Rescrete Industries Pty Ltd v Commissioner Jones of the Australian Industrial Relations Commission

[1998] FCA 930

FEDERAL COURT OF AUSTRALIA

INDUSTRIAL LAW – application for writs of certiorari and prohibition directed to members of the Australian Industrial Relations Commission – whether dispute created by the service of log of claims –– whether eligibility rules of the union comprehended employees of the type employed by the applicant – onus on applicant to establish lack of jurisdiction – need for evidence to establish lack of jurisdiction

The Queen v Commonwealth Conciliation and Arbitration Commission; Ex parte Melbourne and Metropolitan Tramways Board (1965) 113 CLR 228
R v Alley; Ex parte NSW Plumbers and Gasfitters Employees’ Union (1981) 153 CLR 376
Re Union of Postal Clerks and Telegraphists; Ex parte Australian Telephone and Phonogram Officers’ Association (1986) 66 ALR 227

RESCRETE INDUSTRIES PTY LIMITED v COMMISSIONER JONES OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION, JUSTICE MUNRO, SENIOR DEPUTY PRESIDENT MARSH AND COMMISSIONER LARKIN OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION, CONSTRUCTION, FORESTRY, MINING ENERGY UNION and AUSTRALIAN WORKERS UNION

NG 986 of 1997

BEAUMONT, O’CONNOR AND MOORE JJ
6 AUGUST 1998
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 986  of   1997

BETWEEN:

RESCRETE INDUSTRIES PTY LIMITED
APPLICANT

AND:

COMMISSIONER JONES OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
FIRST RESPONDENT

JUSTICE MUNRO, SENIOR DEPUTY PRESIDENT MARSH AND COMMISSIONER LARKIN OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
SECOND RESPONDENT

CONSTRUCTION, FORESTRY, MINING, ENERGY UNION
THIRD RESPONDENT

AUSTRALIAN WORKERS UNION
FOURTH RESPONDENT

JUDGES:

BEAUMONT, O'CONNOR AND MOORE JJ

DATE OF ORDER:

6 AUGUST 1998

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1. The application is dismissed.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 986 of 1997

BETWEEN:

RESCRETE INDUSTRIES PTY LIMITED
APPLICANT

AND:

COMMISSIONER JONES OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
FIRST RESPONDENT

JUSTICE MUNRO, SENIOR DEPUTY PRESIDENT MARSH AND COMMISSIONER LARKIN OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
SECOND RESPONDENTS

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION
THIRD RESPONDENT

AUSTRALIAN WORKERS UNION
FOURTH RESPONDENT

JUDGES:	BEAUMONT, O'CONNOR AND MOORE JJ
DATE:	6 AUGUST 1998
PLACE:	SYDNEY

REASONS FOR JUDGMENT

BEAUMONT J:

I agree with O’Connor and Moore JJ, for the reasons given by their Honours, that the application should be dismissed.

As O’Connor and Moore JJ explain, the critical question of interpretation of the relevant eligibility rule depends upon the meaning of the phrase “terrazzo or similar compositions”.  In the absence of any suggested special meaning to be attributed to the phrase, these words will bear their ordinary dictionary meaning.

The dictionary meaning of “terrazzo” has been mentioned by O’Connor and Moore JJ.

The primary Macquarie Dictionary meaning of “similar” is:  “1.  having likeness or resemblance, esp. in a general way” (emphasis added);  and that of “composition” is:  “1.  the act of combining parts or elements to form a whole”.

I can discern no error by the Commission in its approach to the construction of this part of the eligibility rule, involving as it did the application of the ordinary meaning of the words in the key phrase, being essentially a question of fact. 

Nor can I perceive any error in the Commission’s application of the phrase, so interpreted, to the circumstances of the case.  This was entirely a question of fact, and deference is due to the Commission’s findings on such a matter.

In my view, no excess of jurisdiction has been demonstrated.

I certify that this and the preceding one (1) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Beaumont

Associate:

Dated:             6 August 1998

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 986 of 1997

BETWEEN:

RESCRETE INDUSTRIES PTY LIMITED
APPLICANT

AND:

COMMISSIONER JONES OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
FIRST RESPONDENT

JUSTICE MUNRO, SENIOR DEPUTY PRESIDENT MARSH AND COMMISSIONER LARKIN OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
SECOND RESPONDENT

CONSTRUCTION, FORESTRY, MINING, ENERGY UNION
THIRD RESPONDENT

AUSTRALIAN WORKERS UNION
FOURTH RESPONDENT

JUDGES:	BEAUMONT, O'CONNOR AND MOORE JJ
DATE:	6 AUGUST 1998
PLACE:	SYDNEY

O’CONNOR and MOORE JJ

REASONS FOR JUDGMENT

Introduction

These proceedings involve an application by Rescrete Industries Pty Limited (“Rescrete”) for writs of certiorari and prohibition directed to members of the Australian Industrial Relations Commission (“the Commission”).  The matter has been remitted to this Court by order of the High Court of Australia made on 10 November 1997.  The application arose from proceedings in the Commission initially heard by Commissioner Jones which concerned an alleged industrial dispute flowing from the service of a letter of demand and a log of claims on Rescrete and other employers by the Construction, Forestry, Mining, Energy Union (“CFMEU”).  Rescrete put in issue in those proceedings whether a dispute with it had been created by the service of the log of claims.  In a decision published on 26 November 1996 the Commissioner determined two issues raised by Rescrete.  The first was whether the log had been served in accordance with procedures in the rules of the CFMEU.  The second was whether the eligibility rules of the CFMEU comprehended employees of the type employed by Rescrete.  The Commissioner decided that the log had been authorised and the CFMEU did have coverage of the employees.  It appears, however, that no finding of dispute was actually made.  Nonetheless, Rescrete appealed against the Commissioner’s decision on the footing that there had been a finding of the existence of an industrial dispute made by the Commissioner.  In a decision published 23 July 1997 a Full Bench of the Commission dismissed the appeal.  That led to these proceedings in which Rescrete puts in issue the jurisdiction of the Commission on the basis that no dispute existed between it and the CFMEU because the eligibility rules of the CFMEU do not comprehend its employees.

The Evidence

In order to deal with the issue raised by Rescrete it is necessary to describe the nature of its operations and the work of its employees.  These matters were described in some detail by Commissioner Jones and his description was adopted by the Full Bench.  It is generally uncontentious and the following summary is drawn principally from the reasons for decision of the Full Bench.  It will also be necessary to refer to the evidence, such as it is, concerning what is terrazzo.

(A)The operations of Rescrete

(i)In overview

Rescrete is the main trading entity of a small group of companies.  It has factories at Riverstone and Mulgrave, New South Wales which cover some 16 acres.  The Riverstone plant produces architectural and structural precast concrete and standard products.  The Mulgrave plant produces hollowcore wall and floor panels, a product called Transfloor permanent formwork and associated structural units.  Each factory has modern facilities with sophisticated equipment for producing, casting and finishing precast concrete.  All shop drawings are produced in the company’s own CAD system.  Production can be transferred between the sites and sometimes Riverstone undertakes production normally done at Mulgrave.

Rescrete employs professional engineers involved in product development, assisting clients in project assessment and carrying out any design for which the company is responsible, producing shop drawings and overseeing production.  Where appropriate, Rescrete will price work on a supply and installation basis but this option is not usually offered where the crane is controlled by the builder.  Installation work is performed on Rescrete’s behalf by subcontractors and is not carried out by Rescrete employees.  The only “on site” work by a Rescrete employee is that of a “supervisor/contracts co-ordinator”.  His work involves liaison with Rescrete’s “building … erection and cartage sub-contractor to inform him when the product is due to be put on a building site, to get from him the positions that he is going to put the panels in or the order in which he is going to erect the panels, and to pass that information on to the product manager at the factor, so that he can direct the loaders to load in that order and send them out on those days”. 

Rescrete’s Riverstone factory has been manufacturing architectural facades and other architectural units for 25 years.  The Sebel Townhouse was the first major project.  There are facilities for producing sophisticated hones and polished facades as well as more conventional grit blasted, water washed, off form and other finishes.  Rescrete has supplied and erected walls for many hundreds of factories, warehouses, shopping centres and other structures.  A feature of hollowcore production is the very rapid manufacturing rate with a typical factory being produced in a matter of days.  Hollowcore walls can be supplied in exposed aggregate, ribbed or plain concrete finishes.

A Rescrete publication in evidence stated:

Hollowcore wall panels have replaced brick, concrete block, aluminium and steel walls in modern construction techniques.  They impart flexibility to design and speed to construction.  Prestige buildings need their appearance of strength and durability”.

Another publication promoting the advantages of hollowcore floor planks also stated:

1Rescrete floor flanks are precast in our factory away from your building site.  All floors for your building are stored ready to be delivered as quickly as needed for installation.

2         Productivity on site is greatly improved.

3Expensive formwork and propping is eliminated with access within the work site vastly improved.

4Once laid, Rescrete Floor Planks can be used as an instant work deck.

5Our planks are cut to fit your job, complete with blockouts, before leaving our factory, giving a simplicity of construction at the work site.

6The hollow cores reduce the flooring dead load.  The smaller crane size required ensures economical erection.  Your building is ready for occupancy well in advance of other systems.

7Rescrete Hollowcore Floor Planks, in many cases, are manufactured, delivered, placed in position on Rescrete supplied precast concrete beams and columns and then grouted by Rescrete.  Your flooring needs are handled through the one Company.

…

11The smooth walled longitudinal core holes in Rescrete Floor Planks can be used as service ducts for plumbing, electric and telephone cables, etc.  Breakouts can be drilled as required.

…

13Rescrete Hollowcore Planks can be used in conjunction with Rescrete Transfloor and Resdeck to cover all flooring situations.”

(ii)       The Mulgrave plant operations in detail

Raw materials (aggregate, stone, sand), are delivered by road and placed in open bins.  These raw materials are loaded by means of a front end loader into an underground hopper.  From the hopper the material is conveyed to a bin located above a concrete batching plant, cement deliveries come via road tanker.  The tanker is connected to the hopper by a hose and the product is then blown to an area located above the batching plant.  A batch plant operator mixes the raw products including the cement and adds a water application to the mix.  The final mix is then transported via forklift and/or rough terrain front end loader.  These two vehicles have skips attached which are capable of 5 tonne lifts.  The mix is taken to an area containing a device described as a “slide former” which facilitates the production of “hollow core” panels.  The slide former consists of essentially two parts and is operated by an electric/hydraulic power system.  The lower part of the machine can be set to differing thicknesses and forms the panels.  During this process of forming the panels, stressed strands of steel can be laid in them to give them structural strength.  The panels are then heat treated.  The product is then cut to size with a diamond tipped saw.  A rough terrain front end loader then carries the product to an area for storing and curing.  Precast balconies are also produced at the Mulgrave plant.  That product is made by putting normal reinforcing rods into moulds accompanied, on occasions, by stressed steel strands. 

The plant on the site is either mobile or fixed.  The approximate numbers of mobile vehicles on site are two Patrick rough terrain swivel body forklifts (7 tonne), four lift pretty-boys (mostly of forestry origins and in essence rough terrain front end loaders with fitted forks and lifting bars) (7 tonnes), one five tonne and two ten tonne lift pretty-boy vehicles, four mobile barrows for clean up purposes, one truck, and one small and one large excavator for drain clearing and concrete crushing.  As to stationery plant, there is a 12 tonne crane on rails, a one tonne crane for maintenance purposes, a batching plant operated from a control panel, one concrete crushing machine, one water spraying tanker, one prime mover to move trailers around the yard, and a swiller (designed by Rescrete) with a spraying and drill hole mechanisms.  Incorporated within the overall site complex is a drawing office, customer ordering, production control, quality assurance and various other miscellaneous technical and administration facilities.

Employees are initially engaged as “Concrete Labourers” but, if sufficiently skilled, may be used as forklift drivers or crane operators when needed.  Most employees operate all on-site machines and are encouraged to be multi-skilled and to work in teams.  There are at least three concrete labourers who, for up to half their day, drive rough terrain forklift trucks.  Two concrete labourers operate the crane for a similar period.  Characteristic working patterns require the slide form operator to be relieved after doing an allocated number of “beds”.  Similarly the swill machine operator is relieved after three or four hours and does other tasks.  Front end loader operators often work about four hours a day on lifting cored product from beds and taking it to storage yards.  Forklift drivers and crane drivers may perform work on those machines for about four hours a day, though they also perform other tasks including stacking and deploying timber spreaders for stacks.  Employees from time to time move between plants.  Over the last five years more people have been transferred from Riverstone to Mulgrave than the reverse.  Movement either way is based on operational needs.

(iii)      The Riverstone plant operation in detail

Like Mulgrave this plant uses the basic materials of aggregate, sand and cement.  It also has a batching plant.  A greater proportion of the operation at Riverstone is housed in covered buildings than at Mulgrave.  Some examples of products made at Riverstone are box culverts, bridge planks, retaining walls, and street furniture (bollards, jersey kerbs, benches, road traffic dividers. etc).  Also fabricated are architectural precastings (sand blended for colour and texture) which include balcony fixtures, septic tanks, envirocycle systems and prestressed beams.  Overhead cranes are mainly used for movement of product (replacing pretty-boys and forklift trucks found at Mulgrave).  Some finishes of products are created by vibrating platforms, while another machine performs automatic polishing work. Computerisation is a feature of the operations and some processes are virtually automated.

Riverstone has manufacturing gantry cranes, with one used for stacking.  These gantries have two overhead cranes operated by certificated employees.  There is a small generator requiring limited attention, but when manned it is by a certificated employee.

(B)      The nature of terrazzo

As will become apparent shortly an issue of some significance in these proceedings is what is terrazzo.  The evidence on this issue is extremely limited.  The representative of the CFMEU tendered to Commissioner Jones an extract from the Macquarie Dictionary which defined terrazzo in the following terms:

“a floor material of chippings of broken stone and cement, polished when in place.”

Also tendered, by counsel for Rescrete, was the definition from the Oxford English Dictionary.  It is not in the application books in this Court but the Shorter Oxford dictionary defines terrazzo as:

A proprietary name for a kind of flooring made of small chips of marble set irregularly in cement and polished.

The Commissioner referred to another definition of terrazzo found in what he described as the U.S. Geological Survey (US Bureau of Mines) as consisting of “small chips or pieces of stone, usually marble or limestone”.  It appears the Commissioner had recourse to this document after he reserved his decision.  It was neither tendered nor referred to in the hearing.  From this same source the Commissioner referred to a definition of cement which included that it was “without aggregate” and a definition of concrete as being “an intimate mixture of stone, sand and water, and a binder (usually Portland cement), which hardens to a stonelike mass”.  The survey was not in the application books in this Court though the submissions of all parties proceeded on the basis that these physical characteristics of cement, concrete and terrazzo were not contentious. 

Indeed various statements as to what terrazzo was were made by counsel appearing for Rescrete both before Commissioner Jones and before the Full Bench.  Statements of the same character were made by the advocate of the CFMEU before Commissioner Jones and counsel for the CFMEU before the Full Bench.  It is common in proceedings in the Commission for assertions of fact to be made by the advocates of parties and for the Commission to act on those assertions if they were uncontentious.  So much was recognized in The Queen v Commonwealth Conciliation and Arbitration Commission; Ex parte Melbourne and Metropolitan Tramways Board (1965) 113 CLR 228. Barwick CJ said at 243:

The Commissioner was not disentitled to act upon the assertions of the Union advocate, merely because they were not made on oath, or because he might not have been competent as a witness according to the ordinary rules of evidence to make them.  No doubt, if the correctness of his assertions were challenged, it would at the least be imprudent on the part of the Commissioner not have further examined the matter, so as to satisfy himself of the actual facts, if need be, by evidence formally given.  But there was nothing in the instant case which, it seems to me, the Commissioner might not properly regard in the circumstances as sufficiently ‘evidenced’ by the statements of the Union advocate.

The following emerges from the transcript of the proceedings before the Commissioner and the Full Bench which identified several features of terrazzo or the manner in which it was fabricated or applied.  The first arose from observations of counsel for Rescrete about what had been observed at an inspection of the premises of “South Australian Precast at Days Road, Croydon Park”.  The site had originally been the operations of the “Mosaic Flooring Company” which had been involved in the production of mosaic and terrazzo products.  Those products were manufactured on the site and installed on building sites as lining.  The second feature arose when the Macquarie Dictionary definition was tendered.  After the reference to flooring material in the dictionary was noted, the lay advocate for the CFMEU stated that toilet and ablution facilities built in the 1950s and 1960s contained terrazzo, not only as a flooring material, but also as walls for cubicles.  He also observed that though the greatest quantity of terrazzo had probably gone into floors it had other uses.  He later said that terrazzo was the first of the mass produced concrete articles, that is, articles produced for the building industry.  He went on to say it was very popular in the 1950s and 1960s but it was quite an expensive product because of the degree of polishing involved.  The third feature arose in submissions when counsel for Rescrete stated that terrazzo was a specialized flooring material put in place on a building site and polished when in place.  A little later he stated that terrazzo was a composition made on site, put in place on site and polished on site.

During the appeal before the Full Bench, senior counsel for Rescrete repeated this asserted fact, namely that terrazzo was a material created on site and polished on site.  He then referred to the process as one involving pouring concrete, throwing in marble chips and polishing the resultant mix.  He also asserted that terrazzo was not load bearing.  Reference was again made to terrazzo panels in toilet blocks though this time by senior counsel for Rescrete.  Counsel for Rescrete later asserted that terrazzo was flooring. 

While there were other references in the proceeding before the Commission to the characteristics of terrazzo, the preceding comprehends the assertions of fact that were made by the parties before the Commission and which appear not to have been put in issue.  It is the only material that might be described as evidence before this Court, perhaps to be treated as admissions or agreed facts, concerning the characteristics of terrazzo.

The eligibility rules of CFMEU

In the proceedings before the Commission and in those before us, the parties referred to a number of parts of the CFMEU’s eligibility rules.  The CFMEU is an amalgamation of a number of organizations and, generally, its eligibility rules are a pastiche of the eligibility rules of the organizations that have amalgamated to form it.  Reference was made to a number of elements in the pastiche but, as will become apparent shortly, the only parts that need to be considered are the following:

2 - CONSTITUTION

(A)(A) The Union shall consist of an unlimited number of persons whether male or female

(1)employed in, usually employed in or qualified to be and desirous of being employed in or seeking to be employed in or in connection with the industry or industries, and/or occupations, and/or calling, and/or vocations and/or industrial pursuits of

and/or

(2)who, otherwise than as employees or employers, follow an occupation in or in connection with the industry or industries of:

and/or

(3)who, otherwise than as employees or employers, are engaged in the industrial pursuit or pursuits of:

(i)carpenters or joiners (including foremen and sub-foremen) and carpenters or joiners employed in the States of New South Wales, Tasmania and Western Australia or in the Australian Capital Territory on bridges, wharves, jetties or piers or employed in the State of Victoria on bridges, wharves, jetties or piers which are wholly or substantially built of concrete and in respect of which the performance of formwork requires the exercise of a substantial amount of the knowledge and skill of a tradesman carpenter, or employed in one of the said States or in the State of Queensland or the said Territory on dams, ship carpenters or joiners (including foremen and sub-foremen) or tilelayers, including without limiting the meaning of the word tilelayers, persons employed in the laying or fixing of tiles, faience, mosaic, ceramic, opalite and the like not exceeding in measurement .093 square metres when such opalite and the like is fixed with cement composition or stonemasons, marble masons, polishers, machinists, sawyers and all other persons engaged in the dressing and preparation and/or erection of stone, marble or slate also those engaged in the preparation and/or erection of terrazzo or similar compositions, or bricklayers, tuckpointers, or in a trade or calling of a slater, roof tiler, shingler, ridger or cement tiler, fixer of roofing sheets of asbestos, fibro, fibrolite or cement mixtures and accessories, malthoid sisalkraft or bituminous roofing materials and all accessories made of the same materials and without limiting the meaning of the above they shall be deemed to include terra cotta, glazed, semi-glazed roofing tiles, cement tiles, slates, fibro slates, tiles, asbestos, fibro fibrolite, fibrous mixtures, cement and any mixtures that may replace or be used in conjunction with the foregoing or any materials incidental thereto or in place thereof, or in New South Wales journeymen and other labour engaged in the plate, sheet or ornamental glass trade, or apprentices or trainees to or in any of the foregoing trades …

(ii)the process or trade or business as a: plasterer, fixer, shophand, and caster, or employed in internal and/or external plastering, and/or cementing, including rendering with all forms of plaster, asbestos fibre, and including the performance of the aforementioned duties or processes by manual or mechanical means, (excepting employees engaged in manufacture of cement and/or concrete, and/or fibrolite articles) including wood, paper and metal lathing and/or top dressing of all concrete work finished in cement, and/or fibrous plaster fixing work, including sackett board and similar substances, defined as being fixing and finishing of fibrous work, as done by plasterers or fibrous plaster fixers, or employed in underground sewer or tunnel plastering, granolithic floor laying i.e., floors laid with material or aggregate consisting of granite chips, blue stone toppings, crushed slag, cement floors, including magnesite and/or composition floors, marble mosaic paving, terrazzo and similar work, and/or press cement work, including shophands’ work, being defined to include the interpretation of plans and details, and to work from them in the preparation of the ground work for the modeller, and also the cutting and mounting of moulds and casters’ work, which shall include cornice and moulding and other plaster castings, and the casting of plain or ornamental plaster sheets by mechanical or manual means (excepting the manufacture of paper-backed wallboard from plaster of paris at Colonial Sugar Refining Company Ltd in New South Wales).  Excepting in the State of New South Wales and Victoria the laying or fixing to floors or walls, tiles of terra cotta or pottery ware, faience, ceramic (excepting where such work is done in connection with bricklaying work) opalite tiles not exceeding in measurement .093 square metres, tiles made of plastic substances or other materials in substitution thereof, excepting metal, together with all persons as have been appointed officers of the Federation, and admitted members thereof.  All persons employed assisting shophands, casters and/or fixers.

All junior shophands, casters and fixers and all persons apprenticed to any such branch of the plastering trades.  Apprentices to the tilelaying trade other than in the States of New south Wales and Victoria.  In the State of Victoria nothing in paragraph (A)(i) of this rule shall render eligible for membership any employee

(a)engaged upon the laying or fixing of tiles faience or ceramic blocks or tiles;

(b)engaged on press cement work;

(c)engaged upon the manufacture of plaster sheets by mechanical or manual means;

(d)engaged in assisting shophands, casters and/or fixers.

(Emphasis added)

The issues and conclusion
In the proceedings in this Court, Rescrete must demonstrate affirmatively that the Commission lacked jurisdiction for the reason that no industrial dispute could exist with it because it does not employ, or is not likely to employ, a class of employee comprehended by the eligibility rules of the CFMEU.  That will involve establishing what the relevant facts were and that the scope of the eligibility rules, properly construed in accordance with established legal principle, was limited in the way Rescrete contends.

The function of this Court and the burden of a prosecutor in proceedings such as these were discussed in R v Alley; Ex parte NSW Plumbers and Gasfitters Employees’ Union (1981) 153 CLR 376. As to the role of the High Court, and by parity of reasoning this Court, Mason J said at 389-390:

It has been repeatedly affirmed by this Court that it has to determine independently for itself whether in a particular case the Commission has or lacks jurisdiction and that in reaching its decision this Court will apply the ordinary rules of evidence: Federated Engine-Drivers’ and Firemen’s Association of Australasia v Broken Hill Proprietary Co Ltd; R v Blakeley; Ex parte Association of Architects, etc., of Australia.  There are several reasons whey this is so.  The Commission is not a court.  It is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks just: s 40(1)(b).  Conversely, it may apply, or by bound to apply by virtue of the statute, a specific rule of evidence or procedure which has no application to the High Court.  And it is at least doubtful whether Parliament could legislate so as to qualify by a rule of evidence (not being an onus of proof provision) the High Court’s constitutional jurisdiction under s 75(v) to determine whether an interstate industrial dispute exists: see Milicevic v Campbell.

In passing I note the comments of Fullagar J in Blakeley.  His Honour, though maintaining the doctrine that this Court must determine for itself questions on which the jurisdiction of the Commission depends, drew a distinction between questions of law and questions of fact.  He said that if the jurisdiction depends on matters of fact, considerable weight is attached to the decision of the court.  He was, of course, referring to the old Arbitration Court.  His remarks have equal application to the Commission.  He concluded by saying, after referring to the remarks of Isaacs J. in Caledonian Collieries Ltd v Australasian Coal and Shale Employees’ Federation [No 1]: ‘It may be more correct to say that, as to fact, a doubt as to error is resolved in favour of the decision of the inferior tribunal.”  The weight to be given to the Commission’s decision will depend on the circumstances.  If the evidence remains the same, if the Full Bench on appeal has confirmed the decision at first instance and if the issue of fact is one in the resolution of which the Commission’s knowledge of industry specially equips it to provide an answer, greater weight will be accorded than in cases in which one or more of these factors is absent.

As to the burden of the prosecutor Mason J said at 392:

The prosecutors in attempting to establish that the Commission lacks jurisdiction to make an award in respect of the 1,992 persons start with a significant handicap.  It is for the prosecutor seeking a writ of prohibition to establish and to establish clearly the facts which show an absence or excess of jurisdiction.  Reg v Foster; Ex parte Commonwealth Life (Amalgamated) Assurances Ltd is an interesting illustration of the proposition.  There an award was made in respect of persons engaged by an industrial and life assurance company to canvass and collect premiums.  On its face it was restricted to ‘employees’ of that company.  The company sought prohibition on the ground that the award was made without jurisdiction because by an agreement between the parties the persons so engaged were independent contractors or ‘agents’ and not ‘employees’ and that therefore the dispute giving rise to the award was not an industrial dispute because it did not relate to employment or as to any industrial matter pertaining to the relations of employers and employees.  The Court held that the evidence failed to show that there was not any industrial dispute because it failed to exclude the possibility that the real relation between some or all of the agents and the company in their work was in fact that of employer and employee despite the provisions of the agreement.
(emphasis added)

See also Gibbs CJ at 382, Murphy J at 395 and Aickin J at 396.  Evidence could have been called in these proceedings by Rescrete, as illustrated by R v Turbet; Ex parte Australian Building Construction Employees & Builders Labourers Federation (1980) 144 CLR 335 especially at 341 per Stephen J.

The basis upon which the Full Bench concluded that the CFMEU eligibility rules extended to at least some of the employees employed by Rescrete, and thus a dispute could exist between CFMEU and Rescrete, was that at least some of Rescrete’s employees were engaged in the preparation and erection of a similar composition to terrazzo, as that expression appears in rule 2(A)(A)(1)(i) of the CFMEU’s eligibility rules.  Senior counsel for Rescrete sought to demonstrate in this Court that rule 2(A)(A)(1)(i) did not comprehend Rescrete’s employees because the products of Rescrete were not products of a similar composition to terrazzo or even if they were, its employees were not engaged in the preparation and/or erection of those products.

The part of the eligibility rules which is presently relevant is rule 2(A)(A)(1)(i).  While a formal submission to the contrary was made on behalf of Rescrete, plainly, in our opinion, subrule (A)(A) is intelligible only if each of paragraphs (1), (2) and (3) are treated as qualifying subparagraph (i) and the following subparagraph.  Subparagraph (i) identifies what are, at least, a number of occupations, callings or industrial pursuits.  It is unnecessary to consider whether all or any of them are, in addition, references to industries of employers though the language used does not suggest they are.

As earlier noted the contention of the CFMEU which was accepted by the Commission, was that the occupation, calling or industrial pursuit of persons “engaged in the preparation and/or erection of terrazzo or similar compositions” described all or at least some of the employees of Rescrete.  This expression contains several elements.  The first contentious element is that the employee was engaged in work associated with a material that was or had a similar composition to terrazzo.  It is relatively plain that the words “similar compositions” was intended to extend the class to employees who, while not engaged in the preparation and/or erection of terrazzo, were engaged in the preparation and/or erection of material that was composed of elements with similar characteristics as the elements of terrazzo.  In the present case, it is necessary to consider the elements that make up the products made by Rescrete and that make up terrazzo.

The products made by Rescrete are a mixture of sand, cement, water and aggregate.  Terrazzo is a mixture of sand, cement, water and stone particles.  Having regard only to these matters, they are plainly similar in composition and counsel for Rescrete did not submit otherwise.  The point of distinction relied upon by counsel for Rescrete was that terrazzo does not, and the Rescrete products do, contain steel reinforcing which can be stressed.  The addition of stressed steel results in a product which is load bearing.  However there is no evidence establishing, one way or the other, whether terrazzo has been or is manufactured with these features.  It may be that terrazzo does not, nor ever has, contained steel or at least steel that has been stressed.  Equally, however, it is possible that terrazzo used for panelling contained some steel designed to give the product structural integrity and may, in some circumstances, be load bearing.  However, given the paucity of evidence on what terrazzo is, this Court is not able to answer these questions in the way we are invited to by Rescrete.  It has failed to demonstrate that terrazzo and the products manufactured by Rescrete are not of a similar composition.

The second limb of Rescrete’s argument was that even if the products manufactured by it were of a similar composition to terrazzo, the employees at Rescrete plants were not engaged in the preparation and/or erection of such products.  It is necessary to consider further the structure of sub-paragraph (i).  The paragraph first refers to a class of employee constituted by carpenters and joiners in general and also carpenters and joiners of particular types.  While elements of this class are employees undertaking their work on specified structures and therefore at identified sites, the class as a whole has, as a common feature, the trade of carpentry and joinery unrestricted as to where the trade is carried on.  The paragraph next refers to tilelayers and that term is then defined, in a sense, expansively.  This part of the paragraph does not expressly limit the class to tilelayers performing work at a particular location.

The next class of employee is stonemasons and trades or callings dealing with stone, marble or slate.  The paragraph refers to those in that class who are engaged in dressing, preparation or erection or a combination of these functions.  To the extent that the class includes polishers, machinists and sawyers it is likely that the process of polishing the stone, machining the stone or sawing the stone were intended to be comprehended by the words “dressing” or “preparation” or both.  The language used does not suggest that any of these processes need be carried on at the point where the stone is erected in the sense of permanently placed.  Nor does it suggest those processes need be undertaken by individuals working with, or working for the same employer as, those engaged in erection.

The next class is the contentious one.  It has not been suggested that Rescrete employees are engaged in erection.  Counsel for Rescrete submitted they were not engaged in preparation and pointed to the use of the same expression “preparation and/or erection” in relation to stone, marble or slate immediately preceding the reference to “preparation and/or erection” of terrazzo or similar compositions.  It was submitted that what was comprehended by the word “preparation” was the final finishing of stone, marble or slate prior to its erection.  Some support is found for this construction of the expression by the inclusion of the word “dressing” as part of what is a composite expression of “dressing and preparation and/or erection”.  However the immediate point of distinction between terrazzo or similar compositions and stone, marble or slate is that stone, marble or slate are naturally occurring products and preparation would not involve their creation.  As a man-made product terrazzo needs to be created before it is erected.

The word “preparation” is defined in the Macquarie Dictionary as, relevantly:

The act of preparing

The word “prepare” (and its derivatives) is relevantly defined as:

To manufacture, compound or compose

The definition of “preparation” in the Shorter Oxford Dictionary is relevantly:

The action or special process of putting something into proper condition for use; dressing and serving up (of food); composition, manufacture (of a chemical, medicinal or other substance);

It is to be recalled that it appeared to be common ground that terrazzo is a mixture of elements that is created at the site where it is to remain as part of a building or structure or created as a panel which is installed into a building or structure.  It is consistent with the ordinary meaning of “preparation” for it to be treated as a reference to the process of mixing the constituent elements of terrazzo to create the material which either remained on site or was taken to a site and installed or, to use the language of the rule, “erected”.  For similar reasons the word “preparation” would, consistent with its ordinary meaning, comprehend the mixing of the elements constituting the material of similar composition to create the material that was installed or erected.  Neither the language of the contentious clause nor the context in which it appears, including the remainder of sub-paragraph (i), suggest it should be given some limited meaning.  Indeed it is a settled principle of construction of eligibility rules of registered organizations that they should not be construed narrowly.  The proper approach was described by Mason, Brennan and Dawson JJ in Re Union of Postal Clerks and Telegraphists; Ex parte Australian Telephone and Phonogram Officers’ Association (1986) 66 ALR 227 at 235:

The general rule of construction is that eligibility provisions should be construed liberally rather than narrowly or technically (R v Cohen; Ex parte Motor Accident Insurance Board (1979) 27 ALR 263; 141 CLR 577 at 581, 587).

In our view, the word “preparation” comprehends the processes of manufacture undertaken by Rescrete employees at both the Riverstone and Mulgrave sites.

Two further matters should be referred to.  The first is a submission made by counsel for Rescrete that the meaning of the contentious clause in sub-paragraph (i) should be construed having regard to sub-paragraph (ii).  Two aspects of sub-paragraph (ii) were relied on.  The first was the exception concerning employees engaged in the “manufacture of cement and/or concrete … articles” and the reference to terrazzo in the context of floor laying.  As a matter of general principle, documents should be construed having regard to the documents as a whole as should the eligibility rules of a registered organization see e.g. R v Gough; Ex parte The Municipal Officers’ Association of Australia (1975) 133 CLR 59 at 69. However the eligibility rules of the CFMEU came about, as earlier noted, by the amalgamation of a number of organizations. Its eligibility rules are therefore an aggregation of the eligibility rules of its constituent parts. Sub-paragraph (ii) represents the eligibility rules of what used to be the Operative Plasterers Federation of Australia which contained the exception and the limited reference to terrazzo work. Paragraph (i), on the other hand, represents the eligibility rules of what used to be the Building Workers’ Industrial Union of Australia. It is unlikely that the amalgamating organizations intended that the hitherto unqualified provision in the Building Workers’ Industrial Union of Australia’s eligibility rules concerning employees engaged in the preparation and/or erection of terrazzo or similar compositions was to be qualified by the exception in, and the more limited scope of, the eligibility rules of the Operative Plasterers Federation of Australia. Accordingly the words in sub-paragraph (i) are to be given their ordinary meaning and their scope is not limited by the language of sub-paragraph (ii). The manner in which the terms of eligibility rules came about, and in particular an exception or proviso, is a relevant consideration in construing the rule: see R v Marks; Ex parte Australian Building Construction Employees and Builders Labourers Federation (1981) 147 CLR 471.

The other matter is material relied upon by the CFMEU concerning membership amongst and award coverage of employees in South Australia engaged in work of the same or similar character as the employees of Rescrete.  At best, this material is supportive of what we view is the proper construction of the contentious expression in sub-paragraph (i).  It certainly does not tell against that construction.  However it is of limited assistance and unnecessary to refer to in detail.

It is unnecessary to consider submissions made about other parts of the CFMEU’s eligibility rules which it relies on, in the alternative, as providing coverage of employees of Rescrete.  Rescrete has not established the Commission lacks jurisdiction and accordingly the application is dismissed. 

I certify that this and the preceding sixteen (16) pages are a true copy of the Reasons for Judgment herein of the Honourable Justices O'Connor and Moore

Associate:

Dated:             6 August 1998

Counsel for the Applicant:	P Menzies QC with S Benson
Solicitor for the Applicant:	Addisons
Counsel for Third Respondent:	S Crawshaw
Solicitor for Third Respondent:	T Roberts, CFMEU
Counsel for Fourth Respondent	J Fernon
Solicitor for Fourth Respondent	McLellands
Date of Hearing:	2, 3 July 1998
Date of Judgment:	6 August 1998