Maritime Union of Australia v Toll Mermaid Logistics Broome Pty Ltd

[2015] FWC 5845

[2015] FWC 5845

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.229 - Application for a bargaining order

Maritime Union of Australia
v
Toll Mermaid Logistics Broome Pty Ltd
(B2014/1603)

COMMISSIONER CLOGHAN PERTH, 4 SEPTEMBER 2015

Application for a bargaining order.

[1] The MUA seek an order requiring Toll Mermaid Logistics Broome Pty Ltd (Employer or Toll Mermaid) to recognise and meet with the MUA as a bargaining representative for the purposes of negotiating for a replacement enterprise agreement to the Toll Mermaid Logistics Broome Enterprise Agreement 2011 (Agreement).

[2] I issued an Interim Decision ([2015] FWC 687) in relation to an application by the Maritime Union of Australia (MUA) for a bargaining order pursuant to s.229 of the Fair Work Act 2009 (FW Act).

[3] Subsequent to the Interim Decision, I held a conference of the parties and issued further Directions. I subsequently received written submissions.

[4] The relevant background and dispute between the parties is set out in my Interim Decision.

[5] At the conference and subsequently in Directions, I stated that for the MUA to
properly make an application for a bargaining order, it is necessary for the MUA to be a bargaining representative pursuant to s.229 of the FW Act.

[6] The MUA can only be a bargaining representative if:

(a) it has members at the workplace and it is the nominated or “default” bargaining representative; and

(b) it is entitled to represent the interests of the employees in relation to the work that is to be performed under the replacement agreement.

[7] Put shortly and simply, Toll Mermaid submit that the work performed by the employees under the proposed replacement agreement is not that of a “waterside worker”, and consequently, the MUA cannot be a bargaining representative.

[8] The MUA assert that the work carried out by the employees covered by the proposed replacement enterprise agreement, meets the description of “waterside worker” in accordance with the registered rules of the MUA. Further, the MUA has members at the workplace, and accordingly, is the nominated or default bargaining representative.

[9] Conditions (a) and (b) set out in paragraph [6] above are inextricably linked. Only an employee, who follows the occupation of a “waterside worker” pursuant to the MUA’s registered rules, is eligible to become a member of the Union. However, the MUA is only entitled to represent the interests of the employees, if the relevant employees are following the occupation of a “waterside worker” and are members of the MUA.

[10] In the first instance, it is necessary to determine whether the exclusion provision in paragraph 176(3)(a) of the FW Act, is applicable to this application. If the exclusion provision is applicable, and the MUA is not entitled to represent the interests of the employees because they are not following the occupation of “waterside worker”, it is not necessary to address the issue of whether the MUA has members at the workplace and is the nominated or “default” bargaining representative.

[11] To determine whether the employees are following the occupation of a “waterside worker”, it is necessary to consider:

• the registered rules of the MUA;



• the work performed by the employees pursuant to the proposed replacement agreement; and for reasons which will become apparent,



• where the work of the employees is carried out.

[12] Toll Mermaid submit that it is necessary for the Commission to consider the industry or operation within which the work of the employees is performed. The MUA disagree and assert that whether a person is eligible to become a member of the MUA, is determined by the work of an employee and not the industry of the employer. This matter is considered later in this Decision.

REGISTERED RULES OF THE MUA

[13] The registered rules of the MUA identify at Rule 2(a) that it is registered “in or in connection with the shipping industry” (my emphasis).

[14] The eligibility rules of the MUA are divided into two categories – seafarers and waterside workers. Part “S” deals with seafarers and Part “W” deals with “waterside workers”.

[15] The MUA is not asserting that the relevant employees are seafarers.

[16] The MUA is relying upon Rule 3.2(a) which relevantly reads:

“The Union shall also consist of:

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

[17] The registered rules do not contain a definition of the occupation of a “waterside worker”.

[18] In order for the Commission to be satisfied that the MUA is entitled to represent the industrial interests of the employees subject to this dispute, and who will be covered by the replacement agreement, I must find that the employees are following the occupation of a “waterside worker”. An occupation which, as I have already stated, is not defined in the MUA registered rules.

WHAT ARE THE CURRENT OCCUPATIONAL CLASSIFICATIONS OF THE EMPLOYEES SUBJECT TO THIS DISPUTE?

[19] The occupational positions in the Agreement are:

• Supply Base Operator (SBO);



• Senior Supply Base Operator (SSBO);



• Supply Base Leading Hand (SBLH).

[20] The work carried out of SBOs and SBLHs are contained in respective job descriptions. The SSBO is a SBO with 12 months service. The Commission was not provided with any job descriptions.

[21] Both Mr Nieuwkerk, the Employer’s National Business Manager and Mr Cassar, the MUA’s Assistant Secretary, Western Australian Branch, gave evidence of the work of the SBOs, SSBOs and SBLHs.

[22] As part of the Agreement, the Employer and employees agreed that, if it was not for the Agreement, the Road Transport and Distribution Award 2010 (RTD Award) as amended, would apply. Further, that any reference to an award in the Agreement is a reference to the RTD Award. Finally, the RTD Award was the relevant instrument for the purposes of the “Better Off Overall Test” in the approval process.

[23] Whether the MUA’s registered rules cover the SBOs, SSBOs or SBLHs concerns the duties they undertake, not the classification under which they are currently employed.

WHAT IS THE WORK PERFORMED BY THE SBOs, SSBOs AND SBLHs?

MUA Evidence

[24] At the time of the hearing, Mr Cassar was an Organiser with the MUA.

[25] Mr Cassar conceded that, until the day of the hearing and the inspections which preceded the hearing, he had never entered the Employer’s four (4) distinct work sites, that is, supply bases 1, 2 and 3 and the casing yard.

[26] Mr Cassar’s evidence is that the Toll Mermaid employees have informed him that the predominant activity which they undertake is the preparation, transportation and storage of goods which are loaded or unloaded from vessels at the Broome wharf. In particular, the employees are engaged in the following activities:

• “ Slinging of drill-casings, preparation of drill-casings for vessel stowage, maintenance of casings including pressure cleaning, re-doping, greasing and re-capping, storage of drill-casings.

• Shipping container “check listing” and container storage.



• Ensuring slings are compliant with maritime specifications, are suitable for lifting and have the appropriate sling ratings.



• Handling of dangerous goods, including its storage, preparation for stowage in compliance with maritime specifications (as distinct from transport regulations).



• The bundling and/or de-bundling of drilling tools (for Weatherford International, Halliburton, Schlumberger and Baker Hughes), the slinging of drilling tools for stowage and/or storage on vessels. This bundling and rigging is required to comply with maritime specifications.



• The packing and storage of chemicals, drill-bits and other miscellaneous items in shipping containers for vessel stowage.



• Employees primarily engage in forklift operation but Shell, amongst others, requires the use of a crane to perform the bundling and de-bundling work.



• Further, employees occasionally work on the wharf jetty including but not limited to the contract to deliver stores to platform supply vessel ‘Mermaid Leeuwin’ for Mermaid Marine Australia Limited.” 1

[27] Mr Cassar asserts that this work falls within the scope of the “Stevedoring Award” 2.

[28] I have no evidence directly from the employees who are alleged to be “waterside workers” and whose work allegedly falls within the “Stevedoring Award”.

Toll Mermaid Evidence

[29] Mr Nieuwkerk gave evidence for Toll Mermaid. Mr Nieuwkerk has been employed by Toll Group since 2005. Mr Nieuwkerk’s experience is in the area of transport and logistics.

[30] Mr Nieuwkerk’s evidence is that Supply Base 2 was the original supply base together with the casing yard. Three (3) or four (4) years ago, supply bases 1 and 4 were added due to the growth of the Employer’s operations 3.

[31] The Supply Base services offshore and onshore exploration and future production operations, and construction activity, in the Browse Basin and the Pilbara and Kimberley regions of Western Australia 4.

[32] Supply Base 1 can be described as “Head Office”. Head Office is where most of the “white collar” staff are located. Employees meet each morning at Supply Base 1 and are allocated work as required by the various clients 5.

[33] Employees move between supply bases 1-3 and the casing yard. Supply bases 1-3 are approximately 500 metres from each other. Employees move between the supply bases by motor vehicle on gazetted public roads 6.

[34] The casing yard is approximately 1.5 to 2.0 kilometres from the nearest supply base 7.

[35] Casing or preparation work includes, cleaning of casing, bundling of casing, and what is called, re-doping. Essentially, the work is the preparing of casing to be loaded onto trucks for transport by road 8.

[36] The operations of the Supply Base as set out in the evidence of Mr Nieuwkerk are as follows:

• goods come in by road and leave by road;



• the goods are received from various places including the Eastern States. The main departure point for goods received is Perth, Dampier and Darwin;



• when the goods arrive at the Supply Base, they are checked, stored and/or repackaged into containers;



• goods have to be prepared and packaged in certain ways. In the case of casing it has to be bundled in a particular way;



• when departing the Supply Base, the goods are loaded onto trucks owned and operated by contractors; and



• the goods are transported by the contractors to either Broome Wharf for a sea destination or by land or air, for other specified destinations. 9

[37] Toll Mermaid does not employ employees located at the wharf. Toll Mermaid is also not concerned or part of the operations at Broome Wharf. The employees subject to this dispute are not trained to work on or in relation to the wharf 10.

[38] The Supply Base has and continues to be a logistic centre for mining operations 11.

[39] Toll Mermaid has similar facilities and operations in Welshpool (Perth), Darwin, Karratha and Dampier 12.

[40] Put simply and briefly, the Supply Base is the receival, storage and distribution point for goods.

[41] Unremarkably, because of its location in Broome, the majority of Toll Mermaid’s clients are currently in the oil and gas industry 13.

[42] Mr Nieuwkerk gave evidence that some goods are stored for a short period or in other cases, three, four or five years 14.

[43] Goods enter into the Supply Base packaged, and consequently, the packaging has to be recycled or incinerated. The same process is adopted for packaged material which is returned by the Supply Base 15.

[44] The Supply Base carries out a stock control/inventory management processes for its clients 16.

[45] Mr Nieuwkerk’s evidence was that there are no pre-employment requisites. Toll Mermaid trains its employees. If an employment candidate has “dogging or rigging tickets”, they may be considered more preferable than other candidates, but such “tickets” are not a minimum employment requirement 17.

[46] The clients of Toll Mermaid, especially those in the offshore oil and gas industry, have to comply with maritime regulations or guidelines. Consequently, the Supply Base has to prepare cargo for either transport or off-loading, in accordance with those requirements 18.

[47] With the exception of training purposes, the relevant employees are not required to go onto the wharf 19.

[48] Although Mr Nieuwkerk was unable to give a precise percentage of the goods which are transported from the Supply Base to the Broome Port, I am satisfied from the inferences, that it is not an insignificant amount.

[49] While Mr Nieuwkerk gave evidence that the Supply Base could be located anywhere, common sense would dictate, subject to commercial considerations, that it should be strategically located close to Toll Mermaid’s clients operations.

[50] Mr Nieuwkerk acknowledged in his evidence that, when goods are prepared and loaded onto a truck at the Supply Base, they do not have to be “repackaged” at the Broome Port but lifted directly from the truck onto the vessel 20. Mr Nieuwkerk described this as a matter of “convenience”. Quite clearly, it is to avoid the cost and effort involved in “double handling” and ensure efficiency of loading onto the vessel.

WHERE IS THE WORK OF THE EMPLOYEES CARRIED OUT?

[51] I repeat what was set out in my Interim Decision as follows:

[52] The Base is comprised on four (4) distinct work sites: supply bases 1, 2, 3 and a casing yard.

[53] Supply bases 1, 2 and 3 are located on Kimberley Port Authority (KPA) land, in an area commonly referred to as the “Broome Port precinct”.

[54] The Broome Port precinct is an area of land owned by KPA and leased to various leaseholders including a fuel company, mud companies, an aquaculture company and a livestock and cattle yard. There is one residential property.

[55] None of the four work sites are located on the wharf “neck” or the wharf itself. None of the work sites are located beyond the port security gate and in, what is referred to, the Maritime Security Zone.

[56] Supply bases 1 and 2 are on land directly leased from KPA.

[57] Supply base 3 is on land subleased through Oilfield Transport Services (OTS) who, it is understood, has a direct lease with the KPA.

[58] The casing yard is leased from the Toll Group.

[59] I now turn to what constitutes the work of a waterside worker which has been considered in a range of Commission and Court decisions.

APPROACH TO INTERPRETATION OF UNION RULES

[60] 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.” 21

[61] 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. The High Court was determining whether the Motor Accidents Insurance Board was engaged in the “business of insurance”. Or more particularly, whether the activities of the Board fell within the ordinary and popular understanding of the word “insurance”.

[62] The MUA state that Rule 3(2)(a) is an occupational rule and that “its reach is determined by the work of the employee not the industry of the employer. Consequently, the well settled rules concerning interpretation of eligibility rules which are based on the industry of the employer are of limited relevance to the construction of the MUA rule”. 22

[63] It is generally accepted that there are two categories of union eligibility rules. Rules based on the industry in which the employer operates, often referred to as the “industry rule”. The alternative category refers to the type of work carried out by the employee, commonly named the vocational or occupational rule.

[64] The MUA submit that its eligibility rules should be construed liberally and given their natural meaning. 23 By natural meaning, the MUA eligibility rules should be given their ordinary and proper meaning.

[65] Put shortly, while eligibility rules must be construed objectively, the Commission should have regard to any common understanding of the ordinary application of the words “waterside worker”.

[66] The MUA submit that in determining the ordinary meaning of a “waterside worker”, emphasis should be placed upon relevant awards, agreements and judicial consideration of the term. For this assertion, the MUA rely upon 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 (CBH).

[67] The MUA submit further that the primary industrial instrument relevant to this application, and the interpretation of “waterside worker”, is the Stevedoring Industry Award 2010 (Stevedoring Award).

THE STEVEDORING AWARD

[68] The Stevedoring Award is firstly, an industry award.

[69] The stevedoring industry “means the loading and unloading of cargo into or from a ship including its transporting and storage at or adjacent to a wharf”.

[70] A wharf “includes a pier, jetty, ramp, or shed, storage or stacking area comprising part of the wharf area used for stevedoring industry activities” (my emphasis).

[71] The Stevedoring Award covers employers throughout Australia engaged in the stevedoring industry and their employees in classifications listed in Clause 13 of the Award.

[72] The classifications in Clause 13 of the Stevedoring Award are benign and are simply Grades 1-7. Such classifications are not of assistance in determining whether an employee is a “waterside worker”. However, descriptors for Grades 1-7 are contained in Schedule B-Classification Structure of the Stevedoring Award.

[73] While the MUA has focused upon the generic activities undertaken by employees in Grades 1-7, I consider it more beneficial to commence with the description of a Grade 1 employee which reads:

“A Grade 1 employee is an employee who is undergoing induction and training and initial training prior to appointment as a stevedoring employee Grade 2.” (my emphasis)

[74] A Grade 2 employee is an employee who has completed induction and training and is required to carry out a number of duties which include “shipboard and wharf duties, lashing and unlashing, packing and unpacking of containers and other general duties”.

[75] A Grade 3 employee is an employee who has attained the level of stevedoring employee Grade 2, and who is involved in the operation of “ships gear” and “the loading and discharge of ships, the location of cargo in sheds or the wharf”.

[76] The descriptors continue in Schedule B of the Stevedoring Award, but in each case the reference is to a stevedoring employee.

[77] The Stevedoring Award also contains other words associated with the stevedoring industry such as “terminals” and “outports”.

[78] In the absence of a specific definition of a “stevedore” or “waterside worker” in the Stevedoring Award, I consider it reasonable to revert to its predecessor award, the Stevedoring Industry Award 1999 (Stevedoring 1999 Award).

[79] In the Stevedoring 1999 Award, stevedoring operations means the “loading or unloading of all types of cargo…into or from ships”. Further, stevedoring operations include, the “receival, delivery, storage, handling or preparation of all types of cargo…for the purposes of loading and unloading such cargoes into or from ships”. Finally, stevedoring operations include “the haulage or trucking of all types of cargo or other goods from the wharf sheds, wharf storage or stacking areas to the ship or from the ship to the wharf shed, storage or stacking area”.

[80] A “wharf” in the Stevedoring 1999 Award includes a pier, jetty, ramp or shed, storage or stacking area at, adjacent to, or in the vicinity of the wharf” (my emphasis).

[81] The definition of a “waterside worker” in the Stevedoring 1999 Award, is that contained in the Workplace Relations Act 1996 (WR Act).

[82] The WR Act defines a “waterside worker” as:

“waterside worker means a person who accepts, or offers to accept, employment for work in the loading or unloading of cargo into or from ships, and includes a person who is a member, or has applied for membership, of the Waterside Workers Federation of Australia who accepts, or offers to accept, employment for work in:

(a) the loading or unloading, into or from ships, of ships’ stores, coal or fuel oil (whether for bunkers or not), passengers’ luggage or mails;
(b) the handling or storage of cargo or other goods at or adjacent to a wharf;
(c) the driving or operation of mechanical appliances used in relation to the loading or unloading of ships or with the handling or storage f cargo or other goods or at adjacent to a wharf;
(d) haulage or trucking from ship to shed or shed to ship;
(e) ...
(f) ...
(g)...
(h) the preparation of gear for use in relation to the loading or unloading of ships;
...”

[83] The MUA assert that the descriptors of stevedoring operations in the Stevedoring 1999 Award includes a “number of descriptions that describes the work carried out by employees at Toll Mermaid 24. In doing so, the MUA emphasised the work descriptors in paragraphs 7(d), (e) and (f) of the Stevedoring 1999 Award. Such highlighting of the work of Toll Mermaid employees is notable for two reasons. Firstly, the excluded paragraphs in Clause 7, and secondly, the generic nature of the work activities referred to by the MUA in paragraphs 7(d), (e) and (f).

[84] The excluded paragraphs of 7(a), (b) and (c) essentially relate to the loading and unloading of cargo from ships. These duties are not carried out by the Supply Base employees.

[85] Paragraph 7(d) is couched in terms of driving various mechanical appliances in the loading and unloading of ships or the receival, delivery, storage or handling of cargo, involved in the loading or unloading of vessels. Similarly, the functions are not carried out in any direct sense by the Supply Base employees.

[86] Paragraph 7(f) involves clerical functions. However, these functions are carried out in the context of loading or unloading of cargo into or from ships. These duties are not carried out by Supply Base employees. However, some duties may be carried out indirectly.

[87] Paragraph 7(g) concerns maintenance and construction work performed in connection with stevedoring functions. These duties are not carried out by Supply Base employees.

[88] Paragraph (h) involves security functions and not relevant to Toll Mermaid employees.

[89] Paragraph 7(i) concerns supervision of stevedoring employees.

CONSIDERATION

[90] The Federal Court in CBH adopted the approach expressed by the Chief Justice, in R v Aird; exparte The Australian Workers’ Union that, the interpretation of eligibility clauses is a “legal question to be solved by legal considerations”. Those considerations will include any industrial meaning or usage of the words of the clause to be construed. However, notwithstanding the generosity of approach, “the question of the meaning of the words used remains a legal question”. 25

[91] The Federal Court acknowledged that when it came to the occupation of a “waterside worker”, as a composite phrase, “it is unfortunately indefinite and flexible and those within it, if so read, could range from a lifesaver on Bondi Beach to those doing a host of other activities beside or even on the water”. 26

[92] In CBH, the Full Court considered the Judgement of Dethridge CJ in Re Queensland Branch of the Waterside Workers Federation of Australia ((1933) 32 CAR 596) (QWWF) of considerable assistance. The Full Court recorded that His Honour defined the issue of whether the work of the employees in the vicinity of the wharves, was covered by the Waterside Workers Award and stated:

“…I am only concerned with that branch of work done outside the vessel in a place used for loading or discharging operation. A place so used is ordinarily a wharf or pier, but it may be any place in the vicinity of the spot at which the vessel is to be loaded or discharged. It is a question of fact in each case what place is used for loading or discharging operations…A shed or factory however, or other place so far as it may be used substantially as a store or factory and not as a mere convenience for furthering the loading or completing the discharging of goods, would not, in my opinion, constitute a place or a place used for loading or discharging operations, even though it may be within or contiguous to that place…” 27

[93] As I understand the Judgement of Dethridge CJ, the plain and ordinary meaning of the work of a “waterside worker”, is the loading and unloading vessels, but it may also include work which involves the relocation, stacking and the arranging of cargo unloaded from ships prior to its ultimate removal from the wharf. Conversely, the work involves location, stacking and arranging of cargo prior to its loading onto vessels.

[94] In his Judgement, Dethridge CJ adds a note of caution when he states, “…it is necessary to note that on sites surrounding or contiguous with the place of loading or discharging operations, other work may be carried on which is not that of waterside workers”. 28

[95] The Full Court in CBH, where it disagrees with the Chief Justice statements in QWWF, in my view, adds clarity to the meaning of a “waterside worker”. The work of a waterside worker involves the preparation of cargo at the wharf or the immediate surrounding areas either for loading onto ships or consignment to the appropriate person/organisation.

[96] At some point, the work of a waterside worker begins with the receipt of goods into an area for the purpose of loading onto a vessel. That area is generally referred to as a wharf. There is no dispute that the loading and unloading of cargo onto or from a ship is the work of waterside workers. That work includes the stacking and arranging of cargo in the vicinity of a vessel for loading onto a ship, or conversely, a truck to be delivered to the consignee or a nominated delivery point.

[97] After considering case law and relevant statutory provisions, the Full Court in CBH came to the view that the term “waterside worker” includes:

“persons who are engaged in the loading of cargo, including loose bulk cargo, into ships and the prior handling, treating or storing of that cargo at or in the vicinity of a wharf when the handling, treatment and storing is to facilitate or is for the purpose of the ultimate shipping of that cargo”.

[98] The Full Court in CBH acknowledged, at that time, the new method of shipping cargo through containerisation. The work of a “waterside worker” included the receipt of and handling of containers at the container terminal, for shipment or for delivery after discharge from a vessel.

[99] The substantive issue in CBH was whether a group of employees employed by CBH were waterside workers. Similar to this application, the facts were largely not in dispute – it was the inferences to be drawn from those facts that was in dispute.

[100] The facts in CBH were that the grain was taken by rail from country Western Australia to terminals at Kwinana, North Fremantle and other ports in Western Australia. At the Kwinana terminal, the grain was unloaded, stored and eventually, by way of conveyor belts, sent to the wharf to be loaded, in bulk, into ships. CBH used a stevedoring contractor to actually load the grain onto the ship.

[101] From the facts, it was clear that after the grain was unloaded from the rail trucks, all the duties of the relevant employees related to the receival, distribution, storage and checking of the grain before it was transported on conveyor belts to be loaded into the ships.

[102] The Full Court found that there, “can be no doubt that the Kwinana terminal is in the vicinity of the wharf from which the loose bulk grain is loaded directly into ships”. Further, the Full Court found that, “the movement of the grain within the terminal bears a close resemblance to the stacking and restacking of cargo for shipping and loading and transporting of containers and movement about a container terminal. Truly, they all form part of the loading operations involved in the shipping of grain in bulk”. 29

[103] It can be seen that the Full Court, by analogy, came to the view that the CBH terminal and the loading of the grain, resembled movements on the wharf or in a container terminal.

[104] However, CBH stripped to its essentials, deals with grain after it had been received at the terminal, for loading onto a ship.

[105] From harvesting to loading onto the ship, the properties of the grain did not change. At harvesting, we would not describe the grain as ship’s cargo. Nor would we say that the grain being transported by rail, was anything but rail freight. However, when the grain was dumped by the rail trucks at the CBH terminal, its inherent properties did not change, but clearly it was located (stacked) and destined for loading onto a ship.

[106] In my view, the defining moment of when the grain became ship’s cargo, was when it was unloaded from the rail trucks at the terminal.

[107] We don’t say, “a horse won the Melbourne Cup”. We say that “Protectionist won the 2014 Melbourne Cup”. The name of the horse is informative and gives sense to who won the Melbourne Cup, but does not detract from the fact it was still a horse that won the Melbourne Cup.

[108] The substance of grain does not change from harvesting to loading onto a ship. We would not say that the farmer harvesting the grain was a waterside worker. We would not say that the train driver, or all those employees loading the grain onto the rail trucks, are waterside workers. However, there is reason to argue that grain (or containers) arriving at a grain terminal or container terminal, is at the beginning of a process of being loaded onto a ship.

[109] The substance of the material to be loaded or unloaded from vessels is unchangeable. To use the substances in the definition of a “waterside worker” in the Stevedoring 1999 Award, the “coal”, “fuel”, “oil”, “luggage” and “mail” does not change in their properties. What changes is that we observe that the material (coal, fuel etc) becomes “cargo” for loading and unloading from vessels on arrival at the wharf. In my view, those substances (coal, fuel etc) change in character when delivered to the wharf, port or container terminal for the express purpose of loading onto a vessel. At any point up to that time, the material can be “farmed”, stored, packaged or transported, but it only becomes cargo on arrival at the port or container terminal. Just as “Protectionist” becomes meaningful in terms of the 2014 Melbourne Cup, calling “coal” ship’s cargo makes sense when it arrives at the port/wharf.

[110] By way of analogy, when we book a flight interstate or overseas, we may refer to ourselves as a “passenger”, but we know the distinction between a person who has booked a flight, and a “passenger” who has arrived at the airport, checked in, dropped baggage off and has been given a boarding ticket. Further, we can say that after a person has boarded an aircraft, he or she is now truly a passenger.

[111] Employees, by contract and offsite, prepare food for the airline industry. That food is loaded onto an aircraft. The food is further prepared and served on board by flight attendants. We say that the flight attendants are airline employees. We would not say that employees preparing the food initially, are airline employees unless the food is prepared “in-house”.

[112] I have used these analogies to assist in the understanding of what is meant by “waterside worker”. There are situations where deliberately or not, language usage changes. In my view, a person could not and should not call themselves an aircraft passenger merely because they have booked a ticket. There is a stronger argument to say that they are an aircraft passenger, once they have arrived at the airport, booked in, dropped luggage off and received a boarding card. I am aware, with technology this is not always the sequence. However, arriving at the airport, checking in, dropping luggage off gives greater certainty or verifiability to being an aircraft passenger. Finally, we can truly ascribe to a person that they are a passenger once they have boarded an aircraft.

[113] Similarly, we can say with certainty that a person is a “waterside worker” who is involved in the loading and unloading cargo onto ships at the wharf. However, to go beyond that precision, encounters doubt and vagueness of what is meant by a “waterside worker”.

[114] Having cited CBH, the MUA submitted that it was not necessary to go much further in case law. However, if it was necessary to go further, the MUA referred to the ETU 30 and FCU31 cases.

[115] ETU, similar to CBH, dealt with the phrase “waterside worker”.

[116] The MUA submit that, consistent with ETU, “it is not necessary for a waterside worker to be involving the stevedoring operations of the loading and unloading of ships”. 32 That is true. The Full Court came to the view that, over time, wharves had changed. The loading and unloading of ships by manual labour aided by winches, slings, hooks and nets had been replaced by mechanization. Mechanization in the form of cranes, straddle truck and fork lift trucks which moved cargo onto and from ships. The introduction of mechanization and containerization at the wharf, and immediately nearby area had transformed the operations of loading and unloading of ships; consequently, the meaning of “waterside worker” was amenable to change.

[117] The Full Court came to the view that the mechanical fitters and electricians who worked full-time on the wharf repairing and servicing the equipment involved in the loading and unloading of ships were waterside workers – even though it was plain that they were not actually involved in the loading and unloading of the ships.

[118] However, the Full Court in ETU also came to the conclusion:

“It is plain that a tradesman who carries out repair and maintenance work on stevedoring machinery in a general mechanical business conducted away from the waterfront cannot properly be seen as engaged in stevedoring operations. Nor can a tradesman who merely comes to the waterfront to carry out particular repairs or servicing of a machine in the course of a general independent occupation of carrying out mechanical or electrical work on machines.”

[119] Further,

“The fact that a man is employed by a stevedoring company is a factor which supports him being seen as engaged in the overall stevedoring operation of that company.”

[120] While, in ETU, the relevant electricians and mechanical fitters were not employed by a stevedoring company, the fact that they were employed full-time on 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 they were waterside workers. Those facts are not present in this application.

[121] In the FCU case, the phrase “waterside worker” was held by the Full Court of the Federal Court to be construed as including the occupation of tally clerk. The Full Court came to the view that the predominant working activities of a tally clerk “are based on a ship, on a wharf or in the vicinity of a wharf and which constitutes the overall stevedoring operations of loading and unloading of ships”.

[122] In FCU, it is notable that all parties accepted the fact that the tally clerks were performing duties and work in connection with the stevedoring industry or with stevedoring operations. That is not the case in this application; Toll Mermaid denies that it is in the stevedoring industry or involved in stevedoring operations.

[123] Finally, in FCU, the Full Court declined to rule on tally clerks working in container terminals. which were not necessarily on or adjacent to a wharf.

[124] It is clear to me that the case law is not as certain as both parties submitted. This is particularly evident when both parties submitted various parts of the same case, as supportive of their assertions.

[125] In light of the case law, I take the simple approach as adopted in CBH that:

• eligibility rules must be construed objectively;



• it is permissible to pay regard to any common understanding of stevedoring operations and the ordinary application of the words, “waterside worker”; and



• what is determinative of whether an eligibility rule that covers a particular occupational group of employees, is the work they undertake.

[126] Starting with the last matter first, I have no evidence directly from the employees concerned. I have evidence from Mr Cassar of what he has been told by the relevant employees. Mr Nieuwkerk gave more direct evidence as to the location, activities and purpose of the employees. The employees are also involved in storage, inventory management, packaging disposal and casing management.

[127] While it is not the relevant test, both parties agreed that the employees are employed at a logistics base. None of the four work sites are located on the wharf neck or the wharf itself. Further, none of the work sites are located behind a security gate and in the Maritime Security Zone. 33

[128] The MUA concedes that, in a physical and factual sense, the employees are not loading or unloading ships; the employees are loading and unloading trucks. 34

[129] On a plain and ordinary meaning of the words, the work sites are not adjacent, contiguous or adjoining the wharf.

[130] Are the four work sites in the vicinity of the wharf? The word itself can be extrapolated to mean whatever the asserter wants it to mean. If I adopt “vicinity” as meaning “surrounding area”, “close” or “near”, those words have the same elasticity. For this reason, I prefer the common understanding that vicinity relates to, as the case law suggests, the sheds, wharf, storage, stacking and container areas near the wharf.

[131] Notwithstanding, I did not have any direct evidence of the work being carried out by the employees, it was not disputed that the work undertaken by the employees did not directly involve the loading and unloading of cargo. At most, the duties involved the preparation of materials which eventually would be loaded onto a truck and delivered in such a way that it could be lifted directly onto the vessel. However, in a much broader sense, materials arrive at the Supply Base by road. On arrival, the materials are checked, stored and, at some point in the future, retrieved, packaged and loaded on a truck for despatch, either to the wharf, airport or any other land destination. The material is loaded onto the truck in compliance with the requirements of the client which, in some case, must be consistent with maritime regulations.

[132] With respect to the ordinary and plain meaning of a “waterside worker”, it is notable that since the Employer’s existence in 2000, the MUA has not sought “right of entry”. Accordingly, I think a strong inference can be made that the MUA has, until recent times, not considered the employees “waterside workers”.

[133] In conclusion, for the reasons outlined above, I am not prepared to conclude that Toll Mermaid employees employed at the Supply Base are “waterside workers”. Put another way, I am not prepared to redefine the well understood and plain meaning of a “waterside worker”.

[134] To disturb the plain meaning of “waterside worker” would be to characterise work performed, in any location, which ultimately results in goods or materials being loaded onto a ship as the work of a “waterside worker”. In coming to this view, I am not narrowing the definition of a “waterside worker”, but leaving the phrase with its traditional well understood meaning.

CONCLUSION

[135] For the above reasons, I find that the employees subject to this dispute are not following the occupation of a waterside worker. Consequently the MUA is not entitled, pursuant to paragraph 176(3) of the FW Act, to be a bargaining representative for the employees in bargaining for a replacement enterprise agreement to the Agreement.

[136] Having reached my finding above, it is not necessary to determine whether the MUA has members at the workplace and is the nominated or “default” bargaining representative.

[137] It follows from my decision and reasons for decision above, that the application must be dismissed. An Order to this effect is issued jointly with this Decision.

COMMISSIONER

Appearances:

L Edmonds for the MUA.

A Kennedy of counsel for Toll Mermaid.

Hearing details:

2015:

Broome,

23 January.

Final written submissions:

MUA: 9 March 2015.

Toll Mermaid: 26 February 2015.

 1   Exhibit A2 (9)

 2   Exhibit A2 (10)

 3   Exhibit R4 (17)

 4   Exhibit R4 (8)

 5   Exhibit R4 (20)

 6   Exhibit R4 (21)

 7   Exhibit SB3

 8   Exhibit R4 (16)

 9   Exhibit R4 (29) and (34)

 10   Exhibit R4 (34)

 11   Exhibit R4 (39) and (41)

 12   Exhibit R4 (38)

 13   Transcript PN246

 14   Transcript PN256

 15   Transcript PN252

 16   Transcript PN254

 17   Transcript PN257

 18   Transcript PN272

 19   Transcript PN272

 20   Transcript PN481

 21   R v Cohen para 23

 22   Outline of submissions – para 13

 23   Outline of submissions – para 14

 24   Transcript PN637

 25   CBH page 547

 26   CBH page 547

 27   CBH page 549

 28   CBH page 550

 29   CBH page 558

 30 Electrical Trades Union of Australia v the Waterside Workers Federation of Australia v By Amendment: Re Electrical Trades Union of Australia, and Amalgamated Metal Workers and Shipwrights Union v the Waterside Workers Federation of Australia [1982] FCA 36

 31 Federated Clerks Union of Australia, Terence William Sullivan & Ors v the Waterside Workers Federation of Australia, Charles Fitzgibbon & Ors [1983] FCA 74

 32   Transcript PN651

 33   Exhibit R1

 34   Transcript PN778 to PN782

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