1
Fair Work Act 2009
s.236—Majority support determination
Media, Entertainment and Arts Alliance
(B2014/892)
COMMISSIONER CRIBB MELBOURNE, 19 DECEMBER 2014
Application for a majority support determination re Australian Football League.
[1] The Media, Entertainment and Arts Alliance (MEAA, the union) has made an
application for a majority support determination under section 236 of the Fair Work Act 2009
(the Act). It is in relation to a proposed enterprise agreement between the Australian Football
League (AFL) and a group of employees in the Media Department, in Victoria, NSW, SA,
WA, Queensland and Tasmania, who are substantially engaged in an editorial and/or
editorial/video production capacity.1
[2] The AFL vigorously opposed the application on three principal grounds:
Whether a majority of the employees want to bargain and whether the petition is a
reliable source of support.
Whether the group of employees has been fairly chosen.
Whether it is reasonable in all of the circumstances to make the determination.2
1. Legislative Framework
[3] The relevant sections of the Act in relation to this application are sections 236 and
237. They set out the matters about which the Fair Work Commission (FWC, the
Commission) must be satisfied before making a majority support determination, in the
following terms:
“236 Majority support determinations
(1) A bargaining representative of an employee who will be covered by a proposed
single enterprise agreement may apply to the FWC for a determination (a majority
support determination) that a majority of the employees who will be covered by the
agreement want to bargain with the employer, or employers, that will be covered by
the agreement.
1 Exhibit A7 at paragraph 73
2 Exhibit R4 at paragraphs 8 and 11
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DECISION
AUSTRALIA FairWork Commission
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(2) The application must specify:
(a) the employer, or employers, that will be covered by the agreement; and
(b) the employees who will be covered by the agreement.
237 When the FWC must make a majority support determination
Majority support determination
(1) The FWC 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 FWC is satisfied of the matters set out in subsection (2) in relation
to the agreement.
Matters of which the FWC must be satisfied before making a majority support
determination
(2) The FWC must be satisfied that:
(a) a majority of the employees:
(i) who are employed by the employer or employers at a time
determined by the FWC; and
(ii) who will be covered by the agreement;
want to bargain; and
(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) that 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.
(3) For the purposes of paragraph (2)(a), the FWC may work out whether a
majority of employees want to bargain using any method the FWC considers
appropriate.
(3A) If the agreement will not cover all of the employees of the employer or
employers covered by the agreement, the FWC must, in deciding for the purposes of
paragraph (2)(c) whether the group of employees who will be covered was fairly
chosen, take into account whether the group is geographically, operationally or
organisationally distinct.
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Operation of determination
(4) The determination comes into operation on the day on which it is made.”
[4] I will deal with each of the legislative requirements in turn.
(a) Section 237(1)(a)
[5] It was not disputed that the MEAA has made an application for a majority support
determination. In relation to the requirement under section 236(1), that the application is to
be made by a bargaining representative of an employee who will be covered by a proposed
single enterprise agreement, the MEAA stated that, by virtue of section 176(1)(b), it is an
employee organisation who is a bargaining representative of an employee who is a member of
the organisation.3
[6] In its written submissions, the AFL stated that it took no substantive issue with this
particular statement.4 However, during cross examination of the union’s witnesses, questions
were asked in relation to whether they had nominated the union, in writing, as their bargaining
representative. In response, the union argued that none of the witnesses is required to appoint
the MEAA as their bargaining representative. This was because they are members of the
union and the union is their bargaining representative by default under section 176(1)(b).5
[7] Taking all of this into account, I find that an application has been made by a
bargaining representative of an employee who will be covered by the proposed agreement,
namely, the MEAA.
[8] The MEAA’s application contains those matters specified in sections 236(2)(a) and (b)
of the Act.
[9] It was also common ground that there is a proposed single-enterprise agreement. This
is supported by various pieces of correspondence between the union and the AFL.6
(b) Section 237(1)(b)
[10] This section requires that the FWC is satisfied of the matters set out in section 237(2).
(c) Section 237(2)(a) - a majority of employees want to bargain
[11] As set out in paragraph [2] above, this is the first ground on which the AFL opposed
the granting of the application.
[12] At the beginning of the first day of hearing, it became evident that it was necessary for
the AFL to be made privy to the confidential information provided to the Commission by the
3 Exhibit A7 at paragraphs 13 - 16 And Exhibit A3 at paragraph 10
4 Exhibit R4 at paragraph 9
5 Transcript PN 1238 - 1239
6 Exhibit R4 at paragraph 9 and Exhibit A7 at paragraph 11
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MEAA in accordance with the Commission’s Directions. The document disclosed whether or
not a majority of the employees who will be covered by the agreement, want to bargain with
their employer. A process was agreed whereby the Commission adjourned for a short private
conference with the legal representatives of both parties.7 As indicated above, the
Commission had been provided by the union, on a confidential basis, with a copy of the
petition signed by their members.8 Following the private conference, a confidentiality order
was issued, as amended, under section 594 of the Act, in relation to the petition.9 Further, an
undertaking10 was given, by counsel and instructing solicitors for the respondent, to keep
confidential Attachments LRB-7 and LRB-23 to the statements11 of Mr Batchelor.
[13] The remaining issue then to be dealt with in relation to s.237(2)(a), during the hearing,
was whether the Commission should accept the petition as a valid method of establishing a
majority.12
(i) Union’s evidence and submissions
[14] It was submitted by the MEAA that the Commission should accept the petition as a
valid method of establishing a majority. The union argued that this submission is supported
by the evidence of the organiser, Mr Batchelor, and the three delegates, Mr McNicol, Mr
Dunstan and Mr Walsh.13
Witness evidence
[15] Mr McNicol’s evidence was that:
Notice of the workplace meeting on 6 May 2014 was sent by email, in advance, to
about 40 - 50 people. The meeting was to discuss a number of workplace issues. He
had drafted the email. The email invitation was sent to people within the scope. The
email was not sent to people who work unsociable hours but who are not connected
to editorial.14
The meeting was addressed by Ms Dunbar of the MEAA and Mr Batchelor. He
attended the meeting and there were about 20 - 30 people there.15
He introduced the MEAA officials and gave an update on how things were going in
relation to talking to the AFL.16
7 Transcript PN 41 - 80
8 Ibid at PN 35 and Exhibit A3 at Attachment LRB7
9 Ibid PN 117-118
10 Ibid PN 115
11 Exhibit A3 and Exhibit A4
12 Transcript PN 1240
13 Ibid PN 1240
14 Ibid PN 153 - 170
15 Ibid PN 171 - 175 and Exhibit A1 at paragraph 7
16 Ibid PN 177 - 185 and ibid at paragraph 3
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The union officials had explained that a majority of editorial staff would need to
support bargaining which could be done by signing a petition.17
The petition was passed around about halfway through the meeting so that people
could sign it or gain an understanding about what the petition entailed.18
About half a dozen people at the meeting did not sign the petition. Probably four
people did sign later but two people never did. No one said that they felt any
pressure to sign the petition.19
The reason for the petition was explained and then it was up to people whether they
wished to sign it.20
No one told anyone to sign the petition. He and the other delegates asked people if
they would like to sign it. He was the lead delegate in charge of the petition.
Mr Batchelor had explained about the petition but it was up to the elected delegates
to ask people to sign the petition.21
He knew, at the end of the meeting, that they did not have the numbers to support the
application. He thought that around 20 people had signed. With six people not
signing, he thought there may have been 26 - 30 people at the meeting.22 It was
agreed that it took a further six weeks to get the numbers.23
The petition contains some single pages for people not in Melbourne (these were
emailed to them).24
For Melbourne people, he would physically stand next to people and ask them if they
wished to sign the petition. The four people who initially declined were asked once
again if they would like to sign it.25
He had been circulating in the central communal area seeking signatures four times
in six weeks. Most of the time, he was on his own. Sometimes he had either Mr
Dunstan or Mr Walsh with him.26
When he approached people, he explained what the petition was about and why it
may be required. He showed them the petition, allowed them to read it and then
asked them if they wished to sign it.27
17 Ibid at paragraph 8
18 Ibid at paragraph 9 and Transcript PN 197 and 204
19 Ibid PN 198 - 203 and 225 - 227
20 Ibid PN 204 - 205
21 Ibid PN 209 - 214 and 216
22 Ibid PN 218 - 225 and 259 - 261
23 Ibid PN 228
24 Ibid PN 229 - 231 and 237
25 Ibid PN 240 - 242
26 Ibid PN 242 - 250 and Exhibit A1 at paragraph 10
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When showing the petition to people, he did not cover up the signatures.28
He confirmed the dates and number of signatures on the petition. He indicated
which of the people he had approached (as opposed to Mr Dunstan).29
The single pages had been emailed and then those people were telephoned. He told
them how many signatures there were and how many more were needed to make a
majority. This had also been the case in relation to other people.30
Notice of the meeting on 17 June 2014 was emailed to everyone who had signed the
petition. People who had not signed the petition were not invited to the meeting. In
addition, about six other people who had shown some interest in the process were
also invited. Around 40 people were invited and about 25 attended.31
By the meeting on 17 June 2014, he believed they had a majority. Obtaining more
signatures was discussed and oral instructions about how to do this were given.32
After the meeting, he pursued further signatories. The previous signatures were not
covered up.33
[16] Mr Dunstan gave evidence that:
He was voted in (by a show of hands) as a delegate on 6 May 2014. He has not
authorised the MEAA, in writing, to be his bargaining representative.34
He was informed by email, and in person, of the meeting on 6 May 2014.35 A good
30 people (but he was not sure of the exact number) attended the meeting.36 Mr
Batchelor, Ms Dunbar and Mr McNicol spoke at the meeting.37
He confirmed that the petition was handed around at the meeting with staff having
the option to sign or not sign it. He did not know who signed it then.38
27 Ibid PN 251 - 254 and 257 and ibid at paragraph 11
28 Ibid PN 255 - 256, 258 and 280
29 Ibid PN 262 - 276 and 278 - 282
30 Ibid PN 283 - 287
31 Ibid PN 291 - 293 and 296 - 298 and Exhibit A1 at paragraph 13
32 Ibid PN 294 - 295 and 302 - 309
33 Ibid PN 310 - 311
34 Ibid PN 355 - 361 and Exhibit A2 at paragraph 3
35 Ibid PN 362 - 367
36 Ibid PN 371 and 383
37 Ibid PN 373 - 375 and Exhibit A2 at paragraph 6
38 Ibid PN 377 - 380 and ibid at paragraph 7
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The next day, he saw that there were 20 signatures on the petition. Even though he
did not know exactly how many signatures were needed, he knew that 20 signatures
was not enough.39
Following the meeting, he obtained further signatures and he indicated which of the
signatures on the petition he had obtained.40
He spoke individually to each person and was quite clear that they had the option to
sign or not to sign. He had presented signing from an “opting-in” approach. He was
generally standing at the door of the person’s room and was not looking over their
shoulder as they signed.41 Several people elected not to sign the petition.42
He did not cover up the previous signatures which were in full view to the next
signatory.43
He had publicised the meeting on 17 June 2014 as much as possible by email and
verbally. He did not send out the invitation emails.44
[17] Mr Batchelor gave the following evidence:
In relation to Mr Walsh and Mr Dunstan appointing the MEAA as their bargaining
representative, this is something that happens with the notice of representational
rights.45
It was acknowledged that the petition had left out “and/or editorial video production
capacity” as set out in the union’s majority support determination application.46
Notice of the meeting on 6 May 2014 was not sent to all AFL Media employees. It
was only sent to those he had email addresses for (about one third to a half of AFL
Media employees). The email would have included a statement saying that the
meeting is open to all employees if they wish to attend. He also relied on word-of-
mouth.47 It was his usual practice to send out the meeting invitation email but he
could not be sure whether or not he did.48
He thought about 70 people had been invited to the meeting. It was not accepted that
the other employees were not invited. Rather, he was unable to inform them.49
39 Ibid PN 382 and 385 - 387
40 Ibid PN 395 - 400 and Exhibit A2 at paragraph 8
41 Ibid PN 401 - 402, 406 and 417 and ibid a paragraph 9
42 Ibid PN 407 - 410
43 Ibid PN 403 - 405 and 420
44 Ibid PN 410 and 412 - 413
45 Ibid PN 488 - 489 and 500 - 501 and Exhibit A3 at paragraph 10
46 Ibid PN 507 - 511 and 667
47 Ibid PN 594, 595, 609, 614 - 615, 617 - 618 and 673 - 675
48 Ibid PN 603 - 604
49 Ibid PN 611 - 613
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Between 20 - 30 people turned up at the meeting on 6 May 2014.50
The petition remained open until the delegates believed they had had an opportunity
to talk to as many staff who wanted to have a discussion. These were probably
confined to the video and editorial teams.51
He gave Mr McNicol, Mr Dunstan and Mr Walsh the message/instructions about
what they should be talking to other employees about. It was stated that the dot
points on top of the petition served as a guide.52
He made attempts to communicate with other employees (50 plus) who might be
working unsociable hours but conceivably, they may not have been contacted by the
union. The union’s greatest contact was with editorial employees. He did make
himself available in the lunch room for interested staff members to talk to, on one
occasion.53
[18] Mr Walsh’s written evidence54 was that:
He has been a delegate since May 2014.55
He attended a workplace meeting on 6 May 2014 where Mr Batchelor and Ms
Dunbar spoke about negotiating an enterprise agreement with the AFL.56
A petition was circulated at the meeting. After the meeting, he, Mr McNicol and Mr
Dunstan circulated the petition to other employees including those interstate.57
When he met with employees about the petition, he explained the purpose of the
petition in essentially the same terms as the numbered paragraphs on the petition.58
There was a further workplace meeting around mid June 2014 where the process for
making a majority support determination was discussed.59
Submissions
[19] The MEAA submitted that the petition should be accepted as a valid method of
establishing a majority.60 A number of authorities were referred to where the FWC has
accepted a petition as establishing that a majority of employees want to bargain.61
50 Ibid PN 616 and 672 and Exhibit A3 at paragraph 14
51 Ibid PN 651 - 652 and Exhibit A3 at paragraph 13
52 Ibid PN 665 - 666
53 Ibid PN 669 - 671 and 676 - 678
54 Exhibit A5
55 Ibid at paragraph 3
56 Ibid at paragraph 6 and 7
57 Ibid at paragraphs 8 and 9
58 Ibid at paragraph 10
59 Ibid at paragraph 12
60 Exhibit A7 at paragraph 26 and Transcript PN 1240
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[20] Secondly, the union contended that the petition is clearly expressed62 and that the
Commission has witness evidence in relation to administration of the petition.63
[21] With respect to the first issue raised by the respondent, during cross examination of
the union’s witnesses, it was argued that the union is not aware that there is a requirement that
the prior signatures be covered up when the petition is presented to an employee. To contend
that this should be the case was said to be contrary to common experience of how petitions are
administered. It was stated that there is no evidence that an employee was influenced by other
signatures on the petition. In any event, the union submitted that there is nothing improper for
someone to be motivated to sign a petition because they can see it has the support of other
employees in the workplace.64
[22] The second issue was described as employees having felt pressured because of the
one-on-one interaction between the delegate and the employee. It was stated that all of the
witnesses were emphatic that employees were given a choice about whether to sign the
petition. Further, the delegates were described as non intimidatory and reasonable people.65
Further, the union argued that the workforce in question is not a vulnerable workforce but a
media operation staffed by people who are capable of understanding what they are doing. It
was contended that the fact that some employees took their time before deciding to sign and
some, ultimately, did not do so, confirms that the employees were freely choosing whether or
not to sign the petition.66
[23] In terms of the length of time the petition was open, it was argued that this was not
remarkable and that the delegates were not out with the petition every day. No adverse
inference should therefore be drawn.67
[24] With respect to the fact that not all AFL Media staff were invited to the meetings or to
sign the petition, it was contended that the evidence is that no-one was excluded from the
meetings. The union argued that it is understandable that not everyone was invited to the
meetings as Mr Batchelor said that he did not have contact details for everyone and that he
relied, in part, on word-of-mouth.68
[25] Finally, the Commission was referred to three authorities to support the principle that
it is not sufficient for an employer to simply submit that the Commission should not accept a
petition without cogent or persuasive evidence to support their contention.69
[26] In relation to the respondent’s argument regarding the change in the composition of
the workforce, the union submitted that it is reality that the composition of a workforce may
61 Ibid at paragraphs 27 - 30
62 Ibid at paragraph 39 and Transcript PN 1240
63 Ibid at paragraphs 36 - 37 and ibid PN 1240
64 Ibid PN 1241
65 Ibid PN 1242
66 Ibid PN 1243
67 Ibid PN 1244
68 Ibid PN 1245 - 1246
69 Ibid PN 1247 - 1250
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change. It was also contended that the union was not required to provide an accurate
prediction of the group of employees. The Full Bench decision in CBI Constructors Pty Ltd v
CFMEU70 (CBI Constructors) was referred to in support of these submissions.71
[27] Finally, with respect to the submission by the respondent that the length of the delay in
determining the application necessitated an updating of the petition or other document, the
MEAA stated that the length of time does not provide a basis for inferring that the majority no
longer wants to bargain. It was stated that the AFL has not put forward any evidence to
support such an inference.72
(ii) AFL’s evidence and submissions
[28] Mr Campbell, General Manager of AFL Media, gave evidence that there is the ability
in the email system to send a group email to all employees of AFL Media.73
[29] It was submitted by the AFL that it is likely that at least six months will have passed
since some of those who signed the petition last indicated their choice in that regard. The
AFL argued that time delay, the changes in the composition of the workforce (eg. employees
resigning)74 and changes in the culture of the organisation75 are highly likely to have
influenced the views of those who signed the petition.76 Therefore, it was contended that
there are circumstances which cast legitimate doubt on the “expression of will” of the
signatories on the petition. The AFL submitted that an updated petition or other form of
evidence demonstrating majority support was necessary.77
(iii) Considerations and conclusions
[30] I have considered all of the material before me and I am satisfied that a majority of the
employees, who are employed by AFL Media and who will be covered by the agreement,
want to bargain (section 237(2)(a)). Taking into account the adjustments made to the number
of employees who will be covered by the agreement78, a majority of the proposed group of
employees to be covered by the proposed agreement signed the petition circulated by the
MEAA.
[31] There are a number of decisions of the Commission where a petition has been
accepted as an appropriate means of establishing a majority employee position. There is
nothing before me which would persuade me to not follow the “usual” approach of the
Commission in this regard.
70 [2011] FWAFB 7642
71 Exhibit A8 at paragraph 8(b)
72 Ibid at paragraph 8(3) and 9
73 Transcript PN 767 - 769
74 Exhibit R3 at paragraph 47 - 48
75 Ibid at paragraph 49
76 Exhibit R4 at paragraph 13 and 15
77 Ibid at paragraph 15
78 Exhibit A8 at paragraphs 7 - 8 and Transcript PN 82 - 91
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[32] It is my view that the petition that was circulated made it quite clear, to those who
were considering signing it, as to the purpose of the petition and that, in signing it, they were
indicating that they want to bargain for an enterprise agreement with their employer. It also
states that they have signed the petition freely.79
[33] With respect to the relevant time for ascertaining whether a majority exists
(s.237(2)(a)(i)), there have been different approaches adopted within the Commission. The
signatures on the petition in question were collected between 6 May 2014 and 20 June 2014.
Having considered the various decisions of my colleagues, I am of the view that the relevant
time is the time at which the petition was signed.
[34] As well, in relation to the issue regarding the changes in the workforce, I adopt the
comments made by the Full Bench in CBI Constructors where it was observed that the
composition of a workforce will vary over time.80 The Full Bench also concluded that the
words “employees who will be covered by the agreement” does not require a prediction of
which particular employees will be covered by the agreement at the point in time it is made.81
[35] With respect to the cultural changes referred to extensively by the respondent’s
witnesses, there is no evidence before me that any or all of these changes have influenced any
of the group of employees such that there is no longer a majority who wish to bargain.
[36] For these reasons, I have not been persuaded that too much time has elapsed between
the time of the signatures and this decision to warrant a further process of determining
whether a majority want to bargain.
[37] In relation to the issue raised by the respondent that the prior signatures on the petition
were not covered, I have not been persuaded that this is an improper way of obtaining
signatures on a petition. There has been no evidence brought forward by the respondent that
an employee felt pressured to sign the petition after having seen the previous people’s
signatures.
[38] With regard to the criticism of the way in which the delegates approached individual
employees, I have formed the view that it was left up to the individual as to whether or not
they signed the petition. There is evidence before me that some individuals never signed the
petition and that other employees did not do so when the petition was first circulated. This
points to employees being able to make up their own minds about whether to sign. In
addition, the evidence of the delegates about how they approached people and what they said
to them, paints a picture whereby people were not intimidated or pressured into signing the
petition.
[39] In relation to the union’s failure to contact/invite all AFL Media employees to the
meetings/sign the petition, it is accepted that the union did not have the contact details for
employees other than for their members. Mr Batchelor’s evidence that the union also relied
on word-of-mouth to inform people about the meetings is noted. There is nothing before me
which would suggest that the union was trying to prevent employees attending the meetings
79 Exhibit A3 at Attachment LRB 6
80 [2011] FWAFB 7642 at [21]
81 Ibid at [23]
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or signing the petition. For the union to have properly had the contact details for all of AFL
Media’s staff, the union would have had to have had total coverage of all of the employees. It
was Mr Batchelor’s evidence that the union did not have coverage to that extent.
[40] Accordingly, for the reasons set out above, the petition submitted by the MEAA is
considered to be an appropriate means of determining whether or not a majority of the group
of employees want to bargain with their employer. As stated earlier, the petition establishes
that a majority of the proposed group want to bargain. Therefore, I am satisfied that the
requirements of s.237(2)(a) of the Act have been met.
(d) - section 237(2)(b) - employer not agreed to/initiated bargaining
[41] The AFL did not take substantive issue with the MEAA’s submission that the
evidence shows that the employer who will be covered by the agreement has not yet agreed to
bargain, or initiated bargaining, for the agreement.82
[42] It was submitted by the union that, on the basis of the correspondence between the
parties, the AFL has not yet agreed to bargain or initiated bargaining, for the agreement.83
[43] Taking into account all of the material before me, I am satisfied that section 237(2)(b)
is met. This is on the grounds that the AFL has not yet agreed to bargain, or initiated
bargaining, for the proposed agreement.
(e) - section 237(2)(c) - the proposed group was fairly chosen
[44] Whether or not the group of employees proposed by the union to be covered by the
agreement was fairly chosen was the subject of extensive evidence and submissions by both
parties. It was the second ground on which the AFL opposed the application.
(i) Union’s evidence and submissions
[45] Mr Batchelor gave evidence that:
He accepted that the AFL is a sporting organisation which employs journalists84 and
that its core focus is on activities during the football season.85
He acknowledged that a significant proportion of AFL employees work non
traditional hours.86 These included corporate affairs employees, product and
development employees, the sales and distribution manager, football operations and
game development employees, digital producers, AFL events employees and
commercial operations employees.87
82 Exhibit R4 at paragraph 10
83 Exhibit A7 at paragraphs 58 - 59 and Exhibit A3 at paragraphs 20 - 33
84 Exhibit A4 at paragraphs 22 and 32 and Transcript PN 485 - 488
85 Ibid PN 554
86 Ibid PN 556 and Exhibit A4 at paragraphs 17 and 33
87 Ibid PN 557 - 569, 620 - 622, 629 and 636
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Designers within the operations team are only required to work unsociable hours on
very rare occasions.88
He agreed that employees are required to work significant overtime and to travel
outside traditional business hours.89
All employees at the AFL are subject to the demands of the AFL season. Only
editorial employees are subject to the demands of a 24 hour/7 day a week news
cycle. When the football season is over, it is not over for the journalists even though
there are no games on the weekend. However, there is the trade period which creates
news content and material pretty regularly every day of the week.90
Other employees in AFL Media work unsociable hours during the football season
but not to the same extent as the proposed group.91 He has been advised by his
delegates that the proposed group are required much more readily to work
unsociable hours and different unsociable hours to other AFL Media employees.92
He did not accept that a significant number of AFL Media employees are required to
work non traditional hours when matches are held.93
The union could represent the other employees in AFL Media but they are not
included in the proposed group for this application.94
He had not spoken with the 30-50 people he does not have contact details for, about
their unsociable working hours.95
It is quite common in a newsroom for employees to work across several functions
and on projects involving various teams. Employees are also required to work in
cross-departmental teams with other departments of the AFL.96
He gave details of the degree of engagement in editorial and/or editorial/video
production functions for the positions in the proposed group.97
Four editorial senior management positions are not to be covered by the proposed
agreement. Neither are employees who are engaged in substantially non editorial
functions eg sales, client liaison.98
88 Ibid PN 630 - 632 and Exhibit A4 at paragraph 17
89 Ibid PN 568 and 695
90 Ibid PN 700 - 702
91 Ibid PN 577 - 578 and 696
92 Ibid PN 622 and Exhibit A4 at paragraph 17
93 Ibid PN 644
94 Ibid PN 591 - 592
95 Ibid PN 628
96 Ibid PN 648 - 649 and Exhibit A4 at paragraphs 12 - 13, 20 and 24
97 Exhibit A3 at paragraphs 39 - 41
98 Ibid at paragraphs 33 - 34
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The union has a broader view of what constitutes “editorial” activity than Mr
Campbell. “Editorial” includes the gathering, creating, editing and curating of news
content and material generally requiring an element of editorial or creative
judgements.99
A significant focus of AFL Media is on the provision of news and media content
directly to the public.100
[46] The union submitted that the purpose of a majority support determination is not to
determine the scope nor the content of an agreement. Rather, its purpose was said to be to
bring an unwilling employer to the bargaining table.101 The Commission was referred to the
Full Court of the Federal Court decision in J.J. Richards & Sons102 in support of this
proposition.103
[47] In relation to the relevant principles to be applied in determining whether a group of
employees has been “fairly chosen”, the union discussed a number of Commission decisions
which dealt with this issue. Amongst others, the Commission was particularly referred to the
Full Bench decision in Cimeco Pty Ltd v CFMEU104 (Cimeco) and CFMEU v ResCo Training
and Labour Pty Ltd105 (RescCo Training). In applying the relevant principles, it was argued
by the union that the proposed group of employees to be covered are those substantially
engaged in an editorial and/or editorial/video production capacity.106 It was stated that the
union does not propose that the agreement covers employees in substantially non editorial
functions eg sales, promotions, client liaison. Neither are the editorial senior management
positions of Head of Content, Head of Operations, Executive Producer and Head of
Production sought to be covered.107 The proposed agreement would, therefore, not cover all
employees of the AFL’s Media Department or the AFL.108
[48] The task for the Commission to determine was stated to be - whether the group is
geographically, operationally or organisationally distinct. The union submitted that the group
is operationally and organisationally distinct. This was said to be on two levels. The first
level was that the group are engaged in the AFL Media Department which was established as
an in-house media production business. The Media Department was described as providing
an editorially independent news service providing news and commentary to the public across
print and digital media platforms. Secondly, AFL Media was said to be a commercial
business which provides print and digital media content to commercial clients. Further, it was
argued that public statements by the AFL establish it as an operationally and organisationally
distinct unit with the AFL.109
99 Exhibit A4 at paragraphs 11, 13 and 21
100 Ibid at paragraph 23
101 Transcript PN 20 and 1237
102 [2012] FCAFC 53
103 Transcript PN 20 and 1231
104 [2012] FWAFB 22066
105 [2012] FWAFB 8461
106 Exhibit A7 at paragraph 73
107 Ibid at paragraphs 73 - 74 and Exhibit A3 at paragraphs 33 - 34
108 Ibid at paragraph 75 and Exhibit A8 at paragraph 13
109 Ibid at paragraphs 76 - 79
[2014] FWC 8898
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[49] Secondly, the union contended that the proposed group is also organisationally and
operationally distinct within AFL Media. This was because the proposed group are
substantially engaged in editorial and/or editorial/video production functions, principally
within the Editorial Video and Production teams. Employees in the Editorial team were
described as almost exclusively engaged in editorial functions, with those in the Photography
team substantially engaged in editorial functions.110 Employees in the Video team were said
to be substantially engaged in video production and, depending on their work assignments,
engaged in editorial functions.111
[50] Further, the MEAA submitted that whether a group is operationally or organisationally
distinct is only one of the relevant considerations. It was argued that it does not determine
conclusively whether a group has been fairly chosen. Even if there might be an alternative
way of fairly choosing, this was said to not mean that the proposed group has not been fairly
chosen. In addition, the union argued that the composition of the group can be a matter for
bargaining. It contended that there is an objective basis for the selection of the group by the
MEAA.112
[51] In response to the respondent’s submissions, the MEAA argued that the AFL
organisational chart supports the distinctiveness of the group which was described as being
concentrated on four pages of the chart. It was said that all of the positions on page 2 except
for 3; all of the positions on page 6 except for 5 and 7 positions on page 4 are the proposed
group. The union stated that it is willing to bargain about the scope of the agreement eg
whether or not designers are included.113
[52] Secondly, the union indicated that the AFL takes issue with whether the particular
positions are “substantially editorial” and that it seeks to distinguish itself as a sporting
organisation rather than a media organisation. It was argued, in response, that there is an
objective criterion for the selection of the group, namely, it is editorial in nature. Where the
parties have a difference of view about the extent to which certain positions have editorial
functions, it was contended that this could be addressed in bargaining.114
[53] In addition, the MEAA argued that, being a sporting organisation does not take away
the editorial character of the positions. Reference was made to Mr Batchelor’s evidence about
the growing trend of non media organisations to develop a substantial in-house media
operation.115 Further, it was contended that it is clear from the AFL’s evidence that AFL
Media is a news organisation providing news directly to the public and employing journalists
and other media professionals. This was said to have been what journalists and others have
traditionally done for mainstream organisations. However, with the advent of digital
technology, organisations like the AFL, have been able to set up their own media operations.
110 Ibid at paragraphs 82 - 83
111 Ibid at paragraph 83 and Exhibit A3 at paragraph 38 - 41
112 Ibid at paragraph 88 and Exhibit A8 at paragraphs 14 - 15
113 Exhibit A8 at paragraphs 13 - 14 and Exhibit A4 at paragraph 14
114 Exhibit A8 at paragraph 16
115 Ibid at paragraph 17, Exhibit A4 at paragraph 22 and Transcript PN 1271 - 1272
[2014] FWC 8898
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This was stated not to detract from the fact that these are still editorial employees doing the
traditional work of journalists and other media professionals.116
[54] The union also responded to the respondent’s submissions that employees in the
proposed group interact with other employees and are not physically separate from other AFL
Media employees. Mr Batchelor’s evidence that this is normal in digital news environments
was referred to.117 In addition, the union submitted that the fact that the employees in
question interact with other employees within AFL Media is commonplace and typical of any
workplace. It was argued that it cannot be the case that a group is not organisationally or
operationally distinct simply because they interact with others in the workplace.118
[55] With respect to the AFL’s coloured organisation chart, the MEAA stated that
overwhelming impression is that the proposed group is organisationally distinct, albeit not
absolutely distinct. Reference was made to the design group, the two statisticians in the
editorial group and video production but it was argued that the evidence did not demonstrate
that the latter positions should be included in the group. It was stated that the Commission is
not required to reach a conclusion about these positions.119 However, the main debate in this
regard was said to concern the position of designers. The evidence of Mr Batchelor was
recalled to be that sometimes this group is in and sometimes it is not. The union indicated
that it is prepared to bargain about this.120
[56] In relation to the issue of a number of other employees also working non traditional
hours, the union argued that the hours of the employees’ in question are not just determined
by the match cycle but also by the demands of the 24/7 media cycle. This cycle was also said
to make it more likely that these employees will be required to work unsociable hours at short
notice both during and outside the football season.121 It was stated that it is an essential
feature of these employees’ employment that they are required to work unsociable hours at
short notice by reason of the media cycle. The union acknowledged that there are other
employees within the AFL who, from time to time, will be required to work non-standard or
unsociable hours, sometimes at short notice. This may reduce the degree of distinctness but it
was stated that distinctness is not an absolute concept. Reference was made to Commissioner
Roe’s decision in NUW v Cotton On Group Services Pty Ltd122 (Cotton On) in support of this
and other contentions in relation to the fairly chosen requirements.123
[57] Further, the MEAA stated that the AFL’s position is not that there is a fairer group for
the purposes of an enterprise agreement but that there should be no enterprise agreement. It
was submitted that the group proposed by the union satisfies the relevant requirements of the
Act. This is because the group has been objectively selected on the basis of employees who
are substantially employed in editorial and/or editorial/video production work. In applying
this criterion, it was argued that the union’s and the AFL’s list, both done independently, only
116 Transcript PN 1271 - 1272
117 Exhibit A8 at paragraph 18 and Exhibit A4 at paragraphs 12 - 13, 16, 20 and 24
118 Transcript PN 1272
119 Ibid PN 1273 - 1275
120 Ibid PN 1278
121 Ibid PN 1276, Exhibit A8 at paragraph 19 and Exhibit A4 at paragraph 85
122 [2014] FWC 6601
123 Transcript PN 1254 - 1263
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differ by four in overall number. The union argued that, therefore, there is no lack of clarity
about the group.124 It was stated that there can be a legitimate debate about which particular
employees meet this criterion. This was said to legitimately be a matter for bargaining but it
was stated that this does not detract from the objectively of the criterion.125
[58] It was also contended by the union that the group was not the result of cherry picking
to achieve a majority. It was stated that the group has been chosen using an objective
criterion and that it is typical of the coverage of enterprise agreements to which the MEAA is
a party.126
[59] Finally, the union distinguished the decision in Jenkins v Captain Cook Cruises127
(Jenkins) from this matter, on the facts.128 This was because the Jenkins case concerned a
workforce that was governed by an existing enterprise agreement, where the employer was
proposing to break the agreement up into numerous agreements.129
(ii) AFL’s evidence and submissions
[60] Extensive evidence was given by Mr Campbell and Ms Hisgrove on the issue of
whether the proposed group is fairly chosen.
[61] It was Mr Campbell’s evidence that:
AFL Media is a revenue generating department within the AFL due to one of its
functions being the sale of media services to external organisations.130
There are broadly seven teams within AFL Media which are structured to provide
formal reporting lines between employees and management and to administer
operational budgets. In practice, each team relies on other teams to produce the
products and services required by the Telstra Digital Rights Agreement.131
Many employees are expected to work across several functions and most employees
work on projects or tasks that span the various teams within AFL Media and also
other departments of the AFL.132
In a situation such as the recent Essendon Board meeting, called at 7.00pm, he was
not sure if he would describe 7.00pm as unsociable hours. He said that editorial
staff, product and development staff and other staff who ensured that the digital
platform was operating correctly would have been working to ensure that whatever
124 Ibid PN 1266 - 1267
125 Ibid PN 1270
126 Ibid PN 1266 and 1270, Exhibit A8 at paragraph 21 and Exhibit A4 at paragraph 87
127 [2014] FWC 6321
128 Exhibit A8 at paragraph 20
129 Transcript PN 1286 - 1287
130 Exhibit R2 at paragraph 18
131 Ibid at paragraphs 14 - 15
132 Ibid at paragraphs 22 - 26
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transpired was able to be communicated to AFL supporters through the AFL’s
digital assets.133 The entire process was said to be an editorial process.134
Employees in the proposed group are not all substantially engaged in an editorial
and/or editorial/video production capacity. Positions associated with video
production are not necessarily “editorial”. The Video Editor position has some
independence to make judgements about video content but within the limits of their
brief of instructions. Other employees engaged in video related roles also
substantially respond to a brief of instructions from a producer, client or editorial
staff.135
The product and development team runs and operates the digital platform. One of
the team, a support analyst, would have been working during the Essendon Board
meeting situation, to ensure that the story was published correctly and in a timely
fashion and that the platform was working. There would also have been a designer
(and/or a photographer) who would have treated the image to ensure that there was a
visual representation on the website and on the app.136
The support analysis position is substantially a technical role which also ensures that
the story was fully published in its entirety.137
From time to time, video production employees are involved in an editorial process
but not always. Rather, they are engaged in a video production role.138 Mr
Campbell disagreed that the video producers self identify, and are identified by their
colleagues, as editorial staff.139 It was agreed that having a brief of instructions was
not inconsistent with a video producer being creative or editorial.140
The designer’s position designs and ensures that the image chosen works with the
headline, how the image is best treated and its position in relation to the headline.
They also work with the sub editor in terms of what the headline will be.141 The
designer would work with the photo editor on the best image to use. If the photo
edition is not there, the designer would do this.142
He considers the support analysts and designers to be part of the editorial process
which ensures that the story and video are actually published. This process was said
to involve the journalist, video producer and/or video editor, a person in the master
133 Transcript PN 771 - 772
134 Ibid PN 892
135 Exhibit R2 at paragraph 40
136 Transcript PN 773 - 774 and 836 - 837
137 Ibid PN 838
138 Ibid PN 893 and Exhibit R2 at paragraph 42
139 Ibid PN 912
140 Ibid PN 913 - 914
141 Ibid PN 839
142 Ibid PN 840
[2014] FWC 8898
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control area who is receiving the feed from the location, designer, photographic
editor, support analyst and platform support person.143
Photographers are also engaged in non editorial functions eg commercial.
It is essential that all employees work across teams as the process outlined above
requires a range of people who have to talk to each other.144
There are about 116 full time staff within AFL Media and he has five functional
direct reports, each of whom have functional teams reporting to them.145
The very vast majority of employees within AFL Media work unsociable hours at
various times ie. before 6.00am and after 8.30pm.146
The news cycle at AFL Media is ordinarily 16 hours a day/7 days a week, with
incidents occurring outside of those hours on occasion. In the shoulder period of the
AFL season, it can extend out a little bit further. In the off season, it is a 12-14 hour
daily news cycle.147
The roster for the 16 hours news cycle would ordinarily be from 7.00am until
10.00pm/11.00pm. This can sometimes extend out further but when this will occur
is unpredictable. It is unlikely that something will come through at 1.00am or
2.00am but if it does, it is addressed by the Head of Content and Editorial at
5.30am/6.00am.148
In terms of breaking news on early morning radio, this would begin to be monitored
around 6.00am.149
Employees within AFL Media work differing rosters and spread of hours based on
the nature of their roles. For example, editorial/reporting staff work a weekly roster
and may be required to work one weekend day per round of the AFL season. Video
production staff work a fortnightly roster and may be required to work a weekend
shift depending on business requirements.150
Other employees eg support analysts, digital producers, designers, the sales and
distribution manager, media sales sub group and developers work on call on
weekends during the AFL season or work extended hours as required.151 Therefore,
143 Ibid PN 775
144 Ibid PN 780
145 Ibid PN 782 - 784
146 Ibid PN 785
147 Ibid PN 833 and 841
148 Ibid PN 842 - 844
149 Ibid PN 845 - 847
150 Exhibit R2 at paragraphs 33 and 41
151 Ibid at paragraphs 34 - 35
[2014] FWC 8898
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on the basis of their non traditional hours, the proposed group is not operationally
and organisationally distinct.152
AFL Media provides services and content to the AFL so that it can fulfil its contract
with Telstra. The services include the delivery of digital content to supporters and
others.153
He confirmed the contents of the AFL Media section of the AFL’s 2013 Annual
Report and stated that one of AFL Media’s core operations is getting news to the
public.154 Rather than characterising AFL Media as competing with traditional
media organisations, Mr Campbell preferred to describe it as “adding to the mix”.155
One aim of what AFL Media does is to perform a function traditionally performed
by mainstream media organisations (providing news directly to the football public)
both during and outside the AFL match season.156
The news cycle is naturally reduced after the Grand Final such that the amount of
unsociable hours lessens. Mr Campbell did not agree that non editorial employees
had more predictable hours than editorial employees. This was on the basis that part
of AFL Media’s function is a commercial one in relation to non AFL clients.157
The organisational chart shows that employees in the proposed group report directly
to employees outside the proposed group. If the proposed group is covered by an
enterprise agreement, the result will be that certain Manager’s sub groups are split
between employees covered by the enterprise agreement and others who are not
covered. This was said to be in the context of all of the employees having functional
roles which cross over and are interdependent on each other. This therefore
demonstrates that the proposed group is not operationally or organisationally
distinct.158
[62] Ms Hisgrove, General Manager - People, Customer and Community gave the
following evidence:
Editorial staff are not considered organisationally distinct from the other AFL Media
staff because, irrespective of their role, they have an absolute need to
connect/interact with all of the other departments. There is no difference between
the proposed group and the other AFL Media employees in terms of the work
requirements and output and the need for connection.159
152 Ibid at paragraph 36
153 Ibid at paragraph 41 and Transcript PN 853 - 854
154 Ibid PN 855 - 872
155 Ibid PN 873 and 883
156 Ibid PN 884 - 886
157 Ibid PN 887 - 889
158 Exhibit R2 at paragraphs 29 - 31 and 37 - 38
159 Transcript PN 986 and 1160
[2014] FWC 8898
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Employees within AFL Media may be required to work/interact with employees in
other departments, for example, Football Operations, Commercial Operations,
Broadcasting and Scheduling and Legal, Integrity and Compliance.160
Most, if not all, employees are required to work unsociable hours of a similar type to
employees in the proposed group eg Game Development staff, Corporate Affairs
team and Football Operations employees.161 The sporting cycle necessitates the
working of unsociable hours which has nothing to do with the media cycle but
everything to do with the timing of the games every weekend etc. It was agreed that
employees not subject to the media cycle are driven by the match cycle and any
other event.162
If there is a breaking story, editorial employees are no different, in having to cover it,
to other employees having to do the same eg Corporate Affairs and Legal, Integrity
and Compliance.163
Interaction between people/across departments is normal in any digital newsroom.
This could include the in-house Legal Department, Broadcast or Scheduling teams.
However, the AFL was said to be different to other organisations because it is first
and foremost a sporting organisation which is different to a pure newsroom. This
results in a high degree of interconnectedness across the business due to having to
put the same product to market every week.164
Editorial employees are subject to the sporting cycle rather than the media cycle.
This is because the operations are in the context of delivering a product that is
completely sports related, hence it is about the sporting cycle. It was said to be all
about the football product and that editorial employees are governed by the product
that is put to market every week.165
The predominant focus of AFL Media is the provision of news directly to the
football public. In doing this, it competes directly with other mainstream news
organisations in terms of the content that goes on the website. However, in the
context of a sporting business, there are also a myriad of other products delivered
through media.166
[63] The AFL submitted that the group of employees proposed by the MEAA was not
fairly chosen. This was on the following grounds:
The MEAA has selected just over half of the employees of AFL Media.167
160 Exhibit R3 at paragraph 11
161 Ibid at paragraphs 23 - 24 and Transcript PN 987
162 Ibid PN 1176 - 1178
163 Exhibit R3 at paragraph 11
164 Transcript PN 1161 - 1165
165 Ibid PN 1172 - 1175
166 Ibid PN 1168 - 1171
167 Exhibit R4 at paragraph 16
[2014] FWC 8898
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The group is not geographically, operationally or organisationally distinct.168
The group was not chosen in any objective or other well organised manner. There
are as many differences as the similarities identified by the union. The similarities
and differences extend equally to those positions not included in the group.169
The Commission was referred to the decision in Jenkins in support of this
contention.
This is not a case of particular or clearly delineated vocations being included.
Rather, it was said to be a carefully selected group of employees which is defensible
in a general but not a particular sense.170
While section 237(3A) cannot be decisive in terms of the “fairly chosen” question, it
is clearly significant. There would therefore need to be very good reasons for not
selecting a group along distinct geographical, operational or organisational lines.171
The evidence does not support the union’s ground, in its application, that the group
of employees is operationally distinct due to being required to work unsociable
hours. The oral and written evidence of Mr Campbell and Ms Hisgrove was referred
to in this regard and should be accepted by the Commission.172
“Unsociable hours” are worked by substantially all employees.173
Given the inter and cross departmental work undertaken by AFL Media employees, a
fairly chosen group would be all employees in AFL Media.174
(iii) Considerations and conclusions
[64] It was strongly submitted by the AFL that the union has failed to prove that the
proposed group of employees is fairly chosen. There was much debate and evidence in
relation to this requirement.
[65] Where the proposed agreement will not cover all the employees of the employer, the
FWC must take into account whether the group is geographically, operationally or
organisationally distinct (s.239(3A)). As acknowledged by the AFL in its submissions, this
factor alone is not decisive in relation to the fairly chosen question.
[66] In this matter, the union has argued that the proposed group is operationally and
organisationally distinct. This is on the basis that the proposed group of employees are
substantially involved in an editorial and/or editorial/video production capacity (an objective
168 Ibid at paragraph 17 and Exhibit R5 at paragraph 5
169 Ibid at paragraph 19 and Transcript PN 1302
170 Ibid at paragraph 20
171 Ibid at paragraph 21
172 Exhibit R5 at paragraphs 2 - 4 and Transcript PN 1299 - 1301
173 Ibid at paragraph 5
174 Ibid
[2014] FWC 8898
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criterion) and work unsociable hours and at short notice, due to the requirements of the media
cycle.
[67] I have carefully considered all of the material before me. I have been persuaded that
the proposed group of employees is operationally and organisationally distinct. This is due to
a combination of the factors - that the employees are substantially involved in an editorial
and/or editorial/video production capacity and that their unsociable hours and the requirement
to work at short notice are due to the necessity to respond to the media cycle.
[68] It is understood that the parties have a different view of what the word “editorial”
means. However, it would appear that the AFL understood this criterion sufficiently to do its
own reckoning of the likely positions to be covered. The result of this is that the difference
between the MEAA’s and that of the AFL is four positions.
[69] With respect to the coloured organisational charts that were provided, I agree that,
when viewed way, the proposed group is distinct but not absolutely so. Commissioner Roe, in
his decision in Cotton On, made this observation:
“A group of employees within an enterprise will rarely be operationally distinct in an
absolute sense. It will often be a matter of degree.”
[70] I concur with this view. In doing so, I have taken account of the decision in Jenkins,
which the AFL referred the Commission to on a couple of occasions. The facts of the Jenkins
case and this matter are quite different and I prefer the approach taken in the Cotton On case
to that in Jenkins.
[71] Further, this application is not a scope application and the issue of the scope of the
Agreement is legitimately the subject of negotiation. The Full Bench in ResCo Training
made some observations about the scope of an agreement and the “fairly chosen”
requirement:
“In our view the scope of the Agreement is primarily a matter for the parties in the
negotiation for an agreement. Enterprise agreements commonly cover sub-groups of
employees in the workforce. Indeed it is very rare in our experience that all employees
of a private sector employer would be covered by a single enterprise agreement. A
common basis for differentiation is employees of a particular occupation or group of
occupations that are considered to be sufficiently similar to warrant coverage under
one agreement. We caution against the assumption that because an agreement does
not cover all employees there are therefore grounds for challenging approval of the
agreement on the basis that the coverage is unfair. It is likely that cases involving
unfair coverage will not be common.”175
[72] In the Cotton On decision, it was also found that:
175 [2012] FWAFB 8461 at [33]
[2014] FWC 8898
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“In making a majority support determination the Fair Work Commission determines the
starting point of the bargaining and the group for the notice of representational rights.
The Fair Work Commission is not determining the scope of any final agreement.”176
[73] There was evidence from Ms Hisgrove to the effect that AFL Media responds to the
sporting cycle and not to the media cycle. However, I have not been convinced that the work
of the proposed group of employees is not arranged and performed to the needs of the 24/7
media cycle. The product that is the content of the enterprise is football. However, in terms of
the way the product/content is produced to the public the timeframes within which this
happens, these are ultimately determined by the media cycle. The AFL department within
which the proposed group of employees is located is AFL Media.
[74] With respect to the argument that the proposed group interacts with others in AFL
Media, thereby diminishing their distinctiveness, it is surely a requirement in workplaces for
employees to interact with members of their own team and with other teams. It is the purpose
of this interaction (performing substantially an editorial function) that distinguishes the
proposed group from other employees who are required to do the same thing but for a non
editorial purpose.
[75] Therefore, on the basis of the evidence of the roles of the positions in the propose
group of employees, I am satisfied that they substantially perform an editorial and/or
editorial/video production functions. As set out above, the proposed grouping will rarely be
perfect and the extent of coverage of the Agreement may be the subject of bargaining.
However, on the material before me, it can reasonable be said that the employees in the group
perform those functions as set out by the union and that they have a sufficiently common
basis (i.e. substantially editorial and/or editorial/video production) to distinguish them,
operationally and organisationally from the other employees in AFL Media.
[76] Secondly, these employees are governed by the media cycle in regard to the football
product which is the reason d’être or of the organisation. The employees in the proposed
group appear to be the principal employees in AFL Media who substantially perform editorial
and/or editorial video production functions and who are required to be responsive to the
media cycle. On this basis, I am satisfied that the proposed group is fairly chosen on the basis
that it is operationally and organisationally distinct.
[77] It was common ground that the vast majority of employees in AFL Media work
unsociable hours. However, what distinguishes the proposed group is that they work
unsociable hours and are substantially involved in editorial and/or editorial/video production
functions.
[78] Accordingly, for the reasons set out above, I find that the proposed group of
employees is operationally and organisationally distinct. In making this finding, I am
therefore satisfied that, for the purposes of section 237(2)(c), the proposed group of
employees will be covered by the agreement, was fairly chosen.
176 [2014] FWC 6601 at [19]
[2014] FWC 8898
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(f) - section 237(2)(d) - it is reasonable in all of the circumstances
[79] This was the third key ground of the AFL’s opposition to the application. Extensive
evidence was given, particularly by Ms Hisgrove but also by Mr Campbell in relation to the
AFL’s operational, practical and cultural difficulties with an enterprise agreement.
(i) Union’s evidence and submissions
[80] Mr Batchelor gave evidence that:
He is aware of the survey but not the detail of the One-Team values and policy.177
He has discussed this with the members and not all employees are keen on it.178
It is not unusual for different industrial arrangements to exist in a digital news
environment which may result in differences in rostering, conduct performance and
remuneration reviews. The MEAA is not insensitive to these issues and views the
scope of the agreement as a matter of bargaining.179
He disagreed that one of the consequences of an enterprise agreement is that high
performing employees cannot be rewarded or that flexibility and harmony are lost.
It was stated that the MEAA is party to many enterprise agreements covering
editorial employees in digital news environments. These were said to be, ultimately,
matters for the AFL to raise in bargaining.180
The AFL’s Annual Reports, from 2010 - 2013, indicated that collective bargaining
occurs between the AFL and the AFL Players’ Association and the AFL and the
AFL Umpires’ Association. The result of this collective bargaining was said to be
collective agreements signed by each of the organisations.181
An example of industrial disputation was given as the issue regarding annual leave
for editorial employees at AFL Media.182
He disagreed that there would be negative consequences as the result of an enterprise
agreement only applying to certain employees. It was stated that there is no basis to
suggest that employees sitting next to each other, whose terms and conditions are
individually determined, have identical terms and conditions. Therefore, it could not
be said that an enterprise agreement will impose differences where none previously
existed.183
177 Transcript PN 681
178 Ibid PN 687 - 688
179 Exhibit A4 at paragraphs 16 and 18
180 Ibid at paragraphs 19 and 25
181 Ibid at paragraph 26
182 Ibid at paragraphs 27 - 31
183 Ibid at paragraph 34
[2014] FWC 8898
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He disagreed with the AFL’s view that having an enterprise agreement will create
cultural difficulties. It was stated that the MEAA is a party to enterprise agreements
in situations where there are multiple industrial arrangements. He also disagreed that
an enterprise agreement is incompatible with the culture to which the AFL aspires.184
He further disagreed that an enterprise agreement would have negative outcomes for
remuneration or that it is incompatible with rewarding individual performance. The
particular remuneration provision was said to be a subject for bargaining.185
The AFL might have to do some things differently if an enterprise agreement was
agreed to.186
(ii) AFL’s evidence and submissions
[81] It was Mr Campbell’s evidence that:
The existence of an enterprise agreement could create tensions because of different
terms and conditions. He confirmed that all employees’ terms and conditions are
currently individually determined by contracts of employment and organisational
policies. The policies applied across the board and within them, there is provision
for management to exercise its discretion in relation to whether a particular
employee is granted an entitlement under that policy.187
There are currently employees working side by side who have different terms and
conditions. Having an enterprise agreement would not be different in that regard but
some employees want to still have a one on one discussion without being governed
by an enterprise agreement that sets their baseline terms and conditions.188
The AFL wants to continue the dialogue and discussion with their employees rather
than through the MEAA. The best way of determining an employee’s pay is through
a one on one relationship with that employee which takes into account their
concerns, skill levels and the work they do.189 Movement away from the current
performance based pay model is likely to lead to a reduction in morale and
productivity.190
In relation to rosters, there are some employees within the proposed group who do
not work to rosters but work to the job requirements at hand.191 The loss of
flexibility in rostering arrangements would cause operational and practical
difficulties in an industry where flexibility is critical.192
184 Ibid at paragraph 35
185 Ibid at paragraph 36
186 Ibid at paragraph 37
187 Transcript PN 917 - 919 and Exhibit R2 at paragraph 39(a)
188 Ibid PN 920 - 921
189 Ibid PN 923 - 926 and 958
190 Exhibit R2 at paragraph 39(b)
191 Transcript PN 927
192 Exhibit R2 at paragraph 39(c)
[2014] FWC 8898
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[82] Ms Hisgrove gave evidence that:
An organisation-wide culture values survey was undertaken in June 2014. The
survey sought feedback from employees on their perception of the AFL’s
organisational culture and for employees to set out their desired organisational
culture values for the future.193
A key theme that emerged from the survey was that a significant number of
employees sought a greater level of teamwork with a move away from working in
silos. These trends were strongly demonstrated by employees with AFL Media.194
The survey results, for AFL Media employees, showed that the top current
organisational cultural values were cost reduction, hierarchy, bureaucracy, silo
mentality.195 It was Ms Hisgrove’s view that these are reflective of an organisation
on a cultural journey to change with a new CEO who is determined to drive a culture
of collaboration and cohesiveness and to work with people.196
Ms Hisgrove confirmed that the top desired cultural value (as found by the survey) is
employee recognition, followed by humour, fun and creativity, then employee
fulfilment, with teamwork at equal fourth.197
Following the results of the survey, the People, Customer and Community team
worked towards developing the “One Team” values driven approach which
emphasizes all employees within the AFL working together to achieve common
goals and objectives. This approach will be incorporated into all of the AFL’s
training and development activities.198 The survey results were said to show that
people want to work more collaboratively.199
A move to collective bargaining and structured pay review mechanisms away from
individual performance review and recognition would significantly disadvantage
high performing employees which would, in turn, negatively impact on productivity
and staff morale.200
It is important to organisations to be able to recognise and reward for
performance.201 She believed that people want to be rewarded for performance and
to have flexibility around work/life balance.202
193 Exhibit R3 at paragraph 28 and Transcript PN 1031 - 1033
194 Ibid at paragraphs 29 - 30 and ibid PN 1034 - 1036
195 Ibid PN 1040 - 1059
196 Ibid PN 1060
197 Ibid PN 1061 - 1065
198 Exhibit R3 at paragraph 30
199 Transcript PN 1060
200 Exhibit R3 at paragraphs 32 - 34
201 Transcript PN 1069 -and 1073 - 1074
202 Ibid PN 1083
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She did not believe that, if the AFL agreed to bargain with editorial and production
staff for an enterprise agreement, it would help address the perception amongst
employees that the current values are dominated by cost reduction, hierarchy,
bureaucracy and control. This was on the basis that harmony and workforce
cohesiveness is built through a values based culture where teamwork and
performance is rewarded.203
Enterprise bargaining is antithetical to the premise of teamwork. This is due to the
end result of enterprise bargaining being that employees sitting beside each other
would have different sets of employment agreements - individual contracts and a
collective agreement. A collective agreement would run contrary to the organisation
genuinely trying to reward employees for performance and for teamwork.204
The collective bargaining process between the players and the AFL clubs is not an
exception to the individual contracts of employment approach of the AFL. This is
because the collective agreement is not an enterprise agreement under the Fair Work
Act. Also, the players are not employees of the AFL.205 Rather, it is about the rules
within which the players and clubs operate.206
The role of the AFL in the bargaining for a collective agreement was described as
leading the negotiations on behalf of the clubs and also the AFL arbitrates between
the players and the clubs. The AFL was said to act as a mediator to broker an
agreement with the players who are then on individual contracts with the respective
clubs.207 It was confirmed that the AFL Players’ Association bargains on behalf of
the employees.208
Ms Hisgrove acknowledged that the AFL’s Annual Report stated that the agreement
it reaches with the Players’ Association is a collective agreement. However, her
personal view was that it was markedly different to a collective bargaining
agreement.209
The AFL engages in a collective bargaining process with the AFL Umpires
Association on behalf of Match Umpires.210 It was accepted that the AFL’s 2013
Annual Report stated that a new collective agreement had been signed between the
AFL and the AFL Umpires Association.211
203 Ibid PN 1084 - 1085
204 Ibid PN 1091
205 Ibid PN 1096 and Exhibit R3 at paragraph 21
206 Ibid PN 1096
207 Ibid PN 1096, 1097 and 1128
208 Ibid PN 1093 - 1095
209 Ibid PN 1099 and 1125 - 1127
210 Ibid PN 1136 and Exhibit R3 at paragraph 21(b)
211 Ibid PN 1139
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The outcome of the collective bargaining process is not a formal agreement but those
terms and conditions are written into individual employment contracts (1 year fixed
term).212
The umpires are employees of the AFL but they are not within he AFL’s system
(award and performance systems and policies) because it is not their primary
employment. Their primary employment was said to be elsewhere.213
Ms Hisgrove distinguished between players and umpires and the AFL’s people on
the basis that the people are in a performance life cycle from the time they
commence employment with the AFL. This performance life cycle was said to
include pay and incentives (rewarding and recognising the right behaviours) and
career development opportunities. Umpires and players do not come to work every
day.214
In relation to the issues raised in September 2013 by editorial staff about annual
leave, the AFL had met with their employees and had a conversation with them. The
AFL did not agree to providing the media industry standard. Ms Hisgrove did not
view the conversation had with staff on this issue as a disputation conversation.215
Philosophically, the AFL wishes to have direct conversations with their people
without the necessity for third party involvement. A request from the MEAA to
meet with the AFL was refused on the principle that the AFL wants to maintain the
ability to have one on one conversations with their people. The AFL would prefer
not to have a discussion with the MEAA because it would prefer to have direct
discussions with their employees.216
The AFL has met with the MEAA and asked them what they wanted but they
refused to articulate it.217
The concerns raised about rostering, rewarding individual performance and
flexibility were said to be due to an enterprise agreement being inconsistent with the
ability to have one on one conversations with people.218
[83] It was submitted by the AFL that there are a range of reasons why, in the
circumstances of this particular case, the making of a determination is not reasonable.219
These included:
212 Ibid PN 1137 and Exhibit R3 at paragraph 21(b)
213 Ibid PN 1135 and 1138 - 1139
214 Ibid PN 1139
215 Ibid PN 1143 - 1146
216 Ibid PN 1151, 1154 - 1159, 1181 and 1191
217 Ibid PN 1190 - 1193
218 Ibid PN 1196 and Exhibit R3 at paragraphs 23 - 24 and 32 - 34
219 Exhibit R4 at paragraph 24
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The strong history of individual negotiation and regulation of employment matters
and the historical lack of any collective bargaining among employees of the AFL.
The Commission was referred to the Jenkins case in this regard.220
The lack of any collective industrial disputation and the strong likelihood that the
making of a determination would create disputation.221
The individual flexibilities inherent in AFL Media’s approach to individual contract
negotiations in the past.222
The potential negative consequences of splitting a closely aligned workforce down
the middle in terms of their industrial and employment regulation. This would have
cultural, operational and remuneration/recognition consequences.223
The “One Team” organisational focus of the AFL and the cultural views of the
employees.224
(iii) Considerations and conclusions
[84] I have considered the various arguments put forward by the AFL as the basis for
submitting that it is not reasonable, in all of the circumstances, to make the determination.
However, I have formed the view that it is reasonable, in all of the circumstances, to make the
determination.
[85] Ms Hisgrove (and Mr Campbell) put forward a number of reasons why enterprise
bargaining is perceived to be not in the AFL’s best interests. The organisation’s current
approach to the employment of staff is through the use of individual contracts. The argument
that collective bargaining is alien to the culture of the AFL is not accepted. Although the
outcomes regarding umpires and players do not result, technically, in enterprise agreements
approved by the FWC, the process engaged in by the AFL is one of collective bargaining.
This is reflected, publicly, in the AFL’s 2013 Annual Report. Therefore, the process of
negotiating and reaching an agreement (collectively) is not foreign to the AFL and has been
undertaken with employees of the AFL, namely, umpires.
[86] In addition, I have not been persuaded that it is unreasonable to make the
determination on the basis of the AFL’s concerns about the loss of flexibilities. There is no
evidence before me that enterprise bargaining will necessarily result in a loss of flexibility.
As well, a workplace with different employment arrangements, providing different terms and
conditions is not uncommon. There was evidence given that, currently, two people sitting
side by side, may be on different terms and conditions depending on the content of their
respective individual contracts of employment.
220 Ibid at paragraph 24(a)
221 Ibid at paragraph 24(b)
222 Ibid at paragraph 24(c)
223 Ibid at paragraph 24(d)
224 Ibid at paragraph 24(e)
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[87] Further, there is no evidence before me that the making of an enterprise agreement
will impact negatively on the AFL’s “One Team” focus. I have not been convinced that they
are necessarily incompatible. The current method of determining an employee’s pay and
conditions is on an individual rather than a group basis. It appears to me that the presence of a
collectively bargained set of terms and conditions for a particular group would not, in and of
itself, be any more contrary to the “One Team” focus than the negotiating of an employee’s
terms and conditions on a one-on-one individual basis.
[88] VP Watson made the following comments in Australian Licensed Aircraft Engineers
Association v Panasonic Avionics Corporation225
“If all other criteria are satisfied I do not consider that there is any reason why a
determination should not be issued. The objects of the Act clearly encourage
bargaining when a majority of employees wish it to occur. It is not sufficient in my
view for an employer to oppose bargaining on the grounds that it considers it to be
undesirable when a majority of its employees want it to occur.”226
[89] I concur with VP Watson and there is nothing in the material before me that would
persuade me that VP Watson’s considerations are not applicable in this matter. Therefore, I
am satisfied that it is reasonable in all of the circumstances to make the determination
(s.237(2)(d)).
[90] Accordingly, having been satisfied as to the matters set out in sections 237(2)(a), (b),
(c) and (d), and, as I have found that an application has been made (s.237(1)(a), the FWC is
required to make the majority support determination sought by the MEAA (s.237(1)).
[91] A majority support determination227 will be issued separately. The determination will
come into operation on the day on which it is made, namely, 19 December 2014.
COMMISSIONER
Appearances:
Mr K Kirkwood, of Counsel for Media, Entertainment and Arts Alliance
Mr P Wheelahan, of Counsel for the AFL
225 [2013] FWC 4267
226 Ibid at [13]
227 PR559115
THE FAIR WORK - AUBTRAJ AMMISSIONE AL GALP NOIS THE
[2014] FWC 8898
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Hearing details:
2014.
Melbourne:
October 13, 16.
Printed by authority of the Commonwealth Government Printer
Price code G, PR558792
