Ipswich City Council v Construction, Forestry, Mining & Energy, Industrial Union of Employees, Queensland (No 2)
[2014] QIRC 59
•25 March 2014
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Ipswich City Council v Construction, Forestry, Mining & Energy, Industrial Union of Employees, Queensland (No 2) [2014] QIRC 059 |
PARTIES: | Ipswich City Council v Construction, Forestry, Mining & Energy, Industrial Union of Employees, Queensland |
CASE NO: | B/2013/50 |
PROCEEDING: | Power to make Declarations |
DELIVERED ON: | 25 March 2014 |
HEARING DATES: | 12 November 2013 |
MEMBER: | Industrial Commissioner Fisher |
ORDER: | Application for Declarations granted. |
| CATCHWORDS: | INDUSTRIAL LAW - POWER TO MAKE DECLARATIONS - Declarations sought - Application opposed - Evidence - Waste services employees - Work of waste services employees - Types of waste services vehicles - Side lift vehicles - Commercial waste vehicles - Whether waste services employees are motor truck drivers - Whether waste services employees are eligible for membership of the CFMEUQ - Construction of eligibility rule - Eligibility rule construed liberally - Construction of proviso - List of callings - Meaning of motor driver - Primary purpose - Nature of vehicles - Determined vehicle with side lift arm is a motor truck - Primary purpose of waste services employees is driving to collect and transport waste - Operation of side lift arm ancillary to the primary purpose - Determined waste services employees are motor truck drivers - Finding waste services employees employed by the council are ineligible for membership of the CFMEUQ - Satisfied primary purpose of waste services employees in respect of the four commercial vehicles is to collect and transport waste - Declarations sought by council to be made in terms sought - Determined drivers of commercial waste vehicles should also be captured by the declarations |
| CASES: | Industrial Relations Act 1999, s 274A, s 416, s 531, Chapter 12, Part 10, Division 1, Schedule 5 Construction, Forestry, Mining and Energy, Industrial Union of Employees, Queensland, Federated Engine Drivers' and Firemens' Association of Queensland, Union of Employees, and Queensland Colliery Employees Union of Employees (RIO/2012/188) (RIO/2012/189) (RIO/2012/190) - Decision |
| APPEARANCES: | Mr C Murdoch, Counsel instructed by Clayton Utz Lawyers for the Applicant. Mr G Rebetzke, Counsel directly instructed by the Transport Workers' Union of Australia, Union of Employees (Queensland Branch). |
Decision
The Ipswich City Council (the Council) has made an application pursuant to s 274A of the Industrial Relations Act 1999 (the Act) seeking that the Queensland Industrial Relations Commission (the Commission) make the following declarations:
"(a)Any person employed by the Ipswich City Council in the occupation or calling of domestic or commercial waste driver is not eligible to be a member of the Construction, Forestry, Mining & Energy, Industrial Union of Employees, Queensland (CFMEUQ); and/or
(b)The CFMEUQ is not entitled to enrol or keep enrolled as a member any person who is employed by the Ipswich City Council in the occupation or calling of domestic or commercial waste driver; and/or
(c)The CFMEUQ does not have the right to represent under the Industrial Relations Act the industrial interests of employees of the Ipswich City Council employed in the occupation or calling of domestic or commercial waste driver."
The CFMEUQ opposes the application.
Both the Transport Workers' Union of Australia, Union of Employees (Queensland Branch) (TWU) and The Australian Workers' Union of Employees, Queensland (AWU) were granted leave to appear and be heard in the proceedings. Both unions supported the application.
Background to the Application
Craig Maudsley, the Chief Operating Officer, Works, Parks and Recreation of the Council set out the background to the application in his first Affidavit. From January to March 2012, the Council negotiated with eight unions, including the CFMEUQ and the Federated Engine Drivers' and Firemens' Association of Queensland, Union of Employees (FEDFAQ), for a replacement enterprise agreement. The new agreement, the Ipswich City Council Local Government Employees Certified Agreement 2011, was certified by the Commission on 30 April 2012.
During these negotiations the Council decided to negotiate a separate agreement with the TWU to cover Waste Services Employees (WSEs) who were covered by a Schedule to the previous Council enterprise agreement. The purpose of the separate agreement was to address specific terms and practices applicable to these employees. According to Mr Maudsley, the unions which were present at the enterprise agreement negotiations, did not object to this course.
Between January and March 2012, negotiations between the Council and the TWU occurred resulting in the Ipswich City Council Local Government Waste Services Employees' (Domestic and Commercial Drivers) Certified Agreement 2012 (the Waste Agreement). This agreement was certified by the Commission on 9 May 2012.
On 27 February 2013, the CFMEUQ and the FEDFAQ filed a Notice of Industrial Dispute in the Commission (D/2013/43) over the meal break provisions in the Waste Agreement. The Chief Executive Officer of the Council wrote to these unions advising, amongst other matters, that they were not a party to the Waste Agreement, were not bound by it and were incapable of lodging a Notice of Industrial Dispute. The unions sought and were granted an adjournment of the dispute on the day it was listed for conference. This dispute was withdrawn.
Correspondence then ensued between Mr Maudsley and the two unions that had notified the dispute about issues of coverage of the "waste truck drivers".
On 17 July 2013, one of the WSEs who is a member of the CFMEUQ filed a Notice of Industrial Dispute in the Commission (D/2013/121) about a similar matter. Certain particulars in the Notice of Industrial Dispute were amended on 1 August 2013. However, the Council was concerned about the legitimacy of that Notice of Industrial Dispute i.e., as to whether it was brought in an individual's name so as to avoid what the Council considers to be limitations on the eligibility rules of the CFMEUQ. A conference before the Commission was held on 19 August 2013 and the case management system shows the dispute as "completed".
On 17 April 2013, Bloomfield DP approved the amalgamation of the CFMEUQ and the FEDFAQ.[1] One of the effects of this was that the eligibility rule of the FEDFAQ was incorporated into the eligibility rule of the CFMEUQ.
[1] Construction, Forestry, Mining and Energy, Industrial Union of Employees, Queensland, Federated Engine Drivers' and Firemens' Association of Queensland, Union of Employees, and Queensland Colliery Employees Union of Employees (RIO/2012/188) (RIO/2012/189) (RIO/2012/190) - Decision
Because of the activities of the CFMEUQ/FEDFAQ and one of its members notifying industrial disputes in the Commission as well as the forthcoming need to renegotiate the Waste Agreement, the Council decided to file this application.
Prior to the present proceedings the CFMEUQ raised three preliminary issues, including whether a single member of the Commission had the power under s. 274A of the Act to make the declarations in the terms sought. The Commission, as constituted released its decision on the preliminary issues on 14 October 2013.[2]
[2] Ipswich City Council AND Construction, Forestry, Mining & Energy, Industrial Union of Employees, Queensland (B/2013/50) - Decision
The issue to be determined in this application is whether WSEs are eligible for membership of the CFMEUQ. In reaching a decision on this matter the Commission is required to consider the primary purpose of the work performed by WSEs. In order to make this determination the nature of the work performed and the vehicle in which the work is performed needs to be described and examined in some detail.
Witnesses
The following witnesses were called to give evidence in support of the application:
For the Council:
Craig Maudsley, Chief Operating Officer, Works, Parks and Recreation, Ipswich City Council;
Darren Marriner, Operations Supervisor, Ipswich City Council; and
Shae McCartney, Partner, Clayton Utz Solicitors.For the TWU:
Craig Williams, Co-ordinator/Lead Organiser, TWU and the Transport Workers Union of Australia (TWUA); and
Cassandra Worn, Waste Services Employee, Ipswich City Council and TWU delegate.
The following witnesses were called by the CFMEUQ to give evidence opposing the application:
Barry Higgins, Organiser, CFMEUQ;
Malcolm Green, Waste Services Employee, Ipswich City Council and CFMEUQ delegate;
Thomas Wilson, Waste Services Employee, Ipswich City Council;
Kevin Potter, Waste Services Employee, Ipswich City Council; and
Anthony Chau, Engineering Consultant, Intersafe.
Types of Waste Services Vehicles
The Council operates five different types of vehicles in Waste Services. The following descriptions of these vehicles are taken directly from the second Affidavit of Mr Maudsley:
(a) Front lift truck - These trucks are used to collect and transport waste on a commercial - fee for service - basis. They typically collect bins ranging in size from 1m3 to 4.5m3 and between 1 tonne to 2.5 tonnes. Council has 3 front lift trucks.
(b) Side lift truck - These trucks are used to pick up domestic, recyclable and green waste from households primarily in the Council region. Council does have a commercial arrangement with Somerset Regional Council to collect the domestic waste of residents within the Somerset Regional Council. These trucks collect domestic waste and recycle bins of 240 litres in size and weighing up to 70 kg. Council has 10 refuse collection side lift trucks, 4 recycle waste side lift trucks and 3 green waste side lift trucks.
(c) Roll on/Roll off (RoRo) truck - These trucks are used to collect and transport industrial waste on a commercial - fee for service basis. They typically carry bins ranging in size from 3m3 to 10m3 and weighing up to 8 tonnes. Council has 2 RoRo trucks.
(d) Rear load truck - These trucks are used to collect and transport waste on a commercial - fee for service - basis. These trucks collect bins and weights within the same range of the front lift truck. Council has 2 rear load trucks.
(e) Skip truck - These trucks are used to deliver and collect skip bins on a commercial fee for service basis. Council has 2 skip trucks.
It is clear from these descriptions that four of the five types of vehicle are used in commercial waste services and only the side lift vehicle is used in domestic waste services. Each vehicle, regardless of its type, is registered as a truck under the Transport and Operations (Road Use Management) Act 1995 (TORUM Act).
In its written outline of submissions filed on 16 December 2013, the CFMEUQ limited its opposition to the application to those employees of the Council who operate side lift trucks. As a consequence the CFMEUQ no longer contests the Council's contention that it does not have coverage of commercial waste drivers employed by the Council who operate a front lift truck; roll on/roll off truck; rear load truck or skip truck. In its view the drivers of these four types of vehicles are in a different category to that of the side lift operator.
The Council contends that the concession made by the CFMEUQ extends to domestic waste drivers employed by the Council who operate any other form of truck other than a side lift truck.
Despite the concessions made by the CFMEUQ, the Council submits that it must still make its case in respect of the declarations regarding the drivers of the remainder of the trucks. The Commission accepts this submission, however, much of this decision will focus on the drivers of the side lift vehicles.
Those appearing in the hearing used a variety of terms to describe the employees and the vehicle. In the body of the decision the neutral terms "Waste Services Employee" will be used instead of "waste truck driver" or "side lift operator" and "vehicle" in place of "side lift truck" or "side lift unit". This will enable discussion of critical matters free from the contentious issues. In so doing I note that "Waste Services Employee" is the title given by the Council for the position. It applies to WSEs who operate side lift vehicles as well as the four types of commercial vehicle.
Evidence about Side Lift Vehicles and the Work of WSEs
Attached to the supplementary Affidavit of Mr Maudsley is the Position Description of a WSE for the Council. The primary role of such an employee is described as follows:
"To ensure all activities undertaken within the scope of services provided by Ipswich Waste Services are performed in an efficient and effective manner that provides a high level of customer service, meeting legislative requirements and minimising impacts on the environment and the community."
The key responsibilities are:
"3.1To perform all assigned duties relating to the operational activities of Ipswich Waste Services including the operation of any associated vehicles/plant/equipment to provide:
· Collection, recovery, re-use and/or recycling of resources; and
· Collection and disposal of waste including dead animals.
3.2 General duties at waste management facilities.
3.3 Basic maintenance of assigned vehicles.
3.4 Vehicle inspections and pre-start safety checks.
3.5Perform any other duties as may be directed from time to time that are reasonably within the competency, skills and training of the incumbent."
No specific mention of truck driving is made in the Key Responsibilities, however, possession of heavy rigid (HR) licence is a mandatory qualification listed in the Selection Criteria.
On appointment WSEs undertake a minimum of six weeks training which includes the operation of the side lift arm; corporate and site induction; observing a competent operator drive the tuck; familiarisation training on vehicles; operating all aspects of the vehicle including familiarisation with dual control vehicles and familiarisation with standard routes including an understanding of the turning zones used. Mr Maudsley said the training was "lengthy not due to the complexity of the operation of the truck itself, but due to the high risk nature of the environment in which it is operated i.e. the interaction with the public, traffic, parked vehicles and varying condition of roads and the areas where garbage is collected."
Mr Maudsley said that the side lift vehicle is purchased as an integrated vehicle which has a chassis, a body, a power take-off (PTO) system, a cabin with dual controls and a lifting arm. Each vehicle costs approximately $360,000.
Mr Marriner gave detailed evidence to the Commission about the set up of the side lift vehicle as well as the work performed by the WSEs. In his position of Operations Supervisor, Mr Marriner is responsible for inducting all new WSEs; providing driver training on all types of waste collection trucks; supervising all WSEs and dealing with any concerns raised by the WSEs such as breakdowns.
The Commission was also provided with a photograph of each type of vehicle and several photographs of the cabin of the side lift vehicle. Mr Marriner identified various pieces of equipment in the cabin and explained their purpose. The explanations that follow are primarily drawn from the evidence of Mr Marriner but are supplemented by evidence from the WSEs.
The cabin has dual controls with a steering wheel, accelerator pedal and brake pedal on both the right and left sides. A hand brake is located between the right and left sides of the cabin and can be applied from either side.
The side lift vehicle is fitted with a side mounted hydraulic arm which is operated by a joystick and used when the WSE is in the left side of the cabin. The joystick has four controls that are marked with arrows pointing in different directions. Use of the joystick allows the arm to lift up or down or to push the arm out or to pull it back in to the body of the truck. The arm cannot move forward or backward along the vehicle.
The cabin of the truck has a two way system which is mounted on a monitor attached to the dashboard on a swivel. It can be used when the WSE is sitting on either side of the cabin. Four visual monitors are positioned in the cabin, including one that displays a GPS and is also used to take photographs from the left side of the vehicle. Another operates the hydraulics on the body of the vehicle (the systems control monitor) while another monitor is often used by WSE to observe the hopper or as a reverse camera. The systems control monitor also has a capacity to count the number of bins collected. The systems control monitor, the GPS monitor and a reverse speed control cut out are all mounted on a swivel that can be used when the WSE is sitting in either the right or left side of the cabin.
In addition to powering the side lift arm, the hydraulic system also powers the unloading function which is found on the control panel associated with the systems control monitor. This control panel has four buttons which, when one is pressed, raises or lowers the door on the hopper or raises or lowers the body of the vehicle.
An hydraulic pump also operates the compactor in the hopper, which is called the pendulum packer. Generally, most WSEs operate the pendulum packer in continuous mode so it is functioning throughout the rubbish collection. The controls for the pendulum packer are also located on the systems control monitor.
The hydraulic power for the compactor and the arm are generated by a hydraulic pump on the vehicle. The PTO system must be engaged to use the arm or the compactor. Engaging the PTO provides power to the hydraulic pump and then to the arm and the compactor. The PTO is powered by the vehicle's transmission.
A WSE starts a shift by undertaking a visual check of the vehicle at the depot. This takes about 15 minutes. Another visual check is undertaken at the end of the shift at the depot. This check is a little quicker - between eight to 10 minutes.
After completing the visual check the WSE drives the vehicle on public roads to the start of the run, using the right hand controls. The time taken to the start of the run varies depending on the location but on average is about 10-15 minutes.
On arrival the WSE applies the brakes, including the hand brake, aligns the side lift arm with the bin and comes to a complete stop. The WSE then alights from the vehicle and walks around to and gets into the left side to begin the bin collection. The WSE uses the joystick to lift the arm to the wheelie bin. Once there, the WSE presses a button on the joystick which allows fingers on the end of the arm to grasp the bin. The WSE then uses the joystick to lift the arm to raise the bin over the hopper of the truck. Once the bin is above the hold the WSE presses a button to open the hopper doors. The joystick is then operated to rotate the bin so that it is inverted. The contents of the bin are emptied and the WSE uses the joystick to lower the bin to the ground. The WSE then checks the side mirrors and indicates where necessary, before releasing the hand brake and driving to the next bin using the steering wheel and pedals on the left hand side of the vehicle. The collection sequence is repeated until the hopper is full.
Usually while the bin is being grasped and emptied, the WSE keeps their left hand on the steering wheel while the other is used to operate the joystick. Other WSEs may rest their left hand in a comfortable position. A WSE also keeps one foot on the brake pedal while the vehicle is stationary during bin collection.
The Council has a list of people who, due to age or infirmity, are unable to place their bins on the footpath. In these instances the driver will leave the truck, enter the resident's premises, locate the bin and take it to the vehicle. Controls to manipulate the bin are located next to the left hand driver's seat so the WSE can operate them while standing outside the vehicle. The bin is lifted, emptied and lowered to the ground. The WSE then returns it to its original location.
Side mirrors are on both sides of the truck and these, and the reversing cameras, are used to monitor the safe operation of the vehicle and the side lift arm. A photograph can also be taken from the left side of the vehicle and sent to the depot when the WSE believes that a complaint may be made about the bin or the bin environs.
Once the hopper is full, the WSE alights from the left hand side of the vehicle and walks around to the right hand side and, using the controls situated on that side, drives the vehicle to the refuse site. Upon arrival at the refuse site, the WSE drives to the weighbridge and communicates with the compactor operator to determine where to discharge the load. The WSE then drives to that area and reverses the vehicle to the edge. There, the WSE presses a button to open the back door and then presses another button on a screen, which causes a hydraulic hoist to tip the body of the vehicle. As the vehicle is unloading the WSE drives it forward to allow the compacted rubbish to slide out. The WSE then alights to check that all rubbish has been emptied or receives advice from the dozer operator that the hopper is clear. Once the hopper is empty, the WSE lowers the hopper and closes it. The WSE then drives to continue the run or return to the depot.
The WSE usually drives to the refuse site twice per day, although on some occasions three trips may be necessary. Usually the first refuse site is located further away than the second visit. Time spent on driving to the refuse site varies but can be between 30 and 45 minutes. The return to the depot after the last visit to the refuse site also varies from between 10 minutes and 40 minutes.
The distance between properties also varies from suburban locations to rural areas where properties can be up to one kilometre apart. The Council also performs waste services for some locations falling within the Somerset Regional Council.
The Council operates a general waste collection, a recycling collection and a green waste collection. Not all waste bins are placed out on each collection day and not every household puts out a recycling bin each fortnight. There has also been a low take up of the green waste collections.
The bins collected are 240 litre although the Council is presently conducting a small trial of 360 litre green waste bins. On an urban route a WSE would typically collect 1300 bins per shift whereas on a rural run the number of bins might be 900 per day.
Mr Chau was engaged by the CFMEUQ to take video footage of work performed by WSEs and to calculate the average time taken by WSEs to stop the vehicles; extend the arm of the truck; grasp and pick up the bin; empty the rubbish into the hopper; return the bin to the ground; retract the arm and start again to move to the next bin. The relevant period calculated was from the stop of the vehicle to the start of the truck to move to the next vehicle. The video footage was tendered as an exhibit to the Commission and shows the operation of the side lift vehicle in various locations. Mr Chau calculated the time averaged 8.8 seconds for the cumulative total lapse time for all drivers (834 seconds) and the total number of wheelie bins observed (95 bins). This time generally accords with the duration recorded in the affidavits of the WSE witnesses. The lapse time can be extended when the bin is difficult to access.
Evidence was also given about some of the issues encountered when operating the side lift vehicles in cul-de-sacs, T junctions and crowded suburban streets. With respect to cul-de-sacs, Mr Marriner said an 18 metre diameter is required in a cul‑de-sac for a side lift vehicle to execute a U-turn, otherwise a two or three point turn is required or alternatively, it may be necessary to reverse the vehicle out of the cul-de-sac. Not all cul-de-sacs in Ipswich are of that diameter. Further, some manoeuvring of the vehicle is required to collect bins at the end of cul-de-sacs. Extra time might be spent in bin collection in cul-de-sacs because of manoeuvring the vehicle rather than operating the arm. However, in his evidence Mr Green said that the arm was regularly extended in cul-de-sacs with the result that extra time was spent on its operation.
WSEs work 9.5 hour shifts and are entitled to two 15 minute breaks which can be combined into one 30 minute break.
Statutory Context
The Act, at Chapter 12 Industrial organisations and associated entities, Part 10 Membership, Division 1 Eligibility and admission to membership, contains provisions regarding membership and eligibility requirements of registered industrial organisations. In particular, s 531 of the Act provides:
"Eligibility
A person is eligible to become a member of an organisation if the person -
(a)by the nature of the person's occupation or employment, engages in a calling for which the organisation is registered; and
(b) complies with the organisation's rules."
The CFMEUQ submits that this section defines eligibility by both occupation and employment and in this regard differs from the equivalent provision in the Fair Work (Registered Organisations Act 2009)(Cth) "where the touchstones of eligibility are occupation and the industry or enterprise in which the members are to be employed."
In relation to this submission the Commission notes that s 531 of the Act defines eligibility by occupation or employment to determine whether a person engages in a calling for which the organisation is registered and whether the person complies with the organisation's rules.
During the hearing the parties and those granted leave to appear and be heard did not specifically refer to the callings of the CFMEUQ. As the nature of the occupation or employment of WSEs and the callings of the CFMEUQ are relevant considerations in determining whether such persons are eligible for membership of the CFMEUQ, further submissions on the point were invited. Such submissions were received from the Council, the CFMEUQ and the TWU.
List of Callings
Section 416 of the Act requires organisations which are applying for registration to provide a list stating the callings of its members or callings to which its eligibility rules relate.
The registered List of Callings of the CFMEUQ were updated consequent upon the amalgamation of the CFMEUQ and the FEDFAQ. That List, as it relates to the callings of the former FEDFAQ, provides as follows:
"List of Callings of members or to which the eligibility rules relate of the Construction, Forestry, Mining & Energy Union, Industrial Union of Employees, Queensland, which is registered as an Industrial Organisation of Employees under the Industrial Relations Act 1999:-
…
Engine Drivers, all classes
Firemen
Crane Drivers
Mobile Crane Drivers
Forklift Drivers
Dynamo Attendants
Motor Drivers or Motor Attendants
Greasers
Engine Cleaners
Cleaners
Trimmers
Tow-motor Drivers
Excavator Drivers
Pump Attendants
Pile Driving Machine Drivers
and any other workers assisting in and about the work incidental to any engine, boiler or machinery connected with the production or utilisation of power on land or any harbour or river and boiler attendants attending boilers not generating steam for power purposes."
Eligibility Rule
The relevant rule falls within rule A7 Eligibility:
"SECTION B
(a)The Association shall consist of an unlimited number of all classes of engine drivers, firemen, crane drivers, mobile crane drivers, forklift drivers, tow-motor drivers, excavator drivers, pump attendants, pile drivers, motor drivers or attendants, greasers, cleaners, trimmers and any other workers assisting in and about the work incidental to any engine, boiler or machinery connected with the production or utilisation of power on land or any harbour or river and boiler attendants attending boilers not generating steam for power purposes and such persons as have been elected or appointed as paid officers of the Association or a Branch of the Association or whilst financial members of the Association are elected as representatives of any working class organisation to which the Association or a Branch thereof is affiliated or as a working class member of parliament.
Provided that mobile crane drivers, operators of fork lifts and/or tow-motors engaged on the waterfront upon such work being that of a waterside worker or engaged in the transport of goods by road, or motor truck drivers wherever employed, shall not be eligible for membership.
…."
The parties and the TWU agree that the List of Callings should not be considered in isolation from, but rather in conjunction with, the Eligibility Rule of the CFMEUQ. However, as the CFMEUQ had a different view about the construction of the Eligibility Rule to that of the Council and the TWU, I do not intend to outline here the various perspectives put to the Commission on the point. These matters are addressed in the next part of this decision.
Consideration and Findings
The decision to be made by the Commission is whether WSEs are eligible for membership of the CFMEUQ. As s 531 of the Act provides, eligibility is determined by whether WSEs are engaged in a calling for which the CFMEUQ is registered and whether they comply with the rules of the CFMEUQ. It is not necessary to consider whether any other registered industrial organisation has coverage.[3] In making its decision the Commission must consider the nature of the occupation or employment of WSEs, the registered List of Callings of the CFMEUQ, the construction of Rule A7 B(a) of the Rules of the CFMEUQ and whether WSEs comply with the rules of the CFMEUQ. In undertaking this exercise, consideration will firstly be given to the construction of the "primary grant" of eligibility, as it was described by the CFMEUQ, followed by the construction of the proviso. Next, the Commission must assess the primary purpose for which the WSEs are employed by the Council.[4] Once that has been done, the Commission must determine whether the WSEs come within the primary grant and/or are excluded by the proviso. Finally, in the event the Commission decides that the WSEs are captured by the proviso, consideration needs to be given to whether the declarations sought by the application should be made.
[3] Electrical Trades Union of Australia v Waterside Workers Federation of Australia [No 2] (1982) 59 CLR 78 at 87; 42 ALR 587 at 595.
[4] CSBP Limited v Construction, Forestry, Mining and Energy Union [2011] FCA 917; Construction, Forestry, Mining and Energy Union v CSBP Ltd (2012) 212 IR 206.
It can be seen that the registered List of Callings and the Eligibility Rule A7 B(a) are in slightly different terms. In particular, in the List of Callings, "Motor Drivers" are grouped with "Motor Attendants" and the proviso found in the Eligibility Rule is not repeated. The effect of the absence of the proviso from the List of Callings was considered by the parties and the TWU in their supplementary submissions.
The Council submits that on the proper construction of s 531 of the Act and, having regard to both the List of Callings and the Eligibility Rule of the CFMEUQ, that the proviso in the Rules cannot be read down. To do so would be inconsistent with s 531 which requires a person to both engage in a calling and to comply with the organisation's rules.
The TWU agrees with this approach, arguing that a person who is a "motor truck driver wherever employed" cannot comply with the rules of the CFMEUQ. That the List of Callings is not identical to the eligibility rule does not alter the enquiry to be made by the Commission of whether WSEs are "motor truck drivers".
The CFMEUQ also considers that s 531 requires consideration of the callings and compliance with the rules. The content of the rules includes any relevant provisos. However, the result of its approach to the construction of the rules of the CFMEUQ, is that WSEs are not "motor truck drivers" and thus are not excluded from eligibility.
Primary Grant of Eligibility
The registered Rules of the CFMEUQ are the result of amalgamations between the CFMEUQ and various other registered organisations. As the CFMEUQ notes, Section A of rule A7 reflects the eligibility rule of the CFMEUQ prior to the decision of the Commission approving the amalgamation of the CFMEUQ and the FEDFAQ and is itself a product of yet earlier amalgamations. Section B of rule A7 reflects the eligibility rule of the FEDFAQ prior to the last amalgamation. Section C of rule A7 reflects the eligibility rule prior to the last amalgamation with the Queensland Collieries Employees Union of Employees. In light of this history, the CFMEUQ submits that the proper construction of section B of rule A7 ought to be approached as a stand alone exercise.
Eligibility rules are to be construed as a whole and must have regard to the statutory context.[5] The eligibility rule of the CFMEUQ is an aggregate of three discrete parts which is a consequence of the amalgamations that have occurred. In incorporating the eligibility rule of the FEDFAQ into the rules of the CFMEUQ, Bloomfield DP made clear in his decision that a person eligible for membership of the FEDFAQ would become eligible for membership of the CFMEUQ upon amalgamation. Equally, a person ineligible for membership of the FEDFAQ would not become eligible for membership of the CFMEUQ upon amalgamation.[6] In my view it is appropriate to consider Section B of rule A7 in isolation from the balance of the eligibility rule in the circumstances of this case. This is because what is being considered in effect is the eligibility rule of the then FEDFAQ, which is a discrete part of the eligibility rule of the CFMEUQ. This approach is consistent with the decision of the Full Court of the Federal Court of Australia in Rescrete Industries v Jones.[7]
[5] Construction, Forestry, Mining and Energy Union v CSBP Ltd (2012) 212 IR 206 at 215.
[6] Construction, Forestry, Mining and Energy, Industrial Union of Employees, Queensland, Federated Engine Drivers' and Firemens' Association of Queensland, Union of Employees, and Queensland Colliery Employees Union of Employees (RIO/2012/188) (RIO/2012/189) (RIO/2012/190) - Decision Rescrete Industries v Jones (1986) 86 IR 269 at 281.
The relevant words of the primary grant are:
"SECTION B
(a)The Association shall consist of an unlimited number of all classes of … motor drivers…"
As the CFMEUQ notes in its written submission, the introductory words of the Section are very widely drawn. On the question of what is a "motor driver" the CFMEUQ submits that:
"38. Like most English words 'motor' has many meanings. However, coupled with the term 'driver', the preferable meaning of both words together is 'the driver of any self-propelled vehicle' or perhaps in the context given the earlier mention of 'engine driver' it may be 'the driver of any self‑propelled vehicle other than a locomotive', see the Macquarie Dictionary definitions of 'motor' and 'engine'. The breadth of this connotation is supported by the juxtaposition within the same set of commas of ', motor driver or attendant,'. That is, one attends upon, rather than, drives a stationary motor.
39. The driver of a side loader unit is the driver of a self-propelled vehicle which is not a locomotive. That is, a side lift operator fits within the current denotation of 'a motor driver'.
40. The words 'motor driver', it is submitted, were deliberately cast in a wide and general way so as to anticipate the prospect of technological change which might bring a calling unknown and incapable of being denoted at the time this rule was first drawn but which might fairly in the future be caught within its general connotation".
From these submissions, the CFMEUQ relies on the term "motor drivers" in its eligibility rule to claim coverage of WSEs. While rejecting this approach, the Council, the TWU and the AWU contend that the result of it is that the WSEs would be "motor truck drivers" and thus excluded from coverage of the CFMEUQ eligibility rules.
The Commission was not referred to any decisions where the meaning of "motor drivers" was considered. Without formally determining the point, I am prepared to acknowledge that on the basis of the submissions of the CFMEUQ, it is reasonably open to the Commission to find that WSEs are motor drivers.
Proviso
The real controversy arises in respect of the proviso, and in particular the phrase, "motor truck drivers wherever employed". At one point the Council was relying on the phrase also found in the proviso, "engaged in the transport of goods by road" to also argue that WSEs were excluded from eligibility of the CFMEUQ. However, this was subsequently addressed as an alternative submission in the event WSEs were not accepted by the Commission to be "motor truck drivers".
Consideration must now be given to the meaning and effect of the words of the proviso, "motor truck drivers wherever employed". Although there is agreement on the case law regarding the interpretation of provisos, the parties differ on its application to the present matter.
Both the CFMEUQ and the Council referred the Commission to the decision of the High Court of Australia in Re Grimshaw; Ex Parte Australian Telephone and Phonogram Officers' Association[8] ('Re Grimshaw') where the following was stated:
"The general rule of construction is that eligibility provisions should be construed liberally rather than narrowly or technically (Reg v. Cohen; Ex parte Motor Accidents Insurance Board(1979) 141 CLR 577, at pp 581, 587). But it does not follow, as the prosecutor submits, that a proviso should also be construed liberally. In the present case we should construe the proviso objectively, recognizing that it constituted the settlement of a conflict between the APTU and the prosecutor in which the prosecutor was concerned to ensure that the alteration of the APTU's eligibility clause would not enable it to enrol present or future members of the prosecutor. The significant feature of that settlement, as expressed in proviso (f), is that the persons excluded from the general description were those employed by Australia Post or Telecom 'qualified and performing the ordinary duties at 8th October 1984' of the specified classifications. The effect of the proviso is to deny to the APTU the capacity to enrol persons who are performing those duties, whether or not the duties are described by the specific job classifications mentioned, and whether the persons are employed by Australia Post or Telecom. The APTU is thus prevented from enrolling electronic mail operators and controllers only if their duties are the same as the ordinary duties of a phonogram operator or phonogram operator (VDU), or of a supervisor (phonogram) or supervisor (phonogram VDU) on 8 October 1984, these being the only job classifications in the proviso that are presently relevant."
[8] Re Grimshaw; Ex Parte Australian Telephone and Phonogram Officers' Association (1986) 60 ALJR 588 at 592-3.
Relying on the whole of this citation, the Council submits that objective construction of the Rules of the CFMEUQ in the present matter allows reference to the arrangement and settlement reached between the (federal) FEDFA and the TWUA. The settlement, which is expressed in the proviso, precludes any coverage by the CFMEUQ of "motor truck drivers wherever employed". This view was supported by the TWU and AWU.
In contrast the CFMEUQ contends that the relevant eligibility rule must be read as a whole and both the primary grant of eligibility and the proviso must be read together to give the rule as liberal and broad a construction as it is capable of bearing but that the proviso should be interpreted narrowly or strictly.Interpreting the proviso in such a manner does not mean that it cannot be also interpreted objectively. If, after construing the proviso narrowly or strictly but objectively, the result is ambiguity or vagueness in the language of the proviso, then the construction which provides the least effect is to be preferred.
The CFMEUQ also distinguishes "wherever employed" from "however employed" and submits that the use of the former phrase:
"… emphasises that when interpreting the relevant eligibility rule, rule A7 section B(a) as a whole, the primary issue remains the work which the side lift operator is engaged to perform. The mere fact that one of the tasks performed by the side lift operator is truck driving, does not mean that the side lift operator is primary employed as a 'motor truck driver' so as to engage the second limb of this proviso."
The decision in Re Grimshaw makes clear that although eligibility rules are to be construed liberally, a different approach is taken with respect to provisos. That decision adopts an objective construction, recognizing that the proviso in that case was the result of a settlement of a conflict between two unions. The proviso in the present matter, which includes the words "motor truck drivers wherever employed", was also arrived at between the FEDFA and the TWUA in settlement of a conflict in the (re)registration proceedings of the former organisation and was carried over to the Queensland rules of the FEDFAQ.
The parties and the TWU provided the Commission with the history of the proviso. The federal FEDFA was deregistered and sought to be (re)registered in the federal jurisdiction in 1949. The application for registration provoked a number of objections from other industrial organisations, including the TWUA. The Councils of the FEDFA and the TWUA met on two occasions to try to resolve the objections in 1949. In 1950 the two unions reached an agreement in settlement of the objection, by excluding from eligibility of the FEDFA, "motor truck drivers wherever employed". Those terms were read into the transcript on 29 June 1950 during the hearing by the Industrial Registrar of the application by the FEDFA for registration and were subsequently reflected in the rules of the FEDFA as (part of) a proviso. The proviso was carried over to the rules of the FEDFAQ in 1952 and then "blended" into the rules of the CFMEUQ on its amalgamation with the FEDFAQ in 2013.
The CFMEUQ submits that the historical material does not demonstrate a common understanding of the meaning of "motor truck drivers wherever employed", particularly from the perspective of the TWUA where some of its Executive expressed concern about losing more than it would gain. Moreover, almost immediately after the agreement was reached, disputes arose over the extent of the coverage of the FEDFA.
Although the historical documents show the TWUA had concerns about their position during the negotiations with the FEFDA, this was satisfied with the agreement reached, which is reflected in the proviso. It is the meaning of the proviso that is relevant not the antecedent discussions. However, the historical documents show that by objecting to the registration of the FEDFA, the TWUA was concerned to protect its coverage of drivers of vehicles from intrusion by the FEDFA. In my view, that concern stemmed at least in part from the inclusion in the FEDFA's proposed rules of "motor drivers".
It is also clear that the phrase "motor truck drivers wherever employed" has been the subject of disputation from time to time, especially at the federal level, over many years. Courts and Commissions have been required periodically to interpret its meaning in relation to particular types of vehicles especially in the face of changing technology. However, there is nothing new about this and as early as 1951 an industrial tribunal determined that the FEDFA did not have coverage of motor truck drivers.[9]
[9] The Transport Workers Union of Australia v The Federated Engine Drivers and Firemens Association of Australasia (1951) 72 CAR 852 at 854.
The primary grant allows the CFMEUQ to enrol motor drivers. This is a broad provision which may make motor truck drivers a class of "motor driver" and thus eligible for membership of the CFMEUQ under its rules. Where a proviso exists, it should not be interpreted independent of the main provision, in this case, the primary grant. It is dependent on, and qualifies, the main provision.[10] An objective construction of the proviso in question, which recognizes that it was inserted as a settlement of a conflict, denies the CFMEUQ the capacity to enrol "motor truck drivers wherever employed". Accordingly, persons so employed cannot comply with the rules of the CFMEUQ and accordingly, are not eligible for membership of that union.
[10] Pearce and Geddes, "Statutory Interpretation in Australia" 7th ed, 2011 at 4.54 and citing Minister of State for the Army and Dalziel (1944) 68 CLR 261 at 274-5.
The Primary Purpose Test
The question that now confronts the Commission is whether the WSEs are "motor truck drivers".
Consideration can be given to job titles but is not of itself determinative on the question of eligibility.[11] In this case the job title is "Waste Services Employee". In my view this title is especially unhelpful as it does no more than to indicate that the employee is engaged in waste services, which could be anything from collecting waste, disposing of waste, working at a refuse site, involved in the transformation of waste e.g., recycling, or any other function associated with waste.
[11] Joyce v Christoffersen(1990) 26 FCR 261 at 278.
The Position Description is also of little utility in resolving the question before the Commission. The primary role as described in the Position Description provides minimal insight into the job functions of WSEs. The key responsibilities are mildly more enlightening. While the first listed key responsibility focuses on collection, to say that it is the primary responsibility overstates the importance of this aspect. Two of the other key responsibilities reference work in relation to the vehicles. I accept that driving is not identified as one of the key responsibilities. It is only when one turns to the Selection Criteria that the requirement to hold a HR licence is listed. The inference from this is that driving of the waste vehicle is required. In my view, the Position Description does not assist the Commission in resolving the fundamental question. It is thus necessary to turn to the evidence about the work of WSEs.
In Joyce v Christoffersen,[12] Gray J said:
"There can be no doubt that the amount of time which an employee spends doing a particular task can be a useful guide as to whether that task is all part of the primary function of that employee. … however, merely to divide up a job in terms of time spent on different tasks is not necessarily to ascertain what is the primary function of that job."
[12] ibid at 279.
The CFMEUQ objects to a quantitative analysis but accepts that a substantial function of what the WSEs do is driving the vehicle. However, it submits the question of the primary purpose is more subtle: it is to assess qualitatively, the primary function - not the only primary function. The Council also accepts that too much attention should not be focused on the quantitative assessment and the qualitative aspect should be foremost in the consideration, however, the quantitative assessment should not be ignored. I accept that the qualitative assessment is where the attention of the Commission should be directed. However, given that it can be a useful guide, the Commission will briefly consider the evidence about the apportionment of time spent on driving versus the operation of the side lift arm in a typical shift of a WSE.
The evidence is that about 65 per cent of a shift of a WSE is spent driving the vehicle. About 35 per cent is spent operating the side lift arm. However, even while the WSE is operating the side lift arm, the employee remains in control of the vehicle and drives it between bin collections. The Council submits that of the approximate six and a half hour period that the vehicle is on the run, about 3.4 hours involves use of the side lift arm, which the Council contends is still driving. However, were this period removed from the 9.5 hour shift together with the break periods and vehicle checks, then some five hours is "pure truck driving".
In my view the quantitative assessment supports the conclusion that the work performed is mainly that of driving, however, this is only one feature and the key issue to be resolved is the primary purpose of the employment of WSEs.[13] This is an appropriate approach given the requirements of s 531, which includes reference to the person's occupation or employment.
[13] Construction, Forestry, Mining and Energy Union v CSBP Ltd (2012) 212 IR 206 at 217.
The primary purpose test was the subject of consideration by the Full Court of the Federal Court of Australia in Construction, Forestry, Mining and Energy Union v CSBP Ltd [14] ('CSBP') where the following was said:
"44. …In applying this test one does not focus upon one aspect of an employee's work in isolation from the totality of his or her duties. Thus in Federated Engine Drivers and Firemen’s Union (WA) v Mt Newman Mining Co Pty Ltd (1977) 57 WAIG 794, Burt CJ observed in this regard at 794 that not every worker, who in doing the work which he is employed to do drives an engine, is an engine driver within the meaning of the rule. Rather:
'... The question in any particular case is, I think, whether the worker is employed to drive an engine so that he earns his wages by doing that, or whether he is employed to do something else. And if the answer is that he is employed to do something else then he is not an engine driver merely because he operates a machine and drives the engine of that machine so as to do what he is employed to do.'
45. Similarly, in Joyce v Christoffersen(1990) 26 FCR 261 at 279, Gray J observed that "the primary function of an employee must be determined by looking at what he or she does in the context of the employer's organisation of work."
[14] ibid.
The CFMEUQ commences its submissions on the qualitative considerations by reference to the employer's organisation of work before the introduction of the side lift vehicle. At that point, domestic waste was collected by a crew of three. One was responsible for driving the conventional truck while the other two, the "runners", collected, carried and emptied the waste into the truck. The introduction of the side lift vehicle meant that the crew of three could be reduced to one, the operator of the vehicle. As a result, and although the desired economic end remained the collection of waste, the driving of the vehicle to collect and transport waste was not the means or the predominant part of achieving that end.
The CFMEUQ contends that the work being undertaken on the left hand side of the vehicle is qualitatively different to that undertaken while the WSE is in the right hand side of the vehicle. The driver uses the right hand side of the cabin only for the purpose of driving to and from runs and the refuse site. In contrast, while the WSE still has access to the normal control functions of a truck, various controls for the operation of the hydraulic machinery of the side lift unit are located on the left hand side of the cabin. It has a separate seat and controls which are used specifically for the purpose of collecting waste and driving between the bins of households on the runs. The Service Manual for the pendulum packer refers to the left hand position as the "Waste collection position". According to the CFMEUQ, these factors show that a qualitatively different task to truck driving is being performed in the left hand side of the vehicle. The task of operating the hydraulic machinery overshadows the task of driving. Further, the truck driving of the side lift operator is but a step taken by the operator in the doing of something extending beyond truck driving, viz., the collection of waste etc. by means of hydraulic machinery. Thus, this is the primary function of the WSE, with the result that WSEs are more than mere "motor truck drivers".
In response to the submission concerning the origins and transformation of waste collection, the Council submits that while the hydraulic arm has replaced the runners, the function of the driver of the vehicle remains and their primary purpose has not changed.
The Council submits that the primary purpose of the WSE is truck driving for the purpose of collecting and transporting waste. This is because the WSE drives to the start of a run, the waste is collected by truck, is loaded into the hopper of the truck, the truck transports the waste to the refuse site and is used to tip the waste out. At every step, the WSE is driving a truck. The operation of the side lift arm is an incident of the primary activity, i.e., to get that which is to be carried in the truck into the body of the truck so that it can then be transported to the refuse site. The side lift arm has not created a new role - no employee is engaged specifically for that purpose and the operation of the arm is but one task on the overall role of a domestic waste driver.
The Council further submits that the folly of the CFMEUQ's submissions is highlighted by the inconsistency of their approach to the other classes of truck used by the Council.
The TWU submits that the primary purpose of the WSE is to collect and transport waste by means of a truck.
The Commission has considered the evidence and submissions on the point of the primary purpose of WSEs. In CSBP, the Full Federal Court considered the sophistication of the work performed and the skills utilised by Process Technicians in determining the primary purpose of their work.[15] In cross-examination, the CFMEUQ put to various witnesses, and they generally agreed, that the vehicle was sophisticated. I shall return to this point when the nature of the vehicle is considered. For present purposes, I consider that the Full Federal Court decision in CSBP allows consideration of the skills exercised by WSEs to assist in determining the primary purpose of their work.
[15] Construction, Forestry, Mining and Energy Union v CSBP Ltd (2012) 212 IR 206 at 217.
The major skill required by the WSEs is driving the vehicle as shown by the following evidence. The WSEs are required to possess a HR licence before being engaged. Although this class of licence is necessary to operate other types of vehicles it is the licence required to drive the side lift vehicles. Absent the HR licence, a person cannot be engaged as a WSE. No other licence or qualification is required to operate the side lift vehicle, although WSEs undertake other training provided by the Council to operate the vehicle.
Moreover, skill is also required to manoeuvre the vehicle in sometimes difficult situations, e.g., in cul-de-sacs especially where the diameter is less than 18 metres; in negotiating T junctions; reversing the vehicle in refuse sites so that it goes to the edge; aligning the vehicle next to a bin so that the side lift arm can be used and operating the dual controls so that the WSE can safely operate the vehicle on both the left and right sides of the road. These skills are quintessential driving skills.
The Commission accepts that the operation of the side lift arm is an essential task of WSEs. It is the means by which waste is removed from a residence, albeit from a bin placed on the footpath, and loaded onto the vehicle. WSEs operate the side lift arm by use of a joystick, which is not a typical function of a truck driver but is in addition to that function. The joystick is used while the WSE remains in control of the vehicle. However, the focus by the CFMEUQ on the operation of the side lift arm in the actual collection of waste is to focus on one aspect of the work, contrary to the dicta in CSBP. It does not consider the totality of the work, which includes driving both to collect and to transport waste.
Nor does it consider the primary purpose of the WSEs in the context of the employer's organisation of work. The origins of the work show that three employees were involved in the task; one of whom drove a conventional truck. With the advent of the side lift vehicle it was no longer necessary for runners to be engaged but the role of the driver was maintained.
The organisation of work is such that WSEs are required to drive a vehicle to a specified run and while there continue to drive or control it as well as to operate the side lift arm. Except for when the WSE alights from the vehicle, the evidence from Mr Maudsley, Mr Marriner and the WSE witnesses is that the WSE is always in control of the vehicle and responsible for its safe operation both while driving it and when using the side lifting device. The evidence also shows that when using the side lift arm, WSEs remain in control of the vehicle by keeping one hand on the steering wheel and always have one foot on the brake pedal when it is stationary. They are constantly vigilant for the safe operation of the vehicle (including the side lift arm) by using the reversing camera, side mirrors and monitors. When the hopper is full, the WSEs transport the waste to the refuse site.
[100]Although the CFMEUQ referred to the "driver's cabin" and the "operator's cabin", as the Council noted in its submissions, there is only one cabin of the vehicle. Further, most of the equipment in the cabin is replicated or can be operated from the right or left hand side, except for the joystick used to operate the side lift arm. The equipment, such as the monitors referred to earlier and the two way system, are able to be operated regardless of whether the WSE is in the left or right hand seat.
[101]I have concluded that the evidence shows that the primary purpose of the work performed by the WSEs is driving to collect and transport waste. Having regard to the skills exercised by WSEs it is to diminish their work to argue that the primary purpose of the work is the collection of the waste by use of the side lift arm. The evidence is that employees drive to an area for the purpose of collecting the waste, drive between each residence, drive to the refuse station and drive to and from the depot. Without the vehicle, the work of collecting the waste could not occur. Moreover, the waste could not be transported to the refuse station for disposal.
[102]I accept that driving the vehicle is not the only function of the role of the WSE. The operation of the side lift arm is integral to the role as it is the means by which bins are lifted, emptied and returned to the ground. However, neither the qualitative assessment nor the quantitative assessment or in combination, support a conclusion that the operation of the side lift arm is the primary purpose of the role. To use Mr Maudsley's words, "[b]ut for the need to collect and transport waste the WSE would not need to operate the lifting device". In my view, the operation of the side lift arm is ancillary to the primary purpose of driving.
Nature of the Vehicle
[103]It is common ground that side lift vehicles are ordered as a whole and are delivered by the manufacturer incorporating the hydraulically powered lifting device. Because of this the CFMEUQ contends that the side lift units are not the result of modifications to an existing truck and cannot be considered to be "motor trucks". The CFMEUQ contends that the strict and narrow construction of the proviso means that regard must be had to the archaic language and what it was understood to mean when it was introduced in the 1940s. The CFMEUQ argues that the meaning of the term "motor truck":
"catches only old-fashioned trucks such as lorries, flat bed trucks, tip trucks and the like and such vehicles which have been modified, but not to the extent that such modifications cause the driver of such vehicles to have a primary purpose in their employment other than driving a motor truck as if it were a lorry, flat bed truck, tip truck and the like."
[104]To assist in the determination of the issue of whether the side lift vehicle is properly classed as a truck, the Commission was taken to two cases where the federal Conciliation and Arbitration Commission considered whether particular vehicles were a truck for the purposes of the proviso in the FEDFA rules. In The Federated Engine Drivers' and Firemen's Association of Australasia v Abbots Proprietary Limited and Others,[16] ('Abbots') McCreadie C was considering whether certain types of equipment could be classed as a truck. In this regard he said:
[16] The Federated Engine Drivers' and Firemen's Association of Australasia v Abbots Proprietary Limited and Others (1967) 124 CAR 93 at 101.
"Driving a post hole digger that is mounted on a truck is not truck driving. Here the main function is to drive the engine which lines up, lowers, raises and drives the drill."
[105]In Comalco Aluminium Limited v The Australian Workers' Union and The Federated Engine Drivers' and Firemen's Association of Australasia,[17] Marks J was considering whether a vehicle, which had been modified by strengthening the chassis and had affixed a Hiab lifting device, was a motor truck. The purpose of the Hiab device was to lift and transport items to be maintained by the field workshop. Marks J held:
[17] Comalco Aluminium Limited v The Australian Workers' Union and The Federated Engine Drivers' and Firemen's Association of Australasia (1982) 279 CAR 456 at 352.
"I have formed the view that the basic vehicle is a motor truck and that the fact that it was refitted and the chassis strengthened to enable it to have mounted upon it a 12 tonne Hiab does not result in it no longer being a motor truck. The mounting of a Hiab upon the 'Leader' motor truck has not in my view changed the unit's nature from that of a motor truck."
[106]The Commission accepts that the side lift units are delivered as an integrated whole. From the photographs submitted and the video evidence the vehicles look like trucks albeit that a side lift arm is fitted. The side lift arm and certain other functions of the vehicle are powered by a hydraulic pump which in turn is powered by the vehicle's transmission. However, the waste collection body is built on a truck chassis which has been modified and is certified as such under the TORUM Act.
[107]As the TWU submits, the side lift arm has no purpose of its own. Without the vehicle, the side lift arm would not be able to access the bins. This distinguishes it from the post hole diggers that were being considered in the Abbots decision.
[108]I accept that the term "motor truck" has fallen out of disuse, much like the term "motor car" and, to a lesser extent, "motor vehicle". However, the meaning of words is not static and cannot be confined to the meaning they held when the words were first placed into the rules. They must take account of changing technologies.[18]
[18] Co-operative Bulk Handling Ltd v Australian Workers' Union West Australian Branch Industrial Union of Workers and Waterside Workers Federation of Australia (1980) 32 ALR 541 at 548.
[109]The second decision cited above, in particular, shows that changing technologies have been taken into account in construing the term "motor truck". From this I consider that the term "motor truck" is intended to convey the more conventionally understood term, "truck". Support for this view can be drawn from the historical documents tendered. The records of the TWUA show that during discussions the members of the Executive referred to "trucks" rather than "motor trucks", which was the term ultimately included in the proviso.
[110]It is clear that the vehicles used in domestic waste collection and transport have had installed various pieces of equipment beyond that found in conventional vehicles. The side lift arm, PTO system, dual controls and monitors are examples. These give the vehicle a level of sophistication which is not found in a conventional truck. However, these are aids to assist the driver in the collection and transport of waste.
[111]Some attempt was made by the CFMEUQ to liken the operation of the side lift vehicle to other equipment for which the CFMEUQ has coverage, although it was not its intention to seek to reclassify the vehicles so that coverage could be claimed. For example, a joystick is used in excavators as well as the side lift vehicle. However, as Mr Marriner said, and I accept, the joysticks are different in style and function.
[112]The vehicle is registered by law as a truck and is driven on public roads, unlike other types of equipment such as back-hoes and front-end loaders which are not permitted on public roads without a permit.
[113]The side lift vehicle looks like a truck, is registered as a truck and is driven as a truck to collect and transport waste. That is has been fitted with dual controls and other pieces of equipment have been installed, including the side lift arm, has not changed its nature from that of being a truck. For these reasons, I have reached the clear view that the vehicle with the side lift arm incorporated is a motor truck.
[114]The CFMEUQ submits that the language in the proviso does not comprehend the operators of modern side lift vehicles, given the evidence of WSEs about the nature of their work with the effect that WSEs cannot be considered to be motor truck drivers and thus not excluded from eligibility. This argument has been advanced consistent with its position that the proviso is to be construed strictly albeit objectively.
[115]In my view the argument about the construction of the proviso cannot be accepted. The decision in Re Grimshaw[19] requires a proviso to be construed objectively. The proviso includes the phrase, the subject of these proceedings, "motor truck drivers wherever employed". This concept is not frozen in time and must take account of changing technologies. The side lift vehicle has been found to be a motor truck and the primary purpose of WSEs is to drive the truck to collect and transport waste.
[19] Re Grimshaw; Ex Parte Australian Telephone and Phonogram Officers' Association (1986) 60 ALJR 588.
Conclusions on Eligibility
[116]The decision that the primary purpose for which WSEs are employed is driving to collect and transport waste was reached for reasons including the skills exercised and the organisation of the Council's work in respect of waste services. The work is performed by WSEs in vehicles that have been determined to be motor trucks. WSEs are engaged to drive the side lift truck for the purpose of collecting and transporting waste. The operation of the side lift arm was found to be ancillary to the primary purpose. It follows from all of this that WSEs are motor truck drivers.
[117]The Commission accepts the submissions of the Council that the calling of truck driver has not changed. What has changed is how that calling is performed, with the assistance of technology. The CFMEUQ (through the eligibility clause of the FEDFAQ) could not enrol waste truck drivers before the advent of the side lift truck and the introduction of this technology, in my view, does not alter that position when the primary purpose of the employment has not changed.
[118]Applying s 531 of the Act to the present matter, a WSE is eligible to become a member of the CFMEUQ if the WSE both engages in a calling for which the CFMEUQ is registered and complies with its rules. The nature of the occupation or employment establishes that WSEs are motor truck drivers. The registered List of Callings prescribes the callings to which the eligibility rules relate. The eligibility rules and the List of Callings of the CFMEUQ include "motor drivers". It is open to debate as to whether motor truck drivers are a section of the calling of "motor driver" or are a discrete calling. (Schedule 5 of the Act defines a "calling" as including a section of a calling.) In the context of this decision, it is unnecessary to make a definitive finding on this point because the second limb of s 531 requires the WSE to comply with the rules of the CFMEUQ.
[119]The primary grant of Section A7 B(a) of the rules of the CFMEUQ makes "motor drivers" eligible for membership but this is qualified by the proviso which makes ineligible for membership, "motor truck drivers wherever employed". As WSEs have been found to be motor truck drivers, they cannot comply with the rules of the CFMEUQ because of the effect of the proviso. The result is that the second limb of s 531 is not satisfied. The Commission formally finds that WSEs are ineligible for membership of the CFMEUQ.
[120]The Council has also sought Declarations encompassing commercial waste vehicles. Although the eligibility for membership of employees driving these vehicles is no longer being contested by the CFMEUQ, in the circumstances the Commission still needs to consider the matter.
[121]The Commission was also provided with photographs of the four types of commercial vehicles and evidence about them, primarily in the affidavits of Mr Maudsley.
[122]It is important to note that WSEs may be required to drive any of the waste vehicles in the Council's fleet. All of the five vehicles are registered as trucks under the TORUM Act and WSEs are required to hold a HR licence to drive them. No other licence is required to operate them. The vehicles are operated on public roads and residential, commercial and industrial areas. The Council submits that the WSEs, regardless of whether they drive a commercial or domestic waste vehicle, are employed to drive a truck to collect and transport waste.
[123]From the descriptions given earlier in this decision and the affidavits of Mr Maudsley, the Commission is satisfied that the primary purpose of the WSEs in respect of the four commercial vehicles is to collect and transport waste.
Declarations
[124]The evidence of Mr Higgins is that CFMEUQ has enrolled or purported to enrol 22 domestic and commercial WSEs employed by the Council as members. It is clear from the background to the making of this application, which was outlined earlier, that industrial disputation has occurred and is likely to continue unless the issue of the eligibility of the WSEs for membership of the CFMEUQ is resolved. The findings made in this decision by the Commission are clear that WSEs are not eligible for membership of the CFMEUQ because, by the nature of their occupation or employment, they are not engaged in a calling for which the CFMEUQ is registered and do not comply with its rules. For these reasons and in order to prevent further disputation, which is unsettling for both the employees and the employers, I consider declarations should be made.
[125]In so doing I note that the CFMEUQ does not contest the other classes of waste vehicle which are used for commercial purposes. Arguably, given this concession, it may be unnecessary to include commercial vehicles in the declarations. However, given the history of disputation and for the avoidance of doubt in the future, I consider that drivers of the commercial waste vehicles should also be captured by the declarations made.
[126]Accordingly the declarations sought by the Council's application will be made in the terms sought.
[127]Pursuant to s 274A of the Act the Commission declares:
1.Any person employed by the Ipswich City Council in the occupation or calling of domestic or commercial waste driver is not eligible to be a member of the Construction, Forestry, Mining & Energy, Industrial Union of Employees, Queensland; and/or
2.The Construction, Forestry, Mining & Energy, Industrial Union of Employees, Queensland is not entitled to enrol or keep enrolled as a member any person who is employed by the Ipswich City Council in the occupation or calling of domestic or commercial waste driver; and/or
3.The Construction, Forestry, Mining & Energy, Industrial Union of Employees, Queensland does not have the right to represent under the Industrial Relations Act the industrial interests of employees of the Ipswich City Council employed in the occupation or calling of domestic or commercial waste driver.
[128]Order accordingly.
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