[2018] FWC 4672

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.437—Protected action

Construction, Forestry, Maritime, Mining and Energy Union
v
Co-Operative Bulk Handling Limited
(B2018/537)

COMMISSIONER WILLIAMS

PERTH, 10 AUGUST 2018

Proposed protected action ballot of employees of Co-Operative Bulk Handling Limited.

[1] This decision concerns an application by the Construction, Forestry, Maritime, Mining and Energy Union (the Applicant or the CFMMEU) for a protected action ballot order and is made under section 437 of the Fair Work Act 2009 (the Act). The Respondent is Co-Operative Bulk Handling Limited (the Respondent or CBH).

[2] CBH opposes the application on the grounds that the Applicant is not eligible to represent the interests of the employees covered by the proposed enterprise agreement.

Evidence

CBH

[3] Evidence for CBH was given Ms Nadine Ross (Ms Ross) the Employee Relations Manager of CBH.

[4] Her evidence was that CBH is principally responsible for the storage, handling and processing of grain within Western Australia. Grain is harvested by growers and transported to CBH receival points throughout Western Australia. The grain is taken from those receival points by rail or road transport to grain terminals located separately but adjacent to the wharves in Kwinana, Geraldton, Albany and Esperance.

[5] At the grain terminals grain is discharged and transferred via conveyer belts and elevators within the terminal. It is then weighed, sampled, foreign objects are removed and it is fumigated if necessary.

[6] From there, the grain is taken to planned storage locations within the terminal where it may remain for on average three weeks, but up to two months. During this time, it is checked regularly for infestation and quality by CBH’s plant operators.

[7] When the grain is ready to be shipped, it is removed from storage and carried to the top of the terminal complex where it passes through weighers and cleaning machines. It is then taken by conveyer belts along the jetty for loading on vessels via large loading gantries located on rails on the wharf. These gantries direct the grain into the hold of the waiting ship.

[8] The actual loading of the grain is not done by CBH employees, but by employees of Australian Bulk Stevedoring Pty Ltd (ABS).

[9] Work that CBH’s maintenance employees perform on the Kwinana grain terminal infrastructure is undertaken in the receival, storage and handling part of the terminal. This is roughly 1 kilometre away from the loading area of the wharf. Otherwise, maintenance work is completed in the maintenance workshop for machinery parts which is roughly 1.5 kilometres from the loading area of the wharf.

[10] Ms Ross believes the percentage of time maintenance employees spend maintaining equipment used for receival and storage of grain is 81%.

[11] The percentage of time maintenance employees spend maintaining equipment used for loading grain onto ships is 19%. This 19% covers the maintenance work performed on the conveyor which transports grain down the length of the jetty and on the shiploaders located on the wharf. 1

[12] The jetty joins the land to the wharf and ships are berthed for loading alongside the wharf. 2

[13] In terms of the receival and storage equipment the maintenance workers are asked to maintain, there are:

(a) 50 conveyors;

(b) 28 trippers;

(d) 36 dust systems.

[14] In terms of loading equipment the maintenance workers are asked to maintain, there are:

(a) 3 loaders;

(b) 4 conveyors;

(d) 1 dust system.

[15] CBH structures its operations based on zones. At the heart of these zones are its key ports of Albany, Esperance, Geraldton and Kwinana. CBH’s country receival sites send their grain to the closest port.

[16] The Kwinana zone is the largest of CBH’s zones.

[17] The zones form the basis for CBH’s operational structure with a zone manager being responsible for each zone.

[18] CBH’s zones also form the basis for its enterprise agreement coverage.

[19] Currently, there are 62 CBH maintenance employees working in the Kwinana zone. This comprises:

(a) 21 maintenance employees at the Kwinana Grain Terminal;

(b) 10 maintenance employees at the Metropolitan Grain Centre in Forrestfield; and

[20] Maintenance employees can, and do, transfer between sites within the Kwinana zone.

[21] The functions and duties of the maintenance employees at various sites within the Kwinana zone do not differ materially from site-to-site.

[22] The duties of a maintenance worker include the maintenance, caretaking and upkeep of receival, storage and out loading equipment.

[23] Maintenance workers perform such maintenance work at sites across CBH’s Kwinana zone.

[24] Maintenance workers are trade qualified as either electrical or mechanical tradespersons.

[25] Maintenance workers in the Kwinana zone are covered by the CBH Kwinana Zone Maintenance Union Collective Agreement 2015 [AE414315] (the Maintenance Agreement). The applicable modern award for the Maintenance Agreement is the Manufacturing and Associated Industries and Occupations Award 2010 [MA000010] (Manufacturing Award).

[26] CBH’s enterprise agreements cover a range of employees, including maintenance workers, plant operators, receival point operators and grain technicians.

[27] CBH employees are covered by a total of eight enterprise agreements. CBH has been working to reduce the number of enterprise agreements that cover its employees; this has reduced from 13 since 2012.

[28] Enterprise agreements are structured based on:

(a) firstly, duties of the employees covered by the agreement. The duties of a maintenance worker are described above, and differ from the duties of plant operators, receival point operators and grain technicians; and

(b) secondly, the geographical location of the sites at which the employees are employed. Employees employed in the Albany, Esperance and Geraldton zones are all considered regional employees because their ports are regional. Kwinana zone employees are not described as regional because the Kwinana port is in the metropolitan area.

[29] Although CBH is rationalising enterprise agreements, it has no plans to group plant operators and maintenance workers together. These two groups of employees have very different terms and conditions which would make bargaining extremely difficult.

[30] Plant operator employees are responsible for receival, storage, caretaking and out loading of grain and other products. They are not trade qualified to and cannot perform the duties of maintenance employees.

[31] Ms Ross’s evidence is she has reviewed the decision of the Full Court of the Federal Court Co-operative Bulk Handling Ltd v Australian Workers’ Union Western Australian Branch Industrial Union of Workers and Waterside Workers Federation 3 (the 1980 CBH decision) which was about the industrial coverage of CBH employees at the Kwinana grain terminal.

[32] The 1980 CBH decision refers to workers at the grain terminal being ‘interchangeable in their duties’ and filling intervals in their work with general sweeping, cleaning and keeping tidy space for the purposes of good industrial housekeeping and saving wastage. These duties are consistent with those performed by plant operator employees. Maintenance workers do not perform any hygiene activities, and plant operator and maintenance workers never interchange duties.

[33] The 1980 CBH decision also refers to the duties of employees involving receiving grain, inspection, sampling, testing and treating (fumigation) to enable wheat to be shipped and arrive in a suitable condition at the destination port. Again, these are duties of plant operators and would not be performed by maintenance workers. The decision notes that these duties all form part of loading operations. Maintenance workers at the grain terminal are not involved in any aspect of loading (or unloading) operations. Instead, their role is to maintain infrastructure at the Kwinana grain terminal (which includes, but is not limited to, loading infrastructure).

[34] The layout of the road separating the terminal from the wharf and the building size and location remains largely the same as in 1980. However, the 1980 CBH decision does not appear to consider the separation of work space between the maintenance workshop (where maintenance employees perform work) and amenities (where maintenance employees take meal breaks) and the plant operators’ work locations and amenities. The plant operator amenities building is located separately from the maintenance amenities, and the plant operators have no need and do not enter the maintenance workers’ areas unless required and on arrangement (and vice versa).

[35] Ms Ross says she has reviewed the decision of the Full Court of the Federal Court Electrical Trades Union v Waterside Workers Federation of Australia 4 (1982 ETU decision). The 1982 ETU decision considered that the 'occupation of a waterside worker' should be construed as encompassing the occupation of any worker whose predominant activities are based on or in the vicinity of wharves and constitute part of the overall stevedoring operations of loading and unloading ships.

[36] The majority of maintenance work at the grain terminal (81%) is performed at the receival, storage and handling part of the terminal, and the bulk of infrastructure is located here or in the maintenance workshop for machinery parts. These locations are geographically distinct from the vessel loading area. They are at least 1 kilometre from the wharf and are separated by a road. Only 1% of work is performed on shiploaders on the wharf (and 18% at the wharf).

[37] CBH has had an enterprise agreement for the Kwinana zone maintenance employees since 2012.

[38] In 2012, CBH moved to a zone-based approach to enterprise bargaining and the scope of the 2012 agreement was determined by proximity of sites to the Kwinana grain terminal (i.e. in the Kwinana zone). The Maritime Union of Australia, as it then was (MUA), was not involved in the negotiations for the 2012 agreement.

[39] During Ms Ross’s time at CBH, since late 2012, only the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers Union (AMWU) and Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) have been bargaining representatives for maintenance employees.

[40] The MUA, as it then was, attempted to become involved in bargaining for the Maintenance Agreement at a late stage in the bargaining process which is discussed further below.

[41] In September 2014, CBH distributed a notice of employee representational rights to employees who would be covered by the Maintenance Agreement.

[42] On 12 December 2014, the first bargaining meeting took place between CBH and representatives of the employees including the AMWU and CEPU. The parties attended further bargaining meetings on:

(a) 16 January 2015;

(b) 6 February 2015; and

[43] By this time, the bargaining was at an advanced stage and the parties were close to reaching agreement.

[44] On 17 February 2015, CBH received an email from Mr Jeff Cassar (Mr Cassar), Industrial Officer for the MUA, in which the MUA sought to become involved in the bargaining for the Maintenance Agreement. The MUA attached notices from Mr Stephen Kirk (Mr Kirk) and Mr John Shields (Mr Shields) which purported to revoke their nomination of Mr Nick Cullen (maintenance worker at the Kwinana grain terminal) as their bargaining representative, and nominate the MUA as their bargaining representative.

[45] On 18 February 2015, Ms Ross responded to Mr Cassar by letter confirming that the MUA had not previously bargained with CBH with respect to the maintenance employees. She asked on what basis the MUA considered it was eligible to represent the industrial interests of the maintenance employees.

[46] Later on 18 February 2015, Mr Luke Edmonds of the MUA responded to her letter via email and advised his view was that the maintenance employees were ‘waterside workers’ who were eligible to be members of the MUA pursuant to Rule 3 clause 2(a) ‘Part W’ of the MUA Rules.

[47] On 6 March 2015, Mr Cassar emailed Ms Ross and advised that he intended to attend the next bargaining meeting scheduled for 13 March 2015 regarding the Maintenance Agreement.

[48] Ms Ross responded to Mr Cassar by email the same day and advised that CBH did not concede the MUA was eligible to represent the industrial interests of the maintenance employees. CBH reserved all its rights in that regard. CBH then advised that, despite this, it was prepared to meet with Mr Cassar on a without prejudice basis and hear what Mr Kirk and Mr Shields were seeking as part of the negotiations for the Maintenance Agreement. By ‘without prejudice’ she says she meant without having any effect on or waiving CBH’s rights to challenge the MUA’s ability to represent maintenance workers.

[49] The plant operators work throughout the site other than the maintenance workshop including at the rear of the terminal where the grain is unloaded from incoming trains. 5

[50] There is a security point on the jetty close to the water’s edge. To progress past the security point further along the jetty towards the wharf maintenance employees are required to have a Maritime Security identification card (MSIC). All maintenance employees have this card.

[51] Ms Ross’s evidence was that on a number of occasions Mr Cassar has purported to exercise a right to enter the CBH Kwinana terminal premises to speak to the maintenance employees and on each occasion CBH has permitted him on site on a without prejudice basis, but not consenting that he has rights to cover the at industrial interests of that group. 6

The CFMMEU

[52] Evidence for the CFMMEU was given by Mr Cassar the Assistant Branch Secretary of the Western Australian Branch of the Maritime Division of CFMMEU.

[53] Mr Cassar’s evidence was that the CFMMEU has members employed by CBH at the Kwinana grain terminal whose employment is covered by the terms of the Maintenance Agreement. These members are employed at the Kwinana grain terminal as mechanical fitters, boilermakers, welders and electricians in the tradespersons classifications contained in the Maintenance Agreement.

[54] The CFMMEU represents the industrial interests of the plant operators (grain handlers) employed at the Kwinana grain terminal. Mr Cassar has responsibility for representing the industrial interests of these plant operators and is familiar with the operations of CBH at the Kwinana grain terminal.

[55] The operations of CBH at Kwinana include the grain terminal at which the grain is received, treated and stored before ultimately being loaded onto ships for export at the wharf itself. The grain is transported from the terminal via a belt which travels under Rockingham Beach Road, down the CBH jetty to the shiploaders, which are at the wharf at the end of the jetty. From there, the grain is loaded onto ships via the shiploaders and ultimately exported from that point. The jetty is approximately 750m long.

[56] The actual operation of the shiploaders is not done by CBH but by another company, ABS. A grain handler from CBH will be present at the end of the wharf when loading operations are being conducted but they do not operate the shiploaders themselves. Mr Cassar says that CBH have allowed him to enter and hold discussions with the maintenance employees who are members of the CFMMEU and as a consequence of these discussions is familiar with the duties performed by the maintenance employees.

[57] His evidence was that the maintenance employees work in and around the plant operators who work inside the grain terminal. These maintenance employees undertake breakdown repairs and preventative maintenance on the equipment used by the plant operators to receive, treat, store and export the grain. The maintenance employees and the plant operators interact on an almost constant basis as they work together to maintain the plant and equipment to ensure operations are running smoothly.

[58] The amenities used by the two groups of employees are separate, but in his experience across different parts of the waterfront, this is a fairly common arrangement as operators/stevedores and maintenance employees work on different rosters and take their breaks at different times to ensure continuous operations.

[59] In addition to maintaining the plant and equipment used inside the terminal buildings, the maintenance employees maintain and repair the conveyor belt that runs out to the wharf as well as the shiploaders and other plant and equipment used to load the ships at the end of the wharf itself.

Submissions

The CFMMEU

[60] The Respondent’s objection relies on a question of fact regarding the Applicant’s ‘eligibility rules’ and the industrial history of coverage of employees covered by the proposed enterprise agreement. In other words, that the CFMMEU does not have constitutional coverage of any of the workers covered by the proposed enterprise agreement and, as a consequence, cannot be a bargaining representative for the negotiations.

[61] The Applicant submits it can be a bargaining representative for the proposed enterprise agreement as the workers covered by the proposed enterprise agreement at the Kwinana grain terminal are following or intending to follow the occupation of ‘waterside worker’ within the meaning of Part W of Rule 2 of the CFMMEU Rules.

[62] Unlike many other union eligibility rules, the relevant rule of the Applicant is an occupational rule, that is, its reach is determined by the work of the employee not the industry of the employer. Consequently, the well settled rules concerning interpretation of eligibility rules which are based on the industry of the employer are of limited relevance to the construction of the CFMMEU Rules.

[63] It is well settled that eligibility rules are to be construed liberally and to be given their natural meaning, and the tribunal may pay 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 take account of evidence of that common understanding furnished by the previous use of the words in the organisation’s rules and in statutory provisions, decisions and determinations. 7

[64] Further, the natural meaning is:

“...intended to have a wide meaning and it should be interpreted and applied in accordance with its ordinary and popular denotation rather than with some narrow or formal construction. Thus the question is whether, as a matter of ordinary usage [the employees are in or intending to follow “the occupation of waterside worker”].” 8

[65] In determining that ordinary usage, emphasis is to be placed upon its meaning as identified in relevant awards, agreements and judicial considerations of the term. 9

[66] The CFMMEU submits the traditional notion of ‘waterside worker’ is not a matter of controversy:

“From the time of the original registration of the Federation, the essential attributes of a waterside worker have consistently been seen in terms of his relationship to particular functions or activities. Those functions or activities are the loading and unloading of cargo, stores, supplies or fuel into or from ships…

It is also clear that it has long, and consistently, been recognised that the function of loading and unloading ships is not restricted to the physical transportation of goods aboard or ashore.” 10

[67] Correspondingly it is well established that the occupation of a ‘waterside worker’ includes:

a. workers carrying out tasks at and in the vicinity of a wharf, including the handling of cargo beyond the immediate wharf area to the location from and until the time at which it is dispatched to its ultimate location; 11

b. workers engaged in skilled occupations ancillary to loading and unloading activities who undertake work at or in the vicinity of a wharf; 12

c. workers engaged in administrative and clerical tasks associated with the management of material, equipment and personnel before during and after the unloading of materials from the vessels; 13

d. workers who fall within the above categories irrespective of whether they are engaged by employers who are not otherwise involved in the transport, shipping or stevedoring industry. 14

[68] The Applicant submits that when read together, these decisions can be relied upon by to establish that the occupation of ‘waterside worker’ includes the following definitions:

a. “Without attempting to give an exhaustive definition, in our opinion the term ‘waterside worker’ in r. 6(a) of the rules of the federation includes persons who are engaged in the loading of cargo, including loose bulk cargo, into ships and the prior handling, treating and storing of that cargo at or in the vicinity of a wharf when that handling, treating and storing is to facilitate or is for the purpose of the ultimate shipping of that cargo”. (the 1980 CBH decision at p.372)

b. “In our view, the words `occupation of a waterside worker', as used in r. 6 of the federation's rules, should be construed as encompassing the occupation of any worker whose predominant working activities are based on or in the vicinity of wharves and constitute part of the overall stevedoring operations of loading and unloading ships. Those activities include not only the physical transportation and storing of goods. They include, in the view we take, whatever is necessary, on or in the vicinity of the site of the actual loading, to prepare and service the mechanical equipment by which loading and unloading operations are effected and to maintain it in the condition necessary for the performance of stevedoring functions. They include on site electrical and mechanical repair and maintenance work on the machines. This includes the activities which predominantly constitute the occupation of the relevant electricians and mechanics.” (the 1982 ETU decision at p.87)

[69] The Applicant submits that when the 1980 CBH decision and the 1982 ETU decision are read together with the evidence in this matter it establishes that:

a. The entire Kwinana grain terminal is not only in the vicinity of the wharf but ‘adjacent to’ the wharf in Kwinana;

b. The activity undertaken by the grain handlers at the Kwinana grain terminal is the loading of cargo, including the prior handling, treating and storing of that cargo for the ultimate purpose of shipping that cargo which is work performed by waterside workers, employees of ABS;

c. The activity undertaken by the CFMMEU members, the subject of this application, is the repair and service of the mechanical plant and equipment by which the receiving, handling, treating, storing and loading of cargo is effected and to maintain this mechanical plant and equipment in the condition necessary for the performance of these functions.

[70] The Applicant submits that it is clear the Applicant has members on the site and has standing to bring this application.

[71] With respect to a query raised by the Commission during the hearing regarding the use of the phrase “intending to follow...” within the rules of the CFMMEU, the Applicant noted this was considered by Deputy President Booth in the matter of a right of entry dispute filed by the MUA against Bechtel Construction (Australia) Pty Ltd.

In that decision 15, Deputy President Booth said that:

“[45] The MUA asserts that it is entitled to represent the industrial interests of at least one employee who performs work on Curtis Island, specifically waterside workers who are engaged for all or some of their time in traditional waterside work at facilities known as the Condock and the Marine Offloading Facility (MOF).

[46] Bechtel is a major construction, engineering and project management company. It is not in the business of stevedoring, and the company suggests that any such work is merely incidental to its construction activity. It asserts that there are no employees at its premises on Curtis Island that the MUA is entitled to represent.

[47] The eligibility rule of the MUA provides as follows:

Rule 3.2 (a)... Membership is open to “any person who intends to follow the occupation of waterside worker”.

[48] If there is at least one employee “who intends to follow the occupation of a waterside worker”, then the MUA satisfies section 484 and a permit holder may, subject to the statutory scheme, enter the Bechtel’s premises for the purposes of holding discussions with at least that one employee.

[49] This eligibility rule is unusually worded. It seems to revolve around the intent of a worker. The parties spent some considerable time making submissions about whether the appropriate test of that intention is objective or subjective. No evidence as to the subjective intention of a particular employee was adduced, and in any case, it is difficult to see how such evidence would assist the Commission or the parties. There appeared to be common ground that the test must be objective to make sense, and I proceed on that basis.”

[72] The Applicant adopts those comments of Deputy President Booth and suggested they should be followed in this matter.

CBH

[73] CBH submit that the CFMMEU is not eligible to represent the industrial interests of the employees covered by the proposed enterprise agreement because they are not ‘waterside workers’ and CBH is not in the ‘shipping industry” (Rules 2(S)(2)(a), page 37, and 3(L)(a), page 46, of the CFMMEU Rules).

[74] CBH submits that the proper approach to interpreting union eligibility rules was set out by the Full Bench of the Commission in The Australian Manufacturing Workers’ Union (AMWU) v ResMed Limited 16 and in addition the Full Court’s statement in ResMed Limited v Australian Manufacturing Workers' Union (AMWU) (No 2)17 that the rules ought be given their ordinary meaning unless when read in context and with an eye to their relevant evidence purpose there is a basis for concluding that something other than its ordinary meaning was intended,

“The rules of the union should be given a sensible practical construction…”

[75] CBH submit that the Commission ought to interpret and apply the CFMMEU Rules in accordance with their ‘ordinary and popular denotation’ and they should be read in the context of the current environment, as opposed to giving the CFMMEU Rules an unrealistically wide reading. 18

[76] The Commission ought to give the wording contained in the rules of the CFMMEU their natural and ordinary meaning, in the context with which they appear. 19 CBH refers to the Macquarie Dictionary meaning of ‘waterside worker’ which is ‘a wharf labourer’.20

[77] In response to the Applicant’s reliance on the 1980 CBH decision CBH submits that the 1980 CBH decision involved the plant operators at Kwinana who they submit do different duties to the maintenance employees which are the subject of this matter and so it is not appropriate to draw principles of general application from that case which concerned a completely separate group of workers. 21

[78] With respect to the 1982 ETU decision CBH submit that it might be applicable if the facts were the same however it is submitted that it was almost inconceivable that the facts would be the same given the hearing occurred 36 years ago.

[79] CBH submits that the Commission needs to give the CFMMEU Rules their natural and ordinary meaning in the current industrial context in the modern industrial reality which includes the streamlining and modernisation of the industrial system in Australia since 2009. These changes include the making of the Act, the implementation of modern awards and a new enterprise agreement framework. Further the modern industrial reality includes a focus on effectiveness and a recognition that unnecessary complexity ads cost and adversely affects productivity and in that regard CBH referred to the Objects of the Act particularly 3 (a) and (e), which state:

“3 Object of this Act

The object of this Act is to provide a balanced framework for cooperative and productive workplace relations that promotes national economic prosperity and social inclusion for all Australians by:

(a) providing workplace relations laws that are fair to working Australians, are flexible for businesses, promote productivity and economic growth for Australia’s future economic prosperity and take into account Australia’s international labour obligations; and

…

(e) enabling fairness and representation at work and the prevention of discrimination by recognising the right to freedom of association and the right to be represented, protecting against unfair treatment and discrimination, providing accessible and effective procedures to resolve grievances and disputes and providing effective compliance mechanisms; and …”

[80] CBH urged the Commission to follow the decision of McKerracher J in CSBP Limited v Construction, Forestry, Mining and Energy Union. 22

[81] In that case the McKerracher J considered what the employees at CSBP did and what CSBP itself did and how it organised its business. He then considered the industry rule could be relied upon to aid in the interpretation of the union’s eligibility rule. At [181] he said,

“It would be unrealistic to consider eligibility for the purposes of the eligibility rule without having regard also to the industry or industries set out in the industry rule.”

[82] In this CSBP case McKerracher J concluded that,

“Viewing the industries as a whole, it is difficult, in my view, to identify the technical work of production of chemicals as falling with in any of the description of the industries, let alone within the specific Industry Rule, r 3(f), or the Eligibility Rule.”

[83] CBH submits that it would be unrealistic for the Commission to ignore the relevant industry rule which in this instance is industry rule 3L. CBH denies that it is in the shipping industry and CBH submit the evidence is that the totality of CBH’s business is much broader than the end of the process being putting grain onto ships.

[84] CBH also submits that the predominant working activities of the employees covered by the proposed enterprise agreement:

(a) are engaged mainly in receiving rather than shipping; 23 and

(b) are not based on or in the vicinity of wharves; 24 and

[85] Allowing the CFMMEU the right to represent any of the employees covered by the proposed enterprise agreement would lead to practical difficulties with the division of representation, whereas the AMWU and CEPU can cover the whole group of the employees covered by the proposed enterprise agreement. 26

[86] Regarding the query raised by the Commission during the hearing with respect to the use of the phrase “intending to follow...” within the rules of the CFMMEU, CBH noted that the phrase was considered by Deputy President Booth in the matter of a right of entry dispute filed by the MUA against Bechtel Construction (Australia) Pty Ltd 27 however made no submission as to how the Commission in this matter should interpret these words.

Consideration

[87] Section 437 of the Act determines whom may apply for a protected action ballot order as follows,

“437 Application for a protected action ballot order

Who may apply for a protected action ballot order

(1) A bargaining representative of an employee who will be covered by a proposed enterprise agreement, or 2 or more such bargaining representatives (acting jointly), may apply to the FWC for an order (a protected action ballot order) requiring a protected action ballot to be conducted to determine whether employees wish to engage in particular protected industrial action for the agreement.

(2) Subsection (1) does not apply if the proposed enterprise agreement is:

(a) a greenfields agreement; or

(b) a multi-enterprise agreement.

(2A) Subsection (1) does not apply unless there has been a notification time in relation to the proposed enterprise agreement…”

[88] Sub-section 176(3) of the Act determines, in a particular circumstance, which employee organisations can be bargaining representatives.

“176 Bargaining representatives for proposed enterprise agreements that are not greenfields agreements

Bargaining representatives

(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.

Bargaining representatives for a proposed multi-enterprise agreement if a low-paid authorisation is in operation

(2) If:

(a) the proposed enterprise agreement is a multi-enterprise agreement in relation to which a low-paid authorisation is in operation; and

(b) an employee organisation applied for the authorisation; and

(c) but for this subsection, the organisation would not be a bargaining representative of an employee who will be covered by the agreement;

the organisation is taken to be a bargaining representative of such an employee unless:

d) the employee is a member of another employee organisation that also applied for the authorisation; or

(e) the employee has appointed another person under paragraph (1)(c) as his or her bargaining representative for the agreement; or

(f) the employee has revoked the status of the organisation as his or her bargaining representative for the agreement under subsection 178A(2).

(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.

Employee may appoint himself or herself

(4) To avoid doubt and despite subsection (3), an employee who will be covered by the agreement may appoint, under paragraph (1)(c), himself or herself as his or her bargaining representative for the agreement.”

[89] Consequently the CFMMEU must be a bargaining representative to make this application and can only be a bargaining representative if the organisation is entitled to represent the industrial interests of the employees in relation to work that will be performed under the proposed agreement. 28

[90] Relevantly the CFFMEU Rules at 2 Part W state,

“…the Union shall consist of:

(a) Any person who intends to follow the occupation of a waterside worker…”

[91] The unchallenged evidence of Mr Cassar is that there are a number of employees employed by CBH working at the Kwinana grain terminal whose employment would be covered by the proposed enterprise agreement who are members of the CFMMEU. I am satisfied that objectively this demonstrates that those persons intend to follow the occupation of a waterside worker as is provided for in the CFMMEU Rules.

[92] However whether or not these persons in all the circumstances are ‘waterside workers’ is contested in this matter.

[93] The Applicant submits that when the 1980 CBH decision and the 1982 ETU decision are read together and the evidence in this matter is considered this establishes that:

a. The entire Kwinana grain terminal is not only in the vicinity of the wharf but “adjacent to” the wharf in Kwinana;

b. The activity undertaken by the grain handlers (or plant operators) at the Kwinana grain terminal is the loading of cargo, including the prior handling, treating and storing of that cargo for the ultimate purpose of shipping that cargo which is work performed by waterside workers, employees of ABS;

[94] The Applicant therefore submits that because the Applicant has members on the Kwinana grain terminal site it has standing to bring this application.

[95] Firstly I will turn to consider the 1980 CBH decision which is a decision of the Full Court of the Federal Court.

[96] At p.362 of the 1980 CBH decision the Full Court identified the first question to be determined in this way,

“The answer to the first question in this case really turns on the meaning of the term “waterside worker” in r. 6(a).”

[97] The Full Court then having recognised there had been great change in all industries including shipping and stevedoring said it was unlikely that the intended meaning of the words ‘waterside worker’ should always retain the meaning they had originally and said at p.363,

“Rather we think it is a case where the words in r. 6(a) are to be construed in accordance with the current denotation.”

[98] At p.372 the Full Court said,

“Without attempting to give an exhaustive definition, in our opinion the term “waterside worker” in r. 6 (a) of the rules of the federation includes persons who are engaged in the loading of cargo, including loose bulk cargo, into ships and the prior handling, treating and storing of that cargo at or in the vicinity of a wharf when that handling, treating and storing is to facilitate or is for the purpose of the ultimate shipping of that cargo.

We turn now to the second question, namely whether the persons specified in the application made by C.B.H. are included in the group or class specified by the term “waterside worker”. This involves a consideration of the duties of those persons, the place of their employment and the activities of C.B.H. at that place and at other places. The fact that similar work may be performed by members of another union, or that C.B.H. may be engaged in activities and in an industry distinct from the stevedoring industry is not in any sense conclusive.”

[99] The Full Court then considered the evidence as to what CBH does throughout its operations in Western Australia and then specifically considered the evidence that had been before the trial judge below and noted at p.373 as follows,

“Most of the evidence was directed to what is done at the Kwinana terminal conducted by C.B.H., and the second question is to be determined by reference to those facts. At the Kwinana terminal the grain is received from rail trucks and discharged. The grain then proceeds by way of conveyor belt to various points within the terminal until finally it proceeds by way of conveyor belt along a jetty to loading gantries erected on the wharf at the end of the jetty from where it is loaded in bulk directly into ships. C.B.H. engages a stevedoring contractor to actually load the grain into the ships. We do not find it necessary to set out the details of the duties performed by the employees working within the terminal. Apart from the control room operators and the two gardeners, all the employees are required to do one or more of some twenty-seven different classes of duties. The duties are interchangeable and from time to time the employees, including the control room operators, are engaged to perform the whole range of those duties. All those duties relate to the receival, distribution, storage, checking, conditioning, treating and discharging of the grain, together with general cleaning duties and general supervision and oversight of the grain as it is transported on the conveyor belts.

Kwinana was chosen by C.B.H. as the site for its bulk grain terminal for a variety of reasons, including the fact that a large area of land was available, some fifty acres in all, and was in close proximity to Perth and Fremantle. It was anticipated that the size of the bulk ships carrying the grain would increase. A jetty was therefore constructed as also were large terminal buildings. The jetty is some 2,500 feet long with a separation of about half a mile between the wharf and the terminal buildings. A public road runs along the area apparently close to the buildings but between them and the jetty.”

[100] The employees the Full Court was considering in this case were the grain handlers, also referred to as plant operators.

[101] On the basis of the above facts the Full Court went on to decide at pp. 373 and 374 as follows,

“There can be no doubt that the Kwinana terminal is in the vicinity of the wharf from which the loose bulk grain is loaded directly into ships. On the evidence, we are satisfied that the terminal is in the vicinity of that wharf and that the grain is handled, treated and stored in the terminal prior to its being ultimately loaded into ships and is so handled, treated and stored to facilitate and for the purpose of its ultimate loading into ships. It is true that some small part of the grain handled and stored at the terminal is not exported, for example, for the twelve months' period ending 31st December, 1979, some 6,000 tonnes of barley were railed back to maltsters, but this forms such a small proportion of the grain handled that it cannot alter the intrinsic character of the terminal.

The activities performed at the terminal are, necessarily, preliminary to the loading and shipping of the grain for export. The harvest months are three only and during that time the grain must be received, but since shipping goes on through the whole of the year, obviously to suit customer requirements and having regard to shipping availability, there must be grain stored for shipping during various parts of the year and some of this stored at the Kwinana terminal.

So far as the duties of the employees are concerned, an attempt was made to analyse those activities and show the percentage of them which were performed before and after the waterline. This, in our opinion, is not the test and is contrary to the examples set out in the references given earlier. Considering the nature of the work performed, it is all done for the purpose of export and for that purpose only. The reception of the grain, the examination, taking of samples, testing and treating are all done to enable wheat to be shipped and to arrive in a suitable condition at the port to which it is exported. The conditioning and treating serves the same purpose as the removal of foreign matter from the ore bodies at Port Pirie or from the belts of coal at Newcastle and the checking of refrigerated containers while being held at container terminals. The movement of the grain within the terminal again bears a close resemblance to the stacking and restacking of cargo for shipping and loading and transport of containers and movement about a container terminal. Truly, they all form part of the loading operations involved in the shipping of grain in bulk.” (Underlining added)

[102] The Full Court ultimately decided as follows at p.376,

“Earlier, we made reference to the fact that two of the persons specified in the application by C.B.H. were employed solely as gardeners. It appears that no particular submissions were made to the learned trial judge with respect to them. They are not engaged directly on the duties of handling the grain within the terminal. Their duties are the mowing of lawns, trimming of edges and caring for the gardens, trees and shrubs planted around the terminal building. At the most, their duties can be likened to good housekeeping, being of a similar nature to the general sweeping, cleaning and keeping tidy of the space within and around the container terminals and buildings demarked to the federation by the Associated Steamships case. These days, the importance of presenting industrial complexes with a neat and attractive appearance is generally accepted. We have held that the Kwinana terminal is a place for the handling and storage of grain to facilitate the ultimate shipping of that grain. In all the circumstances we are of opinion that the gardeners also are eligible to become and remain members of the federation.

Accordingly, we are of the opinion that each of the persons named in the application by C.B.H. is entitled to be admitted as a member of the federation and to remain a member so long as he complies with the rules of the federation. The learned trial judge formed the same opinion and refused to make the declarations sought by C.B.H. We dismiss each appeal.”

[103] As noted above the 1980 CBH decision concerned employees at the Kwinana grain terminal who were employed as grain handlers, also known as plant operators.

[104] The employees the subject of the current application in this decision are maintenance employees who are either mechanical or electrical tradesmen. These employees perform maintenance on the Kwinana grain terminals infrastructure. This work includes maintenance of conveyors, trippers, elevators and dust systems in the receival and storage area as well as loaders, conveyors, trippers and a dust system that are loading equipment. 81% of the maintenance employees time is spent at the receival, storage and handling part of the terminal whilst the balance, 19%, is spent in the vessel loading area including on the jetty and the wharf maintaining equipment used for loading grain onto ships. 29

[105] Given the distinction between the work of the employees subject to this application and the work of the employees considered in the 1980 CBH decision the Applicant has also sought to rely on the 1982 ETU decision.

[106] I will now turn to consider the 1982 ETU decision which is also a decision of the Full Court of the Federal Court.

[107] The Full Court in this decision explained at p.80 that that the employees involved in this matter were,

“The two groups of skilled workmen are defined in written admissions which have been made on behalf of the respondents. They are: (i) electrical mechanics, electrical fitters or electricians who work or intend to work substantially full-time in or around conventional and container wharves in the maintenance of electrical equipment located in or around conventional and container wharves such as cranes, forklifts, straddle trucks, transtainers and portainer cranes, and in the connexion and disconnection of containers holding refrigerated cargo to electrical points on or about the wharves; (ii) mechanical fitters, motor mechanics, boilermakers, welders, shipwrights and electricians who work or intend to work substantially full-time in or around conventional and container wharves in the maintenance and repair of cranes, grabs, winches, and hydraulic equipment, the inspection and maintenance of mechanical equipment on electric wharf cranes, the adjusting of brakes bearings and gear boxes, the changing and repair of spreaders and in the changing of hooks, swivels, grabs and chains, all such equipment being located in or around conventional or container wharves.”

[108] The Full Court identified at p.81 the question to be decided was as follows,

“The question which lies at the heart of the issue between the parties in the present case is whether it can properly be said of all or any of the relevant electricians and mechanics that they follow or intend to follow "the occupation of a waterside worker" within the meaning of those words as used in r. 6 of the federation's rules. The answer to that question will plainly depend upon the meaning to be given to the words “waterside worker” in that rule.”

[109] The Full Court at p.85 considered the 1980 CBH decision and said as follows,

“In Co-operative Bulk Handling Ltd. v. Waterside Workers' Federation of Australia a Full Court of this Court held that the relevant loading operations included, in the circumstances of that case, the prior handling, treating and storing of bulk grain at or in the vicinity of a wharf when that handling, treating and storing was to facilitate or was for the purpose of the ultimate shipping of that cargo. Senior counsel for the federation pressed upon us the view that the decision in the Co-operative Bulk Handling case, if followed, resolved the issue in the present case in the federation's favour. We do not think that that is so. That decision, like the above comments of Dethridge C.J., is directly in point on the question where loading and unloading operations begin. While it provides guidance as to the approach to be adopted in the resolution of the present case, it does not, in the view we take, authoritatively determine what activities can properly be seen as involved in those operations.” (Underlining added)

[110] The Full Court then went on to consider the developments in terms of the capacity of ships, the introduction of mechanisation and containerisation and how these developments had transformed the operation of loading and unloading ships and at p.86 said,

“The waterside worker, with the appropriate modern tools of trade, continues to perform, at or in the vicinity of the wharf the essential functions involved in the operation of loading and unloading ships. The tools of trade are no longer the hook, trolley, slings and nets. They are the complicated machines to which reference has been made. The approach that a waterside worker is no more than an unskilled worker is no longer tenable.

With the introduction of mechanization, the mechanical skills essential in the performance of stevedoring operations have taken a number of forms. There is the skill necessary to drive or operate the machinery used in loading and unloading operations. There is the associated mechanical skill necessary to keep machinery in operating condition. Some running repairs and servicing of equipment can plainly be seen as part of the task of operating it. Other servicing and repairing of equipment involve more specialized skill.

The role of the worker with special skills for repairing or servicing complicated machinery has steadily become more important on the waterfront. To some extent that role has been performed by men who acquired skill and training after they had commenced to follow the occupation of a waterside worker. To a significant extent, however, specialized servicing and mechanical work has been performed by qualified or semi-qualified tradesmen who have never been engaged in the immediate physical loading or unloading of ships. It is these men who constitute the relevant mechanics and the relevant electricians in the present case. It is plain that they cannot properly be seen as persons who actually load and unload ships. Can they properly be seen, for relevant purposes, as following the occupation of a waterside worker in that they are engaged in the overall stevedoring operation which takes place at the wharf and which encompasses what is involved in the activity of loading and unloading ships? In answering that question, it is important to bear in mind that the court is not here concerned with a specific demarcation dispute or with the merits of the respective claims of claimants and federation that particular jobs be filled by their members. Nor is the court concerned with the question whether the relevant electricians and the relevant mechanics can properly be described as "tradesmen" or whether they are entitled to belong to one or other of the claimants. It is common ground that they can and are. The question is whether, accepting that they can properly be described as tradesmen and are qualified to be members of one or other of the claimants, the relevant electricians and the relevant mechanics are also properly to be seen as engaged in the overall operation of loading and unloading ships and as being qualified for membership of the federation by reason of the fact that, for the purposes of the federation's eligibility provisions, they can be said to follow the occupation of a waterside worker.”

[111] The Full Court then continued on to consider what activities can properly be seen as involved in loading and unloading vessels and at p.87 decided as follows,

“It is plain that a tradesman who carries out repair or maintenance work on stevedoring machinery in a general mechanical business conducted away from the waterfront cannot properly be seen as engaged in stevedoring operations. Nor can a tradesman who merely comes to the waterfront to carry out particular repairs or servicing of a machine in the course of a general independent occupation of carrying out mechanical or electrical work on machines. On the other hand, the fact that a man is a skilled tradesman or that his work consists of mechanical or electrical work on machines used in stevedoring operations will not, in the view we take, necessarily preclude him from properly being seen as being engaged in the loading and unloading of ships in the relevant sense. In our view, the words “occupation of a waterside worker”, as used in r. 6 of the federation’s rules, should be construed as encompassing the occupation of any worker whose predominant working activities are based on or in the vicinity of wharves and constitute part of the overall stevedoring operations of loading and unloading ships. Those activities include not only the physical transportation and storing of goods. They include, in the view we take, whatever is necessary, on or in the vicinity of the site of the actual loading and unloading, to prepare and service the mechanical equipment by which loading and unloading operations are effected and to maintain it in the condition necessary for the performance of its stevedoring functions. They include on-site electrical and mechanical repair and maintenance work on the machines. They include the activities which predominantly constitute the occupation of the relevant electricians and mechanics.” (Underlining added)

[112] Considering the 1980 CBH and the 1982 ETU decisions of the Full Court of the Federal Court I agree with the Applicant’s submissions that if I follow those decisions I must find that,

• the Kwinana grain terminal is in the vicinity of the wharf from which the bulk grain is loaded into ships; and

• the grain is handled, treated and stored in the Kwinana grain terminal prior to it being loaded into ships and is so handled, treated and stored to facilitate, and for the purposes of, its ultimate loading into ships.

[113] If I follow these decisions I must also consequently find that the predominant activity of the maintenance employees, wherever undertaken within the Kwinana grain terminal, is undertaken on or in the vicinity of the wharf where ships are loaded with grain. Further their predominant working activities throughout the Kwinana grain terminal are necessary to prepare the equipment by which loading is effected and their activities are undertaken to maintain this equipment in the condition necessary to load the ships with grain.

[114] Consequently if I follow these Full Court decisions I would find that the maintenance employees in question predominantly working at the Kwinana grain terminal, in the particular circumstance here, are ‘waterside workers’ and so the CFMMEU is entitled to represent their industrial interests and to act as their bargaining representative.

[115] CBH however submits that the Commission should not follow the Full Court 1980 CBH and 1982 ETU decisions for a number of reasons which I will consider below.

[116] It is important first to consider in what circumstances the Commission can decide not to follow earlier authorities. A Full Bench of the Commission in BRB Modular Pty Ltd v AMWU 30 considered the need for the Commission to act consistently and with respect for precedent and at paragraph [16] said as follows,

“[16] It is also of concern that the Commissioner expressly decided not to follow the earlier Full Bench authority. The Fair Work Commission is a tribunal and Full Bench decisions are not legally binding on single members in the way that lower courts are bound by decisions of higher courts. Nevertheless, the application of any body of law depends on consistency and respect for precedent. The High Court, for example will follow its earlier decisions, unless it is expressly decided by the Court, upon reconsideration and with all parties on notice that the earlier decision was wrongly decided and should be expressly overruled. The same practice has been adopted by Full Benches of this Commission and its predecessors. Adopting different interpretations of statutory provisions creates confusion to parties who are required to apply the statute and would mean that different approaches are adopted depending on the individual views of the particular members involved in a particular case. The orderly rule of law does not permit such an approach. Unless a previous case is distinguished or expressly overruled by a higher authority or on full reconsideration, it should be followed, especially when it involves the interpretation of statutory provisions. Full Bench interpretations should be followed by individual Commission members. The Commissioner was free to express his disagreement and his alternative reasoning. But having done so he should have applied the established Full Bench approach. Full Bench decisions may be wrong but the role of overruling vests with the higher Court.”

[117] Applying the principle explained by the Full Bench above in my view unless the Full Court 1980 CBH and 1982 ETU decisions considered above can properly be distinguished from the current matter they should be followed in this case because they have not been overruled by a higher authority nor have they been reconsidered by the Full Court.

[118] CBH submits these two cases should not be followed for a number of reasons.

[119] Firstly CBH argue the 1980 CBH decision only considered the plant operators and so no principles of general application can be drawn from it and applied to the maintenance employees.

[120] Whilst it is correct that the 1980 CBH decision concerned only the plant operators and not the maintenance employees the evidence is that the maintenance employees work throughout the Kwinana grain terminal maintaining the very equipment which the plant operators operate. The two groups of employees both work in all areas of the Kwinana grain terminal. The two groups have the same place of work. On the evidence the only difference is that the maintenance employees spend time in the maintenance workshop, which the plant operators do not, and the two groups have separate crib facilities. 31 I do not accept the 1980 CBH decision should not be followed to the extent I have in this instance as CBH submits.

[121] The 1980 CBH decision is authority for the principle that the Kwinana grain terminal is in the vicinity of the wharf from which the bulk grain is loaded onto ships. This equally applies to maintenance employees whose predominant activities are in the Kwinana grain terminal.

[122] Next CBH submits that the 1982 ETU decision should not be followed because this matter was decided 36 years ago and it is inconceivable that the facts would be the same now.

[123] The mere age of a previously decided case is not by itself a good reason to ignore it. CBH did not lead any evidence to support this ground and I do not accept that this is a reason not to follow the 1982 ETU decision in this instance.

[124] Next CBH submits the Commission needs to give the CFMMEU’s Rules their natural and ordinary meaning in the current industrial context in the modern industrial reality which includes the streamlining and modernisation of the industrial system in Australia since 2009. These changes include the making of the Act and its Objects 3(a) and (e), the implementation of modern awards and a new enterprise agreement framework. This modern industrial reality it is submitted includes a focus on effectiveness and recognition that unnecessary complexity adds cost and adversely affects productivity.

[125] Certainly the Commission accepts there have been significant changes since 1980 in Australia’s industrial relations legislation however CBH have not supported this general submission with any specific examples as to why any of these changes since 1980 warrant the Commission today not following the 1980 CBH decision and the 1982 ETU decision. Self-evidently both Full Court decisions rejected the argument that the ordinary meaning, of ‘waterside worker’ meaning ‘a wharf labourer’, 32 should be applied when considering the relevant Union rule.

[126] Next CBH submit that the Commission should not ignore the relevant industry rule in the CFMMEU’s Rules in deciding this matter. There is however no explanation as to why the Commission should do so for this particular matter other than the submission that in one case a single member of the Federal Court adopted this approach in the particular circumstances of the CSBP matter, which was not similar to the facts of this matter. I do not accept that this is sufficient reason not to follow the 1980 CBH decision and the 1982 ETU decision in this matter.

[127] Separately I reject the submissions of CBH to the effect that the predominant working activities of the maintenance employees are in receiving rather than shipping. CBH relies on the Waterside Workers' Federation of Australia v Co-operative Bulk Handling Ltd and Ors 33 for this submission.

[128] The reliance by CBH on this decision to argue that the predominant working activities of employees undertaking maintenance work at the Kwinana grain terminal is in receiving rather than shipping is ill-conceived.

[129] The case relied upon by CBH in support of this proposition 34 concerned proceedings under then Conciliation and Arbitration Act 1904 concerning section 41(1) (d).

[130] Notably the Commission at that time was considering a factual context that considered all of CBH’s operations in Western Australia, and all its employees in all classifications both permanent and casual. The Commission in that decision considered that the time lag of up to 10 months between the receiving of grain and its shipment warranted a distinction being drawn between the receivable and storage functions of CBH employees on the one hand and the shipping function on the other. The Commission then referred to in an analysis of the proportion of permanent employees man hours spent on shipping for a 12 month period which was estimated for the ports of, Esperance, Albany and Geraldton. The Commission then noted the number of casual workers employed at the peak of harvest time exceeded the number of those employed permanently. It was only in this factual context did the Commission then decide at p.45 that,

“This fact taken in conjunction with the average proportion of time devoted over the year to shipping by permanent employees compels the inference that most casual workers are engaged mainly on receiving rather than shipping. They would therefore not be eligible for membership of the WWF.”

[131] The factual matrix for that decision was obviously totally different from facts before the Commission in this current matter. The Commission in that decision in 1982 had considered the totality of CBH’s operations throughout the state far beyond the Kwinana grain terminal. The Commission at that time had considered all of CBH’s employees not just maintenance employees. Finally the decision by the Commission at that time that employees were not engaged in shipping concerned only casual workers. This decision for these reasons can be distinguished from the circumstances before the Commission in this matter and is not relevant to this matter.

[132] I also reject the submission of CBH that the maintenance employees are not based on or in the vicinity of wharves and do not constitute part of the overall stevedoring operations of loading ships. These submissions are contrary to the Full Court 1980 CBH and 1982 ETU decisions.

[133] In conclusion I reject CBH’s submission that I should not follow the Full Court decisions in the 1980 CBH case and the 1982 ETU case.

[134] Finally the fact that deciding the CFMEU has the right to represent some of the employees covered by the proposed agreement may lead to practical difficulties which impact on CBH, which may well be the case, does not trump those particular maintenance employees’ right to join the CFMMEU and the CFMMEU’s right to act as their bargaining representative if those employees so wish.

Conclusion

[135] I find that the Kwinana grain terminal 35 is in the vicinity of the wharf from which the bulk grain is loaded onto ships. For those maintenance employees whose predominant activity is undertaken in the Kwinana grain terminal I find their predominant activities are necessary to prepare the equipment by which loading is effected and are undertaken to maintain that equipment in the condition needed to load the ships with grain.

[136] My decision consequently is that the CFMMEU are entitled to represent the industrial interests of those maintenance employees whose predominant activities are undertaken within the Kwinana grain terminal and to whom the proposed enterprise agreement will apply.

[137] However any maintenance employee whose predominant working activities are not based at the Kwinana grain terminal, but perhaps are based at the Metropolitan Grain Centre in Forrestfield or at CBH’s country receival sites, are not employees whose predominant working activities are based on, or in the vicinity of a wharf. These maintenance employees are therefore not ‘waterside workers’ within the meaning of the CFMMEU’s Rules. 36 These maintenance employees are not able to enrol as members of the CFMMEU and the CFMMEU is not entitled to represent their industrial interests and so cannot be their bargaining representative.

[138] I find therefore that the CFMMEU is a bargaining representative that may make this application under section 437 of the Act.

[139] In terms of the requirements of section 443 of the Act, I am satisfied the application has been made under section 437 of the act.

[140] I note that CBH has withdrawn its objection that the CFMMEU was not genuinely trying to reach agreement. 37 On the evidence before me I am also satisfied that the CFMMEU has been, and is, genuinely trying to reach an agreement with CBH.

[141] I note the CFMMEU has consented to delete questions 9 and 10 from its proposed ballot order and consequently CBH has withdrawn its objections to the form of those particular questions. 38

[142] Accordingly, a protected action ballot order [PR609800] to that effect will be issued in conjunction with this decision.

COMMISSIONER

Appearances:

L. Edmonds on behalf of the Applicant.

K. Reid of Minter Ellison for the Respondent.

Hearing details:

2018.

Perth:

July 24.

Final written submissions:

Applicant, 24 July 2018.

Respondent, 25 July 2018.

Printed by authority of the Commonwealth Government Printer

1 Transcript at PN115 to PN116.

2 Ibid., at PN96 to PN104.

3 (1980) 49 FLR 355.

4 (1982) 59 FLR 78.

5 Transcript at PN79 to PN81.

6 Exhibit R2.

7 Print PR955207, 24 January 2005, SDP Lacy at [59].

8 R v Cohen; Ex parte Motor Accidents Insurance Board (1979) 141 CLR 577 at p.587.

9 Co-operative Bulk Handling v the Waterside Workers Federation of Australia (1980) 49 FLR 355.

10 Electrical Trades Union of Australia v Waterside Workers Federation of Australia (No. 2) (1982) 59 FLR 78.

11 Co-operative Bulk Handling v Waterside Workers Federation of Australia (1980) 49 FLR 355.

12 Electrical Trades Union of Australia v Waterside Workers Federation of Australia (No. 2) (1982) 59 FLR 78.

13 Federated Clerks Union of Australia v Waterside Workers Federation of Australia (1983) 4 IR 25.

14 Electrical Trades Union of Australia v Waterside Workers Federation of Australia (No. 2) (1982) 59 FLR 78.

15 Maritime Union of Australia v Bechtel Construction (Australia) Pty Ltd[2013] FWC 2039.

16 [2014] FWCFB 3501 at [34].

17 [2017] FCAFC 14 at [14].

18 R v Cohen; Ex parte Motor Accidents Insurance Board (1979) 141 CLR 577 at p.587, CSBP Limited v Construction, Forestry, Mining and Energy Union [2011] FCA 917 at [190] to [194].

19 Independent Commission Against Corruption v Cunneen (2015) 256 CLR 1 at p.23, Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640 at p.655, [31].

20 Exhibit R3.

21 Transcript at PN18.

22 [2011] FCA 917.

23 Waterside Workers’ Federation of Australia v Co-operative Bulk Handling Ltd and Ors (1982) 4 IR 41 at p.45.

24 Electrical Trades Union of Australia and Anor v Waterside Workers' Federation of Australia(No. 2) (1982) 59 FLR 78 at p.87.

25 Ibid.

26 Waterside Workers' Federation of Australia v Co-operative Bulk Handling Ltd and Ors (1982) 4 IR 41 at p.46.

27 [2013] FWC 2039.

28 [2017] FWCFB 3513 at [4].

29 Exhibit R1 at [13] to [15].

30 [2015] FWCFB 1440.

31 Transcript at PN78 to PN91, PN123 to PN128 and PN258.

32 Exhibit R3.

33 (1982) 4 IR 41 at p.45

34 Ibid.

35 Exhibit A1.

36 Electrical Trades Union of Australia v Waterside Workers Federation of Australia (No. 2) (1982) 59 FLR 78 at p.87.

37 Transcript at PN11.

38 Ibid.

Construction, Forestry, Maritime, Mining and Energy Union v Co-Operative Bulk Handling Limited

[2018] FWC 4672

10 AUGUST 2018

DECISION

Evidence

CBH

The CFMMEU

Submissions

The CFMMEU

CBH

Consideration

Conclusion