Co-Operative Bulk Handling Ltd v The Waterside Workers Federation of Australian Workers Union Western Australia Branch Industral Union of Workers

CATCHWORDS

I n d u s t r i a l law

ent i t lement to

membership

Waterside

Workers' Federation of Australia

gra in

s tored for shipping - nature of work done by

employees - "waterside worker"

- "stevedoring

industry" - "adjacent to

a wharf" - connection with

ships

Conci l ia t ion and Arbi t ra t ion Act

1904, ss.4,

132, 144.

CO-OPERATIVE BULK HANDLING LIMITED V. THE WATERSIDE

WORKERS FEDERATION

AUSTRALIA and THE AUSTRALIAN

WORKERS

U N I O N WEST

AUSTRALIAN BRANCH

INDUSTRIAL

U N I O N

OF WORKERS

No. 3 of'1979

Coram: Toohey J .

Perth	I
19 May 1980

IN THE FEDERAL COURT OF AUSTRALIA

) )

VESTERN AUSTRALIAN DISTRICT REGISTRY	) No.3 of 1979
)

DIVISION

INDUSTRIAL

)

CO-OPERATIVE BULK HANDLING LIMITED

Applicant '

THE WATERSIDE WORKERS FEDERATION	F :
AUSTRALIA

First Respondent

THE AUSTRALIAN WORKERS UNION

MEST AUSTRALIAN

BRANCH INDUSTRIAL

U N I O N

1K)RKF.R.S

CORAM:

TOOHEY

19 May 1980

REASONS FOR JUDGMENT

This is an application under s.144

of the

Conciliation and Arbitration Act 1904 for

a declaration

as to the entitlement

of certain persons to become and

remain members

of The Waterside Workers Federation

,	Australia ("W"). The application was brought by

Co-operative Bulk Handling Limited ("CBH"),

the employer

of the persons concerned.

W F and the Australian Workers

Unim Vest Australian Branch, Industrial Union of Workers

(."AWU") were joined as respondents.

2 .

When the hearing began

I drew attention to

S .144(7) of the Act which requires that when such an

application ismade; otherwise than by a person whose

entitlement is

in question, “that person shall be given

an opportunity of being heard by the Court”.

No formal

notice of ’nearing had been given

to any of the persons

whose entitlement was in question. Counsel for the

I f i F

stated that, although not formally representing them,

was protecting their interests through their membership

of that organisation. A l l were members of the \W; some

belonged also to the

A W .

I still expressed some concern

as a result of which

a notice referring to the hearing

and providing machinery for personal representations to

the Court was placed on the staff notice board at the

two places of employment involved. There was evidence

that all the men working at North Fremantle and most of

those working at Kwinana had been spoken to by a shop

steward during the second day

of the hearing and that

all had expressed a wish that their interests be

repres nted,

by the

IflJF.

No individual contacted my associate and

the result

I am satisfied that each was given an opportunity’

of being heard as required by the subsection.

The applicant (CBH) is

a company incorporated under

the provisions of the Companies (Co-operative) Act

1943 of

Western Australia. It is the licensed receiver in that

state for the Australian Wheat Board which

in turn is

the sole marketing authority for wheat in this country.

3 .

Wheat growers are obliged

to deliver grain for

marketing to the Board

o r a licensed receiver; upon

, '

delivery to CBH, wheat becomes the property of the

3-	1
I

Board. CBH is also the licensed receive& for the	I
Grain Pool of NA. a body concerned with the marketing
of barley, oats, linseed, rapeseed and lupins.

Pursuant to the Western Australian Bulk Handling

- 1967, CBH is obliged to install, maintain and operate

Act

facilities for the reception and handling of grain in

bulk and, by reason of the same Act, it has the sole

right to receive, handle, transport and deliver wheat

and barley received in bulk.

Over a period of nearly 50 years CBH has established

throughout the state receival points for bulk grain from

growers.

In addition it operates ship loading terminals

in a number of ports. Although grain is harvested in

Western Australia mainly in the months

of November,

December and January, the process of moving

it from

receival

points

terminals

goes

less

throughout the year. It may remain at

a terminal for

periods ranging from

4 to 8 months, depending

upon the

location of the terminal, the size of the harvest and

the demand both locally and overseas.

Wheat and other grains were exported

fom the

port of Fremantle for many years. Although the

CBH

terminal at North Fremantle still exists, it is

longer

used for shipping, its present function

being that of

s torage and

to provide for

small

s a l e s t o g r a i n

merchants and maltsters.

It has not operated

as a shipping terminal since

1 June 1979. Before

then

it had become apparent

that

much

b i g g e r s t o r a g e f a c i l i t i e s

would

be required and

decis ion was

made

to e rec t t he p re sen t t e rmina l a t

Kwinana.

The scope offered

for bui lding

l a r g e f a c i l i t y

meant

not only that

i t was

longer necessary to cont inue

shipping from Fremantle but there

was

need

to cons t ruc t

o v e r f l o w s t o r a g e f a c i l i t i e s a t r e c e i v a l p o i n t s	i n	t h e
country.

The

f i r s t

s tage of the

Kwinana

cons t ruc t ion was

completed

i n 1969 wi th a hor izonta l s i l o o r shed t o

r ece ive g ra in a r r iv ing by r a i l

from the country for

s torage, t reatment

and

movement

aga in by ra i l to Nor th

Fremantle.

1972

the building of

additional

h o r i z o n t a l s i l o

began together with ver t ical concrete

c e l l s and

ipping

fac i l i t i es .

1977

the

first

shipment

grain

took

place

from

Kwinana.

The

t o t a l

capaci ty of

that

terminal

i s 912,300,000

tonnes,

A s an

aid to understanding the nature of the work carried out

by those employees

whose const i tut ional coverage

was

i n

quest ion,

inspected receival points at Meckering

and

a t Avon.

A s wel l I was

given a

detailed viewing of

the

operat ion a t Kwinana;

the

terminal

a t North

Fremantle

was	seen br ie f ly .

The claim by the

tJWF

t o have constituional coverage

CBH workers

a t t h e

North Fremantle terminal

stemmed

from t h e i r membership	tha t	o rganisa t ion	of	a t a	time	I
!

I I

5 .

when g ra in xqas

exported

from

that

terminal.

It was

common

ground

t h a t i f

the W F had coverage of

those

members working

a t Kwinana,

i t had coverage also for

those a t North

Fremantle,

a t least u n t i l

t h e i r

membership

expired.

Conversely

i f

i t lacked

coverage

those

working

a t Kwinana, none

existed

i n r e s p e c t

North

Fremantle. For those

reasons

and

because

most

the

employees worked

a t Kwinana,

the main focus of the

hearing was

tha t te rmina l .

A t Kwinana g ra in i s discharged from

rail trucks

bottom

dumping wagons.

The gra in fa l l s into hoppers

and

i s

then transferred along conveyor belts

where

i t

i s weighed, metal objects

removed

and

pes t i c ide

a p p l i e d

before

it is taken to

i t s planned storage location,

e i t h e r

i n

the ho r i zon ta l s i l o s

o r

i n t h e v e r t i c a l c e l l s .

There it amay

remain

f o r some months, during which time

it is subjec t t o regular checks

t o ensure that

there

has

been no infestat

ion of

insects .

When

the gra in

to be shipped,

i t is removed

from storage

and

car r ied

to the top of the terminal

complex where

passes

through weighers and cleaning machines before being taken

by conveyor

be l t s a long

j e t t y f o r

shipment

a t t he whar f .

There the grain

i s t r ipped on

to another short conveyor

on	loading gant r ies	which	d i rec t the gra in in to the hold
of	a wai t ing ship.

The j e t t y i s some

2500

f ee t l ong , w i th

separat ion of about half

mile

between the wharf and

terminal

buildings.

Since

the

applicant

placed

some

6 .

s t r e s s upon the dis tance involved,

i t may

be as

well

t o p o i n t o u t t h a t t h e j e t t y

w a s

b u i l t t o

such

length

to ga in depth to enable la rger sh ips to

t i e

up.

The

background

t o t h i s a p p l i c a t i o n

is a

h i s to ry

industr ia l trouble

going

back

1977.

It i s

unnecessary

re fer

i t i n any d e t a i l .

It i s enough

t o s a y t h a t

work

a t both terminals has been and presently

i s governed by an award o f TheWestern Australian Industrial

Commission t o which the

AWU

and CBH are p a r t i e s .

Currently i t is The Grain Handling

(Kwinana and North

Fremantle Terminals)

Award No. 31 of 1978. With the

exception

workers assigned to operate the

main

cont ro l

room,

ga l le ry cont ro l

room,

weighers

and

cockpit,

the

award

contains

wage

c lass i f ica t ion s t ruc ture a l though

i t

does have

s e r v i c e p r o v i s i o n s b u i l t i n t o

it,

On 26 February 1979 about 100 CBH employees a t

Kwinana

and

North Fremantle gave notice

i n t en t ion to

resign

from

the AWU

and then appl ied to jo in the

WiF.

Most

res igna t ions became e f f e c t i v e on 27 May,

only a

fev7

days

before the North Fremantle terminal ceased to

used

for

shipping.

CBH

did not

recognise

the

ight

the

WW to

represent

those

employees.

Industr ia l

act ion

then

followed.

A t the present

time a l l those

to whom the

a p p l i c a t i o n r e l a t e s , e i t h e r

name

o r desc r ip t ion , a r e

members of the IWF.

Some, it seems, a r e members of the

A W as wel l .

Some of

those named

are no

longer working

a t

e i ther

terminal .

Their

e l igibi l i ty

nevertheless

remains

to be considered.

7 .

The issue between CBH and the

AWU on the one

hand and the

WWF on the other must

be seen in perspective.

The question is one

of constitutional coverage, involving

the proper interpretation and construction of the rules

of the WTJF.

The fact that another union may have that

constitutional coverage is

no answer to the claim by the

\JNF nor is the existence of award coverage obtained by

another union except to the extent that either may throw

some light on the meaning of terms used in the constitution

of the WWF,

for example by reflecting usage in the industry

Section 132 of the Conciliation and Arbitration Act

has undergone

a number of changes but it provides for

registration as an organisation

r an association

persons who "are employees

in or in connexion with any

industry"

Industry is defined by

s . 4 to include

"(a)	any business, trade, manufacture,

- undertaking, orcalling of employers;

(b)	any calling, service, employment,

I	handicraft or industrial occupation vocation of employees; and

--(C) a branch of any industry and

group

of industries".

Counsel for

CBH submitted that the industry in

question here is an employees' rather than

an employers'

industry.

No one challenged the submission and as far

as it goes it

is probably right. But it leaves many

qus	tions unanswered.

The first step is to

l ok at the constitution

and rules

of the WWF.

8 .

Rule 5 def ines member t o mean a -

"f inanc ia l member of

the Waterside Workers'

Federation of

Australia engaged i n t h e

Stevedoring Industry andlor engaged in

any

du t i e s a s an o f f i c i a l	of	a	Branch	o r t h e
Federation".

The

same

ru le def ines s tevedor ing indus t ry

and

i t

i s

necessary to se t ou t tha t ra ther lengthy def in i t ion .

"Stevedoring Indus try"

means the

operat ion of

lokding and discharging ships

and includes the ac tua l

movements of goods

on ,

to , o r

from

vesse l , whar f , p i e r ,

j e t t y ,

shed , l i gh te r , o r

any

p l a c e i n t h e v i c i n i t y

of loading and discharging operations for

the purpose

pu t t ing goods

a t a

po in t o r

po in t s w i th in tha t p l ace ,

a s t o f a c i l i t a t e

the ult

imate actual loading or discharging

andjor ultimate removal from that place,

and	a l so inc ludes the s tacking or a r ranging

within that place of loading or discharging

to fur ther tha t u l t imate loading or

discharging of cargo

i n

r e l a t i o n t o t r a d e

o r

commerce

sea wi th o ther count r ies or

amongst the

States.

For

the

purposes

these operations

any such place

may

include

any shed, wharf, or pier or

any

p l a c e i n t h e v i c i n i t y

of the spot

a t which

the vesse l

i s

to be loaded or discharged

o r

where goods

are to be shipped or that

have been unshipped

o r are

temporarily

deposi ted or s tacked for the purpose of

f a c i l i t a t i n g t h e u l t i m a t e l o a d i n g

o r

the

ultimate

adequate

discharge

cargo".

Rule

6 ,

purporting to control admission to

membership,

provides

that

any person "who intends t o

follow the occupation

of a waterside worker" may, subjec t

t o

meeting certain conditions regarding character

and

competency, become a member of

the WF. By the same

r u l e ,

such

a person must be

a t least

18 yea r s of

age

and no t more than 45.

By Rule 6(e) ,

tha t age

limit

i s

expressed not to apply in

any

case

where an applicant

i s

79.

worker already working

i n

the s tevedoring industry

o r i n

occupat ion assoc ia ted wi th or anc i l la ry to

tha t i ndus t ry .

Rule 7 provides that

any person

who

f o r 1 2

calendar months

commencing

in January of each year has

ceased to follow the occupation

waterside

worker

i n

the po r t

where he

i s a member

and where. during that

period, there has been

work

ava i l ab le fo r

which he has

fa i led cont inuously

o f f e r h i m s e l f s h a l l a t t h e

end

of those

1 2 months cease to be

a member of the organisat ion.

The

relationship between these provisions

was

canvassed	during	the aring.	Assuming	t h a t a person	L
I

meets

the

technical

requirements

Rule

6 , the

remaining

cond i t ion o f e l ig ib i l i t y

i s

that he intends to fol low the

occupation of

a waterside worker.

Is tha t

t he

same as

being engaged

i n the stevedoring industry within Rule

i t

i s 'not , and i f being

engaged

in the s t evedor ing

indus t ry

i s

narrower concept than following the occupation

a waterside worker, which

is to p reva i l ?

Authori ty has resolved this issue in favour of

t h e e l i g i b i l i t y p r o v i s i o n .

4 II

... t he iden t i ty

t he indus t ry in r e spec t

of which the organization

i s

reg is te red

i s

no t de f in i t i ve

t he e l ig ib i l i t y o f pe r sons

to be

members

of the organizat ion in any case

where

the e l ig ib i l i t y c l ause o f t he cons t i t u t ion

the organiza t ion t rave ls

beyond the bounds of

the indus t ry i n respect of

which the organization

i s r eg i s t e red .

So much

is decided in Re

Dunlop

Rubber

Australia L t d ; Ex

ar te

F % *

e erated

Miscellaneous

Workers'

Union o

Aus t ra l ia

C1956)

. . .

Thus, i f i n

t he

p re sen t

ca se

t he

10.

"terms of c1.4 of the constitution of the

respondent organization do not fully confine

the scope of the clause to the building

industry, which is the industry in respect	t
of which the organization is registered,	I
the eligibility of the workers in question

to be members of the organization must

decided upon the terms

of c1.4 itself. No

doubt in the event of there being

ambiguity in that clause it would be proper

to resort to the nature

of the industry

respect of which the organization is registered

as an element

in the resolution of that

I I

ambiguity.

( E v. Watson; Ex parte Australian

Workers' Union (197-	C.L.R. 77 per Ba~wick	C.J.
at p .79).

It may be that, in the end, there is

no substantial

difference between the two concepts. Nevertheless,

authority directs the inquiry primarily to the occupation

of waterside worker. It is an inquiry to be resolved

in terms of the common understanding of those words as

they are ordinarily applied

in the industry. That

< -

understanding may be derived from awards, determinations

and repdrts. g v. Hickman;

Ex parte Fox and Clinton

(1945) 70 C.L.R. 598 per Dixon

J. at p.613.

Also it may be possible to give content to

vocational term such as waterside worker by pointing to

the activities usually performed by	a person answering
that description.

Mr. N. Docker, the assistant general secretary

the WE', described in an

affidavit filed in these

praceedings the sort

of work which registered waterside

workers are called upon to perform. There

17as no

challenge to the accuracy of that account although issue

was taken as to the proper emphasis to be placed upon it.

11 a

According

t o M r .

Docker,

members

o f h i s

organisat ion have t radi t ional ly been

employed

i n

p o r t s i n A u s t r a l i a

... i n t h e work of receiving

goods

from

r a i l

andlor road transport for subsequent

shipment by

sea t ranspor t

. . . i n the s tacking

and

storage of such

goods pending shipment

by sea ... i n t h e movement of such goods from

t h e s t a c k s o r s t o r a g e f a c i l i t i e s t o t h e s h i p ' s

s i d e and the subsequent

movement

of those

goods

in to the sh ip

and

the i r s torage aboard

the

ship.

This

work

has

involved

the

unloading of r a i l waggons and other road

t ranspor t

...

the operation of diverse

forms

mechanical

equipment

... (and)

shore-based

bulk-loading

equipment".

The

aff idavi t proceeds

t o descr ibe a

va r i e ty

spec ia l i sed func t ions

embraced

i n

t h e s e a c t i v i t i e s

including -

I I . . .

the driving and maintenance

mobile

equipmeht ... s tacking , sor t ing

and

restacking

of cargo

i n wharf sheds and ocean port

s t o r a g e f a c i l i t i e s

... the operat ion

weighbridges;

the operation

conveyor

b e l t s , f i x e d

and

mobile

... the appl ica t ion

of insec t ic ides to par t icu lar cargoes" .

M r .

Docker

made

pa r t i cu la r r e fe rence to the Por t

of Newcastle where

members

of the

T J N F

"are engaged

i n

the ent i re process of shipping

coal from the receipt of coal

i n

bulk from road

and ra i l wagons,

t o t h e

trimming of

the

coal

i n

the ho lds

the vessels. This

process

t i

opera t ion

inc ludes

the

p l

the

r s ,

operation of conveyor belts to carry to coal to s tacking or s torage a reas , the opera t ion of reclaiming machines to reclaim the coal

from the s tacking

area and place i t on

fu r the r

conveyor b e l t s t o

convey

i t

t o t h e

.ship,

and

the

operation

ship

equipment".

The

object of this evidence

was

t o show

(and

succeeded i n showing)

that the occupation of

a waters ide

worker

i s ,

i n terms

locat ion, not confined to the

. .

12.

rqharf

and

t h a t i t covers a

range of functions connected

with the s torage

and movement of goods des t ined for

shipment.

The

T W F then sought to demonstrate,

reference

t o

i t s

current industrial coverage, usage of the term

waterside worker. This

i t d i d by

reference

t o

the

Waterside

Workers'

(Maritime

Services

Board - Cargo and

Coal

Handling - Newscastle) Award 1978,

agreement

I :

between

Mercantile

Stevedores

(S.A.)

and

the

WWJ?

i n

r ega rd to the

employment

persons

a t P o r t P i r i e , t o

the

Waterside

Workers

(Container

Terminals)

Award, 1976

, .

and

to the Waterside Workers'

Award

1977.

The relevance	of	the	Newcastle	award, which relates	I
!

the Carrington Basin,

t h a t t h e c l a s s i f i c i a t i o n o f

cargo plant operator includes

"shiploader

operator

crane dr

iver

marshal l ing operator , reclaimer

and

s tacker a t tendant ,	and	cont ro l room
a s s i s t an t " .

The

i n d u s t r i a l

agreement governs persons

employed

a t Por t

P i r i e

boom

s tacker dr ivers , sh ip loader opera tors

and f r o n t end loader operators .

It is expressed

apply

t o a l l p e r s o n s

employed

those categories

and,

south

No.?

berth, to include general maintenance of the

conveyor b e l t system.	i
i

The Container Terminals

Award l i s t s a nmber of

categories	of	employees including	those	driving	wharf	and	.
i

stacking

cranes,

driving

mobile

mechanical

equipment,

13.

operat ing ce l l guidance systems on board vessels,

maintaining and cleaning a l l types of containers,

sweeping cleaning an3 keeping tidy space within and

around a terminal,

terminal depot or depot area

and

bui ld ings , a t tending to the secur ing

and

re leas ing

containers on

r a i l

t rucks ,

moving

r a i l

trucks, packing

and unpacking containers,

f la ts

o r pallets

and

so r t ing ,

stacking,moving or otherwise handling

goods

o r

merchandise stowed

o r to be

stowed

i n c o n t a i n e r s o r

f la t s

o r p a l l e t s .

It was argued on behalf of the WlG? that an

examination both

of the work done by those described as

waterside workers and of the categories

work

expressed

i n

awards and agreements gave

t h e l i e

any suggestion

t h a t a

waterside worker

i s confined to working beside

the water

o r t o put t ing goods

a ves se l . In

view

t h a t argument was made good.

Nevertheless,

the work

o rd ina r i ly done by

waterside workers and the

work

f o r

which the

WNF

has obtained industr ia l coverage clear ly

possesses

connection,both geographical and functional,

with

and

unloading

of ships.

There

i s no

way

i n which

i t can be divorced entirely from the

operat ion nor did the

WIfl

contend that

i t can be.

The

necessary degree

of that connection

is another matter.

The Waterside Workers'

Award c l

gives the

expression "waterside worker" "the

same

meaning

a s i n

the Conci l ia t ion

and

Arbi t ra t ion Act ,

1904".

Section 81

t h a t Act defines

a waterside worker as one working

i n

14.

I .

the loading or unloading of cargo into or

from

ships

and includes a person who

is a member or has appl ied

f o r membership

of the

T W F who

accep t s o r o f f e r s t o

employment

f o r work

i n a

range of ac t iv i t ies ,

including the handl ing or s torage of cargo or other	i
I

goods

a t or ad jacent to

a wharf,

the d r iv ing o r

operating

mechanical

appliances

connection

therewith,

and

haul ing

trucking from ship to shed or shed to

_ I

ship.

The s ta tutory

def

ini

ion

excludes

persons

employed

a t a po r t

i n

o r

i n

connec t ion

s t evedor ing

;

operat ions

(and,

inccdental ly ,

that

expression

i s given

def ini t ion to correspond with the

work

a waters ide

worker) -

"which

consis t of the loading or unloading,

i n t o

o r

from

ships, of loose bulk cargo

I ,

by means of equipment based

on the shore

...

Counsel

f o r t h e

PJWF

submit ted that this exclusion

was

pragmatic,

the implication being that unless excluded

the work would b e t h a t

of a waterside worker.

It may

equally be argued,

I suppose,

that

the

statutory

exclusion

provides

guide to the ordinary concept

waters ide

worker.

n o t f i n d t h a t s t a t u e p a r t i c u l a r l y h e l p f u l

in reso lv ing the i ssue except

i n

f a r a s t h e

work

a waterside worker

i s c l e a r l y s p e l t ou t as

the loading

o r unloading

ce r t a in ca rgoes in to o r

from

ships

and

the handl ing or s torage

tha t cargo or o ther

goods

a t

o r ad jacent to

a wharf.

"Adjacent" is wider than "contiguous"; nit includes

.c .

15.

p laces c lose

or near .

Mayor of Wellingtvn v .

Mayor of Lower Hutt (1904) A . C . 773 a t pp.775-776,

a l so

Geneff v. Shire of Perth

(1967)

W . A . R .

124

a t

p.128.

i s

comparable

to the expression " in the vicini ty

of" ,

used

i n the de f in i t i on

of stevedoring industry

i n Rule

, ,

of the WWF rules.

Whether

one

place is a d j a c e n t

t o o r

i n

t h e v i c i n i t y

of another

depends

upon

the par t icular

c i rcumstances.

op in ion the s to rage f ac i l i t i e s

are

ad jacent to

and

they are

i n t h e v i c i n i t y

t h e j e t t y

and

the

wharf.

True,

there i s a

dis tance of

nearly ha l f a mile between

s torage and wharf

bu t t ha t

i s d ic ta ted only

the length

the

j e t t y .

Together

the

three

components make up the

Kwinana

Grain

Terminal with nothing really intervening,

a road and the shoreline notwithstanding.

In Mayor of

Wellington v. Mayor

of Lower Hutt supra, the Privy Council

d id not d i s turb

d e c i s i o n t h a t t h e c i t y

of Wellington

and the borough of

Lower Hutt were

adjacent although

separated by more than 6 miles and by 3 o ther loca l

d iv is ions .

This

i s an appropr ia te p lace to dea l

with

two

particular

submissions

made by

the appl icant .

The f i r s t

was

tha t the dut ies :

a waterside worker did not extend

landwards

the

shore

line.

While

the

shore

l ine may be

convenient cut-off point for

some

industr ia l purposes ,

J.J

it does

not

dzermine

the

occupation

waterside

worker

o r engagement in

the

s tevedor ing

indus t ry .

The range of

16.

dut ies descr ibed

by Mr.

Docker,

the scope of

work

covered by industrial

awards

and agreements, and

cements	i n d e c i s i o n s	such	as	Associated Steamships	P t y .
L t d .

- v.

The Waterside Workers Federat ion of Austral ia (1969)

127 CAR

are

a l l too strongly against such

l imi t a t ion .

For the

same

reasons

re jec t the sugges t ion tha t

the

limits

of the port of Fremantle

de f ined in the

Fremantle

P o r t Authority Act

1902

de f ine o r he lp to

define the geographical

area wi th in which the occupation

of waterside worker

is carr ied on.

If one accepts

n c sary

the

geographical

I .

connec t ion

be tween

s torage

fac i l i t i es ,

j e t ty

and

wharf,

i t

seems

t o me

tha t the i ssue of cons t i tu t iona l coverage

may b e s t a t e d t h i s

way.

Is the work done a t Kwinana by

the

employees

in ques t ion suf f ic ien t ly connec ted wi th

the loading of grain into ships to be descr ibed as par t

of the occupation of

waterside worker?

There

is no

doubt that the grain received

a t

Kwinana

and,

f o r a l l pract ical purposes ,

that

received

a t Fremantle will be

loaded

into ships.

But

i s the work

of rece iv ing the gra in ,

moving

i t

in to , w i th in

and

out

of the terminal and maintaining

it by

cleaning and

applying pesticides truly connected with the loading of

sh ips?

O r ,

i n

t r u t h ,

does

the

necessary

connection

arise

only once the grain has t ravel led

from

the s torage

f a c i l i t i e s a l o n g t h e j e t t y t o t h e

wharf

o r a t

any

r a t e

t o the sho re l i ne	where	i t s	jourcey a long the je t ty to
the wharf begins?

~	\	I .
I

17.

Counsel

f o r

CBH,

i n r e j ec t ing the no t ion tha t

the workers

a t Kwinana are waters ide workers or

engaged

i n

the

stevedoring industry, described

them

as g ra in

bulk handlers. That

may

reasonably accurate

description but one must

s t i l l ask the object with

. -

which or the purpose for

which

the g ra in

i s handled.

may

be suff ic ient ly connected with the loading of

the	gra in in to sh ips to warran t the descr ip t ion of the

a c t i v i t y as stevedoring and those engaged in it as

waterside workers.

Much,

I think, depends

upon the charac te r

o f the

t e r m i n a l

i t s e l f .

The

NWF

was

a t p a i n s t o

stress

t h a t

i t s

purpose

and

its loca t ion was the

shipping

grain.

Counsel

referred to the language

i n which

the

terminal

had been

described i n CBH and o ther publ ica t ions .

For ins tance ,

i n a booklet, prepared

by the company,

and e n t i t l e d

"Kwinana	Grain Terminal",	the chairman	of	d i r ec to r s	spoke
of -

"the

largest and most

modern

gra in rece iva l

s torage and shipping

complex

in the world

. . .

The Kwinana Grain

Terminal

enables

C . B . H .

t o meet a l l the demands of

complex

I ,

export

requirements

. . .

Another publ icat ion referred to the terminal as

"an

export

shipping

operation".

There

are

other

such

references

be found

i n l i t e r a tu re pub l i shed

o r on

behalf of

CBH.

the other hand the

company

emphasised the very important

ro l e

of the te rmina l in the s torage of gra in .

Mr.

Delmenico, i t s chief

superintendent,

pointed out

t h a t

i f

the terminal had been bui l t solely for shipping,

s to rage fo r

250,000

t o 300,000 tonnes would have been

suf f ic ien t . This

would

have

meant

the bui

lding of

I .

o the r

s to rage

f ac i l i t i e s

e l s ewhere .

The

ex i s t ing

buildings can cope

w $ t h

s torage as

well

quan t i t i e s

requiredmoreimmediately for shipping.

Not

surpr is ingly, each par ty placed

most

stress

on those

aspects

supporting

i t s

case .

tha t g ra in

i s

destined for shipment,

one might say that

the terminal 's

main

funct ion

t o f a c i l i t a t e t h e l o a d i n g o f s h i p s .

But having regard to

i t s s i z e and

the length of time

g ra in may

remain,

i t may

be seen as

s t o r a g e f a c i l i t y .

One

not destruct ive of

the other .

The

purpose

for

which gra in i s received and the manner i n which and

the

objec t with which i t is received give

i t a close connection

wi th

the . loading of sh ips . In

opinion

that

connection

su f f i c i en t ly c lose to war ran t

descr ipt ion of the

work

involved as that of a waterside worker.

The

f a c t t h a t g r a i n

may

remain

a t t h e t e r m i n a l

f o r 5 t o 6 months has

caused me some concern. But I do

not

th ink

it i s enough to

break

the

connect

ion,

especial ly

when

the time spent

i n handling grain while stored

is minimal

See

exhib i t

2 .

The

quest ion

i s one of consti tutional coverage.

i s

not one of

award

coverage or of demarcation.

Nor

i s i t p rac t i cab le to

embark upon

too close

an examination

of particular duties performed

p a r t i c u l a r

employees

C .

19.

a t p a r t i c u l a r

times.

A s

already

mentioned,

the

existing

award

coverage does not

make

t h i s d i s t i n c t i o n e x c e p t i n

pa r t

no r

does the

employer.

Some

a c t i v i t i e s ,

e s p e c i a l l y

tha t o f pes t cont ro l le rs ,

are

c l ea r ly

per ipheral than

o the r s r e l a t ing

d i r e c t l y t o t h e

movement

of graip

out

the

terminal .

But as

the general

manager

CBH,

M r .

Green , po in ted out in an a f f idavi t f i l ed in the

proceedings:

"With

the except ion of the control

room

operators

and

the gardeners

a l l

du t ies

are

interchangeable.

Even cont ro l room operators

a re r equ i r ed to

and

a t t end to o the r du t i e s

when

no t r equ i r ed fo r t he con t ro l

room"

I ,

(para. 4 3 ) .

The	subs t an t i a l cha rac t e r o f t he en te rp r i se in

which employers

and employees

are engaged,

the

receival,

s torage

and loading of grain into ships spells out

suff ic ient connect ion with

a l l classes of work the subjec t

t h i s

app l i ca t ion .

See I n Re

Moore;

pa r t e The

. *

Federated Miscellaneous

Workers' Union (1979) 53 A.L.J.R.

116 per Aickin

J . a t p.122.

These

comments

not apply to the

company's

employees

a t t h e North

Fremantle

terminal.

The

const i tut ional coverage

which

the WTJF

has of those

employees

stems from the time

when

the terminal

was

p a r t of

shipping	operation.	But	they	remain	e n t i t l e d	t o	membership	I
I

.the

IaiF

u n t i l such time as Rule

7 ,

with

i t s dual

provision of

months

and

f a i lu re

to accep t o f f e red

work,

opera tes to br ing tha t

membership

to an end.

I n t h e

end i t was,

th ink , common

ground t h a t

the age requirements of Rule

had

appl ica t ion here

notwithstanding

that some

men

were

over

45 .

Rule

6(e)

20.

excludes

those

requirements

“ in

any

case where an applicant for

membership

i s a worker already working

in the Stevedoring Industry

. .

.I‘

major premise

is c o r r e c t , a l l

who

appl ied for

membership of the IJNF ear ly i n 1979 were already working

in the s t evedor ing indus t ry .

follows that

refuse the declarat ions sought

i n the appl ica t ion .

sha l l hea r counse l ,

i f necessa ry , a s

t o the p rec i se

form my

order should take and

any

I	anc i l l a ry ma t t e r s t he re	may	be.
I

[1980] FCA 69

22 May 1980