Maritime Union of Australia v JKC Australia LNG Pty Ltd
[2016] FWC 201
•20 JANUARY 2016
| [2016] FWC 201 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.505 - Application to deal with a right of entry dispute
Maritime Union of Australia
v
JKC Australia LNG Pty Ltd
(RE2015/367)
COMMISSIONER CLOGHAN | PERTH, 20 JANUARY 2016 |
Dispute concerning INPEX Project at Darwin Harbour.
[1] Mr Mayor is the Branch Secretary of the Northern Territory Branch of the Maritime Union of Australia (MUA).
[2] JKC Australia LNG Pty Ltd (JKC or Respondent) is the occupier of premises at Blaydin Point in Darwin Harbour. Blaydin Point is the site of the on-shore component of the Ichthys Liquefied Natural Gas Project (Ichthys LNG Project). JKC has been engaged by the INPEX Joint Venture (INPEX JV) which owns the Ichthys LNG Project. JKC has been engaged by the INPEX JV as the engineering, procurement and construction (EPC) contractor for the on-shore construction and processing plant of the Ichthys LNG Project.
[3] Mr Mayor gave notice to JKC, pursuant to s.484 of the Fair Work Act 2009 (FW Act), that he intended to enter the ALE Hydro Deck (Hydro Deck) at the INPEX Project Module Offloading Facility (MOF). Mr Mayor was denied entry to the premises by representatives of JKC.
[4] The MUA filed an application with the Fair Work Commission (Commission) pursuant to s.505 of the FW Act.
[5] On 20 October 2015, I issued an Interim Decision [2015] FWC 4731 into the MUA’s application.
[6] In the Interim Decision, I informed the MUA that I would not make a conclusive decision on the application until:
- the Union clarified which employees on the Hydro Deck it asserts it is eligible to represent in accordance with its Registered Rules; and
- whether any of the exclusion provisions contained in the MUA’s Registered Rules apply in relation to the employees, it asserts, it is eligible to represent.
[7] Further, the employees, excluding salaried staff, on the Hydro Deck are presently covered by the ALE Heavylift (Australia) Pty Ltd Ichthys Onshore Construction Greenfields Agreement (ALE Greenfields Agreement). In such circumstances, I determined, in the Interim Decision, that it was appropriate that the union parties to the ALE Greenfields Agreement, have the opportunity to make submissions, should they wish, on the MUA’s contention that it is eligible to represent the industrial interests of employees on the Hydro Deck.
[8] Following the Interim Decision, on 29 October 2015, I sought submissions from the Australian Maritime Officers’ Union (AMOU); Australian Institute of Marine and Power Engineers (AIMPE); Construction, Forestry, Mining and Energy Union; Communication, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU); Automotive, Food, Metals, Engineering, Printing and Kindred Industrial Union known as the Australian Manufacturing Workers’ Union (AMWU); and the Australian Workers’ Union (AWU) by 13 November 2015.
[9] The AWU was the only party to provide a submission; it made a submission on 12 November 2015.
[10] Following receipt of the AWU’s submission, I issued further Directions on 19 November 2015, to enable the parties to make further submissions on the matters raised in my Interim Decision and the AWU’s submission.
[11] Having received the further submissions of the parties, and the AWU’s submission, this is my decision and reasons for decision on the MUA’s application.
[12] For convenience, I refer in the first instance to the issues arising out of the Interim Decision.
Which employees does the MUA assert it is eligible to represent industrially on the Hydro Deck?
[13] The MUA asserts that it is eligible to represent industrially all non-management employees on the Hydro Deck. 1
[14] The non-management employees are currently covered by the ALE Greenfields Agreement.
Whether any of the exclusion provisions contained within the MUA’s Registered Rules apply to the relevant employees in paragraph [13] above?
[15] Having considered the submissions of the parties and the focus on my decision below, I am satisfied that the exclusions contained in the MUA’s Registered Rules, are not relevant for the purposes of this application.
CONSIDERATION
[16] The primary question to be determined is whether the MUA is entitled to represent the industrial interests of the non-management employees on the Hydro Deck.
[17] The MUA submit that it has coverage of employees on the Hydro Deck on four separate bases:
“a. Rule 3.1(a)(i) provides the "Union shall be composed of any number of: (i) bosuns …trainee catering attendants". The applicant asserts that various of the classifications of employees working on the Hydro Deck fall within the classifications of employees enumerated in that segment of Rule 3.1(a)(i).
b. Rule 3.1(a)(i) provides the "Union shall be composed of any number of: (i) … employees engaged on working on … barges". The applicant asserts that the Hydro Deck is a barge and all non-managerial employees working on the Hydro Deck are covered by that element of Rule 3.1(a)(i).
c. Rule 3.1(a)(i) provides the "Union shall be composed of any number of: (i) … employees working on river and harbour vessels". The applicant asserts that the Hydro Deck is a harbour vessel and all non-managerial employees working on the Hydro Deck are covered by that element of Rule 3.1(a)(i).
d. Rule 3.2(a) provides that "Without limiting the generality of Part S, or being limited thereby, the Union shall also consist of: (a) Any person who intends to follow the occupation of waterside worker". The applicant asserts that the employees on the Hydro Deck (inclusive of the Trades Assistant/Labourers, Leading Hands, Mechanical and Electrical Technicians and Ballast Operators) are engaged in the process of unloading of cargo from ships, including by their role in maintenance of the Hydro Deck, and so are following the occupation of waterside worker within the meaning of Rule 3.2(a).”
[18] Having been “guided” by the MUA’s bases and the Respondent’s response to the bases, I also intended to follow and consider each separate basis for the MUA’s submission. In my view, that would be a mistake and lead to a consideration of a multitude of other issues which are a distraction from the resolution of the primary issue.
[19] I intend to resist addressing all the matters relating to Part S of the MUA’s Registered Rules, and simply go straight to Part W and consider whether the relevant employees are “waterside workers” on the facts and case law. If the relevant employees are “waterside workers”, they are eligible to be members of the MUA.
Pursuant to the MUA’s Registered Rule 3.2(a), are the relevant employees following the occupation of a waterside worker?
Approach to the interpretation of union rules
[20] The MUA refer to R v Cohen; Ex parte Motor Accidents [1979] HCA 46(R v Cohen). In R v Cohen, Mason J stated:
“…it should be recognized at the outset that we are concerned with the use of that expression [the business of insurance] in the eligibility clause of a trade union’s registered rules. The expression is, in such a context, no doubt 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.” 2
[21] R v Cohen was dealing with a union rule relating to employees employed “in connection with the industry of insurance”. The High Court was dealing with eligibility rules which depended on the nature of the business rather than upon the nature of the specific work carried out by the employees, as is the case in this application.
[22] The MUA submit that, relying on Electrical Trades Union of Australia v Waterside Workers’ Federation of Australia [1982] FWC 36 (26 March 1982) (ETU), a “broad approach to the construction of union rules has been consistently and explicitly applied as a bedrock principle”. Further, relying on R v Williams; ex parte The Australian Building Construction Employees’ and Builders Labourers’ Federation (1982) 153 CLR 402 at 408, the MUA assert that union eligibility rules “must be construed objectively…however, it is permissible to 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”.
MUA Registered Rule 3.2(a)
[23] MUA Registered Rule 3.2(a) states, “Without limiting the generality of Part S, or being limited thereby, the Union shall also consist of:
(a) Any person who intends to follow the occupation of waterside worker, including without limiting the foregoing any employee referred to in Sub-Rule (b) of this Part W.”
[24] The MUA came into existence on 1 July 1993 following the amalgamation of the Seamen’s Union of Australia (SUA) and the Waterside Workers Federation of Australia (WWF).
[25] Prior to the amalgamation, the Australian Industrial Relations Commission (AIRC), in a Decision of 20 November 1990, was satisfied that the WWF had properly effected an alteration to its eligibility rules which relevantly reads:
“6 – ADMISSION TO MEMBERSHIP
(a) Any person who intends to follow the occupation of a waterside worker, who is of respectable character and of the age of at least 18 years and not exceeding 45 years and who is reasonably competent and able to perform all the duties of a waterside worker including, without limiting the foregoing, any employee referred to in paragraph 6(g)(iii) hereof, may become a member and be enrolled as a member of the Federation, subject to the following provisions…”
[26] Prior to the AIRC Decision of 20 November 1990, by a Decision of the then Industrial Registrar on 6 July 1973, the WWF registered rules were relevantly altered from:
“The purpose of the organisation is to combine in one body all persons engaged in the loading discharging and coaling of vessels, in order that their interests may be protected, their status raised and their conditions improved.
Any male (except Asiatics and subjects not naturalised and resident in Australia for at least twelve months) who intends to follow the occupation of waterside worker who is of respectable character and of the age of 20 years and who is reasonably competent to perform the duties of wharf labourer, stevedore, coal lumper, etc., and who agrees while a member to follow the above occupation, may become a member and be enrolled in any branch throughout the Commonwealth.”
to the following:
“(a) Any male who intends to follow the occupation of waterside worker who is of respectable character and of the age of at least 19 years and not exceeding 45 years and who is reasonably competent to perform the duties of a waterside worker may become a member and be enrolled as such in a branch of the Organisation within the Commonwealth, subject to the following provisions…”
[27] Putting aside the discriminatory aspects of the WWF rules prior to 1973, it is clear that the WWF was an organisation of members involved in the loading and unloading of vessels.
Case law
[28] I turn firstly to the ETU Decision.
[29] In ETU, the Full Court of the Federal Court held that eligibility rules should be liberally construed, but also:
- the phrase “waterside worker” should be construed objectively, that is, to be given the ordinary meaning which it bears generally among people concerned with industrial matters in relevant related industries;
- the function of loading and unloading ships lies at the heart of the occupation of a waterside worker;
- the worker’s predominant activities are on, or in the vicinity of, a wharf and constitute part of the overall stevedoring operations of loading and unloading ships.
[30] The phrase “waterside worker” was introduced and became effective in June 1932.
[31] While the Federal Court, in ETU, acknowledged the assistance of extrinsic material, the Court observed that less assistance is derived from “particular witnesses who gave evidence [of] their occupation as ‘maintenance fitter’ or ‘fitter and machinist’ rather than ‘waterside worker’.” Likewise, I find little assistance in the nomenclature given to the relevant employees in this application, which was intended to demonstrate that employees were either a waterside worker, or not.
[32] In R v Isaac; Ex parte Transport Workers’ Union of Australia (1985) 159 CLR 323-333, it was acknowledged that an employee’s classification can be described in a number of ways and the fact that it falls within one description does not mean it does not fall within another.
[33] The determining factor of whether the eligibility provisions of a union’s registered rules apply in the case of “occupational rules”, is not their job title but the duties which they undertake. 3
[34] Succinctly, in ETU, the Full Court states, “Repeatedly, in the reported cases, one finds recognition that the function of loading and unloading ships lies at the heart of the occupation of a waterside worker”.
[35] The Full Court in ETU also acknowledged the changing nature of the stevedoring industry in which mechanization has crucially changed the way ships are loaded and unloaded. The “tools of the trade” of a waterside worker, the Court states, are no longer hooks, slings, trolleys and nets, but “complicated” machines. The Full Court stated that, “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”.
Evidence
[36] At this point, and in context, it is useful to set out the following written agreed facts of the parties:
- “At the onshore facility, large modules arrive on large ships called heavy lift vessels from…” 4;
- the Hydro Deck, “works in conjunction with the Module Offloading Facility (MOF) for onshoring modules and infrastructure used in construction.” 5(my emphasis);
- the Hydro Deck “remains secured to the MOF via moorings to berthing dolphins and one line to the MOF” 6;
- “the heavy lift vessels are…moored to the MOF berthing dolphins” 7.
[37] The Respondent states that the Hydro Deck, “is used to enable the offloading of some vessels due to the significant tidal variations in Darwin Harbour. The Hydro Deck has the sole purpose of facilitating the movement of modules for the purpose of construction”. 8
[38] The critical summation from these facts is that large modules arrive by ship and have to be offloaded onto land. The Hydro Deck, in my view, is a sophisticated “tool” in transitioning the modules from the ship to land.
[39] Even the name Module Offloading Facility is indicative of its purpose, that is, the offloading or unloading, in this case, large modules from vessels.
[40] While the ships do not moor alongside the MOF and offload the modules directly onto the MOF, in my view, this is not fatal to the unloading process.
[41] Mr George’s evidence is consistent with the agreed facts and the Respondent’s statement of facts. Modules are offloaded from the Heavy Lift Vessels onto the Hydro Deck. “The Hydrodeck is then adjusted to the required height of the MOF. Next, the module is driven on shore directly to the on shore facility.” “The Hydrodeck has the sole purpose of facilitating the movement of modules to the on shore facility.” 9
[42] Mr George describes the Hydro Deck as a “transition pontoon”. It is not necessary to determine whether it is a “transition pontoon” or a “barge” or a “vessel”; it is simply a piece of machinery which “transitions” modules from ship to shore.
[43] In his written evidence, Mr George attaches the Lloyd’s Register Classification of the Hydro Deck being a “Pontoon”. The certificate incorporates the descriptive note that the bottom has been strengthened for “loading and unloading” purposes. 10
[44] A central consideration, in this application, is the purpose of Hydro Deck and what role it plays when functional. Clearly, it is a piece of equipment, albeit floating, which facilitates cargo going from ship to shore. However, this is not the only consideration I am required to consider; it is also necessary to consider the activities of the employees involved in the overall operation of loading and unloading of the heavy lift vessels.
[45] The parties have agreed on the work carried out by the relevant employees and it is unnecessary to set those duties out in detail. 11
[46] There are two shifts of workers on the Hydro Deck – morning and evening shift 12. “Each shift has its own team of personnel to maintain and operate and manage the Hydrodeck for the shift.”13
[47] The parties agree that, broadly, the Hydro Deck employees work relates to:
“(1) attending to the lines of the hydrodeck, ensuring the lines are not too tight and will not part;
(2) using powered winches to position the Hydrodeck relative to the MOF;
(3) operating the ballast system of the Hydrodeck;
(4) maintaining the Hydrodeck, including its mechanical and electrical systems;
(5) operating the Hydrodeck’s mechanical and electrical systems, including the generator used to create electrical power to power systems on board the Hydrodeck. The generator does not create propulsion power to drive a a (sic) propulsion system;
(6) running the Hydrodeck’s system for raising and lowering fixed hydraulic ramps onto vessels and the MOF ;
(7) putting in place and removing safety barriers at either end of the hydraulic ramps; and
(8) monitoring and maintaining a required gap between the hydraulic ramps and the surface of the MOF and moored heavy lift vessels.” 14
[48] From the evidence, it is clear that the employees on the Hydro Deck are not continuously involved in the offloading of modules. However, the employees are involved, almost continuously, to ensure that a piece of equipment involved in the unloading of the heavy lift vessels – the Hydro Deck – is ready and fit for purpose when offloading occurs.
[49] In a functional context, the employees on the Hydro Deck are doing no more, or less, than a crane driver or a mechanical tradesperson, in carrying out duties to ensure that a crane is fit for purpose, in unloading cargo when required.
[50] It is difficult to escape the fact that the Hydro Deck is nothing more than a sophisticated “tool” to assist in the unloading of modules from ships. It is not disputed that the relevant employees are primarily involved in ensuring that the “tool”, or Hydro Deck, is “fit for purpose” to ensure that the offloading of the modules is carried out safely and without damage.
[51] To conclude, as was recognised by the Full Court in ETU, mechanization has transformed the loading and unloading of ships; consequently, the meaning of “waterside worker” is amenable to change.
[52] Further, while in ETU, the relevant electricians and mechanical fitters were not employed by a stevedoring company, the fact that the employees were employed full-time at the site of the loading and unloading of ships, and engaged in the repair and maintenance of equipment which facilitated those operations, was persuasive in the Court determining that they were waterside workers. Broadly, the same facts are present in this application.
[53] In conclusion, for the reasons outlined above, I find that the non-management employees on the Hydro Deck are engaged in using, maintaining and monitoring equipment used in the loading and unloading of heavy lift vessels, and consequently, as the case law indicates, are within the well understood ordinary meaning of waterside worker – the activity of loading and unloading of ships.
[54] I now turn to the issue of whether the Commission, when dealing with a dispute about the operation of Part 3-4 of Division 5 of the FW Act, has the power to make a declaration that the MUA is entitled to represent the interests of employees on the Hydro Deck.
Respondent’s Submission
[55] The Respondent’s submission is succinctly as follows:
“JKC’s position is that the MUA is not entitled to represent the industrial interests of employees performing work at the Hydrodeck.
JKC accepts that if the MUA had that entitlement then its permit holders would have a right to enter the Hydrodeck under Part 3-4 of the FW Act.” 15
Legislative Framework
[56] Section 505 of the FW Act is as follows:
“(1) The FWC may deal with a dispute about the operation of this Part, including a dispute about:
(a) whether a request under section 491, 492A or 499 is reasonable; or
(b) when a right of the kind referred to in section 490 may be exercised by a permit holder on premises of a kind mentioned in subsection 521C(1) or 521D(1), despite that section; or
(c) whether accommodation is reasonably available as mentioned in subsection 521C(1) or premises reasonably accessible as mentioned in subsection 521D(1); or
(d) whether providing accommodation or transport, or causing accommodation or transport to be provided, would cause the occupier of premises undue inconvenience as mentioned in paragraph 521C(2)(a) or 521D(2)(a); or
(e) whether a request to provide accommodation or transport is made within a reasonable period as mentioned in paragraph 521C(2)(c) or 521D(2)(c).
Note 1: Sections 491 and 499 deal with requests for permit holders to comply with occupational health and safety requirements.
Note 2: Section 492A deals with requests for a permit holder to take a particular route to a room or area in which an interview is to be conducted or discussions held.
Note 3: Section 490 deals with when rights under Subdivision A, AA or B of Division 2 of this Part may be exercised.
Note 4: Sections 521C and 521D deal with accommodation in and transport to remote areas for the purpose of exercising rights under this Part.
(a) an order imposing conditions on an entry permit;
(b) an order suspending an entry permit;
(c) an order revoking an entry permit;
(d) an order about the future issue of entry permits to one or more persons;
(e) any other order it considers appropriate.
Note: The FWC may also deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion (see subsection 595(2)).
(3) The FWC may deal with the dispute:
(a) on its own initiative; or
(b) on application by any of the following to whom the dispute relates:
(i) a permit holder;
(ii) a permit holder’s organisation;
(iii) an employer;
(iv) an occupier of premises.
(4) In dealing with the dispute, the FWC must take into account fairness between the parties concerned.
(5) In dealing with the dispute, the FWC must not confer rights on a permit holder that are additional to, or inconsistent with, rights exercisable in accordance with Division 2, 3 or 7 of this Part, unless the dispute is about:
(a) whether a request under section 491, 492A or 499 is reasonable; or
(b) when a right of the kind referred to in section 490 may be exercised by the permit holder on premises of a kind mentioned in subsection 521C(1) or 521D(1), despite that section; or
(c) whether accommodation is reasonably available as mentioned in subsection 521C(1) or premises reasonably accessible as mentioned in subsection 521D(1); or
(d) whether providing accommodation or transport, or causing accommodation or transport to be provided, would cause the occupier of premises undue inconvenience as mentioned in paragraph 521C(2)(a) or 521D(2)(a); or
(e) whether a request to provide accommodation or transport is made within a reasonable period as mentioned in paragraph 521C(2)(c) or 521D(2)(c).”
[57] Section 484 of the FW Act reads:
“A permit holder may enter premises for the purposes of holding discussions with one or more employees or TCF award workers:
(a) who perform work on the premises; and
(b) whose industrial interests the permit holder’s organisation is entitled to represent; and
(c) who wish to participate in those discussions.
Note 1: A permit holder, or the organisation to which the permit holder belongs, may be subject to an order by the FWC under section 508 if rights under this Subdivision are misused.
Note 2: A person must not refuse or unduly delay entry by a permit holder, or intentionally hinder or obstruct a permit holder, exercising rights under this Subdivision (see sections 501 and 502).
Note 3: Under paragraph 487(1)(b), the permit holder must give the occupier of the premises notice for the entry. Having given that notice, the permit holder may hold discussions with any person on the premises described in this section.”
Respondent’s Jurisdictional Submission
[58] The Respondent’s jurisdictional submission is that the Commission does not have the power to deal with the application because:
- the application does not deal with a dispute about the operation of Part 3-4 of the FW Act;
- “this is in fact a dispute as to whether the MUA has a right of entry under part 3-4 of the FW Act at all”; and
- the Commission has no jurisdiction to grant the remedy sought by the MUA, which is that the MUA has an entitlement to enter the Hydrodeck and/or compelling JKC to permit the MUA to enter the Hydrodeck. 16
[59] Sub-section 505(1) of the FW Act empowers the Commission with the discretionary power to deal with a dispute about the operation of Part 3-4 of the FW Act, including disputes about the matters listed in paragraphs 505(1)(a) to (e).
[60] Part 3-4 of the FW Act deals with the rights of officials of organisations, who hold entry permits, to enter premises for purposes related to their representative role under the FW Act or state or territory occupational health or safety laws.
[61] Division 2, and particularly Subdivision B of Part 3-4 of the FW Act, enables permit holders, subject to certain statutory requirements, to enter premises for the purpose of holding discussions with employees who perform work on those premises.
[62] A person must not refuse or unduly delay, hinder or obstruct entry by a permit holder exercising their rights under Part 3-4 of the FW Act (see s.484 Note 2).
[63] The Australian Concise Oxford Dictionary (ACOD) defines “operation” (in this case Part 3-4 of the FW Act) as “operating or being operated, working, action, way things work…discharge of function”.
[64] The Respondent submits that the reference to “operation” “limits the range of matters to which s.505 extends. It can only extend to matters relating to how rights of entry are to be exercised not whether a right to enter exists”. 17
[65] Put differently, the Respondent asserts, “the sole issue for determination by the FWC is whether the MUA has an existing right of entry capable of being exercised under Part 3-4 of the FW Act or that could be the subject of the operation of Part 3-4. The existence or otherwise of a right to enter is distinct from the operation of the right of entry provisions”. 18
[66] It is useful to commence with s.505(5) of the FW Act which states that the Commission “must not confer rights on a permit holder that are additional to, or inconsistent with, rights exercisable in accordance with Division 2, 3 or 7 of this Part [3-4], unless…” . The limitations in subsection 505(1)(a) to (e) are not relevant. However, what is relevant is that the Commission cannot confer rights on a permit holder beyond what the legislation has expressly given to the permit holder.
[67] Section 484(b) of the FW Act provides the MUA with the ability to “enter premises for the purposes of holding discussions [with employees]…whose industrial interests the [MUA] is entitled to represent”. Having considered the factual background and case law above, I reached a finding that the MUA is entitled to represent the industrial interests of the non-management Hydro Deck employees. Consequently, this application is not an issue of the Commission conferring additional rights on the permit holder beyond what the legislation has already provided to a permit holder.
[68] The conclusion of the Respondent’s argument is that the MUA is not entitled to represent the industrial interests of the relevant employees on the Hydro Deck, and consequently, has no right under the FW Act to enter the premises. The Respondent relies on an assertion or a proposition that the relevant employees are not waterside workers.
[69] However, if the Respondent’s assertion or proposition is not correct, and the facts and case law demonstrate that employees are waterside workers, the conclusion that the permit holder is not entitled to represent the employees is false. Consequently, the MUA’s permit holder is, pursuant to s.484 of the FW Act, entitled to enter the premises to hold discussions with the relevant employees.
[70] Put shortly, the Commission is not conferring a right or prescribing a right upon the MUA or its permit holders. What the Commission is doing, having considered the facts and the case law in the dispute, is reaching a finding that the MUA’s permit holders have a right, pursuant to Part 3-4 of the FW Act; a right which it has attempted to exercise but has been prevented from doing so. The Commission is not prescribing a right or conferring a new right on the MUA’s permit holders; the MUA’s permit holders have, and continue to have, a right pursuant to s.484 of the FW Act in relation to certain employees on the Hydro Deck.
[71] The Respondent submits that I am being required to determine what rights and obligations should be “brought into existence”. I am not.
[72] I now turn to the issue concerning the word “operation” in s.505(1) of the FW Act.
[73] The scheme of the FW Act relating to Part 3-4 expressly provides for the Commission to deal with disputes regarding the operation of Part 3-4.
[74] This dispute, simply put, is the Respondent’s refusal to grant Mr Mayor entry, pursuant to Part 3-4 of the FW Act, to the site in which the Hydro Deck is located.
[75] The principal purpose of Part 3-4 of the FW Act is contained in its title, “Right of Entry”. Its principal purpose or objective, is to enable officials of organisations to enter premises in a way which recognises the rights of occupiers of premises, and employers, to go about their business without undue inconvenience.
[76] To achieve the principal purpose above, Part 3-4 is divided into seven (7) Divisions which are intended to give effect to that objective. Parliament recognised that in achieving this objective, there would be disputes about the operation of the Part – that is, how Part 3-4, “works”, “operates”, acts/actions” or “discharges” its function. In other words, the Commission is empowered to deal with disputes to give effect to Parliament’s principal purpose in Part 3-4 of the FW Act.
[77] In this particular application, there is a dispute regarding whether the MUA is entitled to represent the industrial interests of the relevant workers on the Hydro Deck. The dispute is no more complicated than dealing with meaning and effect of the operation of s.484(b) of Part 3-4 of the FW Act.
[78] Both parties referred me to a number if decisions of the Commission and the Australian Industrial Relations Commission. I have considered these submissions and consider it necessary only to set out in detail the decision of the Full Bench in Police and Nurses Credit Society Limited v Finance Sector Union of Australia (PR939977) (PNCS v FSU).
[79] By way of background to PNCS v FSU, the Full Bench stated:
“[32] The appellant contends that the Commissioner had no jurisdiction to make the order which he did, or even to deal with the matter, because the only point at issue in the proceedings was a bald claim by the FSU that it had a right to enter the appellant’s premises, and an attempt to enforce that right.
[33] Characterised in this way it is submitted that the object of the proceedings at first instance was the ascertainment of legal rights and obligations. As such the proceedings involved the exercise of judicial power. The Commission is not established as a court and hence cannot exercise judicial power.
[34] This ground of appeal is premised on the proposition that the only point at issue in the proceedings at first instance was whether the union had an existing legal right to enter the appellant’s premises pursuant to s.285C. It is conceded that members of the Commission frequently make findings as to an award’s application, but it is argued that the critical question is the purpose for which such findings are made…
…
[39] The appellant concludes with the proposition that where, as here, the dispute is simply about whether an award applies and whether, as a consequence, the union has right of entry, the proper place for the matter to proceed is in the Court. Reference is made to CPSU v Stellar Call Centres Pty Ltd as an example of such a proceeding.”
[80] In paragraphs [42] to [49], the Full Bench, after reviewing the case law, made general observations concerning the distinction between judicial and arbitral powers.
[81] The Full Bench proceeds:
“[64] In substance the dispute between the parties was about the appellant’s refusal to allow FSU permit holders to enter its premises for the purpose of holding discussions with members or persons eligible to be members. In resolving this dispute the Commissioner was entitled, as an incidental step in the proper exercise of its jurisdiction, to form an opinion about the legal effect of the 2001 Agreement vis-à-vis the 2001 Award, and the consequent effect on the FSU’s rights under s.285C.
…
[68] We have also had regard to the consequences of upholding the appellant’s contention. In our view it would lead to the emasculation of the powers conferred by s.285G. An employer could avoid the jurisdiction by the simple expedient of only contesting a union’s right to enter its premises under Part IX rather than disputing the manner in which such a right is to be exercised.
[69] We consider that the matter before the Commissioner called for the resolution of a dispute, not by the determination of what the existing rights and obligations of the parties are, but the ascertainment of what rights and obligations should exist. Contrary to the appellant’s submissions the Commission’s order involved the exercise of arbitral not judicial power.”
[82] Having considered the PNCU v FSU and the other cases cited, I am satisfied that the Commission, in this application, is not exercising judicial powers in determining the dispute.
CONCLUSION
[83] Having evaluated the evidence, both oral and documentary, considered the legislation and case law, and the various submissions, for the reasons set out above, I am satisfied that it was necessary to exercise my discretion to deal with the dispute. Having dealt with the dispute by arbitration, I find that the non-management employees on the Hydro Deck are waterside workers, and consequently, the MUA is entitled to represent their industrial interests. As the MUA is entitled to represent their industrial interests, a permit holder of the MUA meets the required “test” in s.484(b) of the FW Act. Accordingly, an Order will be issued to reflect my Decision.
COMMISSIONER
Final written submissions:
Applicant: 5 and 20 December 2015.
Respondent: 16 December 2015.
1 MUA Submission 20 December 2015
2 R v Cohen para 23
3 Transport Workers’ Union of Australia v Coles Supermarkets AustraliaPty Ltd [2014] FCCA 4 at [133]
4 Exhibit R7 (17)
5 ibid
6 Exhibit R7 (18(d))
7 Exhibit R7 (19)
8 Exhibit R3 (8)
9 Exhibit R5 (31)
10 Exhibit R5 (2)
11 Exhibit R7 (35), (37) to (48)
12 Exhibit R7 (27)
13 Exhibit R7 (27)
14 Exhibit R7 (30)
15 Exhibit R1 (9) and (10)
16 MUA further submissions 5 December 2015
17 Exhibit R1 (14)
18 Exhibit R1 (15)
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