with the engineering and kindred trades are eligible to be members of the AMWU, whether or not they are assemblers (or fit within any of the other specifically identified occupations). In the second appeal decision mask assemblers in the Patient Interface work group and all employees in the Ventilation and Machines work groups were found to be performing work that was a necessary part of the manufacture of ventilators and flow generators, which were to be characterised as mechanical or electrical appliances. 23 This brought them within the meaning which the second appeal decision ascribed to “engaged in the engineering ... and kindred trades”. ResMed’s submissions briefly asserted that none of the relevant employees falls within these trades. This assertion was made on the basis that the engineering and kindred trades are not to be understood as referable to the industry of the employer. That much may be accepted, but it does not in any way deal with the occupational or functional meaning given to “engineering ... and kindred trades” in the second appeal decision. No cogent reason has therefore been advanced as to why we should not follow the second appeal decision in this respect, and that effectively renders moot ResMed’s submissions concerning the meaning of “assembler”. But we will deal with those submissions in any event.

[81] In relation to ResMed’s first and second submissions, it is well established that awards may provide guidance concerning the meaning to be ascribed to terms in union eligibility rules, not least because during the period until 2006 when the Commonwealth legislative award-making power was founded upon the industrial disputes power in s.51(xxxv) of the Constitution, a union could only be a party to an industrial dispute involving employees eligible to be its members: R v Williams; Ex parte Australian Building, Construction Employees’ and Builders Labourers’ Federation 24; Co-operative Bulk Handling Ltd v Waterside Workers’ Federation of Australia.25 We do not consider that there is any “principle” that an award which uses a different expression from that in the eligibility rule under consideration can never shed any light upon the meaning of the eligibility rule. It will depend on the circumstances. In the second appeal decision, the classification of “Process Worker” was taken to be of significance because the definition of the classification in the 1929 iteration of the award which later became known as the Metal Industry Award included “the assembling of parts of mechanical appliances or other metallic articles so made, or in repetitive hand processes” - that is, the classification had the function of an assembler of mechanical appliances.26 This occurred shortly after the insertion of “assemblers” into the eligibility rule of the Amalgamated Engineering Union (AEU) (as the AMWU was then known) in 1926. That was clearly a contextual indicator of some significance.

[82] ResMed substantially based its second submission on the proposition that no link could be drawn between the new 1929 classification of “Process Worker” and the insertion of “assemblers” into the eligibility rule of the AEU because the new classification arose from logs of claims made against the AEU and other unions by the Metal Trades Employers Association (MTEA) in 1926, 1927 and 1928. This, it was submitted, demonstrated that the Full Bench was wrong to say in the second appeal decision that “It is also likely that [the] jurisdictional foundation for the introduction of the ‘process worker’ classification in the General Engineering and Electrical Sections of the award was the inclusion of ‘assembler’ in the Amalgamated Engineering Union’s eligibility rules, although again this is not expressly discussed in the decision”. 27

[83] We reject this submission. We consider that it misses the point of the historical industrial analysis in the second appeal decision, which demonstrated that the new classification and the alteration to the AEU’s eligibility were part of a continuum of responses during the 1920s to the emergence in manufacturing processes for mechanical and electrical appliances of unskilled workers who performed the task of assembling products from pre-made parts. The impugned conclusion does not seem to have been the critical element in that analysis given that it was expressed by the Full Bench in contingent terms.

[84] In any event, ResMed’s submission does not demonstrate that the conclusion was incorrect. It appears to assume that the principle that, in order for a union to be a party to an industrial dispute (in the constitutional sense), it must have coverage of the employees the subject of the dispute is non-applicable if it is an employer organisation which initiates the dispute by service of a log of claims on the union. Although the authorities have usually if not always involved situations in which a union has purported to initiate a dispute by way of the service of a log of claims, the conceptual underpinning of the principle (in particular as elucidated by the High Court in R v Dunlop Rubber Australia Ltd; Ex parte Federated Miscellaneous Workers' Union of Australia 28) suggests that it would equally apply to a dispute in which a union is the recipient of a log of claims from an employer or employer organisation.

[85] ResMed’s submissions refer specifically to a log of claims (not before the Full Bench in the second appeal decision) which the MTEA served on the AEU (and two other unions) which contained a log of claims for, among other things, a Process Worker classification covering an employee “engaged in a repetition or specialised process for the production of or assembling of machine parts or metallic articles”. As earlier stated, the award ultimately made in 1929 in settlement of the dispute initiated by that log of claims, as well as a range of other disputes, contained a Process Worker classification defined in terms similar to the MTEA’s claim. That award bound the AEU. The jurisdictional basis to make an award with those features is difficult to discern if the AEU did not have coverage of the workers covered by the classification.

[86] ResMed’s third submission involved a number of specific elements. Firstly, we reject the submission that the materials associated with the AEU’s application to vary its eligibility rule in 1925/6 indicate that the term “assembler” was limited to an assembler of items made from metal not requiring fitting. Nothing in the materials referred to in the submission demonstrates that. Secondly, we reject the submission that the Full Bench erred by not considering that the occupation of “assembler” related to and devolved from that of the “fitter”. The point of this submission is unclear, but in any case it is clear that the occupations were distinct: a fitter was a tradesperson, and an assembler was not. Thirdly, we do not consider that the Full Bench failed to consider the term “assembler” in the context of the eligibility rule as a whole. ResMed’s point in this connection appears to be that because the term appears as part of a list of occupations which have become colloquially known as “metal trades”, it must be read as confined to the assembly of metal. This seeks to read the colloquial expression too literally, when a cursory examination of the list of occupations reveals that they are far from confined to persons working solely with metals. Fourthly, we do not accept that other awards in the 1920s to which the AEU was not a party demonstrate that an “assembler” was understood as confined to the assembly of metal parts.

[87] Leaving aside its specific elements, ResMed’s submission is misconceived at a broader level. It seeks to have the term “assembler” interpreted as subject to a limitation that is not expressed in the eligibility rule, namely that the assembly must be of metal parts only. This limitation is sought to be imposed based upon industrial products and methodologies which existed in the 1920s. This ignores the principle that expressions in union eligibility rules are not to be interpreted as having a static denotation incapable of adaption to changes in work and industry. In Co-operative Bulk Handling Ltd v Waterside Workers’ Federation of Australia a Full Court of the Federal Court (J.B. Sweeney, Evatt and Northrop JJ) emphasised that expressions in eligibility rules are to be construed in accordance with their current denotation, and said:

[88] The emergence of the non-trades function of assembly of mechanical and electrical appliances from pre-manufactured parts was recognised in the AEU’s rules and in awards in the 1920s. This may at the time have primarily involved metal parts, although it is clear that many manufactured products specifically referred to in the Metal Industry Award decisions at the time (such as radios and electric heaters) were not wholly made of metal parts. 30 However in the case of a modern manufacturer of medical mechanical/electrical appliances such as ResMed, there is no reason to treat persons who plainly carry out an assembly function as not being “assemblers” for the purpose of the AMWU eligibility rule because the parts they assemble are different in nature and composition to those assembled in the 1920s.

[89] We therefore decline to depart from the conclusions as to coverage of Production and Warehouse employees stated in the second appeal decision. We adopt those conclusions for the purpose of these submissions.

[90] As earlier stated, there appears to be no dispute that the AMWU has coverage of METS employees. However, outside of Production and Warehouse employees and METS employees, it is difficult to make definitive conclusions. Surprisingly, given its submission that the determination of the AMWU’s existing coverage was an essential prerequisite to determining both applications, ResMed made no submission concerning existing coverage outside of Production and Warehouse and METS employees and expressly declined, when invited to do so, to make any submission concerning employees not the subject of consideration in the second appeal decision. 31 Additionally, beyond job titles and functional descriptions of work groups, the evidence before us provides little information about the specific qualifications, functions and responsibilities of employees other than Production and Warehouse employees.

[91] What is at least reasonably apparent from the evidence is that ResMed employs a range of engineers in various business units in both the Manufacturing Centre and the Innovation Centre, including systems engineers, mechanical engineers, electrical engineers, software engineers, industrial design engineers, manufacturing engineers and test engineers. Under rule 1C(a)(ii) of the AMWU’s Rules, it has coverage of “...Electrical Engineers, Electronic Engineers ... Mechanical Engineers ... Production Engineers ...”. Many if not all of ResMed’s engineers would be eligible to join the AMWU under this part of the rule.

[92] In addition it is likely that there are other P&A employees in the Manufacturing Centre and Innovation Centre who would be eligible to join the AMWU because of its coverage of draughtspersons of various types (rule 1C(a)(iv)); Testers of Engineering Materials, Production Planners, Planners of Engineering Production, Manufacturing Processes (rule 1C(a)(vi)); and Foremen and Supervisors of Engineering Production or Manufacturing Process in the Engineering industry (rule 1C(a)(vii)).

[93] Beyond this point, and particularly in relation to the Innovation Centre and the Gate House, the evidence is not such as to allow a finding that the AMWU currently has coverage of any other employees. However the evidence did not make clear the duties and qualifications of such other employees.

AMWU rules application

Relevant statutory provisions

[94] Section 158 of the RO Act provides:

[95] Regulation 124 of the Fair Work (Registered Organisations) Regulations 2009 (RO Regulations) permits certain persons to object to the grant of consent to an eligibility rule change under s.158 as follows:

General principles

[96] We adopt the following statement concerning the general principles applicable to the interpretation and application of s.158 of the RO Act to applications for consent to alterations of eligibility rules in Re Australian Licenced Aircraft Engineers Association 32:

ResMed’s objection

[97] The only persons who filed objections to the AMWU’s proposed alteration to its eligibility rule were ResMed and the Australian Workers’ Union (AWU). The AWU settled its objection with the AMWU and formally withdrew it on 19 February 2015.

[98] ResMed’s objection was filed on 17 December 2014. It gave four specific grounds of objection as follows (omitting the particulars):

[99] ResMed did not at any subsequent time seek leave to amend its objection.

Section 158(2) - was the rule alteration made in accordance with the AMWU’s Rules?

[100] The AMWU’s Rules confer the power to alter the rules on its National Conference. Rule 6.1(h) provides:

[101] Rule 6.1A, which qualifies that power in respect of rules alterations affecting the AMWU’s Vehicle Division, Food and Confectionary Division and Printing Division, is not presently relevant.

[102] The evidence demonstrated that the following steps had been taken to obtain the National Conference’s approval for the rules alteration the subject of these proceedings:

[103] The AMWU submitted that accordingly a majority of National Conference delegates had voted to approve the rule alteration. It contended that the method of consideration and voting adopted was in accordance with rule 6.4.

[104] ResMed submitted, pursuant to its first ground of objection, that the steps taken above did not constitute approval of the rule alteration in accordance with the Rules of the AMWU, and accordingly that the precondition for consent to be granted to the rule alteration in s.158(2) was not satisfied. It specifically submitted as follows:

[105] There was no dispute between the parties that there had not been any delegation of the rules alteration power to the National Council. Therefore the only issue is whether the approval of the rule alteration by a postal ballot of the delegates to the National Conference constituted a valid exercise by the National Conference of its rules alteration power in rule 6.1(h).

[106] Rules 6.2, 6.3 and 6.4 set out the means and procedures by which the National Conference may make decisions in exercise of its powers. They provide as follows:

[107] Rule 6.2 contemplates a method of voting at a meeting of the National Conference at which delegates are physically present. It is not in dispute that the rule alteration here was not approved by this method. However, rule 6.4(c) makes it plain that rule 6.2 is not exhaustive as to the means by which National Conference decisions may be made, since a decision of a majority of delegates voting in a postal ballot is given the same force and validity as a resolution carried in accordance with rule 6.2.

[108] In order for a decision taken by postal ballot of National Conference delegates to be valid, the matter the subject of the decision must have been referred to the National Conference in accordance with either rule 6.4(a) or 6.4(b). This is because rule 6.4(c) requires the postal ballot to be “in accordance with this sub-rule” - that is, rule 6.4 as a whole, including the referral requirements. There is no issue that rule 6.4(b) is not applicable here. Therefore, in order for the rule alteration here to have been made “under the rules of the organisation” for the purpose of s.158(2), there needs to have been a valid referral under rule 6.4(a). To this point we accept ResMed’s submissions.

[109] We do not accept however ResMed’s proposition that the referral in this case was not valid. The “matter” the subject of the decision taken by the National Conference delegates in the postal ballot can be characterised as the making of an alteration to the AMWU’s eligibility rule in order to give certainty to the AMWU’s capacity to represent ResMed employees. This matter had arisen as a result of disputation and litigation about the AMWU’s representational rights at ResMed. The National Council had no power to make the necessary alteration to the eligibility rules. Accordingly the “matter” was not one which could be determined by the National Council. In those circumstances, we consider, rule 6.4(a) was enlivened and the National Council had the power to refer the “matter” to a postal ballot of National Conference delegates for decision.

[110] ResMed’s submission that the matter could not have validly been before the National Council in the first place because the National Council had no power to deal with rules alterations is misconceived. While the National Council did not have power to pass a resolution effecting a variation to the AMWU’s Rules, it did have the express power under rule 6.4(a) to refer a matter it could not itself deal with to a postal ballot of National Conference delegates. Here, the matter came before the National Council for the purpose of consideration of the referral of a proposed rule alteration to a postal ballot of National Conference delegates. This was within the scope of the National Council’s authority under rule 6.4(a).

[111] Interpreting the phrase “Where matters cannot be determined by the National Council ...” in rule 6.4(a) as including matters which the National Council had no authority under the AMWU’s Rules to decide both accords with the ordinary meaning of the words used in the rule and gives it a practical and sensible operation. Under rule 5.1, ordinary meetings of the National Conference only occur once every three years, which would not be a practical mechanism to deal with a rule change which is necessary to meet an emergent circumstance. Under rule 8(1)(k) the National Council has the power to convene a Special National Conference when considered necessary or desirable, with the agenda for such conference to be determined by the National Council. However on any view convening a Special National Conference would be a major and expensive undertaking, since it would involve assembling 74 persons from across Australia in a single location. This would be all the more so if such a Special National Conference had to be convened to vote upon a single proposed rule alteration. In that context, a postal ballot would be a convenient, democratic and effective way to obtain an expeditious decision upon a proposed rule alteration.

[112] ResMed’s submission that the phrase “Where matters cannot be determined by the National Council ...” in rule 6.4(a) is confined to matters which the National Council does have power to deal with but cannot for some other reason make a determination about cannot be accepted. It places a limitation on the scope of the phrase which does not arise from the ordinary meaning of the words used. Further, such an interpretation would give rule 6.4(a) little or no work to do, since it is difficult to identify any circumstances where this could actually occur. ResMed was only able to suggest two circumstances: where a quorum could not be obtained, or where there was a tied vote. The former cannot be correct because, if the National Council could not decide a matter because it could not form a quorum, neither could it validly pass a resolution referring the matter to a postal vote of National Conference delegates under rule 6.4(a). The latter is also doubtful, since under normal meeting procedures a tied vote on any resolution means that the resolution is decided in the negative, not that there is no decision at all. In any event, this would likely be a fairly rare circumstance.

[113] Finally, we also reject ResMed’s submission that to interpret rule 6.4(a) such as to allow the National Council to refer proposed rules alterations to a postal ballot of National Conference delegates would involve subversion of the National Conference’s role as the supreme governing body of the AMWU with sole authority to alter the Rules. It is difficult to understand that submission given that on any view a postal ballot of National Conference delegates under rule 6.4(c) necessarily involves the exercise by the National Conference alone of its exclusive rules alteration power in rule 6.1(h). The exercise of the referral power by the National Council is consistent with its role as the Committee of Management of the AMWU whereby, subject only to “the powers and decisions of the National Conference and these rules”, it has “the care, control, superintendence, and management in all respects of the affairs, business, funds and property of the Union” (rule 8.1).

[114] ResMed’s submission concerning alleged non-compliance with rule 5.9 takes the matter no further. It was not submitted, and we do not consider, that any failure to publish a National Conference resolution in accordance with rule 5.9 affects the validity of that resolution if it was properly carried by the National Conference. In any event the evidence did not establish whether the resolution had been published or not. ResMed also raised a number of other issues about the process of the rule alteration, including whether it had been accurately described to the delegates to the National Conference for the purpose of the postal ballot, and whether workplace delegates at the ResMed site had been consulted about or properly informed of the rule alteration. It was conceded that these matters did not go to the validity of the rules alteration but were rather issues to be considered in the exercise of our discretion. We will deal with them on that basis.

[115] For the reasons stated we are satisfied for the purpose of s.158(2) that the rule alteration was made under the Rules of the AMWU.

Section 158(4) - more conveniently belong and more effectively represent

[116] ResMed’s objection, which we have earlier set out, did not contain as a ground of objection that persons who would be eligible for membership of the AMWU because of the rule alteration could more conveniently belong to and be more effectively represented as members by another organisation. There being no other objector, there was no case advanced before us that we should form the opinion identified in s.158(4) such that we would be required to refuse consent to the rule alteration. No evidence or submissions were advanced upon which that opinion could be formed. It was not suggested by either party that we should, independent of the evidence and submissions of the parties, undertake some form of self-directed inquiry into the matters the subject of s.158(4), and we do not propose to do so. We do not consider therefore that there is any legitimate basis upon which we could form the s.158(4) opinion, and consequently we are not required by that provision to refuse our consent to the rule alteration.

[117] ResMed has submitted that, notwithstanding this position, we are required to determine correctly the class of persons who would become eligible for membership of the AMWU because of the rule alteration in order to give proper consideration to s.158(4). This submission was based upon the proposition stated by a Federal Court Full Court in Re Australian Workers' Union, Ex parte Construction, Forestry, Mining and Energy Union 42 (in relation to s.204(4) of the Workplace Relations Act 1996, the provision equivalent to the current s.158(4) of the RO Act). In that decision Merkel J said:

[118] Gray and Moore JJ likewise stated that “it was not in issue that it is necessary for a designated Presidential Member, when considering an application for consent to an alteration to eligibility rules, to identify the relevant employees in order to consider the issues raised by s.204(4). That is, it is necessary to identify the ‘persons who would be eligible for membership because of the alteration’.” 43 However this proposition was stated by the Court in the context of an application for consent to an eligibility rules alteration in relation to which a number of objectors had advanced their objections substantially on the basis that consent should be refused under the then s.204(4). Thus the identification of the expansion in coverage to be effected by the eligibility rule alteration was necessary in order to address the objectors’ respective cases in that regard. We consider that it is at least highly doubtful whether there is the same necessity to do this where there is no case of this nature advanced by any objector which is required to be addressed.

[119] In any event, we have already expressed our view concerning the AMWU’s current coverage of ResMed employees (or labour hire personnel working at ResMed). In summary, amongst Production and Warehouse employees, the AMWU currently has the coverage of those categories of employees identified in the second appeal decision. In relation to P&A employees, the AMWU currently has coverage of the METS employees, and may have coverage of some other employees with engineering functions. The AMWU is also likely to have coverage of some or all engineering employees in the Innovation Centre. Otherwise, the evidence does not permit the conclusion that it has coverage of any other employees in the Innovation Centre, although the evidence about those other employees is less than complete. The same position applies with respect to the Gate House and the Sleep Centre/Service Centre. Subject to the caveats we have expressed, all employees of ResMed who do not fall within that current coverage so identified would become eligible to join the AMWU because of the rule alteration.

[120] Although it was generally assumed by the parties in the course of the hearing that some other organisations such as the Australian Workers Union (AWU), United Voice, the Health Services Union, the National Unions of Workers’ and/or the Association of Professional Engineers, Scientists and Managers, Australia (APESMA) may have coverage of certain sections of the ResMed workforce, we were not taken by either party to the eligibility rules of any of those organisations to confirm whether that is the case or not. 44 We do not propose to undertake a self-initiated examination of the eligibility rules of those organisations in the absence of any objections or submissions about that matter. We are not in a position therefore to form the opinion that those ResMed employees who would become eligible to join the AMWU because of the rule alteration could conveniently belong to any other organisation, let alone more conveniently belong. The evidence did not disclose any history of representation of anybody in that class of ResMed employees by any other organisation except that at some time in 2009 or earlier APESMA represented two individuals at meetings with management. There is no probative evidence about the capacity of any other organisation to represent ResMed employees in that class. We cannot therefore form the opinion that any other organisation could more effectively represent employees in that class than the AMWU. Therefore there is no basis to refuse consent to the rule alteration under s.158(4).

[121] Even if our view as to the AMWU’s current coverage was incorrect, and ResMed’s submission about that issue was to be preferred, that could not on the evidence before us lead to any different result under s.158(4). The submission of ResMed was that the AMWU currently had no coverage of Production and Warehouse employees. If all Production and Warehouse employees are included in the class of employees who would become eligible to join the AMWU because of the rule alteration, the conclusions stated in the previous paragraph would still apply. There was no submission before us to the contrary - that is, no party submitted that the conclusion to be formed with respect to s.158(4) might differ depending upon the view formed about the AMWU’s existing coverage.

Section 158(5) - undertaking to avoid demarcation disputes

[122] In National Tertiary Education Industry Union v Community and Public Sector Union 45 Williams SDP said in relation to s.204 of the Workplace Relations Act 1996:

[123] We consider that the same proposition applies equally to s.158. The words in s.158(5) “However, subsection (4) does not apply ...” which condition the operation of the provision are to be read as referring to a situation where the Commission has formed the opinion identified in s.158(4) and would, but for s.158(5), be obliged to refuse consent. That is, the provision of an appropriate undertaking under s.158(5) avoids the otherwise mandatory refusal of consent that would be required by s.158(4). Section 158(5) does not however have any work to do if no refusal of consent is required by s.158(4) because the Commission has not formed the identified opinion.

[124] Therefore, because there is no need to avoid the operation of s.158(4) here, s.158(5) does not arise for consideration in relation to the AMWU rules application.

[125] ResMed advanced a submission that undertakings made to various unions by the AMWU to settle actual or potential objections to its rule alteration were relevant to s.158(5). That submission is completely misconceived. Section 158(5) is not concerned with inter-party undertakings to settle or avoid objections, but rather with undertakings proffered to the Commission to avoid a refusal of consent which would otherwise be required by s.158(4).

Section 158(6) - contravention of an agreement or understanding

[126] Section 158(6) is not relevant to the AMWU rules application. No party submitted that the rule alteration would contravene an agreement or understanding to which the AMWU was a party which dealt with the AMWU’s right to represent the industrial interests of any particular class or group of employees under the RO Act or the FW Act.

Section 158(7) - change to the effect of an order about representation rights

[127] Section 158(7) is also not relevant to the AMWU rules application. No party submitted that the rule alteration would change the effect of any order made under s.133 of the RO Act about the AMWU’s right to represent the industrial interests of any particular class or group of employees under the RO Act or the FW Act.

Discretionary issues

[128] ResMed’s second, third and fourth grounds of objection raise discretionary issues. We will deal with these grounds in turn.

[129] In relation to the first ground, we reject ResMed’s “community of interest” ground. We have earlier characterised ResMed as a manufacturer of medical devices falling within both the medical devices industry and, as a manufacturer of mechanical and electrical appliances, within the broader manufacturing and engineering industry. That is an area in which the AMWU has a long-established history of representation. It is the predominant union in the manufacturing and engineering industry, and represents a range of employees employed in businesses in the medical devices industry. It has for almost two decades represented employees involved in manufacturing processes at ResMed itself.

[130] On any view the rule alteration would expand the coverage of the AMWU amongst ResMed employees. We have previously set out our conclusions concerning the AMWU’s current coverage. We consider that the effect of the rule alteration, if granted in whole, would be to expand that coverage to the entirety of ResMed’s workforce and to labour hire employees performing work at ResMed. We are satisfied that there is a general community of interest between the AMWU’s existing area of representation (inside and outside of ResMed) and the expanded area it would gain if the rule alteration was granted in whole. Even if our opinion as to the AMWU’s existing coverage was incorrect and it did not currently have coverage of any Production and Warehouse employees, we would come to the same view concerning community of interest, for the reasons we have stated in the preceding paragraph.

[131] In dealing with ResMed’s specific objection concerning community of interest in the way we have, we should not be taken as stating any general proposition that demonstration of a community of interest is a necessary element for consent to be granted to an eligibility rule alteration which expands a union’s coverage. In many cases community of interest will not be a relevant consideration. For example, if a new occupation or industry is established in the Australian economy in relation to which no union has coverage, it may be that a union or unions may wish to step into the field in order to provide industrial representation to those employees in the new area who wish to be members of a union. It is doubtful that the concept of community of interest will have much relevance in that situation.

[132] ResMed’s second ground of objection also involved a more general proposition that consent to the rule alteration was not appropriate for reasons including that:

[133] We will return to consideration of these issues later.

[134] The third ground of objection was that it would not be appropriate to consent to the rule alteration because it would extend the AMWU’s coverage to employees in the medical devices industry, which is not an industry in relation to which the AMWU was registered. We reject this ground of objection. For reasons already stated we consider that the medical devices industry in which ResMed operates is encompassed by or is at least reasonably related to the AMWU’s established field of representation in manufacturing and engineering. ResMed’s contention that it is not a “traditional manufacturing facility” does not alter the position in this respect. The type of products that are manufactured and the methods used in their manufacture are continually changing such that the attempted characterisation of any form of manufacturing as traditional or otherwise is of little utility.

[135] Rule 2, Description of Industry, of the AMWU Rules, upon which ResMed relies in relation to its third ground of objection, has little or no actual functional work to do. It appears to be a hangover from the era in which federally-registered organisations of employees were required to have rules specifying the industry in relation to which the organisation was formed, reflecting a statutory policy in favour of industry unionism. That specific requirement ceased in 1988 46, and the registration requirement for organisations to demonstrate that they were industry-based ceased in 1996.47 According to established principles of interpretation of eligibility rules, an industry rule such as rule 2 may be used as an aid to interpretation of a union’s eligibility, but it does not itself have the function of determining who may join a union. The current legislative scheme in the RO Act discloses no policy preference in respect of industry unionism. Although we consider it to be likely that ResMed does fall within the “engineering” industry referred to in paragraphs (a) and (d) of rule 2, we ultimately do not consider for the reasons stated that there is any practical purpose in reaching any final conclusion about this. Even if ResMed fell outside the industries described in rule 2, that would not be a sufficient basis to refuse to consent to the rule alteration. The third ground of objection is rejected.

[136] The fourth ground, in the form stated in ResMed’s objection, could not be a basis upon which consent was refused to a rule alteration. The fact that an application for consent to an eligibility rule alteration did not correctly state the current position in respect of representational rights, in circumstances where there is an ongoing legal dispute about that issue and it has been the subject of extensive submissions at the hearing, is not a matter we consider to be of particular significance. In any event we do not consider that the AMWU’s rules application made any specific representation about the extent of its current coverage of ResMed employees.

[137] ResMed has raised a number of other discretionary grounds for the refusal of consent to the rule alteration which do not properly relate to any of its grounds of objection. It was not entitled to do so. However we will in any event deal with them, noting that no formal objection on that score was taken by the AMWU. The additional matters about which submissions were made by ResMed, and our conclusions about those submissions, are as follows:

[138] We are therefore not satisfied that there is any discretionary basis for us to entirely refuse consent to the rule alteration, and we reject ResMed’s objection to that extent. However there are a number of discretionary considerations which we consider militate against us granting consent to the AMWU’s rule alteration in whole. We have earlier referred to submissions advanced in support of ResMed’s second ground of objection which, in substance consisted of reasons why the scope of the rule alteration was too broad. Although we consider it excessive to characterise the AMWU’s rule alteration as lacking in bona fides, it is reasonably apparent that its underlying purpose was to resolve the questions which had been raised about its capacity to represent employees involved in the manufacturing part of ResMed’s operation. Those questions had arisen in the context of the AMWU’s attempts to achieve an enterprise agreement for such employees. That is made clear by the documents sent to the National Council and the National Conference explaining the purpose of the rule alteration.

[139] In that context, the AMWU’s case before us has focused upon its industrial interest, coverage, membership, history of representation and representational capacity in relation to the manufacturing side of ResMed’s business. There is no evidence of any previous interest in the representation of employees in the Innovation Centre, the Gate House or the Sleep Centre/Service Centre, and the AMWU’s case did not address the nature of the work performed by employees in those parts of the business or its capacity to represent them effectively. Indeed, as we have earlier discussed, beyond the conclusion that the AMWU may have existing coverage of some or all engineers in the Innovation Centre, it is not entirely clear which employees in those parts of the business would become eligible to join because of the rule alteration or what, beyond generic descriptions, is the precise nature of the work performed by those employees. Nor does the evidence make it clear whether the AMWU has any history of representation of employees performing similar work at other businesses.

[140] For these reasons, we do not consider it appropriate to consent to the rule alteration to the extent that it would extend the AMWU’s coverage to those parts of the business in the Innovation Centre, the Gate House or the Sleep Centre/Service Centre. Consent should be confined to that part of the business conducted in the Manufacturing Centre, namely the manufacturing operations and ancillary functions. In reaching that conclusion, we emphasise that this does not amount to a finding that the AMWU could not effectively and appropriately represent such employees (to the extent that it does not already have coverage), but only that the case presented before us did not permit us to reach any reliable conclusions on that score.

[141] Additionally, we consider that insofar as the rule alteration would encompass employees at all levels of ResMed’s business, it unnecessarily goes too far. Specifically we do not consider that the AMWU would have any genuine interest in representing management employees, nor that any such employees would have any interest in being represented by the AMWU. Additionally, because of the history of legal conflict between the AMWU and ResMed, and ResMed management’s adoption of a legal/industrial strategy to avoid having to engage in collective bargaining, we consider that there would be a real potential for conflicts of interest to arise if any management employee ever did decide to join the AMWU. However we do not consider that such a problem would arise in a significant way with respect to team leaders, co-ordinators and supervisors, and we would not refuse consent in relation to these categories of employees.

[142] In conclusion therefore, we will grant consent to the rule alteration in part only, that part being employees engaged in that component of the ResMed business currently conducted in the Manufacturing Centre who are not managers.

[143] It will be necessary to effect a textual amendment to the rule alteration in order to give effect to our partial consent. We intend to give the parties an opportunity to advance proposals as to the form of such a textual amendment, and to make further submissions in that connection. Directions will be made to facilitate this. The textual amendment should avoid the use of terms and labels which are referable to ResMed’s business as currently conducted but which are liable to become outmoded. It should also, as far as practicable, not leave room for any doubt as to which ResMed employees are encompassed by the AMWU’s eligibility rule as a result of the alteration.

ResMed representation application

[144] Sections 137A and 137B of the RO Act provide:

[145] It is a jurisdictional prerequisite for the making of an order under s.137A that there be an actual, threatened, impending or probable dispute about the entitlement of an organisation of employees to represent, under the RO Act or the FW Act, the industrial interests of employees. Such a dispute may be one about the eligibility of an organisation to represent a particular class or group of employees and/or one about whether an organisation should be involved in the representation of the class or group of employees. 49 We consider, having regard to the history of this matter which we have earlier outlined, that a dispute of the required nature exists and has existed since at least early 2013.

[146] Once the jurisdictional prerequisite has been satisfied, the task of considering the merits of an application for an order under s.137A was described by the Full Bench in Shop, Distributive and Allied Employees Association v National Union of Workers 50 as follows:

[147] We will first give consideration to the factors required to be taken into account under s.137B(1). We will do so by reference to the coverage which the AMWU will have as a result of our decision in respect of the AMWU rules application.

Paragraph (a) - History of award coverage and agreement making

[148] Clause 4.1 of the Manufacturing Award covers “employers throughout Australia of employees in the Manufacturing and Associated Industries and Occupations who are covered by the classifications in this award and those employees”. The “Manufacturing and Associated Industries and Occupations” referred to are defined in clause 4.9(a)(i) to encompass those industries and parts of industries involving the “manufacture, making, assembly, processing, treatment, fabrication and preparation” of the “products, structures, articles, parts or components set out in clause 4.10 ...”. Clause 4.10 includes (in paragraph (k)) “electrical, electronic, telecommunications, lighting, radio, television and X-ray products, equipment, apparatus, installations, appliances, devices and signs” and in paragraph (q) “medical and optical instruments, appliances and equipment, including but not limited to spectacles, contact lenses and artificial limbs”. On the basis of these provisions, we consider that ResMed as a manufacturer of medical devices operates in an industry or part of an industry to which the Manufacturing Award applies, so that the Manufacturing Award applies to ResMed in respect of any of its employees who are covered by any of the classifications in that Award. We do not propose to analyse the application of the classifications in the Manufacturing Award to the various work groups in ResMed beyond saying that we are satisfied that employees involved in the production of the medical devices at ResMed fall within the Manufacturing Award’s classifications and are covered by it.

[149] It was not suggested that, prior to the commencement of the Manufacturing Award on 1 January 2010, ResMed was bound as a respondent to any previous federal award. It may have been covered by a common rule State award, but we do not state any conclusion about this. No party submitted that any other modern award applies to ResMed, but we would observe that it is possible that the Clerks - Private Sector Award 2010 51 might apply to some of its administrative employees and that the Professional Employees Award 201052 might apply to some or all of its professional employees.

[150] ResMed has never been covered by an enterprise agreement under the FW Act, and has never engaged in bargaining for one. The AMWU has made the attempts to initiate bargaining for an enterprise agreement which we have described earlier in our decision.

Paragraph (b) - The wishes of the members of the workplace group

[151] We conclude, either as a result of their direct evidence or by inference from their existing membership of the AMWU, that a significant but minority proportion of the relevant workplace group wish to be members of the AMWU. We note in this connection that the AMWU currently has 132 members, who are overwhelmingly Production and Warehouse employees. It is possible that additional persons who are not currently members, such as those who signed the AMWU’s majority support petition, may wish to join the AMWU as a result of our decision concerning the AMWU rules application, but the number of these, if any, cannot be identified.

[152] A number of employees who worked in the Manufacturing Centre and who were not managers gave evidence that they do not want to be members of the AMWU. In addition, ResMed placed into evidence a petition with approximately 260 signatures. The petition appears to have been initiated by supervisors and circulated in early 2013. It is not clear in which parts of the ResMed site the employees who signed their names were located or what their positions were. The statement in the petition was:

[153] It is difficult to identify precisely what proposition the persons who signed their names to the petition were agreeing to, but we are prepared to take it that they did not wish to join or be represented by the AMWU.

[154] The more significant aspect of the wishes of employees to be taken into account, we consider, is whether there was support for the entire exclusion of the AMWU from the workplace by the making of an order under s.137A. We do not consider that the evidence demonstrated that there was any significant employee support for the making of such an order. The petition, which significantly pre-dated the ResMed representation application, cannot be taken as supporting the making of such an order. No witness gave evidence that he or she supported denying any person who was eligible and wanted to be a member of the AMWU the right to be represented by the AMWU. Those ResMed witnesses who gave evidence that they did not wish to join or be represented by the AMWU who were the subject of cross-examination generally agreed with the proposition that employees should have the right to join and be represented by the AMWU if that was what they desired. Even Mr Surra personally had no difficulty with the AMWU acting on behalf of ResMed employees provided that they were within the scope of the AMWU’s eligibility rule. 53

Paragraph (c) - The extent and nature of representation of employees by particular organisations

[155] As earlier stated, the AMWU currently has 132 members, who are overwhelmingly Production and Warehouse and METS employees. It has represented in the past some P&A employees. Apart from representation of two P&A employees by APESMA some years ago, there is no evidence that any other organisation has members at ResMed or has provided representation to anyone.

Paragraph (d) - Any agreement or understanding dealing with rights of union representation

[156] We were not made aware of any agreement or understanding of the type to which s.137B(1) refers. In settlement of actual or potential objections by other unions, the AMWU entered into agreements and undertakings generally intended to avoid demarcation disputes. However none of these involved any restriction or limitation upon any existing right of representation possessed by any organisation.

Paragraph (e) - Consequences if the order sought is not made

[157] ResMed submitted that the AMWU’s past conduct concerning the eight leaflets, and its alleged lack of bona fides in seeking to represent all ResMed employees for the purpose of increasing its membership, would continue if the order it sought was not made. We have earlier made findings about these issues and rejected ResMed’s characterisation of the AMWU’s conduct. Accordingly we do not consider that these are matters which should be given any real weight in our consideration of the ResMed representation application.

[158] We cannot identify any other negative consequence for ResMed or its employees if the order sought is not made. As earlier stated, there is no evidence of any demarcation dispute ever having occurred, and no real possibility that one will occur in the future. There is no evidence that there has ever been industrial action of any type at ResMed, nor evidence that any conduct on the part of the AMWU has adversely affected ResMed’s productivity or profitability.

[159] If an order is not made, employees may continue to be members of and be represented by the AMWU if they wish. There are, on the evidence, at least 132 employees in this category. That would be consistent with the objects of the RO Act in s.5 and the objects of the FW Act in s.3(e).

Paragraph (f) - Any prescribed matter

[160] There are no prescribed matters.

Conclusion

[161] We consider that a “strong case” would be needed to justify the making of an order under s.137A. 54 The FW Act and the RO Act establish and protect the right of employees to join or not join organisations of which they are eligible to be members. Sections 346, 347 and 348 of the FW Act in particular entrench this right by establishing significant protections against adverse action. It would be a serious matter, by the making of an order under s.137A, to deprive an employee of the right to be represented by an organisation which he or she is eligible to join. That is particularly the case here where the evidence demonstrates that, for the overwhelming majority of employees, the AMWU has been the only union which has endeavoured to provide them with industrial representation if they desire it. In short, the AMWU is really the only union in the field.

[162] Notwithstanding this, it may be accepted that certain types of disentitling conduct may, depending on the circumstances, justify the making of a s.137A order. This may include disruptive demarcation disputes, repeated engagement in unlawful industrial action, systematic abuse of rights of entry and other repeated instances of unlawful conduct which cause significant damage to the legitimate interests of the employer and/or employees. However there is no evidence of any conduct of this type in this case. As earlier stated, we reject ResMed’s submission that the AMWU has engaged in any conduct which disentitles it to represent ResMed employees in the future.

[163] ResMed has submitted that the majority of employees do not want to be represented by the AMWU, and that this supports the making of the order it seeks. Even assuming that the evidence demonstrated the factual element of this contention (which, we consider, it did not do), we nonetheless reject it. The right to join or not join a union does not rest on a majoritarian principle. In the absence of any disentitling conduct by a union, there is no proper basis to deprive the right of a minority of employees to become and remain members of an organisation which they are eligible to join merely because the majority do not wish to join. Further, contrary to ResMed’s submissions, we do not consider that it is any answer to the deprivation of representation rights which would be the result of the making of a s.137A order that employees may represent themselves. That denies the very reason why employees become members of unions in the first place.

[164] We do not consider there is any proper discretionary basis for the grant of the s.137A order sought by ResMed. The ResMed representation application must therefore be dismissed.

Conclusion

[165] In relation to the AMWU rules applications, the following directions are made:

[166] The ResMed representation application is dismissed.

al of the Fair Work Commission with the memeber's signature.

VICE PRESIDENT

Appearances:

A. Howell of counsel for the Australian Manufacturing Workers’ Union (AMWU).

A. Moses SC with Y. Shariff of counsel for ResMed Limited.

Hearing details:

2015.

Sydney:

24 -25 September, 6 and 19 October and 23 November.

 1   [2015] FWC 848

 2   [2014] FWCFB 3501 at [73]

 3   Ibid at [68]-[69]

 4   Transcript 6 October 2015, PN2481

 5   MA000010

 6   [2013] FWC 9725

 7   [2014] FWCFB 2418

 8   [2014] FWCFB 3501

 9   [2015] FCA 360

 10   [2015] FCAFC 195 

 11   [2015] FCA 379

 12   Ibid at [45]-[57]

 13   [2015] FCA 537

 14   [2015] FCA 615

 15   [2015] FWC 4007

 16   [2015] FCAFC 106

 17   Mr Domingo Bautista gave evidence that he had worked in the Surface Mount Technology section until it was outsourced in 2005, and he was transferred to LSR: Exhibit 62 paragraph 5; Transcript 19 October 2015 PN4847.

 18   Transcript 25 September 2015, PNs 2071-2092

 19   (1987) 163 CLR 140

 20   Transcript 19 October 2015, PN4335

 21   [2014] FWCFB 3501 at [72]-[78]

 22   Ibid at [68]-[70]

 23   Ibid at [77]-[78]

 24   (1982) 153 CLR 402 at 408

 25   (1980) 49 FLR 355 at 370

 26   [2014] FWCFB 3501 at [60]-[61]

 27   [2014] FWCFB 3501 at [61]

 28   (1957) 97 CLR 71 at 80-83

 29   (1980) 49 FLR 355 at 364

 30   [2014] FWCFB 3501 at [58]

 31   Transcript 23 November 2015, PNs 5553-5592

 32   [2014] FWC 3658

 33   (2000) 100 IR 296

 34   Acts Interpretation Act 1901, ss.33(2A)

 35   Bowling v General Motors - Holden’s Pty Ltd (1980) 50 FLR 79 at 91

 36   (1999) 93 IR 365

 37   Ibid at [169]

 38   (1974) 157 CAR 623

 39   Ibid at 627-628

 40   (1999) 93 IR 365 at [170]-[171]

 41   Print H6763 (27 January 1989)

 42   (2002) 120 FCR 527

 43   Ibid at 43

 44   ResMed suggested during the hearing that the AWU had coverage of its employees on the basis that the AWU asserted that it did in the objection to the AMWU’s rules application which it lodged but subsequently withdrew. We do not consider that constitutes a proper basis to form the legal opinion that the AWU has coverage of any ResMed employees.

 45   (1999) 93 IR 365. The decision was affirmed on appeal in Re CPSU, Community and Public Sector Union (2000) 100 IR 296.

 46   The requirement last appeared in reg.115(1)(d) of the Conciliation and Arbitration Regulations. Section 195 of the Industrial Relations Act 1988 provided that the rules of an organisation “...may specify the industry in relation to which it is formed” (underlining added). This was removed altogether by the Workplace Relations Amendment (Registration and Accountability of Organisations) Act 2002.

 47   Section 189(1)(d) of the Industrial Relations Act 1988 required that an association applying for registration be “an industry-based organisation”. This requirement was removed by the Workplace Relations and Other Legislation Amendment Act 1996.

 48   ResMed written submissions, 9 November 2015, paragraph 8.18

 49   See Shop, Distributive and Allied Employees Association v National Union of Workers [2012] FWAFB 461 at [24]-[25]

 50   Ibid

 51   MA000002

 52   MA000065

 53   Transcript 24 September 2015, PNs 941-945

 54   See Shop, Distributive and Allied Employees Association v National Union of Workers [2012] FWAFB 461 at [57]

Printed by authority of the Commonwealth Government Printer

<Price code J, PR575663>