Application by Construction, Forestry, Maritime, Mining and Energy Union
[2021] FWC 3786
•2 JULY 2021
| [2021] FWC 3786 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.229 - Application for a bargaining order
Application by Construction, Forestry, Maritime, Mining and Energy Union
(B2020/834)
DEPUTY PRESIDENT ASBURY | BRISBANE, 2 JULY 2021 |
Application for bargaining order – Whether CFMMEU is entitled to represent the industrial interests of employee – Construction of union rules – Principal or primary purpose test – Whether employee principally or primarily employed as forklift driver or warehouse operator – Finding that employee is principally or primarily employed as warehouse operator – Employee not principally or primarily employed to drive a forklift – CFMMEU is not entitled to represent industrial interests of employee – CFMMEU has no standing to bring application for bargaining order based on membership of employee.
Overview
[1] The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) has applied to the Fair Work Commission (the Commission) for a bargaining order. The application has been brought under s.229 of the Fair Work Act 2009 (the FW Act). The application relates to bargaining being conducted by DuluxGroup (Australia) Pty Ltd (Dulux) for a proposed enterprise agreement to cover employees at the Rocklea Site at which Dulux operates a paint manufacturing facility and distribution centre.
[2] The proposed agreement is to replace the Dulux Rocklea Enterprise Agreement 2016 (2016 Agreement) which applies to employees at the Rocklea Site. Dulux and the United Workers Union (UWU) are also covered by the 2016 Agreement. The 2016 Agreement reached its nominal expiry date on 3 March 2020 and bargaining for the proposed agreement commenced on 18 November 2019. The 2016 Agreement covers employees in a range of classification levels undertaking tasks associated with the manufacturing and distribution of paint. Dulux generically refers to these employees as Production Operators and Warehouse Operators.
[3] In summary, the CFMMEU has enrolled some employees covered by the 2016 Agreement as members and contends that it is entitled to represent the industrial interests of those members in negotiations for the proposed agreement. The CFMMEU seeks orders requiring that Dulux:
• Recognise and bargain with the CFMMEU in accordance with s. 228(1)(f) of the FW Act; and
• Attend and participate in meetings with the CFMMEU at reasonable times in accordance with s. 228(1)(a) of the FW Act.
[4] Dulux contends that the CFMMEU is not entitled to represent the industrial interests of Warehouse Operators or Production Operators at the Rocklea Site and that on this basis, the CFMMEU does not have standing to make an application for a bargaining order under s.229 of the Act. The parties agreed that the question of the CFMMEU’s standing to make the application would be dealt with as a preliminary matter.
[5] The matter was heard over several days in March 2021. The CFMMEU and Dulux sought and were granted permission to be represented by lawyers. Permission was granted pursuant to s.596(2)(a) of the Act on the basis that I was satisfied that the matter involves significant complexity involving, as it does, construction of union rules and the operation of the bargaining framework within the Act. No issue of fairness arises as between the parties. The CFMMEU was represented by Ms L Saunders of Counsel, instructed by the CFMMEU’s Senior National Legal Officer, Ms L Weber. Dulux was represented by Mr T Spence of Counsel instructed by Ms W Fauvel and Mr C Scott of Herbert Smith Freehills.
[6] Other bargaining representatives, including the UWU, were notified of the application and the hearing and were provided with all documentation. The UWU and other bargaining representatives did not seek to be heard or otherwise participate in the hearing of this matter.
[7] A number of procedural issues arose between the parties prior to the hearing. The first such issue was whether the CFMMEU or Dulux would file its material first. The CFMMEU maintained that as the Applicant, it should file first and have an opportunity to respond to material filed by Dulux. Dulux contended that it should file its material first on the basis that it was objecting to the CFMMEU’s application. Ultimately the parties agreed that they would file their material at the same time and that each would respond to the other at the same time. Directions providing for this were issued. Dulux also sought that the Commission conduct a site visit. When the parties were unable to agree on the timing of the visit and other related matters, I declined this request.
[8] At the hearing the following persons gave evidence on behalf of the CFMMEU:
• Mr Wayne Lambert, Warehouse Operator and CFMMEU delegate; 1
• Mr Arturo Menon, Southern Co-Ordinator of the Queensland/Northern Territory Divisional Branch of the CFMMEU; 2 and
• Ms Lucy Weber, Senior National Legal Officer of the CFMMEU. 3
[9] Evidence for Dulux was given by Mr Peter Holden, Site Manager of the Rocklea Site. 4
The issues for determination
[10] An issue arose during the hearing about the scope of the issues for determination. Dulux contended that the Commission should determine whether the CFMMEU has the right to represent the industrial interests of Production and Warehouse Operators at the Rocklea Site. In this regard, Dulux pointed to the fact that the application for bargaining orders filed by the CFMMEU asserted coverage of both Warehouse and Production Operators, and that it would be more efficient for the Commission to determine coverage generally.
[11] The CFMMEU sought to confine the proceedings before the Commission so that the issue for determination is whether it has the right to represent the industrial interests of one member, Mr Wayne Lambert, who is employed as Warehouse Operator.
[12] The CFMMEU contended that the task before the Commission does not involve a roving inquiry in relation to the coverage of the Union or its density on site. Instead, the CFMMEU’s application raises a discrete question as to whether it is a bargaining representative within the meaning of s. 176(2)(b) of the FW Act. This threshold is satisfied if there is a single employee who is a valid member of the CFMMEU – that is, an employee who has as a matter of fact joined – and is, as a matter of interpretation, within the scope of the CFMMEU’s coverage rule. 5
[13] The CFMMEU also contended that it has advanced one such employee, Mr Lambert, and all that the case requires is a consideration of whether he is employed as a forklift driver within the meaning of the CFMMEU’s rules. If the answer is yes, then the CFMMEU has standing to bring this application and Dulux’s obligation under s. 228 are enlivened.
[14] Further, the CFMMEU contends that if Dulux has other questions it wants determined – notably the coverage of production operators – about which the CFMMEU makes no concession or contention, it must commence proceedings of its own. Dulux cannot hijack the CFMMEU’s application to agitate these other questions and the CFMMEU cannot be compelled to answer a case that it has not put before the Commission.
[15] I accept the submissions of the CFMMEU in relation to the matters for determination. The CFMMEU is the applicant for a bargaining order under s. 229 of the FW Act. While the Respondent has raised an objection based on the standing of the Union to make the application, it is the CFMMEU which must establish that it has standing. As a Full Bench of the Commission observed in Piyush Jain v Infosys Limited T/A Infosys Technologies Limited:
“In most cases the question of where an evidentiary onus (or something analogous to it) resides will be answered by asking; in relation to each matter about which the Commission must be satisfied, which party will fail if no evidence or no further evidence about that matter were given? The evidentiary onus will generally be the party that will fail in that event.”6
[16] In the present case, the CFMMEU does not have standing to make an application for a bargaining order unless it is a bargaining representative for the proposed agreement: see s.229(1). In relation to a proposed enterprise agreement that is not a greenfields agreement, an employee organisation is a bargaining representative of an employee who will be covered by the agreement if the employee is a member of the organisation: see s.176(b)(ii). However, an employee organisation cannot be a bargaining representative of the employee member unless the organisation is entitled to represent the industrial interests of the employee in relation to work that will be performed under the agreement: see s.176(3). Accordingly, it is the CFMMEU which will fail if these matters are not established and the Union bears the onus to make its case.
[17] It is also apparent from the Form F32 Application for a bargaining order filed by the CFMMEU and the correspondence between the Union and Dulux that preceded it, that the claimed coverage and the basis upon which it was asserted, centred on forklift drivers. The CFMMEU asserts that Mr Lambert is principally employed as a forklift driver. As a result, no unfairness to Dulux arises from the narrowing of the CFMMEU’s case. Further, where the CFMMEU has not claimed coverage on any other basis and has called no evidence other than that of Mr Lambert, it would not be appropriate for the Commission to determine a broader question.
[18] There were also a range of objections made about evidence in the proceedings. In relation to paragraph 6 of Mr Lambert’s third statement, the Respondent contended that the work allocation documents referred to and annexed are the property of Dulux and that the CFMMEU as the Applicant had not sought the production of those documents through appropriate means. Mr Lambert stated in response that he had sought permission from the supervisor from whom he obtained the documents and informed the supervisor that he intended them to be used in these proceedings. Those documents relate to allocation of work by Mr Lambert’s supervisor and were received into evidence as there was no basis for excluding them.
[19] The CFMMEU, in response to objections to some of the matters in Mr Lambert’s witness statements also accepted that it would not press certain parts of those witness statements.
[20] More significant issues arose with Mr Holden’s evidence about the proportion of time spent by Mr Lambert on various tasks. Mr Holden’s evidence on this subject was set out in spreadsheets attached to his witness statement. Those spreadsheets were prepared by other persons. It became apparent during cross-examination that there were other documents, referred to as pivot tables, which underpinned calculations of the percentage of time Mr Lambert spent operating Materials Handling Equipment (MHE). Mr Holden was permitted to give additional oral evidence-in-chief in an attempt to rectify the issues with these calculations.
[21] Ms Saunders for the CFMMEU contended that the additional evidence of Mr Holden did not adequately address the way in which the calculations about use of MHE had been undertaken and called for the documents referred to by Mr Holden in his evidence.Dulux through its legal representative asserted that the documents setting out the underpinning calculations are subject to legal professional privilege and declined to provide them. Ms Saunders submitted that without the underpinning data contained in the documents subject of the call, the calculations provided by Mr Holden were meaningless and that this was unfair to the CFMMEU as it could not test his evidence.
[22] After some debate, during which I expressed the provisional view that the assertions made by the CFMMEU about the calculations set out in Mr Holden’s were correct and that Mr Holden’s evidence was meaningless without that information, Dulux withdrew paragraphs in Mr Holden’s written statements referring to the calculations and accepted that his oral evidence attempting to resolve these issues would not be considered. 7 As a result the raw data set out in Mr Holden’s witness statements remains in evidence and the parties were at liberty to perform their own calculations about what it shows and to place those before the Commission. The parties did undertake their own calculations.
[23] Dulux, in its written closing submissions (which were prepared before Mr Holden was cross-examined), asserted that the CFMMEU could have called the persons who provided the data to Mr Holden to deal with its objections. I do not accept that submission. The CFMMEU is not required to call a witness to assist in the resolution of issues with the evidence called by Dulux. The resolution of any such issues is a matter for Dulux. In circumstances where Mr Holden did not perform the calculations about which he gave evidence and Dulux did not lead evidence about the basis of the calculations which was capable of being properly tested in cross-examination, it would have caused significant unfairness to the CFMMEU for the Commission to have accepted the calculations about the percentage of time spent by Mr Holden operating MHE. Dulux opted to resolve the issue by withdrawing parts of Mr Holden’s witness statements and accepted that oral evidence in chief given by him in relation to those parts of his statements would not be received by the Commission. Dulux’s complaint about the CFMMEU not calling evidence in relation to this matter cannot be maintained in those circumstances.
Legislation and applicable principles
Bargaining representatives and the entitlement to represent industrial interests
[24] The CFMMEU application is made pursuant to s.229 of the FW Act. Section 229 specifies the persons who may apply for a bargaining order as follows:
“A bargaining representative for a proposed enterprise agreement may apply to the FWC for an order (a bargaining order) under section 230 in relation to the agreement.” 8
[25] The definition of “bargaining representative for a proposed enterprise agreement” is provided for in the dictionary in s. 12 of the FW Act in the following terms:
“bargaining representative" for a proposed enterprise agreement: see sections 176 and 177.” 9
[26] Section 177 relates to greenfields agreements only and is presently irrelevant. Section 176 provides
“(1) The following paragraphs set out the persons who are bargaining representatives for a proposed enterprise agreement that is not a greenfields agreement:
(a) an employer that will be covered by the agreement is a bargaining representative for the agreement;
(b) an employee organisation is a bargaining representative of an employee who will be covered by the agreement if:
(i) the employee is a member of the organisation; and
(ii) in the case where the agreement is a multi-enterprise agreement in relation to which a low-paid authorisation is in operation--the organisation applied for the authorisation;
unless the employee has appointed another person under paragraph (c) as his or her bargaining representative for the agreement, or has revoked the status of the organisation as his or her bargaining representative for the agreement under subsection 178A(2); or
(c) a person is a bargaining representative of an employee who will be covered by the agreement if the employee appoints, in writing, the person as his or her bargaining representative for the agreement;
(d) a person is a bargaining representative of an employer that will be covered by the agreement if the employer appoints, in writing, the person as his or her bargaining representative for the agreement.
…
(3) Despite subsections (1) and (2):
(a) an employee organisation; or
(b) an official of an employee organisation (whether acting in that capacity or otherwise);
cannot be a bargaining representative of an employee unless the organisation is entitled to represent the industrial interests of the employee in relation to work that will be performed under the agreement.”
[27] For a person to be a “bargaining representative” for a proposed enterprise agreement the person must meet the description in one of ss.176(1)(a) – (d). For an employee organisation to a bargaining representative for a proposed enterprise agreement it must meet the description in s.176(b). That coverage is subject to the exclusion in s.176(3) of the Act. 10
[28] The expression “entitled to represent the industrial interests of the employee” is used extensively throughout the Act. The Act does not expressly define the expression. It is not in dispute between the parties 11 that for an employee organisation to be entitled to represent the industrial interests of an employee who is a member, it is sufficient if the employee is eligible for membership within the organisation’s rules.12
[29] The general principles applicable to the interpretation of union eligibility rules are also not in dispute. They are articulated by a Full Bench of the Commission in “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) v ResMed Limited 13(ResMed) at [34] as follows:
“(1) Union eligibility rules will be construed objectively…
(2) The nature of union eligibility rules means that they should be construed liberally rather than narrowly or technically…
(3) It is permissible to have regard to any common understanding among people concerned with relevant industries and particularly with industrial matters of the ordinary application of the words used, and to the previous use of the words in the relevant organisation’s rules and in statutory provisions, decisions, determinations, awards, reports and other papers concerned with the relevant industry or industries… Federal awards, including consent awards, made by Commonwealth industrial tribunals at a time when the legislative award-making power was founded upon the industrial disputes power in s.51(xxxv) of the Constitution, are important sources in this respect since a union may only be a party to an industrial dispute involving employees eligible to be its members…
(4) If there is ambiguity as to the meaning of words in the eligibility rules, assistance may be sought in the terms of the industry rule (subject to it being understood that the scope of the eligibility rule is not restricted by the scope of the industry rule)…
(5) Words in an eligibility rule should not be read in isolation such as to give the rule a wide and indefinite scope of operation that is unlikely to have been intended…
(6) Terms used in union eligibility rules should not be interpreted statically in accordance with the meaning they bore at the time that they were first introduced into the rules. Although such terms will have a fixed connotation, they bear a changing denotation - that is, they may be interpreted in accordance with their appropriate current meaning, taking into account changing technologies and methods of work… This may mean that eligibility rules may cover industries or callings not known when the rules were originally drafted…
(7) The words “in or in connection with” are words of expansion. However, for the requisite connection to be established, the work of the employees in question must be referable or significant to the work of the second group of employees with whom there is said to be a connection. It is not sufficient that the work of the relevant employees makes it possible for an employer to conduct a business involving the performance of work by the second group of employees….” 14 (citations and case references omitted)
The Rules of the CFMMEU
[30] The current Rules of the CFMMEU (the National Rules) were certified by a Delegate of the General Manager of the Commission incorporating alterations of 24 July 2019. Relevantly in the present case, rule 2(E)(a) provides:
“(E) Without limiting the generality of the foregoing and without being limited thereby the following are eligible to be members of the Union:-
(a) An unlimited number of all classes of engine drivers, firemen, crane drivers, mobile crane drivers, forklift drivers, tow motor drivers, excavation drivers, pump attendants, pile drivers, motor drivers or attendants, greasers, cleaners, trimmers and any other workers assisting in and about the work incidental to any engine, boiler or machinery connected with the production or utilisation of power on land or any harbour or river, and boiler attendants attending boilers not generating steam for power purposes and such persons as have been elected or appointed as paid officers of the Union or a branch of the Union or whilst financial members of the Union are elected representatives of any working-class organisation to which the Union or a branch thereof is affiliated, or as a working-class member of Parliament.
Provided that mobile crane drivers, operators of fork lifts and/or tow motors engaged on the waterfront upon which such work being that of a waterside worker or engaged in the transport of goods by road, or motor truck drivers wherever employed, shall not be eligible for membership.”
[31] The current Rules of the Construction and General Division and Construction and General Divisional Branches (the Divisional Rules) were certified by a Delegate of the General Manager of the Commission incorporating alterations of 22 December 2020. Clause 2 of the Divisional Rules deals with eligibility for membership of the Construction and General Division. It provides that a member of the CFMMEU, who is a member by virtue of Rule 2(A), (B) and (N) of the National Rules shall belong to the Construction and General Division. A member of the CFMMEU by virtue of Rule 2(E) of the National Rules is also eligible for membership of the Construction and General Division.
[32] Rule 2(E)(a) is sometimes referred to as the “FEDFA rule” and was the result of an amalgamation between an earlier iteration of the CFMMEU and the Federated Engine Drivers and Firemen’s Association of Australasia (FEDFA). It is necessary to consider the history of this rule. The rule was established in 1947 and is discussed in an unreported Decision of the Industrial Registrar issued on 21 December 1947. That decision was tendered by the CFMMEU in the hearing of the present matter. It dealt with two applications made by the FEDFA seeking changes to its rules. The first application sought to change the conditions of eligibility for membership of the FEDFA. The proposed rule was in the following terms with the additional wording underlined:
“The Association shall consist of an unlimited number of all classes of engine drivers, firemen, crane drivers, mobile crane drivers, operators of fork lifts and/or tow motors, dynamo attendants, motor drivers or attendants, greasers, cleaners, trimmers, and any workers assisting in and about the work incidental to any engine, boiler or machinery connected with the production or utilization of power on land or any harbour or river and boiler attendants attending boilers not generating steam for power purposes and such persons as have been elected as paid officers of the Association or whilst financial members of the Association are elected as representatives of any working class organization to which the Association or a Branch of the Association is affiliated or as a working class member of Parliament.”
[33] The second application sought to change the description of the industry in connection with which the FEDFA was registered as follows:
“the group of industries comprised within the calling service employment occupation or avocation of persons employed on land or any harbour lake or river as drivers of or attendants to any engine, winch, crane, mobile crane, fork lift, tow motor, pile driver, excavator, pump, boiler, generator, dynamo or motor used in or in connection with the generation production distribution or utilization of power and persons assisting in or about any work incidental thereto.”
[34] The Waterside Workers Federation of Australia (WWF) objected to the first application. The Transport Workers Union of Australia (TWU) objected to both applications. The Industrial Registrar records the grounds advanced by the FEDFA in support of the first application as:
“1. THAT the driving and operating of mobile cranes, fork lifts, and/or tow motors, is a comparatively new development in industry generally.
2. THAT since their introduction into industry these machines have been driven and operated by employees members of the application Association.
3. THAT the introduction and development has been gradual and until recently this Association has not become cognizant of the need to protect the interests of its members engaged in driving and operating these machines.
4. THAT in order to adequately protect the interests of all members of the applicant Association it is essential that the Conditions of Eligibility for Membership of the said Association be brought into line with the considerable developments and changes that have taken place in the industry.”
[35] The relevant parts of the FEDFA’s submissions to the Industrial Registrar were as follows:
“From the circumstance that the applicant is a ‘craft’ organization its members are to be found in all industries wherein the generation or utilization of power is an ordinary incident; employment of its members on the units now in question accordingly would not be any innovation…
…
In heavy industry the use of traverser cranes manned by members of the applicant is a necessary incident under present industrial practice. The increasing use of mobile cranes and fork lifts (and to a lesser degree tow motors) has a tendency to reduce the need for, or work done by, traverser cranes, but the functions to be discharged remain unaltered as should the personnel necessary for the performance of that work…
…
In all the circumstances there is no reason why the applicant should be deprived of its opportunity to admit as members these employees whose employment basically comprises the generation by a unit of power which is utilized by means of the unit itself.”
[36] The Industrial Registrar concluded that the FEDFA was a union organised on “craft lines”. It comprised members who habitually followed given occupations and associated activities and “callings comparable to the given occupation”. The “craft” in relation to which the union was comprised was “that of employees concerned principally with the generation of power and the direct utilization of power”. It was noted that members of the union are “naturally” found in those industries in which the generation and utilisation of power is a common incident. The rules as they existed prior to the application included “crane drivers” amongst the union’s ranks. The Registrar also concluded that the new terms sought to be introduced – mobile crane drivers and operators of forklifts – have common to them the self-generation of propelling power, a power used for the purpose of raising, lowering and transporting goods.
[37] The Industrial Registrar, having considered that a change should be made as a result of the first application, stated in relation to the second application:
“The conditions of eligibility for membership and the registered description of the industry should be identical in area but the former would to an extent control any unintentional excess in the latter.”
[38] Both amendments were granted. The amendment to the membership rules was subject to an exclusion for mobile crane drivers, operators of forklifts and/or tow motors engaged on the water-front on work being that of a waterside worker or engaged in the transport of goods by road. As can be seen, the rule is still essentially in this form.
[39] Some 37 years later, rule 2(E)(a) was considered by the High Court in Re Coldham; Ex parte Australian Workers’ Union 15(Re Coldham). The background to that matter was that employers challenged findings by the Australian Conciliation and Arbitration Commission, that an industrial dispute existed with between the FEDFA and employers in a number of States involving employees engaged in a range of work. When a draft award was being considered by Deputy President McKenzie in 1983, the AWU supported by the Chamber of Western Australian Industry maintained that the FEDFA did not have eligibility under its rules to generate an industrial dispute with respect to crane driving in the civil construction industry. The matter was referred by the President to a Full Bench of the Commission constituted by Justice Coldham, Deputy President McKenzie and Commissioner Maher.
[40] In its decision issued on 21 December 1983, the Full Bench set out the FEDFA’s Eligibility Rule at that time, as it was relevant to the matters in dispute. The rule stated that the FEDFA shall include:
“…all classes of engine drivers, firemen, crane drivers, mobile crane drivers, fork lift drivers, tow motor drivers, excavator drivers, pump attendants, pile drivers, motor drivers or attendants, greasers, cleaners, trimmers, and any other workers assisting or about the work incidental to any engine, boiler or machinery connected with the production or utilization of power on land or any harbour or river, and boiler attendants attending boilers not generating steam for power purposes…”
[41] The FEDFA’s Industry Rule at that time, also set out by the Full Bench, comprised:
“The group of industries comprised within the calling, service, employment, occupation or avocation of persons employed on land or any harbour, lake or river, as drivers of, or attendants to any engine, winch, crane, mobile crane, forklift, tow motor, pile driver, excavator, pump, boiler, generator, or motor used in or in connexion with the generation, production, distribution or utilisation of power, and persons assisting in or about any worker incidental thereto.” 16
[42] In its Decision 17, the Full Bench noted that the essence of the AWU’s submission objecting to an award being made was an assertion that the scope of FEDFA activity was limited to specified callings in the industry of employers engaged in the generation, production, distribution or utilisation of power, described as the power generation industry. The Full Bench also noted that in support of this submission, the AWU relied on the 1947 decision of the Industrial Registrar (referred to above). In rejecting this submission, the Full Bench said:
“We are not persuaded that the eligibility rule of the FEDFA contemplates an employer’s industry to which eligible members of the FEDFA are to be confined. It has been acknowledged since the time of its registration that the FEDFA is a craft union based on the callings of employees.” 18
[43] The Full Bench also noted that in a 1913 decision relating to the first award for the FEDFA, Justice Higgins extended the coverage to the prescribed classifications working in connection with a variety of engines including crane engines, “whether the motive-power be steam, electricity, coal, gas, suction gas, pressure gas, air, oil, or any other motive power, other than hand-power or animal-power” and that these engines provided their own motive power rather than providing power for other purposes. 19 The Full Bench then considered whether the callings set out in the rule were intended to be limited to those pursued in power undertakings or divisions or departments which generate power within undertakings performing wider industrial functions.20
[44] In finding that the rule was not so limited, the Full Bench noted that the FEDFA Rules had been considered in earlier cases as being open to a wider interpretation than submitted by the AWU. In particular, the Full Bench noted that a 1917 Award affecting the FEDFA included as respondents mining establishments, flour millers, municipal councils, breweries, iron works, food preservers and paper mills. Further, it was noted by the Full Bench that by 1940 Judge O’Mara had made a mixed industries award covering crane drivers on the basis that:
“The operation of a crane such as a foundry or workshop crane is frequently as much a part of a production or maintenance process as that of any other machine installed in a plant.” 21
[45] The Full Bench went on to find that:
“It is clear from this history that the FEDFA has extended its coverage of crane drivers under Federal awards and agreements to industry generally. This being so, its coverage should not be confined in any limited sense contended for by the AWU in the present matter unless the rules themselves afford some compelling reason for following the narrow interpretation.
We are satisfied that no such reason is afforded by those rules. On the contrary, the eligibility rule of the FEDFA may clearly be given a meaning of sufficient width to include within its terms persons whose industrial activities are not confined merely to the production or generation of power. There is also ample room for including within the rule crane drivers who operate in industrial areas beyond that a limited industrial activity. This is so whether the rule is read as referring to the classifications of ‘engine drivers, firemen, crane drivers, mobile crane drivers, fork lift drivers, tow motor drivers, excavator drivers, pump attendants, pile drivers’ and ‘motor drivers’ alone and independently of the remainder of the rule or whether all those classifications, including crane drivers, should be qualified not only by the geographical limitation relating to land, harbours and rivers in the rule but by the words ‘about the work incidental to any engine, boiler or machinery connected with the production or utilisation of power...’ Either interpretation is reasonably open and historical development dictates acceptance. The rule must therefore be taken to include crane drivers employed in civil construction in Western Australia.” 22
[46] The AWU made an application to the High Court challenging the jurisdiction of the Commission to make an award settling disputes arising from the FEDFA log of claims. That application was the subject of the High Court decision in Re Coldham. The judgement of the High Court records that the objection made by the AWU was that the FEDFA was not competent to generate an industrial dispute with respect to mobile crane driving in the civil construction industry and that the submission, based on the eligibility clause of the FEDFA’s Constitution, was that “…[T]he scope of FEDFA activity was limited to specified callings in the industry of employers who are engaged in the generation, production, distribution or utilisation of power whether that power be electrical, gas or otherwise”. The High Court concluded that the Decision of the Full Bench was correct, holding that:
“The AWU’s submission is that the description which follows the words ‘any other workers’ applies also to all the specific categories of workers which precede these words. The submission pays insufficient attention to the structure of the clause which naturally falls into three parts. The first part consists of ‘all classes of’ the specific categories, including ‘mobile crane drivers’ down to and including ‘motor drivers’. With the exception of ‘firemen’ and ‘pump attendants’ the categories in the first group comprise drivers of various kinds. And all the employees described in this group, with the possible exception of ‘pump attendants’ have some degree of special skill. The second part of the clause commences with the disjunctive ‘or’ and include ‘attendants, greasers, cleaners, trimmers, and any other workers assisting in or about the work incidental to any engine, boiler or machinery connected with the production or utilization of power’. We note in passing that it is unnecessary for the purposes of the present case to decide whether the words ‘on land or any harbour or river’ qualify the first part of the clause. The third part of the clause includes ‘boiler attendants not generating steam for power purposes’”.
[47] Consequently, the High Court considered that the structure of rule (2)(E)(a) indicated that membership of FEDFA comprised three groups:
“(1) all classes of enumerated drivers, firemen and pump attendants;
(2) attendants, greasers, cleaners, trimmers, and any other workers who answer the general description contained in the second part of the clause; and
(3) boiler attendants who answer the description contained in the third part of the clause.”
[48] The description governing the second group – “connected with the production or utilization of power” – did not apply to the first group. The High Court also said:
“…in the result, we do not regard the eligibility clause as ambiguous and, accordingly, there is no occasion to look to the industry clause for the purpose of resolving an ambiguity.”
[49] In short compass the effect of the High Court decision in Re Coldham was that for the purposes of considering the first part of the FEDFA’s Eligibility Rule, the reference to crane drivers (and by extension other enumerated drivers) in the term “all classes of engine drivers, firemen, crane drivers, mobile crane drivers, forklift drivers…” was not limited by other occupations listed in the Eligibility Rule or by the Union’s Industry Rule. In particular the Eligibility Rule was not limited to persons employed “in connexion with the generation, production, distribution or utilisation of power”.
[50] The operation of rule 2(E)(a) of the CFMMEU’s Eligibility Rule has more recently been considered by the Full Court of the Federal Court in Construction, Forestry, Mining and Energy Union v CSBP Limited 23(CSBP). It is instructive to consider this case in some detail. The facts as set out by the Full Court were that CSBP manufactured and produced chemicals and employed Process Technicians to undertake this work. Process Technicians classified at various levels operated plant and were encouraged by CSBP to have a turbine and boiler ticket. Each plant that operated a boiler or turbine was required to have the holder of such a ticket present while in operation. CSBP sought a declaration from the Court that the CFMEU (as the CFMMEU was then known) was not entitled to represent the industrial interests of persons employed by CPSBP as Process Technicians.
[51] McKerracher J at first instance, held that Process Technicians did not fall within the ambit of the CFMEU’s eligibility rule and that the Union was not entitled to represent the industrial interests of those employees. 24 A significant factor in the decision at first instance was the evidence of CSBP’s witnesses about the complex nature of the training activities and responsibilities of Process Technicians. It is also evident that the CFMEU witnesses asserted that the engine driving activities were an integral part of the process of producing chemicals and that the production process was work in connection with or incidental to the engines, boilers and machinery found in CSBP’s plant. The CFMEU further asserted that while some skill was required to carry out the work of process technicians, those employees were not “highly skilled.” McKerracher J concluded, contrary to the CFMMEU’s submissions, that:
“All of the evidence shows that the chemical process which is highly sophisticated, does not exist to serve the turbines, boilers and generators. They are merely tools by which the chemical production process, which is the undoubted primary purpose of the Process Technicians, are used to achieve the production. The machinery has no reason for existence other than to be used as a tool in that production. Although it must be accepted that electricity is critical to the running of the plants, that does not change the nature of the function of the machinery and the primary purpose which it is designed to serve. Nor does it change the sophisticated nature of the employment of the Process Technicians.” 25
[52] The CFMEU appealed to the Full Court of the Federal Court. 26 The part of rule (2)(E) that was specifically considered by the Full Court was the third part (as identified by the High Court in Re Coldham concerning: “…any other workers assisting in and about the work incidental to any engine, boiler or machinery connected with the production or utilisation of power on land … and boiler attendants attending boilers not generating steam for power purposes.”). Also considered was rule 3 (the Industry Rule) which provides at (F):
“The group of industries comprised with in (sic) the calling, service, employment, occupation, or avocation of persons employed on land or any harbour, lake or river, as drivers of or attendants to any engine, winch, crane, mobile crane, forklift, tow motor, pile driver, excavator, pump, boiler, generator, or motor used in connection with the generation, production, distribution, or utilisation of power, and persons assisting in or about any work incidental thereto.”
[53] Before the Full Court, CSBP contended that the primary role of Process Technicians was to make chemicals and to monitor, manage and optimise the production of the various chemical products made in each business unit. CSBP also contended that the manufacture of chemicals was not “incidental to” any engine, boiler or machinery connected with the production or utilisation of power. In this regard, CSBP submitted that while the turbines, generators and boilers at the plant generate and use power, the primary purpose of a process technician is not to assist in and about work which appertains to engines, boilers or machinery connected with the production or utilisation of power.
[54] CSBP also submitted before the Full Court that the words “any engine, boiler or machinery connected with the production or utilisation of power” should not be construed in isolation but read harmoniously with the CFMEU’s Industry Rule. Further, CSBP submitted that “utilisation” is concerned not simply with the use of power but with the facilitation of the use of power and that the words “connected with the production or utilisation of power” refer to power generation or utilisation as an industrial activity rather than to the use of any and all machines that use power. Accordingly, rule 2(E)(a) of the Eligibility Rule is concerned with employees whose principal purpose of employment work of a subordinate or subsidiary nature in relation to engines, boilers and machinery and that while Process Technicians may perform some work in relation to turbines, generators and boilers, that is not the principal purpose of their employment.
[55] The CFMEU argued before the Full Court that if an engine, boiler or machinery produces or uses power, the Eligibility Rule will be satisfied if the relevant employees are attendants assisting in and about work incidental to any engine, boiler or machinery and that the “incidental” work at CSBP’s plant was the production of chemicals. The CFMEU also argued that the primary purpose test is only applicable where some of the relevant duties fall outside the broad meaning of the words in the relevant eligibility rule.
[56] The CFMEU pointed to the construction of its eligibility rule determined by the High Court in Re Coldham and argued that the primary judge erred by:
• failing to have regard to the term “utilsation of power” and in construing the eligibility rule by finding that that the engines, boilers and machinery were not “connected with the production of power” notwithstanding that they actually produce power;
• limiting the Eligibility Rule by reference to the Industry Rule when the Eligibility Rule was not ambiguous; and
• not giving the words “incidental to” their ordinary meaning so that the Eligibility Rule covers activities which are apt to actually happen in connection with the engines, boilers and machinery.
[57] The CFMEU also argued before the Full Court that “the work” referred to in the Eligibility Rule is the work of the enterprise being conducted by the employer and that “incidental to” should be understood as meaning “naturally appertaining to” rather than “subordinate” or “subsidiary to” that work. Further, the CFMEU argued that the primary purpose test of employment was not appropriate and that in times of technological change, it is to be expected that general words will be used to give wide coverage even though some specific callings are already included in the rule.
[58] The Full Court began its consideration by making two general observations. The first being:
“…the CFMEU’s attempt to analyse three parts of the Eligibility Rule in isolation from each other ignores the assistance legitimately and necessarily to be gained from reading the Eligibility Rule as a whole. One should seek to understand the rule by considering it as a whole so that its parts may shed light on each other. This is so apart from the question raised by the CFMEU as to the legitimacy of reference to the Industry Rule as an aid to the construction of the Eligibility Rule…The first point to be made is that the CFMEU’s attempt to present what is truly one question of interpretation as if it were three distinct exercises in construction to be performed separately is an invitation to error.” 27
[59] The Full Court also considered that the statutory context in which the construction question arises is s. 166(1) of the Fair Work (Registered Organisations) Act 2009 which relevantly provided (and still provides) as follows:
“(166)(1))…a person who is eligible to become a member of an organisation of employees under the eligibility rules of the organisation that relate to occupations in which, or the industry or enterprise in relation to which, members are to be employed is,…entitled, subject to payment of any amount properly payable in relation to membership:
(a) to be admitted as a member of the organisation[.]”
[60] The Full Court noted that the eligibility rule in question confers an entitlement to membership by reference to the occupations of employed persons and not by reference to the industry or enterprise of the employer. The Court observed that the circumstance that the focus of the eligibility rule is upon the occupations of the employees covered by it as opposed to the industry in which their employers are engaged means that the primary purpose test of employment is appropriate. The Court went on to cite with approval the approach to the primary purpose test set out in the judgement of Burt CJ in Federated Engine Drivers and Firemen’s Union WA v Mt Newman Mining Co Pty Ltd (FEDFU v Mt Newman). 28
[61] That case involved determination by the Western Australian Industrial Appeals Court of whether workers employed by the Company as “machine drillmen” were eligible to be members of the Federated Engine Drivers and Firemen’s Union (FEDFU) or the AWU. The FEDFU had coverage of “engine drivers” and “stationary motor drivers”. The AWU had coverage in the industry of metalliferous mining and had made an agreement with the Company in relation to a calling within that industry of “drilling”. In determining that the employees were not engine drivers or stationary motor drivers, Burt CJ said:
“…not every worker, who in doing the work he is employed to do, drives an engine, is an engine driver within the meaning of the eligibility rule of the appellant union. There are today many vocations which involve the driving in the sense of the control and operation of an engine which no-one would ever think fell within that description. … The question in any particular case is, I think, whether the worker is employed to drive an engine so that he earns his wages by doing that, or whether he is employed to do something else. And if the answer is that he is employed to do something else then he is not an engine driver merely because he operates a machine and drives the engine of the machine to do what he is employed to do. No doubt this distinction will when applied to certain facts produce what one might call borderline cases.” 29
[62] Wickham J in that case also said:
“…It is to be observed that what the worker may be described as doing does not determine the matter. The subsidiary question is the capacity in which he is employed or usually employed. The worker literally in this case could be said to be doing three things, driving an engine, operating a machine and drilling holes or he could be said to be doing one thing, namely drilling holes with an engine-driven machine, or another thing, driving a machine which drilled holes.
The capacity or calling of such a worker is a question of fact and the Commission correctly approached that question when it said that ‘The duties of the workers involved should be viewed as a whole’…” 30
[63] The Full Court in CSBP also cited with approval the observation of Gray J in Joyce v Christoffersen 31 that: “the primary function of an employee must be determined by looking at what he or she does in the context of the employer’s organisation of work.”32 The Court went on to hold that:
“The process technicians employed by CSBP perform duties more sophisticated and extensive than those contemplated by any of the particular occupational descriptions listed in the Eligibility Rule. Moreover, their duties are directed not to the use of machinery for the generation or utilisation of power but to the use of machinery which uses power for the production of chemical products.”
[64] Further, the Court said:
“Senior Counsel for the CFMEU fought a gallant, but, in our respectful opinion, ultimately unsuccessful battle to maintain that the construction for which the CFMEU contended would not lead to an impossibly wide operation for the rule. It is difficult to see how, on the CFMEU’s construction of the rule, any worker who turns on an electric switch in the course of his or her employment would not be within the Eligibility Clause.
It may be accepted that the eligibility rules of a trade union must be broadly construed; and that the scope of a membership clause should not be read narrowly or read down by reference to the membership clauses of other industrial organizations .... It may also be accepted that it is not relevant to the construction of the Eligibility Rule that there may be another industrial organisation that might be a more natural representative of a given employee …
That having been said, one should not accede to attempts to promote exorbitant claims which, if allowed, would render otiose the efforts of those who laboured long and hard to produce explicit statements intended to mark out the scope of a union’s coverage of occupations in the workplace.
In this regard, the context afforded by the Industry Rule, r 3(F), limits the scope of the Eligibility Rule so that it does not include those employees engaged in the generation of use of power only as an aspect of their role in an integrated process directed to the production of some other product…This provision indicates that the Eligibility Clause is not concerned with the occupations of all workers who operate machinery which uses power, but with those occupations who assist in the operation of machinery which is used in connection with the utilisation of power.
The CFMEU’s argument that record to the Industry Rule is impermissible because there is no ambiguity in the Eligibility Rule is difficult to accept…
In our respectful opinion, it is legitimate to have regard to the Industry Rule for the purpose of resolving doubt as to the proper construction of the Eligibility Rule. It is also legitimate to eschew a construction which is so ‘extremely wide or indefinite as to be unlikely to have been intended’…”. [citations omitted] 33
[65] The Full Court in CSBP was considering a different part of the CFMMEU’s Eligibility Rule than the part that was the focus of the High Court in Re Coldham. In CSBP the Full Court found that it was legitimate to have regard to the CFMMEU’s Industry Rule (rule 3(F)) to resolve doubt as to the proper construction of the part of the Eligibility Rule under consideration. In Re Coldham the High Court determined that the part of the Eligibility Rule concerning “enumerated drivers, firemen and pump attendants” was not ambiguous and that reference to the Industry Rule for the purpose of resolving ambiguity was not necessary.
[66] Notwithstanding its reference to the CFMMEU’s Industry Rule, the Full Court in CSBP ultimately applied the principal or primary purpose test to conclude that the process technicians were principally employed to manufacture chemicals and were not within the Eligibility Rule of the CFMMEU.
[67] The approach to applying the principal or primary purpose test is to consider holistically the major, substantial or principal aspect of the work performed by the employee including what the employee is employed to do, the tasks undertaken, the amount of time spent undertaking particular tasks, and the circumstances of the employment. 34 Further, the primary purpose of employment for which an employee is employed must be determined by looking at what the employee does in the context of the employer’s organisation of work.
[68] While the time spent undertaking tasks is a relevant consideration, it is not determinative of an employee’s primary or principal purpose, and the test is not merely a matter of quantifying the time spent on various elements of work performed by the employee. The quality of the different types of work done is also a relevant consideration. 35 This is illustrated by the example used by Gray J in Joyce v Christoffersen36 as follows:
“Much of the evidence before the court in the present case was concerned with the proportion of the time of each employee concerned which was occupied by what might be described as clerical duties. No doubt the time occupied in the performance of such duties is to be taken into account, but the test of whether a person is engaged in a clerical capacity or in performing clerical work is not a quantitative one. Many people are employed in jobs which require them to do a great deal of recording, but which could not be described as clerical jobs. For instance, a doctor in a twenty-four hour medical clinic might spend the majority of his or her time writing detailed histories, records of diagnosis and of prescription, so that other doctors seeing the same patient at the same clinic would have a clear indication of what had gone before. Even though the majority of the doctor’s time might be spent in writing such records, it could not be said that the doctor was engaged in a clerical capacity. The primary functions of the doctor’s employment would be diagnosis and treatment.
…A motor vehicle workshop might employ a number of motor mechanics. Each motor mechanic might be required to record on job cards the results of his or her labours. Plainly, the primary function of each motor mechanic would be the repair of motor vehicles, and the recording would be the secondary function. If, however, it were decided that motor mechanics should be relieved of the recording function, and a separate person were to be employed for this purpose, going from mechanic to mechanic and recording details of work done, that person would undoubtedly be engaged in a clerical capacity. His or her primary function would be the recording of work done.” 37
[69] The parties are in agreement that in applying the relevant part of the CFMMEU’s Eligibility Rule, the appropriate test is the primary purpose test, sometimes referred to as the principal purpose test. 38 The CFMMEU succinctly summarised the test as a consideration of:
“the totality of the employee’s duties, in the context of the employer’s organisation of work, in order to ascertain the principal function of their employment.” 39
[70] The Respondent does not disagree with the various components of this formulation. I also accept this formulation and consider that it is synonymous with the principal or primary purpose of employment test. This the approach I have applied to the evidence in the present case, which I now turn to consider.
Evidence
The Rocklea Site
[71] Mr Holden’s evidence about the operations at the Rocklea Site was generally not contested. At the Rocklea Site Dulux has a paint manufacturing facility and a warehouse which is a distribution facility. Production Operators work in the manufacturing area in four areas: raw materials, paint manufacturing, quality control and filling. In the distribution facility, Warehouse Operators fulfil customer orders for product produced in the manufacturing facility at the Rocklea Site and at other Dulux manufacturing facilities in Australia. Mr Lambert said that the warehouse facility is the size of two soccer fields. Mr Holden said that the area is approximately 9500 square meters, less than the two full-size soccer fields stated by Mr Lambert (noting that a full-size soccer field is 7140 square meters). I accept that the warehouse is a large facility.
The 2016 Agreement
[72] Clause 1.3 of the 2016 Agreement relates to the coverage of the agreement and states as follows:
“1.3 Application and Coverage
1.3.1 This Agreement shall have application to the Dulux Rocklea site located at 1477-1519 Ipswich Road, Rocklea, in the State of Queensland, to employees employed in or in connection with the manufacture, processing, treatment, handling, distribution, maintenance (but not retailing) or storage of materials or products used in or in connection with decorative or technical surface coatings or coverings and associated products and covered by the Agreement's classifications.
1.3.2 This Agreement will cover:
(a) Employees engaged in the classifications listed in Clauses 4.1 and 4.2.
(b) United Voice, the Union, and
(c) DuluxGroup, the Employer or Company or Dulux.”
[73] The classification structure of the 2016 Agreement is set out at clause 4.1 as follows:
“4.1 Classification Structure
4.1.1 An employee shall commence as a Trainee and progress on the demonstration of competency at each level.
4.1.2 Trainee to Grade 1.6 shall be comprised of the following skill areas:
• Filling, labelling and can store;
• Order picking;
• Collect order centre and machine tinting;
• Unloading trucks and FS/RM replenishment;
• Loading trucks;
• Paint making and pot wash thinner manufacturers
4.1.3 Grade 1.7 shall be comprised of the following skill areas:
• Operation of robotic palletiser & depallatiser
• Operation of automatic filling stations
• Operation of automated paint transfer system
• Operation of automated stretch wrapping system
• Operation of automatic denester
• Operation of automatic labellers
4.1.4 Grade 2 shall be comprised of the following skill areas:
• Colour matching and testing;
• Coordination of warehouse despatch and claims;
• Dispersion.
4.1.5 Grade 2.1 shall be comprised of the following skill areas:
• Raw materials- pigment preparation/handling;
4.1 .6 Grade 3 shall be comprised of the following skill areas:
• Bulk tinting
• Bead plant
4.1 .7 All levels include the skill of Forklift Driving.
4.1.8 Promotion to Team Leader, Leading Hand, Grade 2 and Grade 3 positions, shall be by appointment. It is a condition that at all these levels incumbents shall act down as required.
4.1 .9 Training in Grade 2, 3, Leading Hand and Team Leader skills will be provided on the basis of an intention to appoint that employee to the Grade concerned subject to the demonstration of competency in the tasks and skills. The Company shall not unreasonably withhold such appointments.
4.1.10 All rates are inclusive of relevant shift allowances.
4.1.11 Employees are required to maintain competency at their relevant level as per the classification structure. Failure to demonstrate competency will result in the employee
reverting to the level as per the classification structure that reflects their current duties.”
[74] It is not in dispute that the 2016 Agreement covers Mr Lambert. After the hearing concluded the parties were requested to confirm Mr Lambert’s classification under the 2016 Agreement and agreed that he is classified at Level 1.6.
Warehouse Operator position description
[75] Both Mr Holden and Mr Lambert tendered different versions of a position description for the position of Warehouse Operator. The position description for the position of “Warehouse Operator” appended to Mr Lambert’s first statement 40 is as follows:
“• Manage delivery of bulk quantities of incoming stock on wrapped pallets from large delivery transporters. This work is done using a forklift and/or sideways moving Reach truck
• Bulk stock is stored on wrapped pallets (weighing up to 1 ton) in warehouse racking. The Operator is required to use a Reach Truck to elevate the pallet up to high racking (up to 8.5 meters)
• Receipting of incoming goods and stock returns using a hand help computer unit/gun (RF Gun)
• Picking & packing and dispatch of orders. The Warehouse Operator walks behind a motorised pallet mover or rides on a Low level Order Picker while he/she collects the stock required onto a pallet prior to wrapping in preparation for despatch. The hand held computer unit is also used when assembling outgoing orders.
• Experienced driving of Forklift (forward/backward driving) or Reach truck (sideways driving in either direction)
• Computer skills are also required to manage inbound and outbound stock on a SAP computer program
• Warehouse Operator are expected to accumulate stock movement of 5 ton per sift
• Operators are required to work 8 hour dayshift with some overtime and occasional Saturday work”.
[76] The work environment is described as:
“This is a large purpose built warehouse environment with stock being moved from pallet to racking and racking to order picking by several operators at one time. Warehouse operators are required to stand and walk on concrete floors during their shift and/or sit in a forklift/reach truck. Comfortable safety shores/boots are provided.
The work is a physically demanding requiring manual tasks with picking and packing of a variety of paint, stain, building maintenance & horticultural products for Dulux, Cabots, Selley’s, Yates and associated brands to be sent out to various locations.
Reach trucks are used in the aisles (sideways driving required), motorised pallet movers are used during picking and packing and forklifts are used in the yard for loading and unloading of delivery trucks. The delivery/despatch vehicles range from very large transporter trucks to small courier delivery vans.
Some of the work involves elevating 1 ton of product on a pallet to racking 8.5 meters in the air.”
[77] Next to the heading “Work tasks & fitness requirements” the position description goes on to say:
“• Experienced forklift and Warehouse Operators are required for this role
• Good hearing, normal vision, peripheral vision, balance & depth perception are essential as per the Australian Transport Council “Assessing Fitness to Drive” guidelines for drivers
• Good mobility, strength & agility is required for strenuous physical work and for driving forklifts & reach trucks where the driver is required to twist and turn in their seat to ensure good visibility and precision placement of pallets onto racking or floor space
• Personal Protective Equipment is required to be worn including safety vests; safety shoes/boots; gloves
• While this is not a noisy work environment, good hearing is required for communication and to be able to hear warning sirens & beeping of moving machinery & vehicles.”
[78] The version of the position description tendered by Mr Lambert has an address for Dulux at Clayton in Victoria and indicates that the position title is Warehouse Operator and the Workplace is the “DuluxGroup Distribution Warehouse”. There are spaces on the version tendered by Mr Lambert for information to be inserted in relation to the name of the employee, the location, Manager’s name and telephone. Those spaces are blank. The version of the position description tendered by Mr Holden 41 states also states that the workplace is the “DuluxGroup Distribution Warehouse”. Unlike the version tendered by Mr Lambert, that position description states that the location is Rocklea, the Manager’s name is Peter Holden and the position is titled “Warehouse Storeman and Paint Manufacturing”. The position description tendered by Mr Holden is as follows:
“• Able to perform all tasks from receiving, storing, picking and dispatching of Goods associated within the DuluxGroup of business’, and flexibility to work in Paint Manufacturing when required
• Receipt and inbound goods from DG factories, warehouses and suppliers
• Putaway of product into warehouse racking systems at 8m high
• Replenishment of stock
• Picking and packing of customer orders in a condition that meets statutory regulations and requirements
• Dispatching of customers’ orders onto various transport units, meeting Statutory Regulations and Chain of Responsibility requirements
• Participation in safety programs, and execution of all tasks in a safe manner.
• Work collaboratively with different site teams, management, vendors/contractors.
• Work to the Values and Behaviours of DuluxGroup
• Deliver performance expectations while performing all tasks in a safe manner
• Operation of Low Level Order pickers and Counterbalance and Reach forklifts, and a range of warehouse machinery
• Perform tasks using company supplied PPE where required
• Hazardous Materials and Dangerous Goods are handled and stored onsite and needs to be manage appropriately.
• Competent use of technologies supplied to perform all tasks (e.g. RF devices)”
[79] Next to the heading “Work Environment” the position description states:
“• Site consists of a Paint Manufacturing Plant and a Warehouse Distribution Centre. DG has Protocols, Values and Behaviours, and Work Procedures that all staff must comply to.
• The work is physically demanding requiring manual tasks in handling a range of products, frequently lifting material up to 15 kilos, and often over 16kgs. Frequently posture positions of standing, walking, bending, reaching, twisting, gripping, neck, arm and trunk movements.
• Operators are required to stand/walk on concrete surfaces and or sit on counterbalance/Reach forklifts
• MHE of Reach Trucks, Counterbalance forklifts and Low Level Order pickers are utilising for moving palletise stock in racking up to 8 meters, and various configurations of trucks and vans requiring licensed operators.
• Dangers Goods Site where work practices adhere to regulatory requirements and best practice.”
[80] The fitness required for the position is said to be:
“• Good hearing, normal vision balance and depth perceptions are essential
• Good mobility, strength and agility are required for physical work of manual handling, and the operation of MHE which requires twist and turning for visibility and precision placement of stock.
• Personal Protective Equipment is required to be work and supplied by the company.” (errors in original)
Materials handling equipment
[81] While they are at odds over whether all materials handling equipment (MHE) in the warehouse are forklifts, Mr Lambert and Mr Holden agree that three pieces of such equipment are used by Warehouse Operators. According to Mr Lambert the three pieces of MHE used at the Rocklea site are forklifts which Mr Lambert terms Truck forklifts, Reach Truck forklifts and Low level order pickers (also known as LLOPs). Mr Lambert describes each of these machines as follows:
“The largest forklifts are the Truck forklifts. There are 4 of these in the warehouse. These are gas and petrol forklifts which lift up to about 2.5 tonne. These forklifts are primarily used outside the warehouse to load and unload pallets of stock that is delivered and despatched to and from the warehouse. Truck forklifts are also used to move stock on and off the automatic pallet wrapper (which wraps shrink wrap around pallets)…
The second-largest forklifts are the Reach Truck forklifts. There are two types of reach truck forklifts used in the warehouse: Toyota and Hyster. There are 9 orange Toyota High Reach truck forklifts, and 3 yellow Hyster High Reach Truck Forklifts. These are battery operated forklifts which can lift up to about 1600kg. These forklifts are used inside the warehouse and reach up to about 8.5m. They are used to put inbound freight onto racks for storage, and to replenish and top-up stock from racks on higher levels onto lower levels….
Finally, there are also Low level order pickers, which are smaller than Reach Truck forklifts. They can lift about 600kg and can be used to about 1 to 1.5m. They are used for order picking on the low racks…There are 13 of these.” 42
[82] Mr Lambert tendered photographs of each of the machines he describes. Mr Lambert accepts that the LLOP has a height restriction of between 880 and 890mms. 43 However, Mr Lambert maintained that they are capable of going higher than 900mm.44 The LLOPs at Dulux are locked off to restrict their height to below 900mm. Mr Lambert states:
“The truck has a capability of obviously lifting over 900 millimetres but it’s been modified to restrict that height by two pieces of – it appeared to me to be steel blocks that actually stop the forks from actually going any higher than 900.” 45
[83] A forklift licence is required to operate the Truck and High Reach Truck forklifts. The LLOP does not require a licence. 46 All Warehouse Operators are required to hold a forklift licence. In Mr Lambert’s opinion, LLOPs are not generally referred to as “forklifts” by Warehouse Operators for this reason and mostly to distinguish them from the Truck and Reach Truck forklifts. Despite this, Mr Lambert understands that they are a type of forklift. In this respect Mr Lambert tendered a printout from the website of Toyota Forklifts. That website shows that these machines are described, by Toyota, as “Order Picker Forklifts”.
[84] Mr Menon also disputes the characterisation given to the classification of LLOPs by Mr Holden. Mr Menon annexed to his statement an extract from the website of WorkSafe Queensland (WorkSafe). WorkSafe describes the two types of licences for forklifts being and LF and an LO licence. An LF licence allows the holder to operate “forklift trucks”. A “forklift truck” is described as follows:
“A forklift truck is a powered industrial truck equipped with a mast and an elevating load carriage which has a pair of fork arms attached (that can be raised 900mm or more above the ground) or other load holding attachment.”
[85] A “forklift truck” does not include order-picking forklift trucks. The LO licence allows the holder to operate “order-picking forklift trucks” which are described as:
“An order-picking forklift truck has the operator’s control as part of the load carriage/lifting media and lifts with it. Order-picking trucks are generally referred to as “stock pickers”. They can be fitted with a platform extension for use in furniture warehouses, or can be a turret truck in narrow aisle warehouses.”
[86] During an inspection of the Rocklea site, assisted by a work health and safety inspector, Mr Menon observed that the site was “chock-a-block” 47 with forklifts. That included LLOPs. Mr Menon did not measure the height of the LLOPs or view anyone else measuring the height. However, Mr Menon maintained that the requirement to hold a licence “doesn’t stop a forklift being a forklift”.48
[87] Mr Holden agrees that there are three types of MHEs used at the Rocklea Site; reach trucks, LLOPs and gas counterbalance forklifts. Operation of the reach trucks and counterbalance forklifts requires a forklift licence. Mr Holden’s evidence in his second witness statement is that only two of the pieces of MHE are forklifts and that the LLOP is not a forklift. Mr Holden has reviewed the relevant WH&S Regulations and maintains that the LLOP is not a forklift truck because it has been modified so that it cannot be raised 900mms or more above the ground. 49 The LLOP is also not an order picking forklift truck because the operator controls do not rise with the lifting media. Therefore, a warehouse operator does not need a licence to operate the LLOP.
[88] Mr Holden maintains that the LLOP is not used to pick stock off pallet racks; warehouse operators manually perform this task while standing on the warehouse floor. The purpose of the LLOP is to act as a pallet mover. The lifting mechanism of the LLOP is simply to allow the manual picking and stacking of product at an ergonomic height. Mr Holden also said that the LLOP used at the Rocklea site is not similar to a reach truck and does not require the operator to wear a safety harness while operating it. The lifting mechanism of the LLOP is not itself used to pick product, rather it assists to move product to an ergonomic height.
[89] Mr Holden was shown photographs of each type of MHE in cross-examination. In relation to the counterbalance forklift, Mr Holden accepted that this is a forklift 50 and agreed that the counterbalance forklift has an engine,51 is driven by warehouse operators,52 and the controls do not move up and down.53 The tines of the forklift, controlled by the warehouse operators, do move up and down and from left to right.54 The forklifts are used to move pallets of Dulux product around the warehouse.55 Mr Holden accepted that ordinarily, the counterbalance forklift would be moved or driven around the warehouse with the load at as low a level possible, although it can be operated while the load is at both a low and high level.56 A licence is required to operate a counterbalance forklift.57
[90] Next, Mr Holden was taken to the reach truck. After some pressing, Mr Holden accepted that a reach truck can be classified as a forklift. 58 Reach trucks have an engine,59 the controls themselves don’t move up and down,60 and the operator uses the controls to move the tines up and down and left to right.61 The reach truck is used to move pallets of Dulux products around the warehouse.62 A warehouse operator uses foot controls to drive the reach truck.63 A licence is required to operate a reach truck.64
[91] Finally, Mr Holden was taken to the LLOP. Mr Holden accepted that the LLOP has an engine/electric motor used to generate power. 65 The controls do not go up and down.66 The warehouse operators use controls to move the tines up and down but unlike the reach truck and counterbalance forklifts the tines cannot move side to side.67 The LLOP is driven using hand controls.68 When driving the LLOP, the tines are generally kept at the lowest level possible.69 Mr Holden accepted that the LLOP has been modified by Dulux to keep the tines at less than 900 millimetres and that70 unmodified, the tines of the LLOP can be raised above 900 millimetres.71
[92] Mr Holden also accepted that his view that the LLOP is not a forklift is based on the fact that a license is not required to operate the LLOP and that should Dulux wish to do so, it could remove the modification. 72 Mr Holden conceded that if the modification was removed warehouse operators would require a licence to operate the LLOP,73 and, in this circumstance, the LLOP would be a forklift for the purposes of the legislation.74 Mr Holden also accepted that if the regulations were changed such that the 900mm restriction became, for example, a 700mm restriction, the LLOP would then be a forklift75 and that this change would not require “any change to the fundamental nature of the” LLOP itself.76
Work performed by Warehouse Operators
[93] Mr Lambert’s evidence about the work he performs can be summarised as follows. Mr Lambert has around 30 years’ experience in the warehousing industry. Based on that experience, Mr Lambert’s view is that the job of a Warehouse Operator at the Dulux Rocklea Site could just as easily be described as “Forklift Driver”. Mr Lambert has seen this kind of job advertised as a Forklift Driver in other warehouses.
[94] Mr Lambert is a member and delegate of the CFMMEU. Mr Lambert was previously a member and delegate of the UWU. Including Mr Lambert there are 36 Warehouse Operators employed at the Rocklea site. There are also Team Leaders, Leading Hands, Stock Returners and labour hire employees. Mr Lambert accepts that Leading Hands and Stock Returners are employed as Warehouse Operators but considers that Team Leaders are not employed as Warehouse Operators. 77
[95] Work is divided into a day shift and an afternoon shift. Afternoon shift is between 2pm and 10:30pm. Mr Lambert has almost continuously worked the day shift. A day shift is technically between 5:45am and 2:36pm but most workers start work at 5.00am and finish at 1:56pm. Mr Lambert’s evidence is that supervisors allocate work according to the following categories: Office, Replenishment, Powders Interstate, Parchem, Front and Put Away, Transport/Returns, Export, Picking and Damaged Stock. To support his evidence about the types of work performed by Warehouse Operators and how that work is allocated, Mr Lambert tendered daily worksheets prepared by Team Leaders at the Rocklea site. Mr Lambert annexed to his evidence a number of these daily worksheets. 78 They appear to cover the period 13 July 2020 to 5 February 2021. Mr Lambert states that the worksheets are prepared each day by the Team Leader and are usually prepared in the afternoon for the following day’s work.
[96] According to Mr Lambert, the daily worksheets are “common knowledge” and read out each day. The documents are kept in a folder on the desk of the main office. In obtaining the documents for use in these proceedings, Mr Lambert states that asked for permission from the acting Team Leader who was working on the day he obtained them. 79 Mr Lambert disclosed to the acting team leader that the purpose of his obtaining the worksheets was to use them in the present proceedings.80 Mr Lambert photocopied the documents.81
[97] Mr Lambert accepted that he acquired the documents on or around 6 February 2021, 82 prior to completing his second statement in these proceedings.83 Mr Lambert accepts that these worksheets do not show the amount of time actually spent driving a counterbalance forklift,84 reach truck,85 or LLOP86 on the respective days.87
[98] Mr Lambert said that in any week, Warehouse Operators may perform any of the groups of specified in the work sheets. Tasks are assigned each morning at a tool-box meeting. Mr Lambert states that the order picking work is typically assigned to labour hire workers. Dulux employees spend the majority of their time operating the Truck and Reach Truck Forklifts and are generally not required to do order picking for more than one day a week.
[99] Mr Lambert strongly disagrees that picking work forms the majority of work undertaken by Warehouse Operators for two reasons. Firstly, Mr Lambert states that in day-to-day usage on site, a reference to “picking” is a reference to picking of stock using the LLOP only. This work involves fulfilling orders in accordance with information about quantities of stock required. This information is given by way of the RF gun. LLOPs are used for this work. This work is often assigned to labour hire employees.
[100] According to Mr Lambert, Dulux’s evidence seems to refer to “picking” in a broader sense to include stock picking where reach forklifts are used. This is not consistent with practice. On average, Mr Lambert is assigned to “picking” using the LLOP once a week. For the period of 1 December 2020 to 22 January 2021, Mr Lambert worked 22 days. On 6 of those days Mr Lambert completed picking using an LLOP. Mr Lambert accepted that, because of an error in his statement about being on an RDO on November 18, he was assigned to picking using an LLOP on 7 out of the 22 working days rather than 6. 88 Mr Lambert also states that Warehouse Operators may “occasionally” be assigned the task of order picking.
[101] Mr Lambert’s evidence about the types of work performed by Warehouse Operators was set out in three witness statements and can be summarised as follows. Mr Lambert states that each morning two B-double semi-trailers are waiting at the gates at 5:00am ready to be unloaded by warehouse staff. Mr Lambert said:
“In short, Warehouse Operators use forklifts to move product throughout the day. A procession of trucks arrive and depart from the site throughout the day from 5am onward for the purposes of delivering materials and dispatching stock. To get a sense of how much stock is typically loaded onto trucks by forklifts for the purposes of dispatch, 158,000 litres of paint was dispatched from the site on 3 December 2020.” 89
[102] Mr Lambert states that these trucks are unloaded by Warehouse Operators using Truck Forklifts. The materials are then moved to areas designated for inbound freight, also by Warehouse Operators. The material is moved using Truck Forklifts. This work is called “out the front” work. A majority of deliveries are picked up and dropped off by trucks during the day shift.
[103] Warehouse Operators move material from the inbound areas using Reach Truck Forklifts. The goods are moved to the appropriate location within the warehouse where they are placed on pallet racks. The Reach Truck Forklifts allow the material to be raised up to eight meters in the air. This work is described as “put-away”. Each person may perform out the front work and put-away work on any given day. Warehouse Operators may also replenish stock to ensure sufficient supply for order pickers to fulfil orders received from inventory control. This work is called “replenishment” and is performed using the Reach Truck Forklifts.
[189] The LLOP is described by its manufacturer Toyota as a forklift. The fact that it is modified so that the tines cannot be lifted above a certain height, does not alter the fact that the LLOP is a forklift. The only effect for the modification is that a driver of an LLOP does not require a forklift licence under current Queensland regulation. Further, the removal of the limiting block on the mechanism of the forklift would mean that a licence is required to operate the LLOP without any further change to the machine. Conversely, if current regulations were amended so that a licence was required to operate a LLOP in circumstances where the tines could be raised to 700 mm rather than 900 mm, the LLOPs by employees at Dulux would be forklifts for the purposes of the regulation without any change to their specifications.
[190] The fact that a licence is required to operate plant or equipment is a regulatory or technical matter and does not change the nature of the plant or equipment. To find otherwise would result in a situation where the rights of unions to represent employees could be arbitrarily impacted by changes to licencing or other regulation without any change to the nature of the work that relevant employees are principally engaged to undertake. Industrial usage and understanding of the term forklift includes a load shifting device, which is by design a forklift, notwithstanding that it has been modified with respect to the height that tines can be raised to.
[191] Similar circumstances were considered by Commissioner Martin of the West Australian Industrial Relations Commission in Hamersley Iron Pty Ltd and Others 171(a case cited by Dulux in support of another aspect of its submission) who said in relation to coverage of employees driving vehicles with cranes mounted upon them:
“The answer to the general questions posed is not to be found in whether a worker must possess a certificate of competency as a crane driver, any more than the possession of a licence to drive a motor vehicle indicates that such a person is employed in the capacity of a truck driver. It is to be found in the overall work done and in the case of an individual worker, by reference to the work upon which he is usually and regularly engaged for the major and substantial portion of his ordinary working time.
Thus, for example in the case of a worker employed in the capacity of a motor vehicle driver of a vehicle with a loader mounted thereon as an aid to the loading and unloading of that vehicle and the major and substantial part of that workers ordinary time is usually and regularly spent upon the loading and unloading of the truck and the transportation of goods and materials from place to place, that worker is not employed in the capacity of a crane driver and is not eligible for membership of the applicant union.
In a case where a worker is usually and regularly employed for the major and substantial portion of his time in operating a truck mounted loader for the lifting and positioning of plant or machinery or materials and is in effect using that vehicle and its loading device as if it was a mobile crane, such a worker would be employed in the capacity of a crane driver and eligible for membership of the applicant union”. 172
[192] If the holding of a licence does not change the nature of a piece of equipment described in the rules of a Union, neither does the fact that a licence is not required. In addition to the observation of Commissioner Martin in relation to the weight to be placed on whether the use of a device is usual and regular, another relevant consideration is whether a device is being used by an employee for the same purpose as a device listed in a union’s eligibility rule and is a device which meets the description of a device in the eligibility rule. This question is also to be answered by giving an expression in a union’s eligibility rule a wide meaning and applying the expression in accordance with its ordinary and popular denotation, rather than with some narrow or formal construction. In short, my view is that the LLOP is being used as a forklift regardless of the height to which it can lift items. Accordingly, on this basis, the LLOP is a forklift for the purposes of the CFMMEU’s eligibility rule.
[193] Finally, to find that the LLOP is not a forklift would also be inconsistent with the well-established principle that the meaning of terms used in eligibility rules is not static and that the search for meaning should not be confined to the point at which a term was introduced. When coverage of forklift drivers and mobile crane drivers was introduced into the eligibility rule of the FEDFA, the context (as evidenced by the 1947 Decision of the Industrial Registrar) was that those lifting devices were replacing traverser cranes as a means of moving items in industrial settings. The Registrar observed it was common to the mobile crane and forklift that “the unit generates its propelling power and power which it utilizes, for the purpose of raising, lowering and transporting goods” and that their use was an increasing feature of industry. The focus was to enable the FEDFA to represent the industrial interests of a group or class of employees driving such equipment and the issue of whether a licence was required was not determinative of the operation of the rule.
[194] The Decision of Commissioner Whelan (as she then was) in Textile, Clothing and Footwear Union of Australia and Bruck Textiles Pty Limited, 173 does not assist the argument advanced by Dulux about the LLOP requiring lower skill levels than those required to operate a forklift, based on licensing requirements. That case concerned a hand operated pallet truck being replaced with a LLOP in circumstances where neither piece of equipment required a licence. It is not unusual for an industrial instrument, to provide for employees operating load shifting devices which require a licence to be classified at a higher level than employees operating devices which do not require a licence. Such an issue is not relevant to the eligibility of the CFMMEU to cover such employees pursuant to rule (2)(E).
[195] Accordingly, the time spent by Mr Lambert operating the LLOP is a relevant consideration in the overall determination of whether he is principally engaged as a forklift driver within the meaning of the CFMMEU Eligibility Rule.
[196] I also accept that the proper measure of time spent by Mr Lambert on operating forklifts (including the LLOP) is “key to key”. The evidence establishes that this measure reflects the time that Mr Lambert logs on to a machine until the time he logs off and that if he does not operate the machine after a period of five minutes, he will automatically be logged off. While Mr Lambert is logged on to a forklift, he is responsible for its operation, regardless of whether he is physically driving it at the relevant time. While logged on to the forklift, and at times where he is off the forklift performing other duties, Mr Lambert is responsible for parking it in a position where it does not create a hazard. Indeed, it is arguable that if Mr Lambert is logged off the forklift automatically because he is undertaking picking or other tasks, he remains responsible for the forklift unless and until another operator logs on to it and assumes control. In my view, the contention that a person who is principally engaged to perform the work of a forklift driver, is only so engaged while actually driving the forklift, is contrary to the realities of workplaces in which forklifts are operated.
[197] A person who is principally engaged to drive a forklift does not cease to be responsible for the forklift or to be in control of the forklift, during periods where the forklift is parked while items are loaded or unloaded. The decision of Commissioner Hartigan in Enco 174is not authority for the proposition that a driver of a piece of equipment for the purposes of coming within rule (2)(E) of the CFMMEU’s rules is only “driving” while the equipment is in motion. In that case, Commissioner Hartigan was considering whether the CFMMEU was entitled to represent certain employees in relation to right of entry concerning a workplace health and safety matter. One of the arguments advanced against the CFMMEU was that employees in the workplace in question were “operating” gantry cranes rather than “driving” them in circumstances where they were using a remote control to perform lifting as well as to execute the travel of the crane along tracks. It was therefore contended that employees “operating” gantry cranes were not crane drivers within rule (2)(E) of the CFMMEU’s eligibility rule
[198] The Commissioner’s conclusion that the operator is in control of the crane when “inter alia” it is moving along the tracks, is not a finding that the only time an employee is driving the equipment is when it is moving. Neither is that conclusion determinative of whether an employee is principally employed as a driver of a piece of equipment. Arguably, Commissioner Hartigan’s decision reinforces that control of a piece of equipment is synonymous with driving it. In the present case, an employee who is logged in to a forklift, is in control of the forklift notwithstanding that some of the tasks being performed by employee are carried out from a position where the employee is not seated or on the forklift at the relevant time.
[199] Accordingly, I accept the calculations advanced by the CFMMEU to the effect that Mr Lambert is in control of a forklift for 95.4% of his working time. I also note that if my conclusion in relation to the LLOP is wrong, that Mr Lambert is in control of a forklift for 66.3% of his total working time. It follows that for the major and substantial portion of his working day, Mr Lambert is driving a forklift. This is a relevant consideration in determining whether Mr Lambert is employed as a forklift driver. As previously noted, this weighs in favour of a finding that Mr Lambert is principally employed as a forklift driver but is not determinative.
Industrial instruments
[200] The manner in which industrial instruments which prescribe classifications and terms and conditions of employment for employees is relevant to determining the principal or primary purpose for which they are employed. The 2016 Agreement applies to employees employed in or in connection with inter alia handling or storage of materials or products used in connection with decorative or technical surface coatings or coverings and associated products and covered by the classifications in the Agreement.
[201] The classification structure in the 2016 Agreement is broad and skills-based and includes skills relevant to both Production and Warehouse Operators. Employees progress through the structure based on the demonstration of competency at each level. The Trainee to Grade 1.6 level includes order picking, loading trucks, unloading trucks and FS/RM replenishment. The “skill” of forklift driving is included at all levels of the classification structure and there is no specific level or classification of forklift driver. Mr Lambert is classified at level 1.6 of the classification structure.
[202] The classification structure in the Agreement is consistent with the classification structure in the Manufacturing and Associated Industries and Occupations Award 2020 (the Manufacturing Award), which covers employees of Dulux and would apply to them but for the operation of the 2016 Agreement. The Manufacturing Award does not contain a specific classification for a forklift driver but rather includes this work as an indicative task in various classification levels.
[203] The 2016 Agreement and the Manufacturing Award which would otherwise apply, do not provide for a classification of forklift driver but rather incorporate this skill at multiple classification levels. This indicates that Dulux has organised its operations so that employees are not employed in narrow task-based roles, but rather are employed in broad skills-based roles and can be deployed flexibly throughout its operations. In the context of the warehouse where Mr Lambert is employed, the 2016 Agreement reflects Mr Holden’s evidence that Warehouse Operators are employed to fulfil customer orders and to co-ordinate their delivery and return. The classification structure in the 2016 Agreement also indicates that in his employment as a warehouse Operator, Mr Lambert is not principally employed as a forklift driver.
Position description
[204] The position description tendered by Lambert contains references to forklift driving. However, there are other references to tasks including: receipting of incoming goods and stock returns using the RF gun; picking and packing and dispatch of orders involving collecting stock onto a pallet prior to wrapping and assembling outgoing orders using the RF gun; and computer skills to manage inbound and outbound stock on a SAP computer program.
[205] The description of the work environment in the statement tendered by Mr Lambert also indicates that the work involves manual tasks associated with picking and packing of a variety of paint, building maintenance and horticultural products for Dulux, Cabots, Selleys, Yates and associated brands to be sent out to various locations. The description of the work environment also states that: “Reach trucks are used in the aisles…motorised pallet movers are used during picking and packing and forklifts are used in the yard for the loading and unloading of delivery trucks”. The job description tendered by Mr Lambert further states that: “Experienced forklift and Warehouse Operators are required for this role.”
[206] Similarly, the position description tendered by Mr Holden refers to: receiving, storing, picking and dispatching of goods; receipt and inbound goods; putaway of product; replenishment of stock; picking and packing customer orders; dispatching of customer orders onto various transport units; and working collaboratively with different site teams, vendors, managers and contractors. The position description tendered by Mr Holden also includes: “Operation of Low Level Order pickers and Counter Balance and Reach forklifts and a range of warehouse machinery.” Further, references are made to the requirement for competent use of technologies supposed to perform all tasks and an example of RF devices is included.
[207] Regardless of whether the position description tendered by Mr Lambert or Mr Holden is accurate, it is clear that the job described in either version is not that of a person principally or primarily engaged to drive a forklift. Rather the position descriptions evidence that forklift driving is a means by which the various tasks which make up the Warehouse Operator’s role, are undertaken. This is so regardless of the version of the position description that is accepted.
[208] It is also not determinative that a labour hire company which supplies employees to Dulux to work as Warehouse Operators advertises roles at Dulux for experienced forklift drivers. The fact that forklift driving experience is required is not determinative of whether the employees in this role are principally employed as forklift drivers, even in circumstances where high levels of skill in this area are required. What is determinative is the primary or principal purpose for which Warehouse Operators, including Mr Lambert, are employed. In the present case, this is determined by considering what Mr Lambert is employed to do and what he actually does. I turn now to consider the evidence in relation to these matters.
Mr Lambert’s duties
[209] In examining the primary or principal purpose of work performed by an employee the question is one of fact to be determined by reference to the duties actually attaching to the position, rather than its title. 175 By extension, a position description or a classification definition in an enterprise agreement will not be determinative of this question in circumstances where the actual duties performed by an employee are not accurately described in those documents.
[210] The CFMMEU submits that Dulux is overstating the complexity of Mr Lambert’s role and that essentially, he is operating a forklift to move paint around a warehouse in accordance with instructions provided by the RF gun. Mr Lambert’s evidence was focused on the time he spent driving forklifts rather than other tasks he undertook while driving or in connection with driving forklifts. Mr Lambert was not pressed during cross-examination about what tasks he performed while driving forklifts or in connection with driving forklifts. Mr Lambert maintained that all tasks require the use of a forklift or LLOP and that the tasks that he undertakes using this equipment are secondary to the to the primary duty of warehouse operators which is to operate a forklift.
[211] Generally, the evidence of Mr Holden about Mr Lambert’s duties was somewhat deficient. Other than listing the various tasks Mr Lambert undertakes, there was little in the way of detail about training and the amount of time that is required for a Warehouse Operator to be competent in the various systems and processes that Dulux operates with respect to materials handling. As previously noted, despite citing numerous cases in support of the proposition that the time spent driving a forklift was not determinative, a significant amount of Mr Holden’s evidence was devoted to this matter and as the case developed that evidence had little probative value. It would have assisted the case conducted by Dulux if more detailed evidence had been given about what other tasks Mr Lambert was undertaking while he was logged or keyed into a forklift or LLOP. I also note Mr Holden’s concession under cross-examination that primarily Mr Lambert does move paint using a forklift.
[212] Notwithstanding the deficiencies in Mr Holden’s evidence and Mr Lambert’s insistence that the use of the forklift is secondary to other tasks he undertakes, I am satisfied on the basis of the evidence of both Mr Lambert and Mr Holden, that the actual duties performed by Mr Lambert do not bring him within rule (2)(E) of the CFMMEU rules and that Mr Lambert is not principally or primarily employed as a forklift driver.
[213] The evidence establishes that Warehouse Operators operate flexibly to undertake a range of tasks involving the receiving and dispatch of products. Regardless of how the tasks are allocated, I am satisfied that during his normal work Mr Lambert is required at some point to perform all tasks associated with the duties of Warehouse Operators, including at least some of the tasks classed as “office”. Even if Mr Lambert’s evidence that picking tasks are usually allocated to labour hire employees is accepted, Mr Lambert acknowledged that Warehouse Operators may be required to perform any of the tasks described in his evidence and that he does so as required, notwithstanding that he spends more time undertaking some tasks than others. Further, Mr Lambert performs what he accepts is picking one day each week. I am also satisfied that despite the fact that Mr Lambert spends a significant majority of time each day driving forklifts, this is incidental to his work as a Warehouse Operator.
[214] None of the tasks undertaken by Mr Lambert can properly be described as simply using a forklift to move paint. Regardless of whether he is guided by an RF gun or some other device or system for managing materials, Mr Lambert is required to drive the forklift to various specified areas in the warehouse as directed by the instructions he obtains by using the RF gun to place paint and other products in specified locations, or to move paint and other products from specified locations, which change depending on the task being undertaken. None of the tasks described by Mr Lambert involve him being principally or primarily engaged as a forklift driver to move paint or other products to a location so that Warehouse Operators can then store those items. Rather, the movement and the storage or despatch of the items are integrated.
[215] Mr Lambert classifies the task of “picking” as work undertaken using the LLOP when stock is picked off shelves in the warehouse and placed on a pallet or where an entire pallet is picked. Mr Lambert and other Warehouse Operators designate this work as picking because the term LLOP (which is the materials handling equipment used to undertake this task) is an abbreviation for Low Level Order Picker. Mr Lambert asserts that this work is generally assigned to labour hire employees rather than Dulux employees. Work which Mr Lambert categorises as “out the front work”, “interstate work” and “export work” is categorised by Mr Holden as “picking”.
[216] The terms used by Mr Lambert and Mr Holden to describe these tasks are consistent with their respective views about whether the tasks performed by Warehouse Operators generally, and Mr Lambert in particular, result in the principal or primary purpose of the employment of Warehouse Operators being to drive a forklift or whether the primary purpose of that job is to fulfil customer orders for paint and other products manufactured by Dulux at Rocklea and its other manufacturing facilities. In my view, regardless of whether the range of tasks performed by Mr Lambert are described as “picking” or by some other term, and regardless of the fact that different types of forklift are used to undertake those tasks, the tasks involve more than forklift driving and Mr Lambert’s employment to undertake those tasks does not result in him being principally or primarily employed as a forklift driver.
[217] On Mr Lambert’s evidence, the work that he describes as “out the front work” entails multiple tasks associated with unloading a significant amount of freight from trucks and moving it to areas in the workplace designated for inbound freight. This is done by using Truck forklifts. Mr Holden termed this work “loading” and said that the Warehouse Operators undertaking this work are required to check that the paperwork matches the delivery. This evidence was not disputed by Mr Lambert. In my view, even if only one operator performing this work uses the RF gun it does not follow that operators who are not using the RF gun are principally employed as forklift drivers when the role of Warehouse Operators and all the tasks performed by them is considered holistically.
[218] The warehouse Operators move the product that has been unloaded to the put away area and book a location in the warehouse for the product. Mr Lambert said that this work which is also called “putaway” involves moving goods to an appropriate location within the warehouse and placing the goods on pallet racks. Mr Holden confirmed that the location for this stock is nominated by the RF gun. Mr Lambert also gave evidence about tasks associated with “putaway” which requires the use of the RF gun to scan barcodes to identify where stock is to be stored in the warehouse and initiating a stock inquiry with inventory control if the designated space is already occupied. While the pallet holding the relevant stock is transported on a forklift or LLOP, these tasks do not principally or primarily involve forklift driving despite the fact that they cannot be undertaken without the use of a forklift.
[219] The interstate work described by Mr Lambert involves him undertaking a significant number of tasks necessary to locate stock in the warehouse to fill orders, move that stock to a staging location, wrap and label the stock and recording his actions in the Company’s materials handling system. While it is necessary to drive a forklift in order to undertake the work, and the work could not be undertaken without the forklift, the forklift is incidental to the work and is simply a device by which the work is carried out. Similarly, on Mr Lambert’s evidence, the forklift is incidental to replenishment work and is simply the device used to carry out the work. Replenishment work is focused on replenishing stock either from a queue on the RF gun or at the request of order pickers. The task does not principally involve forklift driving. It is also the case that without the direction provided by the RF gun in relation to locating various items in a very large warehouse, there would be no purpose to driving the forklift
[220] When all of the tasks Warehouse Operators are required to undertake are considered holistically and in the context of the warehouse environment in which they are undertaken, Mr Lambert’s assertion that these tasks are secondary to the operation of the forklift, cannot be sustained. I do not accept that Dulux has overstated the skills involved in the work of Warehouse Operators. Mr Lambert’s evidence clearly establishes that Warehouse Operators have skills that are additional to forklift driving and that they are required to use those skills to undertake the Warehouse Operator role.
[221] The reality is that Mr Lambert is principally employed to undertake the role of a Warehouse Operator, and in that role, one of the tasks he is required to undertake is forklift driving. The time spent by Mr Lambert driving forklifts is a matter to which I have had regard in determining the principal or primary purpose of Mr Lambert’s employment. In all of the circumstances the fact that he spends a significant amount of time operating forklifts, does not result in Mr Lambert being principally or primarily employed as a forklift driver.
[222] I do not accept that the facts in the present case are analogous with those CFMMEU v Rapid Metals Developments (Australia) Pty Ltd or that the outcome in both cases should be the same. That caseinvolved employees who were moving large plant and equipment in the employer’s yard for the purpose of locating it in various positions. It appears that the plant and equipment in question had been hired to other companies. There was very little evidence of the relevant employees undertaking other work and they were generally referred to by the employer as forklift drivers. There was no enterprise agreement classifying the employees on any other basis.
Conclusion
[223] Ms Saunders presented the case for the CFMMEU skilfully. I accept that there is evidence that establishes that Mr Lambert drives forklifts for a significant majority of his working time and that Mr Lambert could not do his job without driving a forklift. However, for the reasons set out above, I am unable to accept that the primary or principal purpose of Mr Lambert’s employment is to drive a forklift.
[224] Accordingly, the CFMMEU is not entitled to represent the industrial interests of Mr Lambert pursuant to rule (2)(E) of its eligibility rule. As a result, the CFMMEU does not have standing by virtue of Mr Lambert being a member, to make an application for a bargaining order under s. 229 of the FW Act.
DEPUTY PRESIDENT
Appearances:
Ms L Saunders of Counsel for the Applicant with Ms L Weber, Senior National Legal Officer for the CFMMEU.
Mr T Spence of Counselfor the Respondent with Ms W Fauvel and Mr C Scott of Herbert Smith Freehills.
Hearing details:
8 and 17 March.
2021.
Printed by authority of the Commonwealth Government Printer
<PR731205>
1 Exhibits A1, A2, A3 an A4.
2 Exhibits A5 and A6.
3 Exhibits A7 and A8.
4 Exhibits R1, R2 and R3.
5 ResMed Limited v “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) [2014] FWCFB 2418 at [10]; “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) v ResMed Limited [2014] FWCFB 3501 at [7].
6 [2014] FWCFB 5595.
7 Exhibit R1 paragraphs 82, 93 and 94 excluded. Exhibit R2, paragraphs 4 – 7, 43 – 44, 57 – 61 excluded. Exhibit R3 paragraphs 34 and 36 excluded. Transcript of proceedings 8 March 2021 PN672 – 907, PN910 – PN929, PN935 – 1052, PN1057 – 1079, PN1183 – 1100. Transcript references relating to paragraphs in Mr Holden’s statement not relied on PN 930 – 934, PN1057 – 1079.
8 Fair Work Act 2009 (Cth) s.229(1).
9 Ibid s.12.
10 ResMed Limited v “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) [2014] FWCFB 2418 at [10]; “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) v ResMed Limited [2014] FWCFB 3501 at [7].
11 CFMMEU Outline of Submissions at [4] to [5]; Respondent’s Outline of Submissions at [58] to [62]; CFMMEU Submissions in Reply at [3]; the issue is not directly addressed by the Respondent’s Outline of Submissions in Reply but it is implicit in the submissions; PN1878.
12 Regional Express Holdings Limited v Australian Federation of Air Pilots (2017) 262 CLR 456 at 461; ResMed Limited v “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) [2014] FWCFB 2418 at [10]; “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) v ResMed Limited [2014] FWCFB 3501 at [8].
13 [2014] FWCFB 3501.
14 Ibid at [34].
15 [1984] HCA 62.
16 Federated Engine Drivers' and Firemens Association of Australasia and Master Builders' Association of Western Australia & Ors; The Federated Engine Drivers' and Firemens Association of Australasia and Quest Mining and Exploration Limited & Ors (1983) 291 CAR 530 at 531.
17 Ibid at 531 – 532.
18 Ibid at 532.
19 (1913) CAR 132 at 136.
20 Ibid at 532.
21 (1940) 42 CAR 588 at 601.
22 Ibid at 534.
23 [2012] FCAFC 48.
24 CSBP Limited v Construction, Forestry, Mining and Energy Union [2011] FCA 917.
25 Ibid at [186].
26 [2012] FCAFC 48.
27 Ibid at [39].
28 (1977) 57 WAIG 794.
29 Ibid at 794.
30 Ibid at 795.
31 (1990) 26 FCR 261.
32 Ibid at at 269.
33 Ibid at [47] to [52].
34 Foulsham v JJ Corbett Plumbing and Gasfitting Pty Ltd [2015] FCCA 1290 per Jones J.
35 Ware v O’Donnell Griffin Television Services Pty Ltd (1971) AR (NSW) 18.
36 (1990) 26 FCR 261.
37 Ibid at 272.
38 CFMMEU Outline of Submissions at [10] citing Construction, Forestry, Mining and Energy Union v CSBP (2012) 212 IR 206 at 44; Respondent’s Outline of Submissions at [72].
39 CFMMEU Outline of Submissions at [10], citing Construction, Forestry, Mining and Energy Union v CSBP (2012) 212 IR 206 at 44. Respondent’s Outline of Submissions at [73] to [76]; and see for example PN1354.
40 Exhibit A1 at WL-1.
41 Exhibit R1 Annexure 12.
42 Exhibit A1 at paras 15 to 17; see also PN580 to PN605.
43 PN594 to PN600.
44 PN604.
45 PN711.
46 PN443 to PN444.
47 PN797.
48 PN803.
49 PN1500 to PN1501.
50 PN1438.
51 PN1444.
52 PN1445.
53 PN1446.
54 PN1447 to PN1448.
55 PN1451.
56 PN1452 to PN1455.
57 PN1456.
58 PN1466.
59 PN1473.
60 PN1474.
61 PN1475.
62 PN1477.
63 PN1476.
64 PN1478.
65 PN1483 to PN1484.
66 PN1485.
67 PN1486 to PN1488.
68 PN1489.
69 PN1490.
70 PN1492; PN1494.
71 PN1493.
72 PN1499.
73 PN1502 to PN1503.
74 PN1516.
75 PN1521.
76 PN1522.
77 Exhibit A3 at para 9.
78 Exhibit A3 at WL-12.
79 PN315; PN322.
80 PN324.
81 PN323.
82 PN334.
83 PN337.
84 PN417.
85 PN420.
86 PN421.
87 PN422.
88 PN624 to PN628.
89 Exhibit A1 at para 13.
90 Exhibit A2 para 19.
91 PN668 to PN671.
92 Exhibit A1 at para 25.
93 PN629.
94 PN630 to PN635.
95 PN639 to PN640.
96 Exhibit 1 at para 26.
97 Exhibit A3 paras 2 to 4; see also PN347 to PN382.
98 Ibid.
99 PN385 to PN386; PN400.
100 PN392 to PN393.
101 PN395 to PN397.
102 Exhibit A4; PN351 to PN362.
103 Exhibit A4.
104 Exhibit A2 Annexure WL-8.
105 Exhibit A3 at paras 21 to 23.
106 PN416.
107 PN700.
108 PN459 to PN463; PN575 to PN576.
109 PN673 to PN684.
110 PN423.
111 PN424, PN439.
112 PN428 to PN438; PN440 to PN442.
113 PN641.
114 PN636 to PN665.
115 PN751.
116 PN752.
117 PN753.
118 PN755 to PN756.
119 PN761.
120 PN770.
121 PN773 to PN774.
122 PN784 to PN792.
123 Exhibit R1 at para 28.
124 PN1405 to PN1407.
125 Exhibit R1 at para 72.
126 PN1414 – PN1415.
127 PN1417 – 1424.
128 PN1427 – 1434.
129 Exhibit R1 at para 73.
130 Exhibit R1 at para 75.
131 Exhibit R2 Further Witness Statement of Peter Holden.
132 Exhibit R2 at PH-25.
133 Exhibit R2 at para 40.
134 PN914 to PN919.
135 PN1104.
136 PN1113 to PN1121.
137 Exhibit R2 at PH-26.
138 Exhibit R2 at para 51.
139 Exhibit R2 at para 53.
140 PN1546.
141 PN1547 to PN1548.
142 Exhibit R1 at PH-18.
143 Exhibit R1 at PH-20.
144 Exhibit R3.
145 PN1532.
146 PN1565 to PN1568.
147 Exhibit A10.
148 PN1592.
149 PN1598 to PN1601.
150 PN1400.
151 PN1402.
152 PN1403 to PN1407.
153 PN1524 to PN1527.
154 PN1629, referring to the Registrar’s decision at pg 5.
155 Re Coldham; Ex parte Australian Workers’ Union [1984] HCA 62; (1984) 56 ALR 149.
156 [2012] FWA 2790.
157 [2011] FCA 917.
158 [2012] FWA 2790 at [59] – [60].
159 CFMEU v Ostwald Brothers Pty Ltd [2012] FWC 2484 at [96].
160 [2020] QIRC 188.
161 Ibid at [260].
162 Exhibit A3.
163 PN629 – 635.
164 207/83 SD Print 2577.
165 Textile, Clothing and Footwear Union of Australia v Bruck Textiles Pty Limited PR953474 [2004] AIRC 1151 at [57] – [59].
166 (1984) 294 CAR 563.
167 PN823; PN831; PN1731.
168 (2012) 212 IR 206.
169 Foulsham v JJ Corbett Plumbing and Gasfitting Pty Ltd [2015] FCCA 1290 per Jones J.
170 R v Cohen; Ex parte Motor Accidents Insurance Board (1979) 141 CLR 577 at 587 per Mason J.
171 (1979) 60 WAIG 148.
172 Federated Engine Drivers and Firemen’s Union of Workers of Western Australia v Hamersley Iron Pty Limited and Others 23 January 1980 WAIG 148 at 151 – 152.
173 PR953474 19 November 2004.
174 [2020] QIRC 188.
175 Foulsham v JJ Corbett Plumbing & Gasfitting Pty Ltd [2015] FCCA 1290.
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