Fair Work Act 2009

s.236 - Majority support determination

• [1] The Health Services Union (Applicant) has applied to the Fair Work Commission (Commission) pursuant to s.236 of the Fair Work Act 2009 (Cth)(Act) for a determination that a majority of the employees who will be covered by a proposed enterprise agreement (Proposed Agreement) want to bargain with the employer that will be covered by the Proposed Agreement.

• [2] The employer who will be covered by the Proposed Agreement is Clinical Laboratories Pty Ltd (Respondent) and the employees who will be covered by the Proposed Agreement are courier employees employed by the Respondent.

• [3] The Respondent opposes the application on a number of grounds including:

1. A majority of employees who are employed by the Respondent do not want to bargain.

1. The group(s) of employees who will be covered by the Proposed Agreement was not fairly chosen.

1. It is not reasonable in all the circumstances to make the determination.

• [4] There is a timeline of events in the lead up to the application that goes back a considerable period. In particular:

• • On 20 July 2023 the Applicant made a request via email seeking to bargain with the Respondent for an enterprise agreement.[1] In this regard an email from Brendan Roberts, an Organiser for the Applicant, to Christopher Brownlow dated 20 July 2023 was attached to the Applicant's submissions[2] and states.

The Health Services Union is requesting Australian Clinical Lab NSW entry (sic) in to (sic) good faith bargaining negotiations for a single interest Enterprise Agreement capturing Pathology Couriers, Pathology Collectors, Customer Service / Administration Staff.

Please advise by 28 July 2023 if Australian Clinical Labs NSW are willing to enter into good faith bargaining with the Health Services Union."

• • On 26 July 2023 the Respondent responded in writing to that request and declined to bargain.[3] In this regard a copy of correspondence from Mr Brownlow to Mr Roberts was attached to the Applicant's submissions[4] and stated:

We have considered your request for Australian Clinical Labs (ACL) to commence good faith bargaining for a single enterprise agreement applying to couriers, pathology collectors, customer service and administrative employees.

We advise that ACL declines your request. ACL does not wish to negotiate an enterprise agreement for the specified employees."

• • On 8 September 2023 the Applicant made an application to the Commission (First Application) pursuant to s.236 of the Act, seeking that the Commission make a majority support determination.[5]

• • On 8 September 2023, being the same day that the Applicant made the First Application, the Respondent wrote to the Applicant indicating that it wanted to meet with the Applicant. In particular, a letter from Mr Brownlow to Gerard Hayes (the Applicant's NSW Secretary and National President) was attached to the Applicant's submission[6] and stated, among other things:

1. To understand your intention for the EBA process and allow dialogue between us directly on this;
2. Hear directly any immediate issues; and
3. Discuss how we can work together on a long-term solution for the challenges facing Pathology.

I will make myself available in Sydney for the meeting and would (pending diaries) bring Daren McKennay (ACL Chair), Chris Brownlow (NSW Manager) and Sam Dastyari (Corporate Affairs) to the meeting."

• • On 11 September 2023 the Applicant withdrew the First Application.[7]

• [5] On 13 September 2023 a meeting took place between the Applicant and Respondent[8] and following that meeting, on 15 September 2023 the Applicant emailed the Respondent.[9] Attached to the application was a copy of that email from Mr Howarth which states:

Thank you for taking the time to meet on Wednesday 13th September, it is greatly appreciated.

In terms of the proposed Enterprise Agreement, I have outlined the core components of what I would see as inclusions, inclusive of proposed timeline."

• [6] The email set out a proposed timeline, a list of matters the Applicant wanted to include in the Proposed Agreement and its position in relation to wages.

• [7] On 4 October 2023, having not received a reply from the Respondent in relation to its email of 15 September 2023, the Applicant emailed the Respondent seeking to understand its position on bargaining by 5pm on 5 October 2023, foreshadowing another application for a majority support determination.[10] A copy of an email from Mr Howarth of the Applicant to the Respondent was filed with the application and states:

Following discussions in previous weeks the Health Services Union is seeking a response to the proposed enterprise bargaining in relation to the couriers and customer service within ACL or indeed a collective. The HSU and delegates are requesting the official position of ACL by COB Thursday 5th October 2023. Outlining a pathway inclusive of setting dates and times - HSU and Delegates are ready for commencement. Please keep in mind that the HSU had withdrawn the Majority Application in good faith given ACL entered conversations to commence discussions on an EA. I feel that this is now a fate of complete.

Failure of Australian Clinical Labs to provide a response outlining ACL's position inclusive of dates and times commencing the process, the Health Services Union will be escalating and making further applications to the Fair Work Commission by way of a Majority Support Friday 6th October 2023 at 9am.

Given the amount out (sic) time that has now passed, surely Australian Clinical Labs are in a position to either accept or reject bargaining for an enterprise agreement - I would remind the organisation that the majority of your staff, and our HSU members are requesting this to occur.

I will await further communication up to an including 5pm, Thursday 5th October 2023."

• [8] On 17 October 2023, the Applicant made the current application to the Commission pursuant to s.236 of the Act seeking that the Commission make a majority support determination. In that Application the Applicant indicated that it had:

"...asked members who wished to commence enterprise bargaining to sign a written statement demonstrating their support. A majority of employees who would be covered by the proposed agreement have now signed a written statement indicating that they wish to bargain for an enterprise agreement. This can be made available to the Commission upon request."

• [9] On 16 November 2023 the Respondent responded to that application stating:

• It has not agreed to bargain or initiated bargaining;
• It opposed the application on the basis that:
  • a majority of employees who are employed by the Respondent do not want to bargain;
  • the group(s) of employees who will be covered by the agreement are not fairly chosen;
  • it is not reasonable in all the circumstances to make the determination.

• [10] The above grounds of opposition are consistent with the Respondent's submissions filed in relation to this matter.

• [11] The Respondent filed a response to the application on 16 November 2023[11] and the matter was the subject of in person conciliation on 21 November 2023 in an attempt to resolve the matter. The parties were unable to resolve the matter and a timetable was set for arbitration taking into account the views of the parties.

• [12] A hearing was held across 15 and 16 January 2024 to determine the application. The hearing also dealt with a concurrent application (B2023/1112)(Concurrent Application) made by the Applicant in respect of customer service (call centre) employees employed by the Respondent.

• [13] The Applicant filed the following in respect of the following persons who also gave sworn evidence during the hearing:

• a witness statement of Sanjeev Sharma, who was employed by the Respondent as a Courier Driver between November 2019 and 17 November 2023.
• a statutory declaration of Brendan Chistopher Roberts, an Industrial Organiser of the Applicant.

• [14] The Respondent filed a statutory declaration in respect of Christophen Luke Brownlow, the Respondent's Chief Executive Officer, who also gave sworn evidence during the hearing.

• [15] Section 236(1) of the Act provides that a bargaining representative of an employee who will be covered by a proposed single-enterprise agreement may apply to the Commission for a majority support determination.

• [16] It is not disputed that the Applicant, by virtue of s.176(1)(c) of the Act, is a bargaining representative of an employee who will be covered by a proposed single-enterprise agreement.

• [17] I find that the Applicant is a bargaining representative of an employee who will be covered by a proposed single-enterprise agreement and has standing to bring the application.

• [18] Section 236(2) of the Act provides that the application must specify the employer or employers as well as the employees who will be covered by the agreement.

• [19] The application specifies that the Respondent and courier employees employed by the Respondent will be covered by the Proposed Agreement and I am satisfied that the requirements of s.236(2) have been met.

Section 237 considerations

• [20] Section 237(1) of the Act provides that the Commission must make a majority support determination in relation to a proposed single enterprise agreement if:

(a) an application for the determination has been made; and

(b) the Commission is satisfied of the matters set out in subsection (2) in relation to the agreement.

• [21] Section 237(2) of the Act provides that the Commission must be satisfied that:

(i) who are employed by the employer or employers at a time determined by the Commission; and

(ii) who will be covered by the agreement;

(b) the employer, or employers, that will be covered by the agreement have not yet agreed to bargain or initiated bargaining, for the agreement; and

(c) the group of employees who will be covered by the agreement was fairly chosen; and

(d) it is reasonable in all the circumstances to make the determination.

Section 237(2)(b) - Has the Respondent agreed to bargain or initiated bargaining for the Agreement?

• [22] It is not in contention that the Respondent has not yet agreed to bargain or initiated bargaining for the agreement. I am satisfied that the requirement in s.237(2)(b) has been met.[12]

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

• [23] The Applicant submitted that it has established that the requirements in s.237(2)(a) have been met and relies on the written statements with signatures collected from employees.[13]

• [24] By way of summary the Applicant submitted that:

• • It was approached by its members from the relevant group of employees indicating they wanted to bargain for an enterprise agreement after they became aware that their colleagues in Victoria who were performing the same work have different wages and conditions as an enterprise agreement applies to them.[14]
• • It commenced meeting with employees of the Respondent from February 2023.[15]
• • Multiple meetings with members took place including a meeting on Sunday 13 August 2023 outside of working hours.[16]The Applicant submitted this demonstrates the interest of its members in wanting to bargain.[17]
• • Ahead of the meeting on 13 August 2023 the Applicant issued a newsletter and attached to that newsletter was a flyer with information about bargaining and enterprise agreements.[18]
• • A total of 55 out of 96 written statements were collected by the Applicant in support of bargaining for an enterprise agreement.[19]

• [25] The Respondent does not accept that a majority of employees wish to bargain.

• [26] The Respondent raised concern that the Applicant:

• • submitted its evidence 'in Camera' and submitted that it has been denied an ability to make submissions on the form and content of the 'written statements' submitted by the Applicant;[20]
• • has not tendered into evidence the pro forma written statement or letter, that was used by the Applicant to gather support, which denies the Respondent the ability to test the evidence and is a breach of its rights to procedural fairness and natural justice.[21]

• [27] The Respondent indicated that it "holds grave concerns" in relation to how the statements were obtained, alleging:

• it received complaints about the Applicant using the personal information of employees without consent;

• • the delegate relied on by the Applicant in support of the application was dismissed by the Respondent for misconduct.[22]

• [28] The Respondent rejected the Applicant's submission that attendance at a meeting 'demonstrates members interest in wanting to bargain'[23] submitting that:

• the Applicant did not file evidence in support of this proposition;
• the meetings that the Applicant references took place in May 2023, some time away from October 2023 when the Applicant filed its application;

• • mere attendance at meetings could, if supported by evidence, be construed as interest in obtaining information about the topics that were discussed but it could not be construed as demonstrating 'members interest in wanting to bargain.[24]

• [29] Section 237(2)(a) requires that the Commission be satisfied that a majority of employees who are employed at a time determined by the Commission, and who will be covered by the agreement, want to bargain.

• [30] The Commission's power to determine a time under s.237(2)(a) is confined to the question of which employees are employed by the employer at a particular time. The Commission's task is to fix in time the cohort of employees from which the question of majority is to be determined. The Commission has a discretion to determine this date, but not the date on which a majority wishes to bargain. The latter question is to be assessed as at the date of the decision, using the most recently available information.[25] The Applicant submitted that the 'time to be determined by the Commission' should be the time the application was made in November. The Respondent submitted that the 'time to be determined by the Commission' should be the time of the hearing in January.

• [31] The time determined for the purposes of s.237(2)(a) is 19 December 2023 being the date that the Respondent submitted its list of relevant employees to the Commission in accordance with the directions.

Method of working out whether a majority want to bargain

• [32] Following an unsuccessful attempt to resolve the matter during a conference, it became apparent that the matter would need to be arbitrated.

• [33] The Applicant was directed to file in the Commission and provide to Chambers on a confidential basis an unredacted version of the statements of employees who it says want to bargain in respect the Proposed Agreement and it did so on 5 December 2023 in accordance with the Directions. At the same time, it was directed to file any materials it wished to rely upon in support of its application and did so.

• [34] At the same time of filing its materials the Respondent filed with the Commission, in accordance with the Commission's Directions, a statutory declaration of Mr Brownlow, dated 19 December 2023, attaching a list of employees Mr Brownlow said were employed as courier employees by the Respondent as at the date of that declaration.

• [35] The materials provided to the Commission by the parties on a confidential basis are the subject of confidentiality orders.

• [36] The Respondent's submissions raise the question of whether signed statements provided to the Commission on a confidential basis is an appropriate method for the Commission to determine whether there is majority support for bargaining and whether the Commission's reliance on such material would amount to a denial of procedural fairness and natural justice.

• [37] The Respondent did not object to the use of statements in ascertaining majority support as a general proposition but as noted above, the Respondent raised concern that the Applicant has submitted its evidence 'in Camera' and submitted that it has been denied an ability to make submissions on the form and content of the 'written statements' submitted by the Applicant.[26] I deal with these concerns below.

• [38] Mr Roberts gave evidence that a meeting was held on 13 August 2023 in the public carpark of 14 Lexington Drive Bella Vista (Carpark) with employees of the Respondent and members of the Applicant about the Respondent's refusal to commence bargaining and how an application could be made to the Commission for a majority support determination.[27] Mr Roberts said in his Statutory Declaration that in attendance at this meeting were:

• delegates of the Applicant being James (Jim) Metcher, Sanjeev Sharma and Les West;

• • members including customer service (call centre) staff, lab staff, pathology collectors and approximately 30-40 pathology courier drivers.[28]

• [39] Mr Sharma also gave evidence that he was present at the meeting on 13 August 2023.[29]

• [40] Mr Roberts and Mr Sharma had differing recollections about how many people were at the meeting with Mr Sharma giving evidence that there were approximately 80 people in attendance[30] and Mr Roberts giving evidence that there were approximately 50 - 60 people in attendance.[31]

• [41] Mr Roberts' evidence was that the Respondent currently employs courier staff under the Health Professionals and Support Services Award 2020 (Award) and this does not appear to be in contention.[32] Mr Roberts' evidence was that at the meeting on 13 August 2023 he told members of the Applicant the following:[33]

• A modern award set the legal minimum standard in relation to wages and conditions.
• An enterprise agreement is an agreement negotiated between and employer and employees which results in a new set of minimum standards for wages and conditions which are above the modern award.
• In order to pursue a majority support determination they would need to prove to the Commission that a majority of employees covered by any proposed enterprise agreement wanted to commence bargaining with their employer. Mr Roberts' evidence was that he explained this using the simple example that if there were 100 employees at least 51 of these would need to sign a petition or letter indicating this support.

• [42] Mr Sharma's evidence was that he had a briefing with Mr Roberts, Mr Metcher and Mr West and informed other members of the Applicant that:

• having an enterprise agreement would give them better wages and work conditions;
• New South Wales courier drivers are not treated fairly compared to Victorian courier drivers who already have an enterprise agreement;

• • this means Victorian courier drivers have better work conditions.[34]

• • he advised the other members that if anyone was interested in the union negotiating an enterprise agreement for them to come to (Mr Roberts, Mr Metch and Mr West) to sign a statement;[35]
• • at the meeting courier drivers came up to him as well as Mr Roberts, Mr Metch, Mr West, they explained to them "how the form works" and the courier drivers filled the form out themselves and gave them back to him.[36]

• a few of his courier driver colleagues were from a non-English speaking background;
• he was "patient, slow and compassionate during [his] communication and explained to them the details of an EBA to the best of [his] ability";

• • there were not any courier drivers that were at a level that could not understand or comprehend what the discussions were about.[37]

• [45] Mr Sharma's evidence was that all the courier drivers who had discussions with him signed their statement in his presence and he then handed the original forms to Mr Roberts.[38]

• [46] During cross examination Mr Sharma was asked who obtained the other written statements in support of bargaining to which Mr Sharma indicated there were five people collecting statements.[39]

• • As at the date of the meeting on 13 August 2023 he understood the Respondent employed about 96 couriers.[40]Mr Roberts indicated in his evidence that this understanding was based upon numbers provided earlier in the year for another negotiation concerning health and safety representatives for a workgroup in which he came to the understanding that the Respondent employed approximately 95 couriers;[41]
• • Following his explanation members were given a written statement to sign and show their support for an enterprise agreement and those who wanted to support the majority support determination signed and returned the statement the same day.[42]

• After the meeting on the same day he held a follow-up meeting with the Applicant's delegates Mr Metcher, Mr Sharma and Mr West, provided blank copies of the written statements and told them:
  • they should speak to their pathology courier colleagues who were unable to attend;
  • they must outline what an enterprise agreement is and the difference between the Award and the enterprise agreement;
  • they should ask their colleagues if they support trying to get a majority support determination to bring the Respondent to the bargaining table;

• o they must always keep the signed written statements with them and to contact him and he would arrange to collect them in person.[43]

• [48] Mr Sharma's evidence was that he met with drivers who were unable the attend the meeting on 13 August 2023 and be collected about 7 or 8 statements from employees after the meeting which he then gave to Mr Roberts.[44]

• • Between 13 August and 5 September 2023 Mr Roberts, Mr Metcher and Mr Sharma had conversations every day with pathology courier drivers and collected further statements of support.[45]
• • During this period, Mr Roberts would speak with Mr Metcher, Mr West and Mr Sharma at least once per day about the process and would collect the signed written statements of employees from them, usually in the Carpark at the commencement or end of their rostered shifts.[46]
• • Throughout this process 55 statements out of 96 were collected.[47]

• [50] During cross examination Mr Roberts was asked how many statements he personally obtained and while Mr Roberts estimated he obtained between 30 and 40 statements it became apparent that Mr Roberts did not know how many signed statements he, Mr Sharma and Mr Metcher each personally obtained.[48]

• [51] The Commission has broad discretion to determine the method of working out whether a majority of employees want to bargain as s.237(3) of the Act provides that the Commission may use 'any method [that it] considers appropriate'. The Explanatory Memorandum to the Fair Work Bill 2008 (Cth) states:

"It is at the discretion of FWA what method it uses to work out whether a majority of the employees want to bargain (subclause 237(3)). Methods might include a secret ballot, survey, written statements or a petition..."[49]

• [52] Reliance on written statements as a means of working out whether a majority of employees want to bargain is a common practice of the Commission and the Explanatory Memorandum suggests this was contemplated. Such an approach also accords with the objects of Part 2-4 of the Act to provide a "simple, flexible and fair framework that enables collective bargaining in good faith" (s.171(a)) and is consistent with the requirement in s.577 that the Commission performs its functions and exercises its powers in a manner that is quick and informal, avoiding unnecessary technicalities.

• [53] I have conducted a cross-references exercise between the statements and the list of employees supplied by the Respondent. Of the 55 names appearing in the statements filed by the Applicant, 50 of these were able to be matched to names appearing on the Respondent's list of employees.

• [54] During cross examination Mr Brownlow was asked whether the list of employees that he provided to the Commission regarding the courier drivers contained employees other than those employed in that area to which he responded:

"To the best of my knowledge the list we provided for couriers work as couriers. It doesn't necessarily mean we don't have other staff that might do courier functions if they weren't classified as a courier. I don't believe we supplied them in the list".[50]

• [55] There are in excess of 110 employees on the Respondent's list and as such 50 does not constitute a majority, taking into account the total number of courier employees on the list attached to the Statutory Declaration of Mr Brownlow.

• [56] The Applicant noted in closing submissions that the Respondent adduced evidence that over the months preceding this hearing a number of staff members have either resigned or been dismissed and submitted that the Commission can competently discount the relevance of this submission and the Commission has previously held that such employees can still be included in the consideration, for the purposes of section 237.[51] However even if this was the case, 55 employees would not be enough to constitute a majority taking into account the total number of courier employees on the list attached to the Statutory Declaration of Mr Brownlow.

• [57] A further problem arises in relation to reliance on the statements provided by the Applicant. As noted above, Mr Sharma's evidence was that he collected about 7 or 8 statements from employees after the meeting which he then gave to Mr Roberts.[52]As noted above, it became apparent during cross examination that while Mr Roberts estimated he obtained between 30 and 40 statements it became apparent that Mr Roberts did not know how many signed statements he, Mr Sharma and Mr Metcher each personally obtained.[53]Mr Sharma's evidence also indicates that there may have been as many as five people collecting statements.[54]

• [58] In its closing submissions and reflecting on the evidence of Mr Roberts and Mr Sharma the Respondent submitted:

• there are some 10 to 25 statements in support of bargaining that have no provenance;
• Mr Sharma indicated that five people were obtaining statements whereas Mr Roberts said there were only three;

• • there is a broken chain of custody.[55]

• [59] As noted above, the method for working out whether a majority of employees want to bargain is within the Commission's discretion[56]and statements by employees may be used as evidence to support such a finding. In _Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers' Union (AMWU) v Veolia Water Operations Pty Ltd[57]_the Commissioner drew from Coal and Allied Operations v Automotive Food Metals Engineering Printing and Kindred Industries Union[58]in finding that the applicant bears the onus of satisfying the Commission that an order should be made and this principle applies in deciding whether the Commission is satisfied that a majority of employees want to bargain.[59] In that matter, the applicant sought to rely on signed petitions as evidence of majority support however there was no evidence before the Commission of the custody and control of the petitions after a certain date. The Commissioner said:

"[44] In my view, to establish the requisite satisfaction it is necessary to establish, on the evidence before the Commission, in this case that the petitions were at all times under the custody and control of responsible persons whether they be organisers or delegates. That has not been shown on the evidence.

[45] That is, the mere lack of evidence of coercion or undue influence by the AMWU is not sufficient to found a level of satisfaction where there is also no evidence as to who had control and custody of the petition was available". [60]

• [60] In the current matter the evidence suggests that between three and five persons collected the statements. Only two of those persons gave evidence to the Commission about how they were collected and the evidence of those two persons does not account for all statements that the Applicant is seeking to rely on to establish majority support. Apart from the fact that there is not a prima facie majority, the statements were not at all times under the custody and control of those persons who gave evidence to the Commission and the conflicting evidence about who was collecting the statements and the uncertainty about how many were personally obtained by each of the persons collecting and how those persons who did not give evidence collected the remaining statements brings into question the reliability of those statements.

• [61] The decision as to whether a majority of employees want to bargain is to be made on the basis of the most current material available at the time of the decision. As at the date of this decision and based on the material before the Commission I am not satisfied that a majority of employees who are employed by the Respondent at the time determined by the Commission and who will be covered by the Proposed Agreement want to bargain.

Section 237(2)(c) - Was the group of employees who will be covered by the agreement fairly chosen?

• [62] Section 237(2)(c) of the Act has the effect that the Commission is not permitted to make a majority support determination unless it is satisfied that the group of employees who will be covered by the agreement was fairly chosen.

• [63] A decision as to whether or not a group of employees was "fairly chosen" involves a degree of subjectivity and the exercise of very broad judgment.[61]

• [64] Section 237(3A) provides that if the agreement will not cover all of the employees, the Commission must, in deciding whether the group of employees who will be covered was fairly chosen, take into account whether the group is geographically, operationally or organisationally distinct.

• [65] In INPEX Australia Pty Ltd v The Australian Workers' Union the Full Bench accepted the submission that:

"...distinctiveness within the meaning of s.237(3A) of the Act is necessarily a relative, not absolute, concept, and necessarily requires a comparison between employees who will be covered by the proposed agreement and those who will not."[62]

• [66] In Cimeco Pty Ltd v Construction, Forestry, Mining and Energy Union and Ors[63]the Full Bench said:

• if a group of employees covered by the Agreement is geographically, operationally or organisationally distinct this would be a factor telling in favour of a finding that the group was fairly chosen;

• • conversely, if a group of employees covered by the Agreement is not geographically, operationally or organisationally distinct this would be a factor telling against a finding that the group was fairly chosen;[64]
• • whether or not the group is geographically, operationally or organisationally distinct is not decisive but is a matter to be given due weight having regard to all other relevant considerations.[65]

• [67] This reasoning was followed in QGC Pty Ltd v Australian Workers' Union which the Full Bench accepted the Appellant's submissions that:

"...where the group is not geographically, operationally or organisationally distinct, it

is necessary to identify what, if any, factors outweigh the absence of such characteristics and to give significant weight to the lack of distinctiveness in deciding whether the group was fairly chosen."[66]

• [68] The Applicant submitted that the group of employees who will be covered by the Proposed Agreement, being courier employees, is fairly chosen.[67]

• • that the Applicant has failed to furnish the Commission with any evidence as to how it chose the employees to be covered;[68]
• • the Applicant has failed to produce evidence that the employees have been fairly chosen and the strongest case should be presumed against it;[69]
• • in failing to produce any evidence as to how it has chosen the employees the Applicant has denied the Respondent the right to procedural fairness and natural justice in that the Respondent is unable to test the evidence;[70]
• • although the Commission is not bound by the rules of evidence, it must make findings of fact with reference to rationality, probative material and the law, including the rules of procedural fairness and natural justice.[71]

• [70] The Respondent also noted that the Applicant had deviated from the grounds it had originally set out in the application, which relied solely on the grounds that the group of employees is 'operationally distinct' because they 'perform the same duties'.[72]

Are the group of employees who will be covered geographically distinct?

• [71] By way of summary the Applicant submitted that the group of employees to be covered by the Proposed Agreement is fairly chosen because although the majority of their role involves performing delivery duties, they are all employed within New South Wales and are therefore geographically distinct from other ACL employees who perform similar roles around the country.[73]

• [72] In relation to the Applicant's submissions that the employees chosen are geographically distinct, the Respondent submitted that:

• • geographical distinctiveness is concerned with the geographical separateness of the employer's various worksites or work locations, rather than a separation of workplaces within the same worksite;[74]
• • the matter can only be considered with reference to the highly integrated nature of the Respondent's operations in that, the pre-analytical function comprised of data entry, customer service, collection, sales and courier teams work together on tests that need to be processed, results to be phoned out, transport of samples and delivery of reports to doctors that are managed via an integrated client/courier portal and management system.[75]

• [73] During cross examination Mr Sharma was asked whether he was aware that the Respondent employed customer service representatives to which he confirmed he was aware.[76]It was then put to Mr Sharma that these employees work alongside him at the Respondent's campus style complex at Lexington Drive to which he responded:

• [74] During re-examination Ms Mohammad sought clarification from Mr Sharma about what he meant when he said that all courier drivers were based at the one place in Sydney to which he responded:

"I've answered the question to the best of my knowledge in making the answers. Now we, as courier drivers, majority of us based in Sydney start our shift from Bella Vista and finish at Bella Vista. Besides that, some courier drivers start their shifts from different locations and finish at different locations. If that answers the question, and I don't know what else should I say".[77]

"When you say that you start at Bella Vista, what location do you start at?"

"...I'm starting - I pick up my car from 14, I go to 18, pick up the - I pick up the - what's that - the reports and stuff and I move on. So I collect the car at 14 because cars are parked at 14".[78]

• [76] The evidence suggests that the meeting of employees on 13 August 2023 occurred in a carpark adjacent to the Bella Vista campus and, following the meeting, the statements of some couriers were collected from employees from the carpark at the commencement or end of their rostered shifts.[79]

• [77] During cross examination Mr Brownlow was asked what the normal place of work is for courier staff to which he replied:

"Courier staff - if I'm understanding your question properly some courier staff may be based at 18 Lexington Drive. Some are based at 14 Lexington Drive. Some are based at our sites in Newcastle and Erina on the Central Coast. Some don't necessarily even start their work at one of those locations, and they visit one of our 400-plus sites, one or any of our 400-plus sites".[80]

• [78] It is apparent from the evidence that many of the couriers employed by the Respondent are based at the Respondent's Bella Vista campus, notwithstanding that they may leave to travel to other locations in carrying out their duties, some are based at other sites in New South Wales, and some may commence at another site.

• [79] As noted above, distinctiveness within the meaning of s.237(3A) of the Act is necessarily a relative, not absolute, concept, and necessarily requires a comparison between employees who will be covered by the proposed agreement and those who will not.[81] The Applicant has chosen a group of employees many of whom are based at the Bella Vista campus where other employees work and those other employees will not be covered by the Proposed Agreement. While the couriers will leave the base during the day, the mobile nature of the work would also appear to be a feature of other employees' work such as home visit collectors who collect blood from a premises.[82] These employees will not be covered by the Proposed Agreement.

• [80] Further, Mr Brownlow's evidence suggests that the Respondent's operations in New South Wales extend from Greater Sydney Metro to Northern NSW, Central West, down to the Southern Highlands, South Coast, and Illawarra[83] and that the Respondent employs 1165 employees in New South Wales.[84] The courier cohort is only one subset of this group.

• [81] I cannot be satisfied based on the evidence before the Commission that the group of employees who will be covered by the Proposed Agreement are geographically distinct. This weighs against a conclusion that they were fairly chosen.

Are the group of employees who will be covered operationally distinct?

• [82] The Applicant submitted that the group of employees who will be covered by the Proposed Agreement are operationally distinct compared to other groups of employees within the organisation as they operate a motor vehicle and follow specific courier runs to deliver pathology samples and other materials as directed.[85]

• [83] In relation to the Applicant's submissions that the employees chosen are operationally distinct, the Respondent submitted that:

• • the term 'operational' refers to an industrial or productive activity[86]and the industrial or productive activity performed by the Respondent is providing pathology services including the collection, transport and testing of specimens and reporting of pathology results for doctors, hospitals, patients and corporate clients;[87]
• • the performance of a different role, task, skill or function is not sufficient to establish operational distinctiveness;[88]
• • the Applicant's assertion that the employees chosen are operationally distinct because they operate a motor vehicle and follow a specific courier run to deliver pathology samples and other materials as directed[89] is wrong in principle and law;[90]
• • it has other staff that operate motor vehicles and follow a specific run to collect samples directly from patients via a home visit service and these staff fall under the same reporting line as couriers and collections, operate a motor vehicle and sometimes perform the same job.[91]

• [84] The Respondent rejected the Applicant's submission that it has organised its business to provide courier services[92] and submitted that:

• • it is a medical practice that specialises in pathology;[93]
• • it is a complex matrix organisation that operates as a networked integrated business, which has the operational purpose of providing pathology services including the collection, transport and testing of specimens, and reporting of pathology results for doctors, hospitals, patients and corporate clients.[94]

• [85] Operational distinctiveness, as pointed out by the Respondent, refers to the industrial or productive activity carried out by an employer, and does not refer to the differences in role, skill, task or function of individuals or groups of employees.[95]

• [86] The Applicant provided little in the way of submissions and evidence as to the nature of the work and the industrial activity of the employees who will be covered by the Proposed Agreement and those who will not be covered.[96]

• [87] The Respondent noted in its closing submissions that in the application the Applicant clearly states that the industry that the Respondent is an employer for is 'health care'. It was not in contest that the Health Professionals and Support Services Award 2020 (Award) applies to the group of employees the subject of the application. It is not contested that other employees of the Respondent also fall within the coverage of this Award, including the employees the subject of the Concurrent Application.

• [88] Mr Brownlow's evidence is that the operational purpose of the Respondent is to provide pathology services including the collection, transport and testing of specimens and reporting of pathology results for doctors, hospitals, patients and corporate clients.[97] Based on this limited information before the Commission it seems likely that this is the Respondent's 'industrial or productive' activity.

• [89] Mr Brownlow gave evidence that the functions within the Respondent work closely together, for example:

• the laboratory operating hours and courier runs are closely tied together through time and sample integrity interdependencies;
• the laboratory and collection teams work together on processes such as collection device and sample handling requirements;
• stores work with the laboratories on the supply of testing consumables and work with sales and collections on the supply of collection consumables;

• • the pre-analytical functions comprised of data entry, customer service, collection, sales and courier teams work together on tests that need to be processed and results to be phoned out and transport of samples and delivery of reports to doctors which are managed via an integrated client/courier portal and management system.[98]

• [90] During cross examination the following exchange between Mr Berry and Mr Sharma took place:

"...Mr Sharma, you worked alongside other employees at - who were employed by the respondent who worked in an integrated way with other employees to perform a pre-analytical/post-analytical function, didn't you? ‑Yes. We were working with any - it's like any (indistinct) company. Yes.

Yes? ‑We worked with the Victorian employees as well where in the EBA we don't have it. That's right. We are working (indistinct) company in which we do the same work as the employees of - as our counterparts in Victoria, too. That's right. It's (indistinct). Is ACL Australia (indistinct) talking? Do we have the same EBA number or a different EBA number? Mr Berry, are you presenting (indistinct) Australia, or is it (indistinct).

Mr Sharma, you work alongside - sorry. You worked alongside other employees that perform storage and administration functions? ‑I work along every other employee of ACL Australia.

Okay. Thank you? ‑I used to work with every (indistinct) reasons.

Mr Sharma, employees of the respondent perform work in a manner that is highly integrated so that ACL can meet its operational purpose of providing pathology services including the collection, transport and testing of specimens and reporting of results for doctors, hospitals, patients and corporate clients, don't they? ‑All over Australia. Yes."[99]

• [91] It is apparent that the work of the couriers is undertaken in the context of the organisation's industrial purpose 'to provide pathology services including the collection, transport and testing of specimens and reporting of pathology results for doctors, hospitals, patients and corporate clients'.[100] Mr Sharma's evidence, while somewhat confusing, did suggest that couriers are working in an integrated way with other employees to perform a pre-analytical/post-analytical function.[101]

• [92] As such, I am not satisfied based on the evidence before the Commission that the courier employees are operationally distinct from employees that would be excluded from the Proposed Agreement's coverage. This weighs against a conclusion that they were fairly chosen.

Are the group of employees who will be covered organisationally distinct?

• [93] The Applicant submitted that the group of employees who will be covered by the Proposed Agreement are organisationally distinct as they are all situated in the same team structure within the organisation with the effect that the Respondent has organised its business to provide courier services.[102]

• [94] The Respondent rejected the Applicant's submission that it has organised its business to provide courier services[103] and submitted that:

• • it is a medical practice that specialises in pathology;[104]
• • it is a complex matrix organisation that operates as a networked integrated business, which has the operational purpose of providing pathology services including the collection, transport and testing of specimens, and reporting of pathology results for doctors, hospitals, patients and corporate clients.[105]

• [95] In relation to the Applicant's submissions that the employees chosen are organisationally distinct, the Respondent submitted:

• • the term 'organisational' refers to the manner in which the employer has organised its enterprise in order to conduct its operations;[106]
• • the mere performance by a group of employees of different tasks or roles to others may not be sufficient to render it organisationally distinct where the employees work in an integrated way with the other employees to perform a particular business function;[107] and
• • most businesses have organisation structures which will allow organisationally distinct groups to be identified;[108]
• • the Applicant's submission that the employees chosen are organisationally distinct as they are all within the same team structure[109] is wrong in principle and in law as qualitative differences in the duties, takes or roles performed by employees within the workplace is not sufficient to establish organisational distinctiveness;[110]
• • the evidence of the Respondent shows that the courier employees are not organisationally distinct because they come under the Respondent's pre-analytical structure and there are stores, administration functions, collectors and data entry staff within that structure;[111]
• • the chosen employees utilise the same integrated systems as these other employees and come under a single operational reporting line;[112]
• • the Respondent has other staff that operate motor vehicles and follow a specific run to collect samples directly from patients via the Respondent's home visit service[113] and these employees fall under the same reporting line as couriers and collections, operate a motor vehicle and sometimes perform the same job via picking up samples from client premises.[114]

• [96] In Aerocare Flight Support Pty Ltd t/a Aerocare Flight Support v Transport Workers' Union of Australia; Australian Municipal, Administrative, Clerical and Services Union[115]the Full Bench identified that the following propositions are relevant in interpreting and applying the expression 'organisationally distinct':

• • the term 'organisation' refers to the manner in which the employer has organised its enterprise in order to conduct its operations;[116]
• • the performance by a group of employees of duties which are qualitatively different from duties performed by other employees may justify a conclusion that the group is organisationally distinct;[117]
• • however the mere performance by a group of employees of different tasks or roles to others may not be sufficient to render it organisationally distinct where the employees work in an integrated way with the other employees to perform a particular business function;[118] and
• • most businesses have organisation structures which will allow organisationally distinct groups to be identified.[119]

• [97] The Applicant provided little evidence as to the nature of the work and the duties of the employees who will be covered by the Proposed Agreement and those who will not for the purposes of comparison and the evidence is largely limited to the evidence of witnesses during cross examination.

• [98] During cross examination it was put to Mr Roberts that the only thing the employees (the subject of the application) have in common is their occupation to which Mr Roberts responded:

"And the type of work that they do within the organisation".[120]

• [99] Mr Roberts was then asked whether the Respondent can structure its operations as it sees fit to which he responded:

"In terms of the work they do - I will come back to my previous answer, the work that they do is what makes them distinct and they are the only people that perform that work in that manner, and managed in that way. As I said, it is managed from Victoria which makes it operationally distinct from - the management structure is not in this state, which also makes them distinct from the rest of the employees based upon in New South Wales because their management structure is based in Victoria, not here in New South Wales like other groups of employees".[121]

• [100] Mr Roberts provided similar evidence later in the proceedings during cross examination.[122]

• [101] It was put to Mr Roberts during cross examination that employees employed as couriers come under the pre-analytical function structure and that there are stores and administrative functions within that structure as well as collections and data entry staff. Mr Roberts responded:

"Again they do not perform - they may take stuff - part of their role might be delivering to some store, but it is done by another group of people and it's - there are other departments for that. They may take stores - or stock to the collection centres and all that, but they don't work in the store and they don't work as - it's all done for them".[123]

• [102] Mr Roberts was asked to clarify whether his "evidence is that there are other employees in the Respondent that perform the same or similar tasks" to which he responded:

"No, that is not correct. As I said, they may - once it's put out for them to - allocated to the areas, the role might be for the courier driver to collect that from the table and take it to a collection centre. No one else - no other employee would take some stock from Bella Vista to the call centre or to the customer service - sorry, to the collection centres. No other employee unless it's an external contractor who might do it. It is placed upon shelves and- - -"[124]

• [103] It was then put to Mr Roberts that this was a "gross lie" and that there are "other employees within the employ of the respondent who take other items to other areas or geographical locations for the respondent from time to time" to which he responded:

"...Not as - my response is not as direct employees. You may use taxis, you may use other courier services that are not employees of ACL. The people - the stores and the stock that's required to go to the collection centres is the ACL employees who undertake that, to collect - are the couriers and no other - unless there is an emergency, but on an ad hoc basis, yes, you might use taxis, yes, you might use third party courier services and it might be a supervisor on emergencies, but as a whole it is the couriers who take that stuff".[125]

• [104] It was then put to Mr Roberts that the Respondent has other staff that operate motor vehicles and follow a specific run to collect samples directly from patients via its home visit service, and that these employees fall under the same reporting lines as couriers and collection and that they operate a motor vehicle and sometimes perform the same job, picking up samples from client premises to which Mr Roberts said:

"I say those people are employed as pathology collectors, not couriers. Yes, they may - their role is to go there and - - -

...There are home visit collectors who go and collect blood from a premises. They are not classed as couriers. They may drive a motor vehicle, but they are classed as collectors. The courier drivers we're talking about do not collect samples, do not have the qualifications to collect samples. These people, they may drive - the only connection is they may drive a vehicle to the people's premises, but they do not perform the same work. They are pathology collectors. We're not here to talk about pathology collectors. We're here to talk about couriers".[126]

"...a courier does not provide - undertake invasive procedures such as taking blood, reading results. They do not do any of that work like a home pathology collector would do. They attend medical practices, hospitals, and they've got pre-bagged samples that are already taken. They do nothing in relation to the collection of that. Their role is to - already collected samples, transport them appropriately using the appropriate techniques and processes that are outlined..."[127]

• [106] During cross examination the following exchange occurred between Mr Berry and Mr Sharma:

"...Mr Sharma the Respondent employs other staff that operate motor vehicles and follow a specific run to collect samples directly from patients via its home visit service, doesn't it? ‑Yes.

Thank you. Mr Sharma, these staff fall under the same reporting line as couriers and collectors, don't they? ‑I have no (indistinct).

Okay. Thank you. Mr Sharma, they also operate a motor vehicle, don't they? ‑They collect blood as well (indistinct).

Thank you? ‑They don't deliver it (indistinct). Their job (indistinct) hours. You can't let them do this.

Okay. But they operate a motor vehicle, don't they? ‑I've answered my question.

Okay. Mr Sharma, they sometimes perform the same job packing up samples from clients' premises, don't they? ‑Collecting and packing. They don't pick up the samples. They collect the samples.

Okay? ‑They're - I think they're trying to present them the same as couriers. I (indistinct) the Commission. Collectors who are working on home visits, they are not couriers. They have a different job (indistinct). That's the way I look at it. They are different people. They have different job provide than us. (Indistinct)".[128]

• [107] During re-examination Mr Sharma was asked what the key differences between the work of a courier and the work of a collector were and he went on to clarify:

"As a courier, we start our shift from the lab, collect the reports, collect the stores, drive, go to a location, deliver the reports, deliver the stores, pick up the specimens, do this at multiple locations - important - multiple locations - and come back to the base on an everyday basis. On every single day, we work at multiple locations, come back. Collector, on a single day, goes to one location, stays in the room, directly deals with the customer. We don't have any dealings with the customer. Customer means the persons who are giving the blood. We don't have any dealing with the doctors. Collectors meet with the doctors. We don't have any dealing with the medical centres. Collectors meet with the medical centre. We don't get involved in collecting the blood; collectors collect the blood. We don't get involved in doing all other work like (indistinct) of the blood, working there in one place. We simply bring the blood back to the lab. That's our job. And the job of collectors is to collect the blood from locations. I no see how the two roles are similar."

"...To that extent, collectors have a different department and a function and different reporting structure, different supervisors, different managers. We have different supervisors, we have different managers. We have nothing to do with the collectors; collectors have nothing to do with us. The only interaction we have is when we collect the blood and then we move on".[129]

• [108] During cross examination Mr Brownlow was asked about his understanding of the work that courier drivers perform and responded:

"Courier drivers may pick up samples. They may deliver samples to other laboratories. They may deliver reports, hard copy reports to doctors. They may deliver collection consumables to doctors. I would also point out that we have other staff that do some of those tasks as well. Sometimes sales staff deliver collection consumables to doctors. Sometimes collectors pick up samples".[130]

• [109] Mr Brownlow's evidence was that the Respondent's operations are organised in accordance with its NSW Management Structure, a copy of which was attached to his statement.[131] That high level structure depicts Mr Brownlow's role as 'CEO NSW' reporting into the Group CEO, Melinda McGrath. Feeding into the 'CEO NSW' role are nine roles/functions across a flat structure with the names of the incumbents in those roles or head of function listed. The nine roles/functions are:

• 'Lab Operations & Quality';
• 'Hospital & Regional Labs';
• 'Commercial/Marketing';
• 'Sales Manager';
• 'Pre-Analytics and Business Improvement';
• 'Finance Business Partner';
• 'HR Business Partner';
• 'Pathologists';
• 'National Support Functions'.

• [110] Mr Brownlow's evidence was that he has four direct reports:

• the NSW Laboratories and Quality Manager (incorporating all Bella Vista laboratory departments);
• Hospitals and Regional Laboratories Manager (incorporating all other labs outside of Bella Vista);
• Head of Pre-analytical (incorporating Couriers, Collectors, Stores/Warehousing and data entry);

• • Sales and Marking manager NSW/ACT (incorporating the sales and marketing functions as well as client EDI support, reception and property).[132]

• [111] During cross examination it was put to Mr Brownlow that he hadn't provided any documents to show the structure of where couriers sit within the organisation to which Mr Brownlow said:

"I refer you to paragraph 15 of both submissions. I said that couriers report through to our head of pre-analytical, which incorporates couriers, collections, stores, warehousing and data entry."[133]

• [112] I understand Mr Brownlow to be referring to paragraph 15 of his Statutory Declaration in which he identifies that the Head of Pre-analytical, who reports directly to him, has within their remit 'Couriers, Collectors, Stores/Warehousing and data entry).

• [113] During cross examination Mr Brownlow confirmed that some employees sit under a "supporting national line"[134] and said:

"So we have some operations that might report through to my line of reporting, but we also have some nationally based - nationally managed, but locally based in operational responsible functions such as customer service and courier despatch. But they work closely with their colleagues in New South Wales."

• [114] During its closing submissions the Applicant submitted that as only groups that Mr Brownlow described as being managed nationally were the couriers and customer service representatives this means they have a different managing structure and different reporting lines to the rest of the New South Wales employees. The Applicant submitted that the conclusion can be drawn, from the evidence of Mr Brownlow, that these work groups are organisationally distinct.[135]However I do not accept that it can be drawn from the evidence of Mr Brownlow that these groups are the sole groups that are nationally managed and that the function of 'courier despatch' encompasses couriers within the group the subject of this application. Mr Brownlow clearly identified that couriers sit within the pre-analytical function. It seems more likely that Mr Brownlow was using the customer service and courier despatch functions as examples of some of the functions that report through to a national reporting line but for which someone is operationally responsible at the state level. This may explain in part Mr Brownlow's evidence that he only has four operational direct reports[136] when there are nine roles or functions depicted on the organisational chart. Mr Brownlow's evidence suggests that the organisation's structure is such that there is both functional management accountability for some functions at a national level and operational management accountability for the operation of those functions at the state level. This is a typical feature of a matrix structure within a geographically dispersed organisation.

• [115] Mr Brownlow's evidence was that the organisation's functions work closely together, for example:

• the laboratory operating hours and courier runs are closely tied together through time and sample integrity interdependencies;
• the laboratory and collection teams work together on processes such as collection device and sample handling requirements;
• stores work with the laboratories on the supply of testing consumables and work with sales and collections on the supply of collection consumables;

• • the pre-analytical functions comprised of data entry, customer service, collection, sales and courier teams work together on tests that need to be processed and results to be phoned out and transport of samples and delivery of reports to doctors which are managed via an integrated client/courier portal and management system.[137]

• • the Respondent operates a highly integrated matrix structure for nationally managed but locally based and operationally responsible functions such as customer service and courier dispatch;[138]and
• • these functions work closely with their colleagues within NSW and across the operational areas described above.[139]

• [117] Mr Brownlow said that a service failure in any one area will have an upstream impact to another area.[140]

• [118] Mr Brownlow also said that the Respondent has:

• a single laboratory information system accessed by pathologists, laboratory staff, and administration support areas including data entry, customer service, and sales support for sample testing and reporting; and

• • other integrated operational systems across laboratories, couriers, and collections for the handling of sample pick-up and delivery.[141]

• [119] During cross examination Ms Mohammad asked Mr Brownlow what he meant when he said that the Respondent is a highly integrated structure to which he replied:

"What I was trying to say was that we wouldn't operate - all work groups are required to meet the operational purpose that we have, which is to collect samples, transport samples, test them and provide a report to our doctors, hospitals, corporate clients and patients. I actually think my paragraph 18 is a good summary of answer to your question, 'We essentially operate as one integrated team to provide an (indistinct) service to the doctor and patient.' The service (indistinct) in any one area will have an upstream impact to another area. That's what I mean as integrated".[142]

• [120] It was put to Mr Brownlow that he had not provided any evidence of the highly integrated structure to which he responded:

"I suppled the organisational structure which had my direct reports, and I've given evidence of what reports through to those direct reports in paragraph 15" (referring to his Statutory Declaration).[143]

• [121] Mr Brownlow was also taken to an extract of the Respondent's website referring to a 'Click to Collect' online courier booking service and depicting a picture of a car. Mr Brownlow was asked whether this was a courier service advertised on the front page of the Respondent's website to which Mr Brownlow responded:

"It's a service for our referring doctors to get samples picked up if they're not on a set run."[144]

• [122] It was put to Mr Brownlow that the Respondent organises its business in a way to conduct its operations to provide a courier service to which Mr Brownlow disagreed.[145] It was also put to Mr Brownlow that the courier staff in New South Wales were employed in a distinct part of the business to which he replied:

"I disagree. I think the courier staff are employed in the business as part if the group of employees doing pre-analytical functions, and it includes collections, courier staff, data entry staff and store staff."[146]

• [123] During cross examination it was put to Mr Roberts that courier employees perform their work in a manner that is highly integrated so that the Respondent can link its operational premise of providing pathology services including the collection, transport and testing of specimens and reporting of results to doctors, hospitals, patients and corporate clients. Mr Roberts responded:

"They're playing an important role in that function, but it doesn't mean they're not operationally or geographically distinct or organisationally distinct..."[147]

• [124] Mr Sharma was specifically asked whether collectors and couriers share the same reporting line to which he responded:

"Both couriers and collectors share the same - we all Australian - all (indistinct) share the same reporting (indistinct) CEO of the same company, and we have the one CEO. So they can have one.

...And, again, we all have the same reporting line. You, me, everyone in the company whether Victoria, New South Wales or South Australia or Western Australia (indistinct) report to the CEO. You have the same reporting line, but we have a different best practice. For the same (indistinct) different working in Victoria. We were working in different - same working Victoria, same working Western Australia and same working New South Wales. We all have the same reporting line".[148]

• [125] The Applicant's evidence before the Commission turning to organisational distinction is limited to assertions of witnesses during cross examination. In closing submissions the Applicant submitted that the Commission can go beyond a Jones v Dunkel[149] inference that the inclusion of a structure depicting how couriers and customer services representatives are managed would not have assisted the Respondent's case and that the only conclusion to be drawn from the Respondent's own evidence, is that the inclusion of such a structure would have been adverse to the Respondent's case.[150] The Respondent submitted that no such inference was put to Mr Brownlow at the time of cross examination and no such conclusion should be drawn. I am not persuaded that the inference the Applicant is asking me to draw can be made. In relation to the Respondent's evidence, I accept that the organisational chart accompanying Mr Brownlow's statement is at a 'high level' and considered in isolation is of little utility in understanding precisely where courier employees sit in the structure. However in his Statutory Declaration Mr Brownlow clearly identifies that couriers sit within the pre-analytical function depicted in that structure along with collections, data entry staff and store staff. Mr Brownlow's evidence suggests the organisational chart was provided in the context of his explanation about the Respondent's management structure.

• [126] By way of summary, I am satisfied that the conclusions that can be drawn from the evidence are that:

• • There are employees other than couriers who also operate motor vehicles and follow a specific run to collect samples directly from patients via its home visit service however these employees have other duties such as blood collection.[151]These employees fall under the same operational reporting line as couriers and collectors.[152]
• • Couriers work at multiple locations each day whereas a collector may stay in one location.[153]
• • Couriers do not interact with customers, collect blood and read results whereas collectors do.[154]
• • Other employees sometimes undertake the task of couriers such as delivering collection consumables to doctors and picking up samples.[155]
• • Couriers sit within the Respondent's pre-analytical functions comprised of data entry, customer service, collection, sales and courier teams that work together in some capacity on tests that need to be processed and results to be phoned out and transport of samples and delivery of reports to doctors which are managed via a client/courier portal and management system.[156]
• • Employees within the Respondent work together to meet its operational purpose to collect samples, transport samples, test them and provide a report to doctors, hospitals, corporate clients and patients[157] although the full extent to which they do so operationally is unclear.

• [127] The Applicant's largely oral evidence turning to organisational distinctiveness is limited. I accept that there are clear differences in tasks between the roles of couriers and collectors. It appears that while some employees may carry out some of the tasks of a courier, the role of a collector goes beyond that of a courier in the sense that they are doing tasks such as meeting customers and taking blood. Mr Sharma also indicated that collectors have a different reporting structure with different supervisors and different managers and that couriers and collectors do not interact other than when couriers collect blood.[158] No party took me to other roles for the purposes of a meaningful comparison. These factors may weigh in favour of a finding that the duties couriers perform are qualitatively different from duties performed by other employees.

• [128] However Mr Sharma's evidence was at times confusing in the way he responded to questions asked of him. Mr Sharma's evidence regarding reporting lines is an example of this and it is difficult to reconcile with his evidence that couriers and collectors have different reporting structures, however it infers that all functions report to the CEO.[159] Mr Sharma also appeared to confirm that couriers are working in an integrated way with other employees to perform a pre-analytical function[160] and while the extent to which they do so is unclear his evidence does not contradict the evidence of Mr Brownlow in this regard. I also accept Mr Brownlow's evidence that couriers and collectors are situated within the same pre-analytical function of the Respondent's structure.

• [129] In these circumstances I consider that more than the limited oral evidence given during cross examination about the differences between the couriers and collectors would be required to support a conclusion that the group is organisationally distinct.[161] As such I am not satisfied that the group is organisationally distinct and this weighs against a conclusion that they were fairly chosen.

• [130] I am not satisfied that the employee cohort selected by the Applicant is geographically, operationally or organisationally distinct. This weighs against a finding that the group of employees is fairly chosen but as noted above, in Cimeco Pty Ltd v Construction, Forestry, Mining and Energy Union and Ors[162]the Full Bench said whether or not the group is geographically, operationally or organisationally distinct is not decisive but is a matter to be given due weight having regard to all other relevant considerations.[163] The Full Bench went on to say:

• the 'other relevant considerations' will vary from case to case and will need to be demonstrated to the satisfaction of the tribunal;
• the word 'fairly' suggests that the selection of the group was not arbitrary or discriminatory;
• selection based upon employee characteristics such as date of employment, age or gender would be likely to be unfair;
• selection based upon criteria which would have the effect of undermining collective bargaining or other legislative objectives would also be unlikely to be fair;
• it is appropriate to have regard to the interests of the employer, such as enhancing productivity;

• • it is appropriate to have regard to the interest of employees and in this regard it is not only the interests of the employees covered by the agreement that are relevant but the interests of the employees who are excluded from coverage.[164]

• [131] During closing submissions the Applicant submitted that the group of employees the subject of the application was chosen by the employees of the Respondent themselves[165] and a decision by the Commission that the groups that workers have chosen to collectively organise themselves into is not fairly chosen should not be made lightly.[166] In this regard the Applicant submitted that in The Australian Workers' Union v BP Refinery[167]the Full Bench had held that the views of the workers are a paramount consideration and, prima facie, carry greater weight than the subjective views of the employer.[168]

• [132] The Respondent submitted that the Applicant failed to furnish evidence regarding how it chose the employees to be covered and that it should be inferred that the employees have not been fairly chosen.[169]

• [133] The Respondent also submitted that in determining whether employees are fairly chosen regard should be had to the conduct of the Applicant prior to it filing the application and First Application.[170] In particular, the Respondent pointed to the email sent by Mr Roberts to the Respondent on 20 July 2023 which states, among other things:

"The Health Services Union is requesting Australian Clinical Lab NSW entry (sic) in to (sic) good faith bargaining negotiations for a single interest Enterprise Agreement capturing Pathology Couriers, Pathology Collectors, Customer Service / Administration Staff" (emphasis added).

• [134] The Respondent also pointed to the emails of Mr Howarth to Mr Brownlow on 15 September 2023 and 4 October 2023 in which Mr Howarth suggested, among other things, that the scope of a proposed enterprise agreement "would include all employees" and that "a majority of staff" are requesting this to occur.

• • the conduct of the Applicant constitutes evidence that the Applicant has arbitrarily selected the employees to be covered by the Proposed Agreement,[171] noting that the Applicant is now no longer seeking a single agreement capturing pathology couriers, pathology collectors and customer service/administration which would align organisationally and geographically to the business operations of the Respondent;[172]
• • the Applicant has offered no credible narrative as to why it has resiled from its original stated position;[173]
• • the Applicant seems intent on negotiating on the basis of occupation irrespective of reference to any of the matters that must be considered by the Commission or the complex and highly integrated structure, operational purpose or geographic footprint of the Respondent.[174]

• [136] The Respondent also indicated that the Applicant has served a series of entry notices on the Respondent post the filing of the application and alleges these are in respect of sites in which 'collectors' work.[175] The Respondent indicated that this is a third group of employees that Mr Roberts indicated he was seeking to negotiate a single enterprise agreement for on or about 20 July 2023.[176]

• [137] In this regard the Applicant submitted that:

• all that is required in this matter is to determine whether the work group, which is subject to the current application, is fairly chosen, not that they are more or less fairly chosen than any other possible group, even groups previously negotiated for;

• • the inclusion of other work in previous negotiations for an enterprise agreement cannot have any bearing on the question of whether or not the current group is fairly chosen;[177]
• • the entirety of the evidence related to all enterprise agreement discussions outside the current application cannot form the basis of any consideration of the question of whether the current group is fairly chosen.[178]

• [139] The parties have competing positions about whether the group of employees who the Applicant has chosen to be covered by the Proposed Agreement is fairly chosen in circumstances where the Applicant has made the Concurrent Applicant and had sought an agreement with broader coverage in earlier discussions with the Respondent prior to making this application.

• [140] I agree with the Applicant's submission that all that is required in this matter is to determine whether the group of employees, which are subject to the current application, is fairly chosen, not that they are more or less fairly chosen than any other possible group, even groups previously negotiated for. As noted in The Australian Workers' Union v BP Refinery (Kwinana) Pty Ltd there may be more than one way of fairly choosing the group of employees to be covered by a proposed enterprise agreement.[179]

• [141] However, the Applicant's submission that the 'group of employees the subject of the application was chosen by the employees of the Respondent themselves' warrants engagement with the circumstances around how the group was chosen.

• [142] Mr Roberts gave evidence during the hearing that prior to 20 July 2023, and probably in May or June, there was a meeting held at the Applicant's office involving Mr Roberts, Mr Brownlow, Sam Dastyari (a representative of Cresent Capital), the Applicant's Assistant Secretary Lauren Hutchins and the Applicant's Regional Secretary Mr Howarth.[180]Mr Roberts said that in that meeting it was discussed that the Respondent wanted the Applicant's help to campaign for greater funding in the pathology sector and there was a presentation discussion about the Respondent's plans.[181] Mr Roberts' evidence was to the effect that Mr Dastyari indicated that once the Applicant was ready to negotiate an agreement, the Respondent would commence negotiations.[182] However while Mr Roberts' evidence suggests that Mr Dasytari was at this meeting representing Crescent Capital, a shareholder of the Respondent,[183] I am not satisfied on the evidence before me that Mr Dastyari had the authority at that meeting to commit the Respondent to bargaining and as noted above it is not in contention that the Respondent has not yet agreed to bargain or initiated bargaining for the agreement. Mr Dastyari is not a party to these proceedings and is unable to attest to whether he made these representations or not. I do however appreciate that if such representations were made, it may have led to some expectation on the part of the Applicant that if it was to assist the Respondent with its objectives the Respondent would bargain with the Applicant.

• [143] On 20 July 2023 Mr Roberts made a request to the Respondent that it bargain "for a single interest Enterprise Agreement capturing Pathology Couriers, Pathology Collectors, Customer Service / Administration Staff".

• [144] It was put to Mr Roberts during cross examination that at the time he made the request on 20 July 2023 he did not have majority support from employees employed within the Respondent's organisation to bargain.[184]Mr Roberts said:

• • "we weren't working towards majority support at that point in time. We were asking the employer to begin negotiations for a single interest agreement;"[185]
• • "It was only after Mr Brownlow refused to bargain upon our request that we decided we would - with our members, decided that that would be the avenue we'll take;"[186]
• • "In some of the classifications we had more support than others, yes. So not in all - in some of the areas we may not have, but in other areas we believed we did if we were - yes".[187]

• [145] Clarification was sought from Mr Roberts as to whether he was saying he did not have support within the entire cohort to which Mr Roberts said:

"...In some areas we believe we would have, in other areas we may not have, but again that was not our primary focus at that time to seek majority support because we were hoping, as we put in our email, that the employer would enter into those negotiations with the union and our members in its workforce".[188]

• [146] During cross examination Mr Roberts was asked whether he knew he had majority support for the occupation of pathology couriers as at 20 July 2023 to which he responded:

"At the time, based upon information we had, we believed at the time we would have, but again it was not - we had not - we were just using the number provided from another process. We had not seen infrastructure or a list, but that was a number we were - and based on information from our members, that was the number we were working off, but it was all not confirmed because we hadn't actually seen it from the employer."[189]

• [147] It was put to Mr Roberts that it wasn't clear as to whether there was a majority at the time to which he responded:

"The challenge with again that, Mr Berry, is the geographical location within the collectors, so given that they are scattered from as far north as Coffs Harbour down to the border, through the south Southern Highlands, we were - we couldn't cover everybody so we weren't a hundred per cent on the regions, but we believed we had a good support - a number of people who supported wanting an agreement which covered collectors from our discussions with them".[190]

• [148] Mr Roberts was again asked, in respect of employees employed by the Respondent as pathology collectors in New South Wales, whether a majority of employees employed in that occupation supported a single enterprise agreement at that time to which he responded:

"We were unclear due to the fact that we were unable to get a good organisational structure and the geographical location of these employees, many only working singularly out across 420 separate sites across the state. We could not be sure, but we have had quite a large number of people employed in that classification express to us they wanted to be part of the negotiation to negotiate an enterprise agreement covering their classification."[191]

• [149] I am satisfied based on the evidence of Mr Roberts that as at 20 July 2023:

• the Applicant sought to bargain for an agreement covering 'Pathology Couriers, Pathology Collectors, Customer Service / Administration Staff';
• Mr Roberts was unsure as to whether the Applicant had support for an agreement with that coverage;
• Mr Roberts believed support for bargaining was stronger among some employee cohorts than others;
• Mr Roberts believed that a majority of couriers may have wanted to bargain as at 20 July 2023, based on anecdotal information about how many couriers there were, however he was unsure about this.

• [150] On 26 July 2023 the Respondent responded in writing to that request and declined to bargain "for a single interest Enterprise Agreement capturing Pathology Couriers, Pathology Collectors, Customer Service / Administration Staff".[192] In particular the Respondent said it did "not wish to negotiate an enterprise agreement for the specified employees.".

• [151] Before making the First Application, the Applicant had discussions with employees. In particular, Mr Roberts was taken to a meeting held with employees on 13 August 2023.[193] Mr Roberts' evidence was that the group of members who attended the meeting ranged from customer service (call centre) staff, laboratory staff, pathology collectors as well as approximately 30-40 pathology courier drivers.[194]

• [152] During the meetings he informed those in attendance that:[195]

• a modern award sets the legal minimum standard in relation to wages and conditions;
• an enterprise agreement is an agreement negotiated between an employer and employees which results in a new set of minimum standards for wages and conditions which are above the modern award;
• in order to pursue a majority support determination they would need to prove to the Commission that a majority of employees covered by any proposed enterprise agreement wanted to commence bargaining with their employer. Mr Roberts' evidence was that he explained this using the simple example that if there were 100 employees at least 51 of these would need to sign a petition or letter indicating this support.

• [153] During cross examination Mr Roberts was asked about the basis for choosing that couriers be covered by an agreement.[196] It was put to him that their occupation as couriers was the basis for choosing that group to be covered to which Mr Roberts indicated he was acting on the instruction of his members.[197] However it is unclear to me as to what the Applicant discussed with the courier employees about the group to be chosen for the purposes of the application before they provided the signed statements to the Applicant. Mr Roberts' evidence suggests that the explanation was not specific about this.

• [154] As at 13 August 2023 Mr Roberts had already collect statements in respect to a group of employees that are the subject of the Concurrent Application. It seems likely that, having satisfied itself that a majority of customer service (call centre) employees want to bargain the Applicant then decided it would try and garner support from other groups in order to seek majority support before it decided upon the final form of its majority support application or applications. It is apparent from Mr Sharma's evidence that the meeting of 13 August 2023 was not confined to couriers and that other employees including collectors and lab administration employees were also present.[198]

• [155] Being uncertain about the question of majority support in relation to the broader cohort, it decided to pursue two applications, one confined to the customer service (call centre) employees in the Concurrent Application and another for courier employees in the current application.

• [156] The role of the Commission is not to determine the scope of the agreement, but rather to guard against unfairness by being satisfied that the group can be described, in all the circumstances as being fairly chosen.[199]

• [157] In Cimeco Pty Ltd v Construction, Forestry, Mining and Energy Union and Ors the Full Bench considered the word "fairly" and said:

"[13] The word "fairly" is derived from the adverb "fair" and is a word of wide import. What is fair in a particular context is largely a matter of impression and judgment. Of the various definitions of "fairly" in The Oxford Dictionary the most apt in this context are:

"by proper means, legitimately, impartially, justly;" and

"with due regard to equity, candidly, impartially; without undue advantage on either side";[200]

• [158] Generally, the selection of the group of employees to be covered by an agreement on some objective basis (as opposed to an arbitrary or subjective basis) is likely to point to a conclusion that the group was fairly chosen.[201]

• [159] In the matter of Independent Education Union of Australia v Sirius College Ltd T/A Sirius College[202] the Applicant made an application in respect of teachers and support staff falling within the coverage of the relevant awards. In its submissions it put forward two alternatives to its primary position regarding the group to be covered by the determination.[203] In this regard Commissioner Bissett said:

"[38] I do not intend to consider this alternative position put by the IEU. The IEU approached employees of the College on the basis that it wished to bargain for an agreement covering teaching and non-teaching staff. To now seek to narrow the scope to teaching staff only may well mean that employees have signed the petition for a proposed enterprise agreement that is no longer being sought.

[39] Further, it cannot be that the intention of s.236 of the FW Act is that a bargaining representative should canvass for an agreement with a broad scope and then be able to narrow that scope on application for a majority support determination until such time as it has a majority of employees who have indicated they wish to bargain and have the Commission make such a determination (all other requirements having been met). It seems to me that there needs to be confidence in the method by which employees are canvassed to determine if they wish to bargain. To consider this alternative position of the IEU leaves the system of seeking majority support for bargaining open to manipulation that I am not satisfied was intended. Should the IEU wish to seek a majority support determination for a proposed enterprise agreement covering only those employees of the College covered by the Teachers Award then it is proper that they do so in a transparent manner. Even if I was to accept this submission and find that a majority of employees covered by the Teachers Award wished to bargain I could not, for these reasons, be satisfied that it would be reasonable in the circumstances to make the determination within the meaning of s.237(2)(d)."[204]

• [160] Unlike the application in Independent Education Union of Australia v Sirius College Ltd T/A Sirius College[205]there is only one group of employees who are the subject of the current application and I do not hold the view that this matter is relevant to the question of majority support in the current circumstances. Further, there is no requirement that employees who are asked to indicate their support for bargaining be informed of the precise cohort that they will be a part of.[206] While I take a more nuanced approach than the Commissioner in Independent Education Union of Australia v Sirius College Ltd T/A Sirius College, in order for the Applicant to assert that the 'group of employees the subject of the application was chosen by the employees of the Respondent themselves' I agree with the sentiments expressed by the Commissioner in that if the Applicant wished to apply for a majority support determination to which the group chosen would be confined to courier employees it should have done so in a transparent manner when canvassing support. I am not satisfied that the 'group of employees the subject of the application was chosen by the employees of the Respondent themselves' but rather, it appears to me that the group was selected for the purposes of this application for the simple reason that it was within this group that the Applicant believed it may have established a majority. The evidence of Mr Sharma under cross examination points to this.[208]

• [161] I have earlier found that I cannot be satisfied that the group of employees the subject of the application is geographically, organisationally or operationally distinct. In order to be satisfied that the group has been fairly chosen I would need to be satisfied of the existence of factors that outweigh these considerations. I am not satisfied of the existence of any additional factors that would outweigh the lack of distinctiveness and, in these circumstances, I am not satisfied that the group of employees selected to be covered by the Proposed Agreement is fairly chosen.

Section 237(2)(d) - Is it reasonable in all the circumstances to make the determination?

• [162] The Applicant did not point to grounds addressing s.237(2)(d) in its written submissions but during closing submissions in the hearing submitted:

• the surrounding circumstances are that the applicant and the respondent have been in various discussions around enterprise bargaining for a significant period of time, with the respondent steadfast in its objection to bargaining;
• the respondent has been presented with and rejected various different scopes of enterprise agreements;

• • it is unlikely, in the circumstances, that the respondent would ever agree to bargaining for an enterprise agreement without the order of the Commission inviting them to do so and this factor weighs in favour of granting the determination.[209]

• [163] The Respondent submitted that it is not reasonable in all the circumstances to make the determination and put forward a number of additional grounds in this regard. As noted above, this application is made concurrently with another application made by the Applicant in respect of customer service (call centre) employees employed by the Respondent. By way of summary, the Respondent submitted that bargaining for two or more agreements would:

• result in the inefficient use of resources;
• not align with its organisational structure;
• result in unnecessary complexity and administration costs for the Respondent;
• involve a degree of duplication of process and negotiation and thus be less efficient than bargaining for a single agreement;

• • increase the potential for clerical errors and interpretive mistakes for managers and payroll in respect of employees that all perform work within the same pre-analytical function of the organisation.[210]

• [164] In this regard the Applicant submitted that the Commission cannot determine the scope of any enterprise agreement through these proceedings and any consideration that the making of the determination sought by the Applicant would lead to increased complexity or costs or resources of the Respondent can be disposed on this basis.[211]In particular, the Applicant submitted that the making of a majority support determination:

• does not oblige the respondent to agree to any particular content of an enterprise agreement and does not determine the scope of the enterprise agreement;
• does not mean that an enterprise agreement will ultimately be made or agreed to;

• • simply allows the workers, subject to the application, to have the opportunity to exercise a fundamental right recognised in both domestic and international law.[212]

• [165] The Respondent submitted that if the determination is made it would unfairly affect other employees as the employees not covered by the application may be worse off than other groups of employees.[213]The Respondent submitted that such unfairness would be compounded as:

• the employees not covered by the application work alongside the employees that would be covered by the Proposed Agreement in an integrated way to perform the pre-analytical/post analytical functions;
• the majority of employees work at the Respondent's Bella Vista premises;

• • often the employees who would and would not by covered by the application do the same or similar work and many of these employees can work between areas such as data entry, customer service and laboratory work.[214]

• [166] I have earlier found that the group of employees to be covered by the Proposed Agreement are not fairly chosen and as I am not satisfied about the requirements in s.237(2)(a) and (c) I am unable to make the determination sought and am not required to make a finding in respect of s.273(2)(d).

• [167] However, in respect of the submissions of the parties as set out above, I accept the Applicant's submission that the scope of an enterprise agreement is not set through the making of a majority support determination[215] and nor does it mean that an agreement will be made or that it will have any particular content.

• [168] I would also observe that the Respondent's submissions relating to the impacts of negotiating multiple agreements appears to be premised on the assumption that bargaining for a single agreement (i.e. covering all 1165 of the Respondent's employees in New South Wales[216] rather than separate groups of employees) is an appropriate comparator. In relation to the Applicant's general contention that it is unlikely that the Respondent would ever agree to bargaining for an enterprise agreement without the order of the Commission inviting them to do so I note that the Respondent is an organisation that has entered into bargaining with other cohorts as evident from the existence of the Australian Clinical Labs (Victoria) Pathology Enterprise Agreement 2020-2024 although the reasons for it doing so are unclear. It appears that Mr Brownlow has at least contemplated the possibility of agreements with differing coverage in NSW. During cross examination it was put to Mr Brownlow that he expressed a preference for a single enterprise agreement for all employees and was asked why he held such a preference.[217] Mr Brownlow responded:

"A few reasons. One is I think it would be fairer because if there is an agreement for some and not others - they work in a highly integrated environment alongside each other, so it may be unfair to ones not covered - any staff not covered by an agreement. Also it would add complexity to the administration of those agreements and the managers who have to work with those agreements and apply them to the staff."

• [169] It is not apparent based on this statement or any other evidence before the Commission that any agreement to bargain for such an agreement currently exists. Indeed, had the Respondent made such a commitment it seems very unlikely that this application would be before the Commission. Notwithstanding this, that an employer has not agreed to bargain would not, in and of itself, mean that a determination should follow as this would be contrary to the purpose of s.237 which requires consideration of a range of criteria beyond the absence of an employer's agreement to bargain.

• [170] As I am not satisfied that the requirements in s.237(2)(a) and (c) have been met I am unable to make the determination. The application is therefore dismissed.

Ms S Mohammad on behalf of the Health Services Union.

Mr A Berry on behalf of Clinical Laboratories Pty Ltd.

[1] Applicant's Outline of Submissions filed 5 December 2023 at [2].

[2] Applicant's Outline of Submissions filed 5 December 2023 at Annexure A.

[3] Applicant's Outline of Submissions filed 5 December 2023 at [3], Statutory Declaration of Brendan Christopher Robers at [6].

[4] Applicant's Outline of Submissions filed 5 December 2023 at Annexure A.

[5] Applicant's Outline of Submissions filed 5 December 2023 at [4].

[6] Applicant's Outline of Submissions filed 5 December 2023 at Annexure B.

[7] Applicant's Outline of Submissions filed 5 December 2023 at [6].

[8] Applicant's Outline of Submissions filed 5 December 2023 at [6].

[9] Applicant's Outline of Submissions filed 5 December 2023 at [7].

[10] Applicant's Outline of Submissions filed 5 December 2023 at [8].

[11] Respondent Response filed 6 November 2023.

[12] Transcript of Proceedings, 15 January 2024, PNs 43, 70.

[13] Applicant's Outline of Submissions filed 5 December 2023 at [16].

[14] Applicant's Outline of Submissions filed 5 December 2023 at [17].

[15] Applicant's Outline of Submissions filed 5 December 2023 at [18].

[16] Applicant's Outline of Submissions filed 5 December 2023 at [19].

[17] Applicant's Outline of Submissions filed 5 December 2023 at [19].

[18] Applicant's Outline of Submissions filed 5 December 2023 at [20].

[19] Applicant's Outline of Submissions filed 5 December 2023 at [21].

[20] Submissions of the Respondent filed 20 December 2023 at [5] - [6].

[21] Submissions of the Respondent filed 20 December 2023 [6].

[22] Submissions of the Respondent filed 20 December 2023 at [7].

[23] Submissions of the Respondent at [9].

[24] Submissions of the Respondent at [10].

[25] Kantfield Pty Ltd (t/as Martogg & Company) v The Australia Workers' Union [2016] FWCFB 8372 at [35] - [37], National Union of Workers v Lovisa Pty Ltd [2019] FWC 2885.

[26] Submissions of the Respondent filed 20 December 2023 at [5] - [6].

[27] Statutory Declaration of Brendan Christopher Roberts at [8] - [9].

[28] Statutory Declaration of Brendan Christopher Roberts at [9] -[10].

[29] Statement of Sanjeev Sharma dated 5 December 2023 at [13].

[30] Statement of Sanjeev Sharma dated 5 December 2023 at [3].

[31] Transcript of Proceedings, 15 January 2024, PN355.

[32] Statutory Declaration of Brendan Christopher Roberts at [11].

[33] Statutory Declaration of Brendan Christopher Roberts at [12].

[34] Statement of Sanjeev Sharma dated 5 December 2023 at [5].

[35] Statement of Sanjeev Sharma dated 5 December 2023 at [5].

[36] Statement of Sanjeev Sharma dated 5 December 2023 at [7].

[37] Statement of Sanjeev Sharma dated 5 December 2023 at [8].

[38] Statement of Sanjeev Sharma dated 5 December 2023 at [10] - [12].

[39] Transcript of Proceedings, 16 January 2024, PNs 1217 - 1228.

[40] Transcript of Proceedings, 15 January 2024, PN353.

[41] Transcript of Proceedings, 15 January 2024, PN202.

[42] Statutory Declaration of Brendan Christopher Roberts at [13].

[43] Statutory Declaration of Brendan Christopher Roberts at [14].

[44] Witness Statement of Sanjeev Sharma at [11].

[45] Statutory Declaration of Brendan Christopher Roberts at [15].

[46] Statutory Declaration of Brendan Christopher Roberts at [16].

[47] Statutory Declaration of Brendan Christopher Roberts at [17].

[48] Transcript of Proceedings, 15 January 2024, PNs 476 - 480, PNs 506 - 515.

[49] Explanatory Memorandum to the Fair Work Bill 2009 (Cth) para 979.

[50] Transcript of Proceedings, 16 January 2024, PN2031.

[51] Transcript of Proceedings, 16 January 2024, PNs 2352 - 2353.

[52] Statement of Sanjeev Sharma dated 5 December 2023 at [8].

[53] Transcript of Proceedings, 15 January 2024, PNs 476 - 480, PNs 506 - 515.

[54] Transcript of Proceedings, 16 January 2024, PNs 1217 - 1228.

[55] Transcript of Proceedings, 16 January 2024, PNs 2427 - 2428.

[56] United Workers' Union v Wilson Security Pty Ltd (t/as Wilson Security) 2020 FWCFB 638.

[57] [2015] FWC 2561.

[58] (1997) 73 IR 311.

[59] [2015] FWC 2561 at [33] - [35].

[60] [2015] FWC 2561 at [44] - [45].

[61] Aerocare Flight Support t/a Aerocare Flight Support v Transport Workers' Union of Australia; Australian Municipal, Administrative, Clerical and Services Union [2017] FWCFB 5826 at [26].

[62] [2021] FWCFB 1038 at [33].

[63] [2012] FWAFB 2206.

[64] [2012] FWAFB 2206 at [19].

[65] [2012] FWAFB 2206 at [20].

[66] [2017] FWCFB 1165 at [43].

[67] Applicant's Outline of Submissions filed 5 December 2023 at [21].

[68] Submissions of the Respondent filed 20 December 2023 at [18].

[69] Submissions of the Respondent filed 20 December 2023 at [19] with reference to Armory v Delamirie (1722) 1 Strange 505, 93 ER 663.

[70] Submissions of the Respondent filed 20 December 2023 at [20].

[71] Submissions of the Respondent filed 20 December 2023 at [21].

[72] Submissions of the Respondent filed 20 December 2023 at [17] with reference to the Applicant's application dated 17 October 2023 at para 2.2.

[73] Applicant's Outline of Submissions filed 5 December 2023 at [25].

[74] Submissions of the Respondent at [24] with reference to The Australian Workers' Union v BP Refinery (Kwinana) Pty Ltd [2014] FWCFB 1476 at [13].

[75] Submissions of the Respondent at [26].

[76] Transcript of Proceedings 16 January 2024 at PN1312.

[77] Transcript of Proceedings 16 January 2024 at PN1444.

[78] Transcript of Proceedings 16 January 2024 at PN1448.

[79] Statutory Declaration of Brendan Christopher Roberts at [16].

[80] Transcript of Proceedings 16 January 2024 at PN2044.

[81] [2021] FWCFB 1038 at [33].

[82] Transcript of Proceedings 15 January 2024 at PN625, PNs655 - 656.

[83] Statutory Declaration of Christopher Luke Brownlow at [9].

[84] Statutory Declaration Christopher Luke Brownlow at [32].

[85] Applicant's Outline of Submissions filed 5 December 2023 at [26].

[86] Submissions of the Respondent at [28] with reference to INPEX Australia Pty Ltd v The Australian Workers' Union [2021] FWCFB 1038 at [35].

[87] Submissions of the Respondent at [28].

[88] Submissions of the Respondent at [29] with reference to INPEX Australia Pty Ltd v The Australian Workers' Union [2021] FWCFB 1038 at [35].

[89] Applicant's Outline of Submissions filed 5 December 2023 at [26].

[90] Submissions of the Respondent at [31].

[91] Submissions of the Respondent at [32].

[92] Applicant's Outline of Submissions filed 5 December 2023 at [27].

[93] Submissions of the Respondent at [34].

[94] Submissions of the Respondent at [34].

[95] Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia vSouth32 Worsley Alumina Pty Ltd v South32 Worsley Alumina Pty Ltd [2021] FWC 3784 at [144].

[96] [2021] FWCFB 1038 at [33].

[97] Statutory Declaration of Christopher Luke Brownlow at [6].

[98] Statutory Declaration t of Christopher Luke Brownlow at [16].

[99] Transcript of Proceedings 16 January 2024 at PNs1314-1321.

[100] Statutory Declaration of Christopher Luke Brownlow at [6].

[101] Transcript of Proceedings 16 January 2024 at PNs1314-1321.

[102] Applicant's Outline of Submissions filed 5 December 2023 at [27].

[103] Applicant's Outline of Submissions filed 5 December 2023 at [27].

[104] Submissions of the Respondent at [34].

[105] Submissions of the Respondent at [34].

[106] Submissions of the Respondent at [35] with reference to INPEX Australia Pty Ltd v The Australian Workers' Union [2021] FWCFB 1038 at [37] and QGC Pty Ltd v Australian Workers' Union, The [2017] FWCFB 1165 at [44].

[107] Submissions of the Respondent at [36].

[108] Submissions of the Respondent at [36] with reference to Aerocare Flight Support t/a Aerocare Flight Support v Transport Workers' Union of Australia; Australian Municipal, Administrative, Clerical and Services Union [2017] FWC FB 5826 at [27].

[109] Applicant's Outline of Submissions filed 5 December 2023 at [27].

[110] Submissions of the Respondent at [38].

[111] Submissions of the Respondent at [39].

[112] Submissions of the Respondent at [40].

[113] Submissions of the Respondent at [41].

[114] Submissions of the Respondent at [42].

[115] [2017] FWCFB 5826 at [27].

[116] QCG Pty Ltd v Australian Workers' Union [2017] FWCFB 1165 at [44].

[117] United Firefighters' Union v Metropolitan Fire & Emergency Services Board [2010] FWAFB 3009, 193 IR 293 at [60]

[118] QCG Pty Ltd v Australian Workers' Union [2017] FWCFB 1165 at [44] - [45]. See also INPEX Australia Pty Ltd v Australian Workers' Union [2021] FWCFB 1038at [37].

[119] Australian Workers' Union v BP Refinery (Kwinana) Pty Ltd [2014] FWCFB 1476, 242 IR 238 at [15]; see also National Union of Workers v Cotton On Group Services Pty Ltd [2014] FWC 6601 at [15]- [16] (permission to appeal refused in [2014] FWCFB 8899) and ASU v Shine Lawyers Pty Ltd [2017] FWC 4158 at [68]- [71] as examples of where the employer's organisational structure was used to determine organisational distinctiveness.

[120] Transcript of Proceedings 15 January 2024 at PN295.

[121] Transcript of Proceedings 15 January 2024 at PN296.

[122] Transcript of Proceedings 15 January 2024 at PN625, PN628.

[123] Transcript of Proceedings 15 January 2024 at PN625, PN652.

[124] Transcript of Proceedings 15 January 2024 at PN653.

[125] Transcript of Proceedings 15 January 2024 at PN625, PNs653 - 654.

[126] Transcript of Proceedings 15 January 2024 at PN625, PNs655 - 656.

[127] Transcript of Proceedings 15 January 2024 at PN625, PN661.

[128] Transcript of Proceedings 16 January 2024 at PNs1323-1329.

[129] Transcript of Proceedings 16 January 2024 at PNs1477 - 1478.

[130] Transcript of Proceedings 16 January 2024 at PN2051.

[131] Statutory Declaration of Christopher Luke Brownlow at Attachment A

[132]Statutory Declaration of Christopher Luke Brownlow at [15].

[133] Transcript of Proceedings, 16 January 2024, PN 2142.

[134] Transcript of Proceedings, 16 January 2024, PN 2048.

[135] Transcript of Proceedings, 16 January 2024, PN 2357.

[136] Statutory Declaration of Christopher Luke Brownlow at [15].

[137] Statutory Declaration of Christopher Luke Brownlow at [16].

[138] Statutory Declaration of Christopher Luke Brownlow at [17].

[139] Statutory Declaration of Christopher Luke Brownlow at [17].

[140] Statutory Declaration t of Christopher Luke Brownlow at [18].

[141] Statutory Declaration of Christopher Luke Brownlow at [11].

[142] Transcript of Proceedings, 16 January 2023 PN2049.

[143] Transcript of Proceedings, 16 January 2023 PN2123.

[144] Transcript of Proceedings, 16 January 2023 PN2117.

[145] Transcript of Proceedings, 16 January 2023 PN2121.

[146] Transcript of Proceedings, 16 January 2023 PN2122.

[147] Transcript of Proceedings 15 January 2024 at PN625, PN673.

[148] Transcript of Proceedings 16 January 2024 at PNs1350-1351.

[149] [1959] HCA 8; (1959) 101 CLR 298.

[150] Transcript of Proceedings 16 January 2024 at PN2364.

[151] Transcript of Proceedings 16 January 2024 at PN1477.

[152] Statutory Declaration of Christopher Luke Brownlow at [59].

[153] Transcript of Proceedings 16 January 2024 at PN1477.

[154] Transcript of Proceedings 15 January 2024 at PN625, PN661.

[155] Transcript of Proceedings 16 January 2024 at PN2051.

[156] Statement of Christopher Luke Brownlow at [16].

[157] Transcript of Proceedings, 16 January 2023 PN2049, PNs1314-1321..

[158] Transcript of Proceedings 16 January 2024 at PNs1477 - 1478.

[159] Transcript of Proceedings 16 January 2024 at PNs1350-1351.

[160] Transcript of Proceedings 16 January 2024 at PNs1314-1321.

[161] United Firefighters' Union v Metropolitan Fire & Emergency Services Board [2010] FWAFB 3009, 193 IR 293 at [60]

[162] [2012] FWAFB 2206.

[163] [2012] FWAFB 2206 at [20].

[164] [2012] FWAFB 2206 at [21].

[165] Transcript of Proceedings, 16 January 2024, PN2377.

[166] Transcript of Proceedings, 16 January 2024, PN2381.

[167] [2014] FWCFB 1476.

[168] Transcript of Proceedings, 16 January 2024, PN 2378.

[169] Submissions of the Respondent at [19] - [20].

[170] Submissions of the Respondent at [43].

[171] Submissions of the Respondent at [54].

[172] Submissions of the Respondent at [57].

[173] Submissions of the Respondent at [59].

[174] Submissions of the Respondent at [58].

[175] Submissions of the Respondent at [60] - [61].

[176] Submissions of the Respondent at [61] - [62].

[177] Transcript of Proceedings, 16 January 2024, PN 2370.

[178] Transcript of Proceedings, 16 January 2024, PN 2370.

[179] [2014] FWCFB 1476 at [14].

[180] Transcript of Proceedings, 15 January 2024, PN 331.

[181] Transcript of Proceedings, 15 January 2024, PN331.

[182] Transcript of Proceedings, 15 January 2024, PN333.

[183] Transcript of Proceedings, 15 January 2024, PN334.

[184] Transcript of Proceedings, 15 January 2024, PN167.

[185] Transcript of Proceedings, 15 January 2024, PN192.

[186] Transcript of Proceedings, 15 January 2024, PN193.

[187] Transcript of Proceedings, 15 January 2024, PN197.

[188] Transcript of Proceedings, 15 January 2024, PN199.

[189] Transcript of Proceedings, 15 January 2024, PN205.

[190] Transcript of Proceedings, 15 January 2024, PN242.

[191] Transcript of Proceedings, 15 January 2024, PN243.

[192] Applicant's Outline of Submissions filed 5 December 2023 at [3].

[193] Transcript of Proceedings, 15 January 2024, PN352.

[194] Statutory Declaration of Brendan Chritopher Roberts dated 4 November 2023 at [10].

[195] Statutory Declaration of Brendan Chritopher Roberts dated 4 November 2023 at [12].

[196] Transcript of Proceedings, 15 January 2024, PNs 625 - 639.

[197] Transcript of Proceedings, 15 January 2024, PN 631.

[198] Transcript of Proceedings, 16 January 2024, PNs 1235 - 1241.

[199] Construction, Forestry, Mining and Energy Union v ResCo Training and Labour Pty Ltd [201] FWAFB 8461 at [35].

[200] [2012] FWAFB 2206 at [13].

[201] Cimeco Pty Ltd v Construction, Forestry, Mining and Energy Union [2012] FWAFB 2206 [16].

[202] [2018] FWC 7680.

[203] [2018] FWC 7680 at [9].

[204] [2018] FWC 7680 at [38] - [39].

[205] [2018] FWC 7680.

[206]207 Association of Professional Engineers, Scientists and Managers Australia T/A Collieries Staff Division [2023] FWC 217 at [185].

[208] Transcript of Proceedings, 16 January 2024, PN 1369.

[209] Transcript of Proceedings, 16 January 2024, PNs 2384 - 2385.

[210] Submissions of the Respondent at [45] - [49].

[211] Transcript of Proceedings, 16 January 2024, PN 2387.

[212] Transcript of Proceedings, 16 January 2024, PN 2388.

[213] Submissions of the Respondent at [50].

[214] Submissions of the Respondent at [51] - [52].

[215] Construction, Forestry, Mining and Energy Union v ResCo Training and Labour Pty Ltd [201] FWAFB 8461 at [35].

[216] Statutory Declaration of Christopher Luke Brownlow at [32].

[217] Transcript of Proceedings, 16 January 2024, PN 2281.

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