Transport Workers' Union of Australia, New South Wales Branch v Queensland Properties Investment Pty Limited
[2011] FWA 285
•27 JANUARY 2011
Note: An appeal pursuant to s.604 (C2011/3353) was lodged against this decision - refer to Full Bench decision dated 6 December 2011 [[2011] FWAFB 8207] for result of appeal.
[2011] FWA 285 |
|
DECISION |
Fair Work Act 2009
s.505—Right of entry
Transport Workers’ Union of Australia, New South Wales Branch
v
Queensland Properties Investment Pty Limited
(RE2010/3909)
SENIOR DEPUTY PRESIDENT HAMBERGER | SYDNEY, 27 JANUARY 2011 |
Right of entry dispute; whether organisation able to represent the industrial interests of employees; construction and application of union eligibility rule.
Background
[1] On 3 December 2010, the Transport Workers’ Union of Australia, New South Wales Branch (TWU), applied for Fair Work Australia (FWA) to deal with a dispute as to whether two of its officials are entitled, under section 484 of the Fair Work Act 2009 (the Act), to enter premises occupied by Queensland Properties Investments Pty Ltd (QPI, the respondent) at 69 Sargents Road, Minchinbury, for the purpose of holding discussions with certain employees of QPI who perform work at those premises. QPI is a wholly owned subsidiary of Woolworths Limited and operates a large facility, the Sydney Regional Distribution Centre (SRDC) at the site in question.
[2] A significant number of employees at the site have recently been accepted as members by the TWU. On 23 November 2010 two officials of the TWU, Mr Steve Cummins and Mr Graham Hastings, served notices on QPI seeking entry to the premises on 25 November 2010. On 24 November 2010, the respondent’s Regional Logistics Manager, Mr Mark Hughes, wrote to the Secretary of the TWU, Mr Wayne Forno, expressing some doubt as to whether the TWU had coverage of the persons employed at the Minchinbury site. He invited Mr Forno to direct him to any provisions of the union’s rules which would give the TWU coverage of any relevant employees. He concluded by indicating that unless the Woolworths group could be satisfied that the TWU was entitled to represent the industrial interests of the relevant employees he was concerned that any purported right of entry to the distribution centre building would be invalid.
[3] A senior official of the TWU, Mr Michael Aird, responded to Mr Hughes on 25 November 2010 asserting that the union’s rules clearly cover the employees at the site. He added that a substantial number of members on site had requested the TWU’s presence. After having advised Mr Hughes that a refusal to allow entry to the TWU’s officials might be unlawful, he asked him to advise the union as soon as possible of his intention to allow the officials on to the site in order to hold discussions with employees. Mr Hughes responded on 26 November 2010 that the Woolworths Group was not satisfied that the TWU was entitled to represent the industrial interests of any of the employees engaged by the group at the Minchinbury site. Accordingly, any attempt to exercise a purported right of entry to the distribution centre building would be invalid, and possibly unlawful.
[4] This exchange of correspondence was followed by the TWU’s application to FWA on 3 December 2010. An order was sought by the union that Mr Cummins and Mr Hastings be granted right of entry for the purpose of holding discussions with QPI employees at the SRDC. A conciliation conference was held on 7 December which failed to resolve the dispute. The matter was then listed for hearing on 11 and 12 January 2011. An inspection was carried out at the Minchinbury site on 4 January 2011.
[5] At the hearing, the TWU was represented by Mr Tony Slevin, of counsel. The respondent was represented by Mr Stephen Jauncey, of Henry Davis York, solicitors.
[6] Evidence was given on behalf of the TWU by:
- Mr Bradley Gibson;
- Mr Mark Trevillian;
- Mr Mark Burke;
- Mr Steve Cummins;
- Mr Wayne Forno;
- Mr Josh Masima; and
- Mr Oshie Fagir.
[7] Evidence was given on behalf of QPI by Mr Mark Hughes.
The statutory framework
[8] Section 484 of the Act provides relevantly that, subject to certain restrictions:
‘A permit holder may enter premises for the purposes of holding discussions with one or more employees or TCF outworkers:
(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.’
[9] In this case the only question in contention is whether the TWU is an organisation entitled to represent the industrial interests of all or any of the QPI employees who work at the SRDC.
The TWU’s rules
[10] In order to decide whether the TWU is entitled to represent the industrial interests of the employees in question it is necessary first to construe the rules of the organisation. The proper construction of a union eligibility rule is ‘a legal question to be solved by legal considerations.’ 1It is then necessary to assess whether some or all of the employees employed by QPI at the SRDC fall within the scope of the rule. This may involve a question of mixed fact and law and one of degree.2
[11] The TWU’s rules provide at Rule 4(1) that:
‘The Union consists of those persons described in Annexure B.’
[12] Part A(1) of Annexure B then relevantly states:
‘(A) (1) The Union shall consist of an unlimited number of persons employed or seeking to be employed in or in connexion with the industry or industries, and/or occupation, and/or calling, and/or vocations, and/or industrial pursuits of:
(a) The transport of persons and/or passengers, and/or goods, wares, merchandise, or any material whatsoever, by or on vehicles or animals or by aircraft or by motor, steam, oil, electric or other mechanically-propelled contrivances; drivers, assistants and conductors of same, and stable work wheresoever performed, including the work of attendance on horses and other beasts of burden, whether in stables or otherwise; all yard and garage cleaning and other work in connexion with driving and transport, including, washing, greasing, oiling, cleaning, polishing, tyre-fitting and general attendance on horse or mechanically-propelled vehicles and mechanical contrivances, training and breaking-in of horses, loading and unloading on to and/or from any vehicle; shunting by horse-power, supervising and collecting moneys, or washing cans in connexion with the distribution of milk, working in pits, tarring and washing pans, ploughing in of night soil, digging trenches and burying soil in connexion with sanitary work, ploughing in conjunction with the construction and excavation of earthworks; and
(b) All driving; and
(c) Chauffeurs, Conductors, and Attendants on or about motor vehicles, and employees engaged in and about Garage, Motor Stables, and other similar places in the repair and maintenance of motor vehicles, or as attendants.’
[13] Part A(2) then relevantly states:
‘(A) (2) For the purposes of this rule a person shall be deemed to be employed in one or more of the specified industries, occupations, callings, vocations or industrial pursuits if:
(i) his usual occupation is that of an employee in one or more of the specified industries, occupations, callings, vocations or industrial pursuits.
[14] A Full Bench of the Australian Conciliation and Arbitration Commission had this to say in 1985 about the TWU’s eligibility rule in response to an appeal against a decision by Marks J.
‘In our judgment his Honour was manifestly correct in rejecting the submission that the TWU’s eligibility rule is concerned only with callings etc. of employees. An eligibility rule of an organisation must, like any other document, be interpreted according to its ordinary and natural meaning, and recourse may be had to extrinsic material only where there is ambiguity or uncertainty as to the construction or meaning of the rule. The TWU’s eligibility rule is cast in wide terms. By its opening preamble it is capable of applying both to undertakings of employers and occupations of employees. The commencing words of paragraph (a) are a clear description of an employer’s undertaking and, the phrase “the industry...of...the transport of persons and/or passengers, and/or goods, ...by aircraft” falls naturally within the scope of an employer’s industry as defined in paragraph (a) of the definition of “industry” in s 4 of the Act.
As Barwick CJ observed in Re Federated Liquor and Allied Industries Employees’ Union of Australia (the Poon Brothers case), in referring to the eligibility rule of the Australian Workers’ Union (1977 3) 51 ALJR 266 at 268:
“It is well settled that an eligibility clause expressed in the terms of the eligibility clause of the applicant should be construed as relating to the industry of the employer”.
Recent examples of cases where Full Benches of this Commission have construed eligibility rules of other unions as relating to the industry of the employer are Printing and Kindred Industries Union v Cumberland College of Health & Science (1982) 1 IR 309, and re The Association of Professional Engineers Australia (1984) 8 IR 282. In both these cases the eligibility rule made reference to a specific industry, ie the printing industry and the industry of engineering.
In respect of its reference to “the industry ...of...the transport of persons and/or passengers, and/or goods...” the TWU’s eligibility rule is expressed in a form similar to those of the Australian Workers’ Union, the Printing and Kindred Industries Union, and the Association of Professional Engineers Australia.
On its ordinary and natural meaning that portion of the TWU’s eligibility rule which deals with the industry of the transport of persons and/or goods by aircraft must be construed as relating to the industry of the employer. There is no ambiguity or uncertainty in its construction and accordingly there is no warrant for consideration of any extrinsic material in construing its terms. However, we observe in passing that we are by no means satisfied that the historical material relied on by Mr Moore supports the narrow interpretation which he placed on the rule. We concur with the view expressed by Isaac DP in his decision of 26 September 1984 in respect of the TWU and Cliffs Robe River Iron Ore Associates and others (Print F 6747) and also by Marks J in the decision now under appeal that the TWU’s rule is a hybrid of employers’ industries and employees’ occupations, callings etc. Accordingly we reject Mr Moore’s primary submission that the whole of the rule is referable solely to the employees’ occupations or callings.’ 4
[15] In summary, the TWU’s eligibility rule is a “hybrid” with one part of the rule based on the industry of the employer, and another part based on the occupation of the employees.
[16] In Dyno Nobel 5 the Majority extensively reviewed the approach taken by the High Court to the proper construction and application of eligibility rules based on the industry of the employer. The Majority summarised the principles to be derived from those authorities as follows6:
- Whether or not the trade or business of an employer is in or in connection with a particular industry is a question of fact 9.
- The answer to that question of fact is determined by the “substantial character” of the trade or business of the employer and all of its employees and requires a consideration of the business of the employer as a whole 10.
- The business of an employer can be “in or in connection with” more than one industry 11. This outcome can arise in different ways:
- There is an overlap between industries and the business operates in the area of overlap (in such a case the same business can be described in different ways placing the business in either industry so that it has a “substantial character” that places it in each industry); and/or
- The nature of the single integrated business is such that the business itself overlaps two or more distinct industries in such a way that it has a “substantial character” within each of those industries.
- The mere supply of goods or services to a business in a particular industry is not, of itself, sufficient to render the business of the supplier one that is “in connection with” the industry of the business supplied, even if those goods are essential to the operation of that business 12.
- Where a conventional industry rule applies in relation to a distinct business or enterprise of an employer, all of the employees in that business or enterprise are eligible for membership of the union” 13.
“— An eligibility rule, or part of an eligibility rule, that simply refers to persons employed or engaged “in or in connection with” a specified industry or industries is properly characterised a conventional industry rule 7 and the discremen of eligibility under such a rule is the industry of the employer, that is, whether the trade or business of the employer is in or in connection with the specified industry or industries8.
(i) The business of the single employer is a single integrated enterprise but nevertheless operates substantially in or in connection with two or more industries simultaneously. This may be because:
(ii) The overall business of the single employer is properly seen as being constituted by two or more distinct businesses or enterprises each of which has a different “substantial character”.
The Industry of the Employer
[17] Applying these principles, whether the trade or business of QPI is in or in connection with the transport industry is a question of fact. The answer to that question of fact is determined by the “substantial character” of the trade or business of QPI and requires a consideration of the business of QPI as a whole.
[18] In Budget Rent a Car 14the Full Bench of the Australian Industrial Relations Commission held, in relation to the “industry” branch of the TWU’s rules, that:
‘Under this branch of the rules the employees cannot be employed in the relevant industry unless their employer is in that industry. The transport industry must mean the commercial transport industry and involves the transport of persons or goods for reward.’
[19] Extensive evidence was presented to FWA concerning the business conducted by the respondent at the SRDC site. It is clear from this evidence that QPI does not carry or convey any persons and/or passengers, and/or goods, wares, merchandise, or any material to or from the SRDC. The evidence discloses the following:
- At the SRDC, the respondent operates a large warehouse which supports the retail sale, of supermarket, grocery and fresh produce items through supermarkets and other stores in NSW operated by Woolworths Limited.
- When goods and products are received from suppliers, they are stored at the warehouse, in very large quantities, in a range of substantial storage areas.
- Orders are sent to the SRDC by stores when they run low on particular products. These products are then “picked” from the storage area and then placed on pallets containing a range of different products. These pallets are then loaded on to trucks for delivery to a particular store.
- The suppliers are generally responsible for organising the transport of their products to the SRDC either through their own transport fleets or through contract arrangements between themselves and their own transport providers;
The respondent does not employ any of the drivers operating the prime movers used to deliver goods to the SRDC, nor does it own any of those prime movers;
- Woolworths Limited contracts with Toll, and some other transport providers, for them to transport goods and produce to supermarkets and stores;
- QPI does not employ any of the drivers involved in transporting goods or produce to supermarkets and stores, nor does it own the prime movers.
- QPI is not responsible for the licensing or payment of any drivers transporting goods or produce to or from the SRDC, or the licensing or registration of the prime movers transporting goods or produce to or from the SRDC, or the fuelling, maintenance or safe operation of any prime movers.
[20] Mr Slevin, in support of his contention that the activities of the respondent at the SRDC came within the transport industry, referred to a decision of Hungerford J in relation to a demarcation dispute between the National Union of Workers (NUW) and the TWU at a warehouse and distribution centre at Moorebank operated by Toll Transport Pty Ltd (“Toll”) 15.
[21] Toll was concerned with competing applications for demarcation orders on the part of the TWU and the NUW. Franklins Pty Ltd (Franklins) had made an agreement with TNT Australia Pty Ltd (TNT) to operate a facility at Moorebank, including warehousing, distribution and transport functions.TNT proposed that the employees at Moorebank be members of the TWU (rather than the NUW). TNT then assigned its interest in the contract it had with Franklins to Toll and that company assumed the operation of the Moorebank facility. Toll adopted the same position in relation to union membership as had TNT. 16
[22] One of the issues Hungerford J had to decide was whether the TWU had constitutional coverage of the work at the Moorebank facility. Work performed at the facility included receiving goods from suppliers, unloading of pallets from trucks, holding of goods in the warehouse, assembly of pallets of goods and loading of the goods for delivery to Franklins stores.
[23] The evidence before Hungerford J was that:
‘The Toll Group of Companies is a nationally integrated group of businesses engaged primarily in transport and logistics work. Its businesses include road, rail and sea transport, port management, wharf cartage and container handling, warehousing, contract distribution, packaging, design/fabrication, contract packing and recycling.’ 17
[24] Much of the evidence in the case emphasised that the provision of warehousing functions to Franklins by TNT (and subsequently Toll) was part of a general transport, distribution and logistics function, beginning with the ordering of goods by stores through to the final delivery of goods to each store. Witnesses for the TWU described how there had been major changes in the way transport industry companies operated. The development of “logistics” involved transport companies being responsible for the whole process of bringing the goods from the original supplier to the customer. This was contrasted with what was referred to as the “traditional” arrangement, whereby a retailer, for example, would have a warehouse for the storage of their product pending the preparation of orders, which they would usually run themselves. There would then be a transport operation usually contracted out to one of the major transport companies 18.
[25] Hungerford J found that “the performance of both the distribution and warehouse services was effected in an integrated manner consistent with the nature of the logistics services business conducted by Toll.” This then led to his finding:
‘...the essential nature of the industry in which Toll is engaged to be the Transport industry and the evidence well satisfies me that the Moorebank facility is operated by Toll as part of that industry.’ 19
[26] This conclusion is quite consistent with the principles outlined by the Majority in Dyno Nobel. In particular, Hungerford J looked at the “substantial character” (or in his words, “the essential nature”) of the business operated by Toll. However the facts in the Toll case are quite different from those in the current matter. QPI is not a transport company providing an integrated logistics service. It is operating in a manner much more akin to what was described by the TWU’s witnesses in the Toll case as the “old fashioned system of distribution and transport whereby there is a splitting of functions between warehousing and road transport”. In this case (a wholly owned subsidiary) of the retailer runs its own warehouse. Transport to the warehouse is in turn largely run by the suppliers themselves (or their contractors) and onward transport is contracted out to one of the major transport companies (to Toll, as it happens). Thus the reasoning in Hungerford J’s decision does not provide any support for the TWU’s contention that QPI is engaged in the transport industry. Indeed, I think it serves to clarify, by contrast, that it is not engaged in that industry, and I so find.
‘In connexion with’
[27] Mr Slevin emphasised that a construction of the TWU’s rule must also take into account the words ‘in or in connexion with’.
‘The circumstances here are that the industrial enterprise engaged in by QPI is the unloading, unpacking and repacking of pallets to be loaded again onto trucks. It has a direct connection with the transporting of goods from the suppliers to the stores. It’s not a service provided to the transport supply chain. It’s an integral part of that chain.’ 20
[28] In his written submission, Mr Slevin stated:
‘The SRDC is a distribution centre that is essential in the transport link between manufacturer and customer. Goods arrive at the centre on trucks. The trucks are unloaded by the Respondent’s employees. The goods are either sorted and repacked to be reloaded onto other trucks for distribution or are moved directly to a loading dock to be reloaded onto trucks for distribution. That work can easily be described as work in connection with the transport of goods, wares, merchandise by or on vehicles.’ 21
[29] In R v Isaac; Ex parte Transport Workers Union 22Gibbs CJ said:
“However, labour “in connection with” the named industries is included and it is apparent that this very considerably widens the scope of the rule.”
[30] In the same case Wilson J said:
‘The cases establish that one may be employed in connexion with the mining industry notwithstanding that one is merely developing the infrastructure which will be necessary to support the actual mining when it commences and notwithstanding that one is engaged, not in the process of extracting the ore from the mine, but in its subsequent treatment. A sufficient connection may therefore be found in an occupation which takes place either before or after the actual work which itself identifies the industry in question. Just as the erection of houses for the workers who are to work the mines is work undertaken in connexion with the industry of mining, so is the preparation of the mine and the extraction of the ore undertaken by way of preparation before embarking on the work of reducing and refining that ore. There is an unbroken series of steps culminating in the production of diamonds, with each step logically connected to the next.’ 23
[31] The context of this statement was that the High Court was considering whether workers engaged in the construction and operation of a diamond mine and associated treatment plants were engaged in labour in or in connexion with reducing and refining of ores within the meaning of the rules of the AWU. Gibbs CJ pointed out that
‘The words “in connexion with” in an eligibility rule connote a relationship between the work of the employee and the industry or calling in question. It is not enough that the products of the worker are used in the industry or that the products of the industry are used by the worker....The question is one of fact and depends on all the circumstances of the case. In the present case there was one co-ordinated project carried on at one place in Western Australia. The whole project was managed by Argyle Diamond Mines Pty Ltd. There was a close physical proximity between the mine and the primary crusher which formed the part of the treatment works to which the ore was first taken. This proximity was neither contrived nor adventitious...the primary and predominant purpose of the project was the production of diamonds, by mining the ore and reducing it and refining it. There was a very close relationship between the construction and working of the mine and the reducing and refining of the ore.’ 24
[32] I do not consider that the relationship between the work carried out by QPI’s employees and the transport industry has anywhere near the same degree of closeness as that referred to by Gibbs CJ and Wilson J so as to establish that the one is “in connection” with the other. Certainly QPI receives goods and wares via transport operators and then despatches them, mainly via Toll. That by itself could hardly be enough to establish a sufficient connection with the transport industry. Unlike the Argyle Diamonds case however, QPI’s business is quite distinct, not only in a legal but in an operational sense, from that of the various transport operators with whom it comes into contact. The relationship is too distant to bring QPI’s employees within the scope of the TWU’s eligibility rule.
The occupational aspect of the rule
[33] Mr Slevin submitted that the occupational aspect of the TWU’s eligibility rule is also enlivened by the work performed at the SRDC.
‘The work performed by the employees is in or in connexion with the occupation, and/or calling, and/or vocations, and/or industrial pursuit of loading and unloading on to and//or from any vehicle. The purpose of the facility is to unload vehicles which bring goods from the manufacturers and then load vehicles to distribute those goods to stores. Those who are employed at the SRDC are thereby engaged in the occupation, calling, vocation or industrial pursuit of loading and unloading on to and from vehicles.’ 25
[34] While the evidence indicates that many employees at the SRDC are not directly involved in loading or unloading vehicles, it is equally clear that some are. The issue is whether that by itself is enough to establish that they fall within the TWU’s eligibility rule (let alone whether the employees not directly involved could be covered).
[35] The Full Bench in Budget Rent A Car stated that the industrial pursuits described in the relevant paragraph “all involve work in or in connection with transport or driving”. The Full Bench went on “We have already expressed the view that transport in the context of the rule means commercial transport and that Budget’s operations are neither in nor in connection with the transport industry. For similar reasons we see no basis for a finding that the occupation etc, of CSR’s or VSR’s is in or in connection with commercial transport. The employees are employed in or in connection with vehicle rental” 26.
[36] In the current case, those employees at the SRDC who do load or unload vehicles do so as part of the operations of QPI, which I have already found is neither in nor in connection with the transport industry. Applying the same rationale as the Full Bench in Budget Rent A Car I find that they do not fall within the occupational aspect of the rule.
Conclusion
[37] I find that the TWU is not entitled to represent the industrial interests of any of QPI’s employees employed at the SRDC. Accordingly I decline to make any orders that the applicant’s officials be given access to the SRDC for the purpose of holding discussions with those employees. The application is dismissed.
SENIOR DEPUTY PRESIDENT
Appearances:
Mr A Slevin, of counsel, for the applicant
Mr S Jauncey, for the respondent
Hearing details:
2011
Sydney
11, 12 January
1 R v Aird; Ex parte Australian Workers’ Union (1973) 129 CLR 415 at 430-1
2 Jacobs J in R v Neil; Ex parte Cinema International Corporation Pty Ltd (1976) 134 CLR 27
3 Citation should have read (1976) 51 ALJR 266 at 268
4 Transport Workers’ Union of Australia v Qantas Airways Limited (1985) 11 IR 145 at 147
5 Construction, Forestry, Mining and Energy Union v Dyno Nobel Asia Pacific Limited (PR956868) [2005] AIRC 622 (14 July 2005)
6 The references have been re-numbered
7 Re Federated Liquor and Allied Industries Employees’ Union of Australia; Ex parte Australian Workers’ Union (1976) 51 ALJR 266 at 268
8 R v Hibble; Ex parte Broken Hill Pty Co Ltd (1921) CLR 290 at 297; Re Federated Liquor and Allied Industries Employees’ Union of Australia; Ex parte Australian Workers’ Union (1976) 51 ALJR 266 at 268
9 ibid
10 R v Central Reference Board; Ex parte Thiess (Repairs) Pty Ltd (1948) 77 CLR 123 at 135; Re Federated Liquor and Allied Industries Employees’ Union of Australia; ex parte Australian Workers’ Union (1976) 51 ALJR 266 at 268
11 R v Drake Brockman; Ex parte National Oil Pty Ltd (1943) 68 CLR 51 at 57
12 R v Isaac; Ex parte Transport Workers Union (1985) 159 CLR 323 at 333
13 R v Hibble; Ex parte Broken Hill Pty Co Ltd (1921) 29 CLR 290
14 Transport Workers’ Union of Australia v Budget Rent A Car Operations Pty Ltd (PR968492) [2006] AIRC 91 (13 February 2006)
15 National Union of Workers, New South Wales Branch v Transport Workers’ Union of Australia, New South Wales Branch and Toll Transport Pty. Limited [1998] Industrial Relations Commission of New South Wales 360 (4 December 1998)
16 Ibid at 362
17 Ibid at 374
18 Ibid at 395
19 Ibid at 399
20 PN1276
21 Applicant’s outline of submissions, paragraph 30
22 R v Isaac; Ex Parte Transport Workers Union (1985) 159 CLR 323 at 335
23 At 346
24 At 333
25 Applicant’s outline of submissions, paragraph 31
26 Transport Workers’ Union of Australia v Budget Rent A Car Operations Pty Ltd (PR968492) [2006] AIRC 91 (13 February 2006) at 22
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