"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) v Envirotank Pty Limited

[2021] FWC 1374

[2021] FWC 1374

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.236 - Application for a majority support determination

"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU)
v
Envirotank Pty Limited
(B2020/603)

COMMISSIONER MCKINNON MELBOURNE, 19 MARCH 2021

Application for majority support determination – standing – whether union a bargaining representative – whether union rules cover fibreglass manufacturing.

[1] Envirotank Pty Ltd makes fibreglass tanks, vessels and other products that have a range of uses, including storage or treatment of petroleum products, water, wastewater, sewage and the like. Fibreglass is a composite material composed of glass fibres and resins. Envirotank is based in Coolaroo, Victoria.

[2] For the past 10 years, Envirotank and the Australian Manufacturing Workers’ Union have been in dispute about the Union’s right to represent employees of Envirotank in bargaining for an enterprise agreement. In late 2020, the Union applied under section 236 of the Fair Work Act 2009 (Cth) for a majority support determination, in a bid to compel Envirotank to bargain. Only a bargaining representative of employees can apply for a majority support determination.

[3] Envirotank says the Union is not the employees’ bargaining representative because it is not eligible to represent the industrial interests of employees engaged in the manufacture of fibreglass products (except to a limited – and mostly irrelevant – extent in Western Australia). The Union says it can represent the employees as either “assemblers”, “machinists” or “workers engaged in the engineering… or kindred trades” under the rules of the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) (the Rules).

[4] The question is whether employees are covered by the Rules, so that the Union can be their bargaining representative. There is no dispute that the work in question is separately covered by the rules of the Australian Workers’ Union.

[5] I have decided to dismiss the application because employees of Envirotank are not covered by the Rules. The Union cannot be their bargaining representative or make this application. These are my reasons.

The work performed by relevant employees

[6] The employees are covered by the Envirotank Enterprise Agreement 2016. Clause 5 of the Agreement contains a tiered classification structure covering employees involved in the manufacture of fibreglass products, from general labourer to leading hand.

[7] The work of employees generally involves seven discrete functions:

1. Semi-automated PLC shell manufacture – forming the tank shell by pouring and rolling fibreglass fibres and resin in and around a mould and allowing it to set, while manually cutting fibres, spraying and smoothing resin to create an end cap. The process is replicated for double walled tanks. Once hardened, the mould is collapsed and the tank shell removed.

2. Sub-assembly – cutting fibreglass tank shells to the required length, sanding areas for joining and cutting holes for fittings and other attachments.

3. Assembly – joining fibreglass tank shells to create a sealed vessel. Lifting lugs, fibreglass manholes etc are attached with fibreglass material.

4. Components – moulds and a chopper gun are used to accessorise sealed tanks by joining and/or laminating additional accessories and components such as hydroguard reservoirs, manholes, reducers, collars.

5. Finishing / testing – tanks are steamed to produce a full laminate cure and pressure/vacuum tested to the requisite level. For double walled tanks, the reservoir between the inner and outer tanks is filled with liquid.

6. Moving tanks from one site to another, first for finishing and later to a hardstand area until loaded for delivery to end customers.

7. Ancillary routine maintenance of equipment used in the manufacture of fibreglass tanks such as cleaning spray guns and rollers.

[8] Employees are trained in a range of work across the factory. There is no metal fabrication on site. Some of the accessories joined to fibreglass products are made of metal sourced from third parties and fitted using fibreglass. Occasionally, employees may be required to hit a metal plate with a hammer to fit it into a pre-cut hole.

The Rules

[9] Rule 1A(a) of the Rules deals with the work of “machinists”, “assemblers” and employees engaged to work in the “engineering… and kindred industries”. It says (with emphasis added):

“1A. Without in any way limiting or being limited by sub-rules 1B, 1C, 1D, 1E, 1F, 1G, 1H and 1I the Union shall consist of an unlimited number of persons who are employed or usually employed in or in connection with the following trades or calling or branches thereof:

(a) Smiths, ship smiths, angle iron smiths, drop-hammer smiths, spring smiths, oliver smiths, spring fitters, swaging machine operators, operators on smithing machines similar to swaging machines, nut and bolt makers, windmill erectors, motor, motor cycle, and cycle mechanics, tuners and testers in motor industry, enamellers, typewriter mechanics, well-borers, scale-makers, metal safe makers, locksmiths, forge hammermen, forgemen, strikers, drop-hammer stampers, forging machine workers, forge, iron, and brass furnace-men, ship's plumbers, fitters, turners, grinders, whetstone grinders and glazers, sea-going engineers, shift engineers, roll turners, patternmakers, model makers, millwrights, mechanical draughtsmen, technical assistants, planners, borers, slotters, machine drillers, milling machine workers, shapers, machinists, brass founders, brass finishers, brass smiths and operators of machines in connection with same, coppersmiths, armature winders, equipment examiners, and electrical engineers generally, radio workers, mechanical and scientific instrument makers and optical glassmakers, linotype mechanics, press mechanics, machine joiners employed in the construction of cotton, silk, flax, woollen or other machines, die sinkers, press tool makers and stampers, electroplaters, polishers, electroplate makers up, sheet metal spinners, assemblers, skilled acetylene and electrical welders, aero mechanics, duralium workers, including forgers, fitters, and all other aircraft workers who are employed on the fuselage or engine work, and all workers engaged in the engineering, shipbuilding and kindred trades.

Notwithstanding anything contained in the immediately preceding paragraph, persons employed by Donaghys Industries Pty Ltd as production employees shall not be eligible for membership of the Union.”

Approach to interpretation

[10] The approach to interpretation of union eligibility rules was summarised by a Full Bench of the Commission in Australian Manufacturing Workers Union v ResMed Limited 1, a case that also considered the coverage of “assemblers” under the Union’s rules. Those principles are, in summary:

1. Union eligibility rules will be construed objectively. 2 

2. The nature of union eligibility rules means that they should be construed liberally rather than narrowly or technically. 3

3. Regard may be had to common understandings among people concerned with relevant industries, and particularly with industrial matters of the ordinary application of the words used, as well as 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. 4

4. 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 reference sources because a union may only be a party to an industrial dispute involving employees who are eligible to be its members. 5

5. If there is ambiguity about the meaning of words in eligibility rules, assistance may be sought in the terms of the industry rule (although the scope of the eligibility rule is not restricted by the scope of the industry rule). 6

6. 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. 7

7. Terms used in union eligibility rules should not be interpreted statically in accordance with the meaning they bore at the time they were first introduced into the rules. Although such terms will have a fixed connotation, they bear a changing denotation. They may be interpreted in accordance with their appropriate current meaning, taking into account changing technologies and methods of work. 8 This may mean that eligibility rules may cover industries or callings not known when the rules were originally drafted.9

8. The words “in or in connection with” are words of expansion. However, for the requisite connection to be established, the work of 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 enough that the work of relevant employees makes it possible for an employer to conduct a business involving the performance of work by the second group of employees. 10

[11] While union rules are to be construed objectively, a liberal and purposive approach should be taken to the construction of the rules. 11

Relevant history

[12] The Union’s eligibility rule has its origins in the eligibility rule of “The Amalgamated Society of Engineers”, an organisation registered on 14 July 1905 “in the engineering industry”. The Society’s “Constitution of Organisation” said this:

“The Society shall consist of members belonging to and earning the rate of wages fixed by the District Committee for the following trades or branches — Smiths ship Smiths angle iron Smiths fitters turners roll turners, pattern makers machinists mill wrights mechanical draughtsmen planers borers slotters machine drillers, milling machine workers shapers and other machine men brass finishers and copper smiths employed in the engineering and ship building trades armature winders and electrical engineers generally, mechanical and scientific instrument makers, machine joiners employed in construction of cotton silk flax woollen or other machinery; die sinkers press tool makers and stampers or drop hammer forgers employed in the engineering and kindred trades.”

[13] The first federal award covering what would eventually become the Union was made in June 1921. 12 It was made after a process described by the Full Court of the Federal Court as “a lengthy and wide-ranging inquiry into all aspects of the employees’ industry of engineering where that word is used in its sense of working with metals”.13

[14] In 1926, the Union’s eligibility rule was varied to expand the list of occupations including, for the first time, “assemblers (other than assemblers engaged solely on agricultural work in the States of Victoria and South Australia)”.

[15] In 1930, a second federal award 14 was made covering industrial relationships in the engineering and allied industries in four states. Those industries were general engineering (jobbing and making, manufacturing, window-frame making), electrical, electroplating, welding, smithing, boilermaking and ship construction, steel construction, moulding, sheet metal and ironworking. The award covered the classifications of “assembler and fitter” in the window-frame making industry and motor-car chassis assembler in the ironworking industry. It provided for assembly work to be performed by process workers and motor mechanics.

[16] The award contained general definitions for the two different systems of machine production covered by the award – each centred on the making and manufacture of metal products:

1. Jobbing and making: “the making in metal of machinery and mechanical apparatus and of electrical machinery and apparatus and of sheet-metal products and other metallic articles, and the moulding of parts thereof and the assembling thereof and the repairing and maintenance and installation therefor by methods other than those set out in the definition of manufacturing”, and

2. Manufacturing: “the making in quantities of interchangeable or standardized parts of machinery and mechanical apparatus and of electrical machinery and apparatus and of locks, scales, window frames, tin and aluminium ware and other metallic articles by specialized processes and the assembling thereof.”

[17] In ResMed, the Full Bench considered the history of rule 1A(a) of the Rules by reference to the 1930 federal award as well as other relevant awards and archival material. It did so for purposes including the development of a workable interpretations of the words “assembler”, “machinist” and “engineering … and kindred trades” in the Rules. This led the Full Bench to make findings of relevance to this case, which I have summarised below:

1. The terms “assembler”, “machinist” and “engineering … and kindred trades” each have a meaning that is more confined in its industrial usage than the ordinary meaning.

2. The term “engineering” has been understood to include the manufacture of mechanical and electrical appliances, so that the “engineering … and kindred trades” at least include persons engaged in occupations or functions which form part of the process of the manufacture of mechanical and electrical appliances.

3. A “machinist” is a person who makes, shapes or modifies a product by the process of machining and who uses a machine primarily for the purpose of working with metal.

4. The ordinary meaning of “assembler” is a person engaged in “repetitive work of a type not requiring special skill”. In the Rules, the work of an assembler must be understood as being performed in relation to general engineering and electrical manufacturing. It refers to an employee engaged at least in the “assembling of parts of mechanical appliances or other metallic articles” with no particular skill level required, perhaps with other functions relevant to process workers. An assembler includes an employee engaged to perform assembly work as part of the process of manufacture of mechanical or electrical appliances.

5. The terms “machinist”, “assembler” and “engineering … and kindred trades” are not confined to the type of manufacturing processes and appliances that existed at the time they first appeared in the Rules. The fact that a mechanical or electrical appliance of a type not conceived of historically is manufactured using modern machining and assembling equipment and techniques does not mean that the Rules do not apply.

[18] I agree with each of these conclusions of the Full Bench. To these I would add:

1. Historically, an assembler was a person engaged in the assembly of items made from metal using simple hand tools (hammer, screwdriver, spanner).

2. “Engineering” for the purposes of rule 1A(a) is engineering in the sense of working with metals. 15 This has been so since the Union’s first federal award made in June 1921,16 and makes sense having regard to the large majority of trades and callings identified in the Rules, as well as industries covered and described in the “industry rule” at rule 2(a):

“The engineering and metal industries and in or in connection with the engineering, boilermaking, shipbuilding and structural work with metals industry and in or in connection with the iron and steel, shipbuilding, engineering, rolling stock, agricultural implement making, coach building, mining, quarrying, railway, construction, building, sawmilling industries or any industry where smiths are employed and in or in connection with tinplate, tinsmithing, sheet metal (including motor car building so far as panel-beating and sheet metal working is concerned and also sheet metal trunk and box making), gas meter making and canister making industries, the industries of manufacturing, assembling, dismantling, erecting, replacing or repairing of agricultural implements; manufacturing, erecting assembling, dismantling, replacing or repairing of ovens, stoves, ranges, grates, registers, copper casings or other heating apparatus (or parts thereof); the manufacturing, erecting, replacing or repairing of metal bedsteads or fenders (or parts thereof); porcelain enamelling of steel and iron plates and hollow-ware, baths, sinks, cisterns, household utensils, and builders' materials and the manufacture of frit; the industries of manufacturing, making, repairing of jewellery and the industries of manufacturing, making repairing of watches and clocks.”

3. While the terms “machinist”, “assembler” and “engineering … and kindred trades” are not confined to the type of manufacturing processes and appliances that existed at the time they first appeared, they must still be understood in a way that sits harmoniously with the Rules as a whole. 17 The terms cannot be given an unnecessarily wide or indefinite scope because, among other things, this would mean adopting their ordinary meaning rather than the more confined industrial meaning identified above in each case.

Are employees covered by the Rules?

“Machinists”

[19] The work performed by employees of Envirotank falls within the ordinary meaning of “machinist” because employees operate machines used in a making or manufacturing process.

[20] However, none of the work of employees operating machines at Envirotank is work primarily for the purpose of working with metals. To the extent that employees of Envirotank make, shape or modify products by the process of machining, they do so primarily for the purpose of working with fibreglass, a non-metallic composite.

[21] This means that the Rules do not and cannot cover Envirotank’s employees in their capacity as “machinists” or employees employed in connection with machinists.

“Assemblers”

[22] Some employees of Envirotank perform work that falls within the ordinary meaning of “assembler”. They work in what is known as the “sub-assembly” and “assembly areas”, preparing tanks for assembly, aligning tank shells, joining them with fibreglass and attaching fittings, sockets, lugs and collars. The work appears to be relatively repetitive in nature and does not require special skill over and above on the job learning and experience.

[23] However, employees are not “assemblers” for the purposes of the Rules. This is because employees are engaged in the assembly of fibreglass products which are self-evidently, not metallic and none of which are mechanical or electrical appliances. Employees do not work in the assembly of parts of mechanical or electrical appliances or other metallic articles. They do not perform assembly work as part of the process of making or manufacturing mechanical or electrical appliances, or metallic articles. Their work is not in relation to general engineering or electrical manufacturing as those terms are understood in the Rules.

[24] Employees of Envirotank are also not employed in connection with the work of assemblers covered by the Rules – they cannot be, because no assemblers of that description are employed by Envirotank. There is no close connection between the work of persons who are covered by the Rules and the work of any of Envirotank’s employees. It is not enough that some of the accessories, added to some of the fibreglass products, are made of metal. These accessories are supplied by third parties and fitted to the fibreglass products using fibreglass, occasionally with the use of a hammer. This work is incidental to the activities in which employees are substantially engaged, which is the making of fibreglass products.

“Workers engaged in the engineering and kindred trades”

[25] Employees of Envirotank are not “workers engaged in the engineering… and kindred trades” in the sense that those words are used in the Rules. This is because, other than incidentally, their work is with fibreglass – a resin and glass fibre compound. As already noted, employees do not work in occupations or functions that form part of the process of making or manufacturing mechanical and/or electrical appliances, or metallic articles.

[26] I do not accept the submission that Envirotank’s making or manufacturing process is covered because there has been a change in technology or method of work not known when the Rules were drafted. The evidence does not establish the contention. In the context of a history linked to the ‘metal trades’ and in a context of making or manufacturing of products that are not metallic, mechanical or electrical in nature, it is a difficult argument to sustain.

[27] That is not to say there has been no evolution of technology or work methods involving fibreglass that is capable of coverage under the Rules. Rule 1A(g)(i) of the Rules expressly contemplates work that would traditionally have been covered by the Rules but now involves working with fibreglass. However, coverage of this work under the Rules is limited to specific kinds of work in Western Australia:

“Tool makers, heat treaters, drill doctors, electrical fitters, electrical installers, electrical wiremen, electrical linemen and electrical workers generally, refrigeration fitters, pipe fitters, skip repairers, iron workers' assistants, moulders' assistants, boilermakers' assistants, dressers, drillers, pipe makers, riggers, die makers, press operators, fettlers and machinists engaged in the production of plastics, and all workers of any of the classifications mentioned above employed in work with fibre glass or nylon materials where such fibre glass or nylon materials replace or are substituted for other materials with which such workers formerly worked and the work is of a kind which when done in such other materials would have been done by such a worker or some other classification mentioned.”

[28] Plainly, rule 1A(g)(i) does not cover employees of Envirotank who all perform work in Victoria. None appear to undertake work in any of the trades or callings described in the rule above, and if there is a history in this case of employees working first with other materials that were later substituted with fibreglass, I am not aware of it.

[29] The work of employees is also not “in connection with” the work of employees engaged in the engineering... and kindred trades. Envirotank manufactures its products from beginning to end. It does so without reliance on tradespersons or other employees in any of the trades or callings in rule 1A(a).

[30] The one exception to this appears to relate to a maintenance contractor, engaged by Envirotank to maintain the machines used by employees in the making or manufacturing process. This is not work performed by Envirotank or any of its employees. Employees are responsible for some minor work on machines and trolleys – applying lubricant, clearing and cleaning spray guns and rollers, but this is incidental to their primary roles and functions. Attendance of a maintenance contractor on site to maintain machines used by employees to fabricate products does not establish a sufficient connection between the work of those employees and workers engaged in the engineering and kindred trades. If coverage under the Rules were extended to any employee working in a place where machine maintenance was performed by a third party, the Rules would be given the kind of wide and indefinite scope that is to be avoided.

Other matters

[31] The Union submits that because the Rules cover the manufacture of some fibreglass items (boats and road vehicles) as well as the manufacture of (metal) tanks, vats and similar products, it is no stretch to conclude that the manufacture of fibreglass tanks is also covered.

[32] The evidence does not establish the extent to which fibreglass manufacturing is currently covered by the Rules. Even if it did, this dispute is not about work involved in the manufacture of boats or vehicles and it is not about the manufacture of metal tanks, vats or similar products. For the reasons already given, employees of Envirotank are not engaged in any of this type of work.

[33] To the extent that regard may be had to the industry rule at rule 2(a), this rule covers motor car building, but only “so far as panel-beating and sheet metal working is concerned and also sheet metal trunk and box making)”. In other words, it is coverage confined to working with metals. Rule 2(e) extends the industry rule to the coach, motor car, rolling stock and aircraft industries, but Envirotank is not an employer in one of these industries.

[34] Finally, the proposition that employees can be taken to be covered by one rule because of work covered by a different rule does not make sense. Employees are either covered by a rule or they are not. The rule relied upon by the Union for the purpose of establishing coverage in this case is rule 1A(a), which covers “machinists”, “assemblers” and workers engaged in the “engineering… and kindred trades”. The manufacture of tanks, vats and similar products is covered by rule 1A(b). Much of the vehicle building industry is covered by rule 2(a) and the industry rule extends coverage to vehicle industries more broadly.

Conclusion

[35] The work performed by employees of Envirotank is not covered by the Rules. As a result, the Union is not eligible to represent the industrial interests of employees employed by Envirotank and it cannot be their bargaining representative under the Act.

[36] As it is not a bargaining representative of any employee who will be covered by the proposed enterprise agreement with Envirotank, the Union is not entitled to apply for a majority support determination in this case.

[37] The application is dismissed.

COMMISSIONER

Appearances:

J Gardner for the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU).
D McLaughlin of Rigby Cooke Lawyers for the Respondent.

Hearing details:

2021.
Melbourne (video hearing):
January 28.

Printed by authority of the Commonwealth Government Printer

<PR727753>

 1   [2014] FWCFB 3501.

 2   R v Williams; Ex parte Australian Building, Construction Employees’ and Builders Labourers’ Federation (1982) 153 CLR 402 at 407.

 3   R v Cohen; Ex parte Motor Accidents Insurance Board (1979) 141 CLR 577 at 587; Co-operative Bulk Handling Ltd v Waterside Workers’ Federation of Australia (1980) 49 FLR 355 at 361-2; Electrical Trades Union of Australia v Waterside Workers’ Federation of Australia (No. 2) (1982) 59 FLR 78 at 87.

 4 (1982) 153 CLR 402.

 5 (1980) 49 FLR 355 at 370.

 6   R v Gough; Ex parte Municipal Officers’ Association (1975) 133 CLR 59 at 69.

 7  (1975) 133 CLR 59 at 68-69; Ex parte Municipal Officers’ Association; Construction, Forestry, Mining and Energy Union v CSBP Ltd (2012) 212 IR 206 at [52]-[53].

 8  (1980) 49 FLR 355 at 363-4.

 9   R v Isaac; Ex parte Transport Workers’ Union (1985) 159 CLR 323 at 331.

 10   Federated Miscellaneous Workers Union of Australia v Colonial Sugar Refining Co. Ltd (1971) 18 FLR 386 at 393-4.

 11 (1979) 141 CLR 577 at 587;  (1980) 49 FLR 355 at 361-2; (1982) 59 FLR 78 at 87.

 12 15 CAR 297.

 13 (1988) 29 IR 263.

 14 (1929-30) 28 CAR 923.

 15 (1988) 29 IR 263.

 16 15 CAR 297.

 17 (2012) 212 IR 206 at [52], citing (1975) 133 CLR 59 at 68-69.