4.2.3 A consideration of contextual considerations does not support ResMed's construction
52 Nor do I consider that the construction of s 236(1) for which ResMed contends otherwise receives support from a consideration of its context.
53 First, as the Full Bench found and the Union submits, ResMed's submissions rest on the proposition that an ordinary reading of s 236(1):
…did violence to the established principle that employee organisations could only act in respect of present and future members eligible to join the organisation under its rules and therefore that it was necessary to read s.236(1) as if it contained the additional requirement referred to in order to ensure consistency with that principle. Those propositions were founded on the premise that when an employee organisation acting as a bargaining representative makes an application under s.236, it is acting in a representative capacity on behalf of not only those employees for whom it is a bargaining representative but also all other employees who would be covered by the proposed agreement. (emphasis added)
54 In my view, the Full Bench was right to reject that premise. Absent a majority support determination, an employer may refuse to bargain or agree to bargain only subject to conditions as to the scope of the agreement: MSS Security Pty Ltd v Liquor, Hospitality and Miscellaneous Union [2010] FWAFB 6519; (2010) 197 IR 294 at 299 [16]. The purpose of s 236 is, therefore, to create a mechanism whereby an unwilling employer might be brought to the bargaining table without industrial action and subjected to a requirement to bargain in good faith: JJ Richards at 306 [28] Jessup J. At the point of making an application under s 236(1), the employee organisation is simply invoking a process: no conditions are negotiated and concluded, and no obligations are imposed on any potential parties to the proposed agreements. Obligations only arise should the Commission be satisfied that a majority of employees covered by the proposed agreement wish to bargain, that the group of employees is fairly chosen, and that the criteria in s 237 are otherwise met. Consistently with this, the capacity to invoke this process is conferred directly by s 236(1) upon the employee organisation by reason of it satisfying the standing requirement in that provision.
55 It follows, in my view, that the employee organisation is not acting in a representative capacity when it applies for a majority support determination. It is not acting on behalf of the members in any meaningful sense. It is, therefore, not to the point to submit, as does ResMed, that the scheme established by the FW Act and FW(RO) Act does not intend that employee organisations will be at liberty to represent employees not eligible for membership. Rather, when invoking the process in s 236, the employee organisation can be said to be acting in the furtherance of the interests of those eligible for membership or in their perceived interest in the exercise of a right conferred directly on it, irrespective of whether or not the proposed agreement would cover a broader group of employees.
56 Properly understood, therefore, this construction does not give rise to "a 'free for all' in which employee organisations acting as bargaining representatives can represent any and all employees in the relevant enterprise in seeking an agreement provided they are able to represent at least one employee" (emphasis added), as ResMed submits. With respect, that submission misconceives the nature of the mechanism created by s 236 for the reasons I have explained. In any event, even if in making such an application the Union were regarded as representing the industrial interests of its members, there is nothing (as the Union submits) in the legislative scheme which suggests that the Union must also be taken to be representing the interests of other employees. It does not follow in other words, from the mere affection of the interests of other employees that their interests are thereby represented by the Union.
57 Secondly and consistently with this, s 176 of the FW Act defines when an employee organisation is a bargaining representative of an employee. Satisfaction of the eligibility rules of the employee organisation is not sufficient. As is apparent from the earlier analysis, an employee organisation will not be the bargaining representative for a person who has revoked the status of the organisation as her or his bargaining representative, or has appointed another person (ss 176(1)(b) and (c) of the FW Act). Section 176(3) further limits the extent to which an employee organisation can represent the industrial interests of employee members providing that an employee organisation cannot be a bargaining representative of an employee unless it is entitled to represent the industrial interests of the employee "in relation to work that will be performed under the agreement." As a consequence, while an employee organisation can be a bargaining representative only for employees who it may legitimately represent under its rules, this does not mean that it will in fact be a bargaining representative for all such employees. Yet the submissions for ResMed assume that it suffices in this context for an employee merely to satisfy the eligibility rules of the employee organisation in order for the employee organisation to "represent" her or him in an application under s 236, contrary to the manner in which the regime in Part 2-4 otherwise operates.
58 Thirdly, while an employee organisation may positively seek to persuade the Commission by evidence and submissions that there is a majority support for the bargaining process to commence, this is not a requirement. A majority of employees may indeed disagree and vote against the majority support determination resulting in a decision by the Commission not to make the determination. Given the possibility of such scenarios, it is artificial, as the Full Bench stated at [20], to characterise the employee organisation as representing or acting in the interests of all employees in seeking the commencement of bargaining. Conversely, there is considerable force in the proposition that, if the employee organisation is taken to be representing all employees in seeking the commencement of bargaining, it would be unnecessary for the Commission to be charged with the task of determining whether there is majority support for bargaining. As the Full Bench also pointed out at [20], if that construction were correct,"[t]he fact of that representation would effectively answer the question posed by s.237(2)(a) and make further inquiry unnecessary."
59 Moreover and importantly, the restriction which ResMed seeks to imply would undermine the object of the FW Act to promote the making of agreements at the enterprise level that is, relevantly at the level of "a business, activity, project, or undertaking" (see the definition of "enterprise" in s 12). Instead, it would tend to tie the scope of enterprise agreements to what the Full Bench described as "the often archaic, confusing and/or arbitrary eligibility rules of relevant employee organisations" (at [28]). Yet, as the Full Court observed in Toyota Motor Corporation Australia Ltd v Marmara [2014] FCAFC 84; (2014) 222 FCR 152 at [14], "[o]n any view, the establishment of terms and conditions of employment by enterprise agreement is a central pillar of the regulatory regime established by the FW Act." Similarly, Jessup J observed in JJ Richards at 300 [5], "[i]t is manifest that enterprise agreements are a significant, if not the predominant, means adopted by the Act for the establishment of terms and conditions of employment, and that collective bargaining, required to be in good faith, is a means by which such agreements come to be made.". By contrast, on ResMed's construction, an application for a majority support determination made by an employee could require the commencement of such negotiations only with respect to a proposed agreement covering those employees who fall within the employee organisation's eligibility rules. That restriction may mean that it is very difficult to achieve coverage of a group of employees at an enterprise level where the employee organisation seeks to initiate the process. It would also effectively preclude an employee organisation from making a s 236 application where the proposed agreement would extend beyond those employees whose interests it may represent. Such outcomes, as the Full Bench also found, are difficult to reconcile with the object of providing "a simple, flexible and fair framework that enables collective bargaining in good faith… that deliver productivity benefits " (at [28]).
60 ResMed's construction would also create a tension between the requirement that the group of employees covered by the proposed agreement be "fairly chosen", on the one hand, and the capacity of an employee organisation to take steps to require an employer to negotiate a proposed agreement, notwithstanding the employer's apparent reluctance to do so, on the other hand. In determining whether an agreement would cover a group of employees that is "fairly chosen" in circumstances where the proposed agreement would not cover all of the employees, it is apparent from s 186 of the FW Act that regard must be had to whether the group is geographically, operationally or organisationally distinct. Otherwise, those considerations which are relevant will vary from case to case: Cimeco Pty Ltd v Construction, Forestry, Mining and Energy Union [2012] FWAFB 2206; (2012) 219 IR 139 (Cimeco) at [21]. As Fair Work Australia further observed in Cimeco at [21]:
The word 'fairly' suggests that the selection of the group was not arbitrary or discriminatory. For example, selection based upon employee characteristics such as date of employment, age or gender would be unlikely to be fair. Similarly, 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 also appropriate to have regard to the interests of the employer, such as enhancing productivity, and the interests of employees in determining whether the group of employees was fairly chosen.
61 However, nothing in the FW Act, suggests that the fact that a group of employees is defined by reference to the eligibility rules of an employee organisation means that the "fairly chosen" requirement will be met, nor that union eligibility rules are necessarily relevant to that question. ResMed's construction therefore leaves open the possibility that an employee organisation may be wholly precluded from seeking a majority support determination because it cannot define a group which could satisfy the "fairly chosen" requirement.
62 Nor if ResMed's construction were correct, could such a difficulty be cured by the making of a scope order under s 238 of the FW Act. Not only would that proposition ignore the requirement that the Commission must be satisfied before making a majority support determination that the group is "fairly chosen" but, in order to make a scope order, the Commission must be satisfied among other things that making the order will promote the fair and efficient conduct of bargaining and the group of employees who will be covered by the agreement proposed to be specified in the scope order was fairly chosen (s 238(4)). As such, the same difficulties would arise. Such a construction cannot, therefore, be said to promote the object of the FW Act in s 3(e) of protecting against unfair treatment and discrimination, or of providing accessible and effective procedures to resolve grievances and disputes. Yet s 15AA of the Acts Interpretation Act 1901 (Cth) provides that a construction which would best achieve the objects and purposes of the FW Act is to be preferred over a construction which does not.
63 Finally, I agree with the Full Bench that the construction for which ResMed contends would give rise to anomalous results for which there is no apparent reason or policy. As ResMed accepted, the restriction would apply only to those cases where the bargaining representative was an employee organisation. No such restriction would apply in a case where an employee was the bargaining representative. Thus, as the Full Bench explained at [28]:
…if an employee nominated himself or herself as his or her own bargaining representative but represented no other employee, that employee could apply for a majority support determination applicable to all employees to be covered by an enterprise agreement, but if the employee was represented by an employee organisation, the organisation could not make the same application if its eligibility rule did not cover all such employees.