United Workers' Union v Elgas Limited - [2023] FWCFB 37

[2023] FWCFB 37

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.604—Appeal of decision

United Workers’ Union

Elgas Limited

(C2022/5840)

DEPUTY PRESIDENT CLANCY DEPUTY PRESIDENT CROSS COMMISSIONER CIRKOVIC

MELBOURNE, 20 FEBRUARY 2023

Appeal against decision [2022] FWC 2044 of Deputy President Easton at Sydney on 2 August 2022 in matter number B2022/242.

The United Workers Union (UWU) has filed an appeal pursuant to s.604 of the Fair Work Act 2009 (the Act) against a decision of Deputy President Easton issued on 2 August 2022[1] (Decision) in which the Deputy President dismissed the UWU’s application for a majority support determination made pursuant to s.236 of the Act. The UWU’s application had been made with respect to a number of employees of Elgas Limited (Elgas) performing the role of “Operations Controller” at its Liquified Petroleum Gas Cavern (Cavern) at Port Botany. The Deputy President dismissed the UWU’s application, determining that because the UWU is not entitled to represent the industrial interests of the Operations Controllers it did not have standing to make the application.

Section 236 of the Act provides as follows:

“Section 236 Majority Support determinations

236(1) A bargaining representative of an employee who will be covered by a proposed single-enterprise agreement may apply to the FWC for a determination (a majority support determination) that a majority of the employees who will be covered by the agreement want to bargain with the employer, or employers, that will be covered by the agreement.

236(2) The application must specify:

(a) the employer, or employers, that will be covered by the agreement; and
(b) the employees who will be covered by the agreement.”

Section 176(1)(b)(i) of the Act provides that an employee organisation is a bargaining representative of an employee who will be covered by a proposed enterprise agreement if the employee is a member of the organisation (subject to the employee not having appointed another person as their bargaining representative or having revoked the status of the employee organisation as their bargaining representative). This is to be read with s.176(3) of the Act, which provides that an employee organisation or an official of an employee organisation cannot be a bargaining representative of an employee unless the organisation is entitled to represent the industrial interests of the employee in relation to work that will be performed under the proposed agreement.

The UWU’s application under s.236 had identified the group of persons to be covered by the proposed enterprise agreement as being “All operational employees with Elgas Cavern Port Botany facility as their primary place of work engaged by the respondent.” There was no dispute before the Deputy President that there were three Operations Controllers employed at the Elgas Cavern Port Botany facility. The UWU asserted that pursuant to its eligibility rules it is entitled to represent the industrial interests of these Operations Controllers. Elgas argued before the Deputy President that the s.236 application should be dismissed because the Operations Controllers did not fall within the UWU’s eligibility rules.

The UWU contends that the Deputy President erred in his construction of the Rules of the UWU when he concluded that the Operations Controllers were not eligible to be members of the UWU under Rule B(a) of Schedule 1, Part B (UWU Eligibility Rule). The UWU asserts the Deputy President should have found that the UWU is entitled to represent the industrial interests of the Operations Controllers.

When the appeal was heard, Deputy President Young (as she then was) sat as a Member of the Full Bench. Following consultation with the parties, the Full Bench was reconstituted following her Honour’s appointment to the Federal Circuit and Family Court of Australia.

The Decision

The Deputy President considered the question for determination was whether the UWU is entitled to represent the industrial interests of the Operations Controllers.

The Deputy President outlined evidence received from two of the Operations Controllers and the Terminal Manager of the Cavern, together with various rules from amongst the UWU’s eligibility rules. The Deputy President then suggested the argument advanced by the UWU was not dissimilar to the unsuccessful argument put in Re Chubb Security Services Limited Armoured Vehicle Operators (Lane Cove, Newcastle, Smithfield, Heathcote Branches) Enterprise Agreement 2011 – 2014 (Re Chubb Security).[2]

The Deputy President also referred to the Full Bench’s description of the operation of the Cavern in Construction, Forestry, Maritime, Mining and Energy Union v Elgas Ltd t/a Elgas (First Elgas Decision),[3] before stating:

“Although Elgas’ primary business at the Cavern Facility is the storing and distributing of LPG, the primary purpose of the work of the Operations Controllers is to apply their specialist technical and chemical knowledge to the storage and manipulation of LPG. The intrinsic character of the work is marked by the materials involved and the specialist knowledge required to perform the role.”[4]

The Deputy President then outlined the following:
“[21] In my view the primary purpose of the work of the Operations Controllers is to apply their specialist technical and chemical knowledge to the storage and manipulation of LPG. The intrinsic character of the work is marked by the materials involved and the specialist knowledge required to perform the role.

[22] Mr Illiev has a bachelor’s degree in Petrochemical Engineering and a Certificate IV in Process Plant Technology. Mr Illiev worked as a Refinery Technician at the Caltex refinery in Kurnell from early 2000 until 2014, then as a casual Terminal Operator at Quantem Site A in Port Botany from 2016 until 2018, before commencing work at the Cavern Facility in 2018. Even with this background, when Mr Illiev started working for Elgas he underwent nine months of training in over twenty modules before he was eligible to operate the control panel. Mr Illiev indicated in cross-examination that he did not think nine months training for someone “off the street” would be enough. Mr Webb did not state his qualifications or experience in his written statement and was not required for cross-examination.
[23] The LPG itself is processed in the Cavern Facility leaves in a different state from when it arrived. In the large gas carrier class ships the propane is stored cryogenically in liquid form at or below -42⁰ C. The propane is “heated” through a Distributed Control System to warm it for storage in the Cavern Facility. In the Cavern Facility an ethyl mercaptan odorant is added for safety reasons, and the propane is dried out, meaning moisture is removed.
[24] The reality is that the work of the Operations Controllers in heating the propane, adding odorant, and drying it out is a long way from an orthodox storeperson. More so, the work is almost exclusively performed at a control panel where workers are required to operate valves, pumps and heaters in sequence, control and monitor temperatures and flow rates, maintain emergency shutdown systems, pressure and flow rate parameters and so on.
[25] The work requires more than knowledge of how to open and close valves, and turn heaters on and off. The work involves applying a specialist understanding of the properties of LPG, how it can and must be handled, and the consequences of changes in variables that arise from time to time. For example, Mr Illiev was asked in cross examination whether he agreed that the heating process requires a scientific precision and continual checking, to which he indicated: “That’s correct, heating of the product is a very complex operation [that includes] … technicians, sometimes they're outside adjusting things, I'm watching the heater inside, I'm watching the inlet outset temperature and how the heating process goes on and we all make adjustments, so make sure everything is at optimum and runs well and safely.”[5]
[26] Mr Illiev also agreed in cross-examination that “you always use your experience to make a judgment. What's priority, what's emergency and what’s not. And then you take further actions.”
[27] The Operations Controllers working at Port Botany also monitor flow rates and safety-related measurements in other LPG facilities in other parts of Australia, which to me confirms that the Operations Controllers’ primary role is the application of specialist chemical knowledge.
[28] The mere fact that LPG is “stored” and “handled”, and even “prepared for delivery” does not of itself engage the eligibility provisions in the rules. As SDP Hamberger found in the Chubb case, such a reading would accede to a claim that would render otiose the efforts of those who laboured long and hard to produce explicit statements intended to mark out the scope of the union’s coverage of occupations in the workplace.”
(Reference omitted)

As outlined above, the Deputy President dismissed the UWU’s application, having determined that the UWU did not have standing to make the application because it was not entitled to represent the industrial interests of the employees in relation to work that will be performed under the proposed agreement.

Appeal grounds

In its notice of appeal, the Appellant advanced the following grounds of appeal:

1. The Deputy President erred by misconstruing the Rules of the UWU, in that he erroneously concluded that the Operations Controllers employed by Elgas at the Cavern were not eligible to be members of the UWU under the UWU Eligibility Rule.
2. The Deputy President erred by concluding that the Operations Controllers were not eligible to be members of the UWU under the UWU Eligibility Rule, in that he had found at [21] of the Decision that the primary purpose of the work of the Operations Controllers was to apply their specialist technical and chemical knowledge to the storage and manipulation of Liquified Petroleum Gas (LPG).
3. The Deputy President erred by finding at [27] of the Decision that the primary purpose of the work of the Operations Controllers is the application of specialist chemical knowledge.
4. The Deputy President erred by concluding that the UWU is not entitled to represent the interests of the Operations Controllers within the meaning of s.176(3) of the Act.
5. The Deputy President erred by misdirecting himself as to the effect of the decision in Re Chubb Security Services Limited Armoured Vehicle Operators (Lane Cove, Newcastle, Smithfield, Heathcote Branches) Enterprise Agreement 2011-2014.[6]

The Appellant also outlined the following matters it says make it in the public interest for the Commission to grant the appeal:

1. The Deputy President has made errors of law and as such it is in the public interest that errors of law are corrected.
2. The proper construction of the eligibility rules of the UWU is an issue of general importance beyond the immediate case.
3. If the Deputy President fell into error when making the decision, substantial injustice has been caused to the UWU and its members at the relevant workplace. Substantial injustice arises from the denial of the benefits of membership of the UWU and the granting of a majority support determination
4. The Decision is attended with sufficient doubt to warrant its reconsideration.

UWU’s submissions

The UWU grouped appeal grounds 1-4 together in submitting that the Deputy President’s conclusion that the Operations Controllers were not eligible to be members of the UWU was incorrect.

The UWU relied on the proposition that in applying the primary purpose test to determine whether an employee is engaged in a particular calling or occupation “one does not focus upon one aspect of an employee’s work in isolation from the totality of his or her duties” and the “primary function of an employee must be determined by looking at what he she does in the context of an employer’s organisation of work”.[7]

The UWU also relied on Co-Operative Bulk Handling Ltd v Waterside Workers’ Federation of Australia[8] to advance the proposition that the meaning of eligibility rules does not remain static and can evolve over time.

The UWU submitted that regard can be had to industrial practices and understanding about particular words in an eligibility rule[9] and that in order to discover the industrial meaning of words, it is permissible to take into account, inter alia, awards, evidence of work performed under awards, and judgments/decisions of courts and industrial tribunals.[10]

The UWU then turned to the UWU Eligibility Rule and argued that on a proper construction of it, the Operations Controllers are eligible to be members of the UWU. The UWU submitted the Commission ought to undertake the following steps:

(a) construe the terms “good” and “merchandise” and determine whether LPG falls within the meaning of one or both of these terms;
(b) determine the primary purpose for which the Operations Controllers were employed by Elgas; and
(c) determine whether the primary purpose for which the Operations Controllers were employed by Elgas falls within the UWU Eligibility Rule.

The UWU submitted the terms “good” and “merchandise” are to be construed according to their ordinary meaning and relied on Oxford English Dictionary definitions as follows:

Good: “Property or possessions; now in a more restricted sense, moveable property; Saleable commodities, merchandise, wares…”; and
Merchandise: “…the commodities of commerce, moveables which may be bought and sold – a saleable commodity, an article of commerce…”

The UWU asserted that there is no doubt that the LPG stored at and distributed from the Cavern is a “good” and “merchandise” when these words are construed according to their ordinary meaning.[11] The UWU suggested the Deputy President appeared to accept the proposition that LPG is a “good” or is “merchandise” at [18] of the Decision.

As to the primary purpose of the Operations Controllers, the UWU submitted this must be assessed via a qualitative assessment of their positions. The UWU asserted that Elgas operates its business of storing and distributing LPG by the labour provided by the Operations Controllers and once this is appreciated, it is apparent that the primary purpose of the Operations Controllers is to store and distribute LPG for Elgas at the Cavern. In this regard, the UWU relied upon:

a)The conclusions reached by the Full Bench of the Commission in the First Elgas Decision[12] that the proper function/business operation of the Cavern is to store gas for the purpose of its subsequent distribution, primarily by road; and

b)The observation of the Full Bench (in rejecting the contention that Elgas was undertaking a stevedoring business) that the limited amount of stevedoring activity did not permit Elgas to be described as a stevedoring business, with the stevedoring activity best described as an operational function undertaken by Elgas in a manner ancillary to its business of storing and distributing LPG.[13]

The UWU submitted that the primary purpose for the employment of the Operations Controllers falls squarely within the scope of the UWU Eligibility Rule because they are employees engaged in (or assisting in) the storage and distribution of goods and merchandise or processes and activities incidental or ancillary to such storage and distribution.

In the alternative, the UWU proffered that the Operations Controllers are employees either:

· engaged in, or assisting the reception, handling, storage, preparation, and/or delivery of goods and merchandise; or
· engaged in, or assisting processes and activities incidental or ancillary to such reception, handling, storage, preparation, and/or delivery.

As to the industrial meaning of the Eligibility Rule, the UWU relied on the following in support of its proposition that the Operations Controllers fall within the scope of the UWU Eligibility Rule and to respond to the observation of the Deputy President at paragraph [24] of the Decision that the work of the Operations Controllers is a “long way from an orthodox storeperson”:

· The Storemen and Packers (Bulk Liquid Terminals, etc.) Award 1978;[14]
· In the matter of an application by The Federated Storemen and Packers Union of Australia to vary the Storemen and Packers (Bulk Liquid Terminals, etc.) Award 1978:[15] a decision of Commissioner Sweeney (of the Australian Conciliation and Arbitration Commission) in respect of an application to vary the Storemen and Packers (Bulk Liquid Terminals) Award 1978 to include a new classification arising from the introduction of LPG facilities;
· In the matter of a notification of an industrial dispute between the Federated Storemen and Packers Union of Australia and Anchortank Australia Pty. Ltd and others,[16] a Decision of Commissioner Sweeney (of the Australian Conciliation and Arbitration Commission) in respect of the resolution of a dispute as to classification under the Storemen and Packers (Bulk Liquid Terminals, Etc.) Award 1978.
· A consent order of Justice Alley (of the Australian Conciliation and Arbitration Commission) dated 26 September 1978 by which a predecessor to the UWU was conferred exclusive representation rights of particular workers covered by the Storemen and Packers (Bulk Liquid Terminals, etc.) Award 1978; and
· An Australian Industrial Relations Commission decision of Commissioner Raffaelli[17] in respect of an industrial dispute concerning employees employed at the Port Botany terminal and covered by the Storemen and Packers (Bulk Liquid Terminals, etc.) Award 1978.

Specifically relating to the second ground of appeal, the UWU argued the Deputy President’s finding that the primary purpose of the work of the Operations Controllers is to apply their specialist technical and chemical knowledge to the storage and manipulation of LPG[18] ought to have resulted in the conclusion that the Operations Controllers were within the scope of the UWU Eligibility Rule. The basis of the UWU’s argument was that this finding established that the Operations Controllers are employees engaged in, or assisting the handling, storage, preparation, of goods and merchandise or are employees engaged in, or assisting processes and activities incidental or ancillary to such handling, storage, and/or preparation. The UWU submitted that by failing to reach this conclusion, the Deputy President fell into error.

The UWU also specifically addressed its third ground of appeal, which was directed at the following statement of the Deputy President at paragraph [27] in the Decision:

“The Operations Controllers working at Port Botany also monitor flow rates and safety-related measurements in other LPG facilities in other parts of Australia, which to me confirms that the Operations Controllers’, primary role is the application of specialist chemical knowledge.”[19]

The UWU asserted that in making this finding, the Deputy President failed to also state that the application of specialist chemical knowledge was to “the storage and manipulation of LPG.” At the hearing the UWU submitted in relation to paragraph [27] in the Decision:

“…this paragraph can be viewed in two ways. It can be viewed as inconsistent with the finding made at paragraph 21 of the decision as the Deputy President, at paragraph 27, fails to state that this application of specialist chemical knowledge was to the storage and manipulation of LPG. That's one way to view it, that it is inconsistent, but there is another reading open…that it's to be read with paragraph 21 and read harmoniously with paragraph 21 and understood to be the Deputy President is referring to the application of specialist chemical knowledge to the storage and manipulation of LPG.”[20]

The UWU also argued that the Deputy President was required to determine the primary function of the employees by “looking at what he or she does in the context of an employer’s organisation of work”.[21] The UWU submitted that had the Deputy President done this, he would have concluded that the application of specialist chemical knowledge was to the storage and manipulation of LPG. The UWU therefore argued that the Commission should conclude that the Deputy President erroneously and impermissibly focused “upon one aspect of an employee’s work in isolation from the totality of his or her duties”.[22]

As to appeal ground 5, the UWU submitted that the Deputy President misdirected himself as to the effect of the decision in Re Chubb Security by determining it supported a conclusion that the Rule B(a) was not engaged even though he had accepted that LPG was “stored”, “handled” and “prepared for delivery” by the Operations Controllers.

The Appellant submitted the permission to appeal should be granted and the appeal upheld. As to disposition, it proffered that the Decision ought be quashed and the Full Bench proceed to exercise its discretion to conduct a re-hearing before making a majority support determination pursuant to s.237(1) of the Act. In this regard, the UWU argued there is sufficient material such that the Full Bench can reach the requisite state of satisfaction in s.237(2), noting the sole basis of the opposition of Elgas to the MSD Application is its contention that the UWU is not entitled to represent the industrial interests of the Operations Controllers.

Elgas’ submissions

Elgas submits that the central reasoning of the Deputy President is found at paragraphs [20] and [21] of the Decision, in the following terms:

“[20] Although Elgas’ primary business at the Cavern Facility is the storing and distributing of LPG, the primary or principal purpose for which the Operations Controllers are employed must be determined by looking at what they do in the context of Elgas’ organisation of work, and the purpose for which the Elgas has employed the Operations Controllers.

[21] In my view the primary purpose of the work of the Operations Controllers is to apply their specialist technical and chemical knowledge to the storage and manipulation of LPG. The intrinsic character of the work is marked by the materials involved and the specialist knowledge required to perform the role.”

While Elgas maintained that LPG is not within the concept of ‘goods and merchandise’, it submitted that the Decision does not, in any event, turn on this question but rather, on the fact that the primary purpose of the work of the Operations Controllers was to apply specialist technical and chemical knowledge to the storage and manipulation of LPG.[23] Elgas argued the conclusion that the Operations Controllers are not within the eligibility rules of the UWU was based on a consideration of what the employees do in the context of its organisation of work and submitted that even if the UWU is correct in asserting that Elgas is operating a facility for the storage of goods, the work of the Operations Controllers was not work of a storeperson, Elgas argued their work was instead primarily in the application of specialist chemical knowledge.

Elgas observed the following assertions made by the UWU in relation to comments made by the Full Bench in the First Elgas Decision:

“It necessarily follows from the above that Elgas operates its business or storing and distributing LPG by the labour provided by the Operations Controllers. Once this is appreciated it is apparent that the primary purpose of the Operations Controllers is to store and distribute LPG for Elgas at the Workplace.”[24]

As to these, Elgas firstly proffered that observations about factual conclusions in the First Elgas Decision must be treated with a degree of caution before simply applying them as conclusions in another case. Elgas submitted that as authoritative as statements of a Full Bench may be, the observations made in the First Elgas Decision were factual conclusions rather than statements of legal principle and cannot be treated as being of universal application. Elgas submitted that the factual conclusions in the present case need to be guided by the evidence adduced before the Deputy President, and in particular the evidence adduced from Mr Roberto Iliev, on the skills, knowledge and expertise that are required of the Operations Controllers in order for them to perform their role,[25] as opposed to evidence given in a different case involving different questions of eligibility.

Secondly, Elgas argued that there is a flaw in the logic in saying that because it operates a business which includes storing and distributing LPG that it is apparent that the primary purpose of the Operations Controllers is to store and distribute LPG for it. Elgas argued that the approach of the UWU was over-invested in looking at the business activities undertaken at the site, rather than being concerned with the primary purpose of what it is that the Operations Controllers actually do. Elgas submitted the Deputy President’s statement at paragraph [20] of the Decision was correct.

Elgas argued that the Deputy President’s findings of fact about what the Operations Controllers actually do were soundly based upon the evidence before him, as tested by cross-examination at the hearing. Elgas submitted it is clear from the Deputy President’s conclusion that the Operations Controllers’ primary role is the application of specialist chemical knowledge that they are not ‘engaged in…the reception, handling, storage, preparation, bottling, packing and delivery of goods and merchandise’ and are not primarily employed to do storing and packing work. Elgas argued that whether the product the Operations Controllers are working with is a good or merchandise, and whether Elgas operates a storage facility, do not particularly matter for the purposes of this Appeal because the Operations Controllers are not engaged in storing and packing work. Elgas asserted that appeal grounds 1 to 4 must therefore fail.

More specifically:

· Elgas submitted the first ground of appeal asserts error without explanation;
· Elgas argued that the second ground of appeal (that in light of the Deputy President’s finding that the primary purpose of the work of the relevant employees was to apply their specialist technical and chemical knowledge to the storage and manipulation of LPG, the Deputy President erred in concluding the Operations Controllers were not eligible to be members of the UWU) was not sustainable because the fact that the Operations Controllers are applying their specialist knowledge to a commodity which happens to be temporarily in a storage facility, does not make them storepersons and packers. In this regard, Elgas submitted the Deputy President correctly observed that the “mere fact that LPG is ‘stored’ and ‘handled’ and even ‘prepared for delivery’ does not of itself engage the eligibility provisions in the rules”;[26]
· Elgas characterised the third ground of appeal as alleging a similar error in the Deputy President’s finding that the primary purpose of the Operations Controllers was in the application of specialist chemical knowledge.[27] Elgas argued this finding of the Deputy President was soundly based on the evidence given at first instance[28] and asserted no grounds have been advanced which would warrant disturbing this conclusion on appeal;
· Elgas suggested the fourth appeal ground is an objection to the finding that the UWU is not entitled to represent the interests of the Operations Controllers but countered that the Deputy President’s conclusion that the Operations Controllers are outside the eligibility rules of the UWU was soundly based and asserted no additional reasons for alleging error have been advanced.

Elgas submitted the UWU’s reliance on the various industrial instruments and decisions outlined above at [24] is misplaced and does not assist. More particularly, it asserted:

· The various industrial instruments are an assortment of consent awards, orders and decisions on irrelevant issues, which, at most, demonstrate that at various times within the last 44 years, the predecessors of the UWU have represented employees of other employers at what are said to be ‘bulk liquid terminal’ facilities in the Port Botany area;
· Little is known of the activities of these other employers but none of them operate a hi-tech facility like the Operations Controllers and nor do they undertake work in the nature of the application of specialist chemical knowledge and the UWU presented no evidence on these issues;
· None of these instruments represent an adjudicated outcome on contested issues concerning the coverage of the UWU’s eligibility rules;
· Applying a ‘consent award’ (such as the Storemen and Packers (Bulk Liquid Terminals, etc) Award 1978) as if it represented a considered outcome establishing eligibility entitlements, would distort the probable degree of consideration given by the Commission in effectively endorsing an agreement reached outside of the Commission;
· There may be all manner of reasons why the ability of the UWU’s predecessors to represent the employees in those cases remained unquestioned but whatever the reasons were, there is no content in any of these instruments which deals with the issue before the Commission;
· While the UWU has effectively said that because other employers in the past have gone along with the UWU’s predecessors’ assertions of coverage, they are entitled to extend their eligibility rule into this area, the appropriate approach if the UWU wants to run that argument is to apply to amend their eligibility rules and give other interested organisations a chance to have their say; and
· The analysis to be undertaken starts and ends with the current eligibility rule of the UWU, and the position adopted by other employers in the past is not relevant.

As to the fifth ground of appeal, Elgas submitted that while the UWU contention was that the Deputy President erred in the application of Re Chubb Security, this submission was not developed beyond an assertion that the Deputy President fell into error in finding there was no eligibility “even though he had accepted that LPG was ‘stored’, ‘handled’ and ‘prepared for delivery’ by the Operations Controllers.” Elgas challenged this assertion by contending that the Deputy President did not state that LPG was stored, handled and prepared for delivery by the Operations Controllers. Elgas submitted the Operations Controllers do not do that work, or at least, doing that work is not their primary purpose and argued that because there was no misdirection in the Decision, the fifth appeal ground must fail.

Elgas submitted that the Deputy President correctly noted the similarity between the UWU’s arguments before him and those unsuccessfully advanced in Re Chubb Security[29] and suggested that both cases involved essentially the same arguments about the operation of the same limb of the Eligibility Rule. Further, Elgas contended that the reasoning in the two cases is analogous and there was no misdirection.

Elgas submitted permission to appeal ought be refused and that the appeal should be dismissed because the Operations Controllers are not within the eligibility rules of the UWU.

Consideration

The approach of a Full Bench to the determination of an appeal depends on the nature of the decision below and while the appeal grounds and submissions of the UWU assert various errors by the Deputy President, the decision under appeal ultimately only raises the issue of whether the Deputy President’s conclusion, that the UWU is not entitled to represent the industrial interests of the Operations Controllers employed by Elgas, is correct. The Deputy President’s determination in this respect was not discretionary in nature, and accordingly the correctness standard applies in respect of the appeal. We must determine whether the Deputy President’s conclusion was right and if we conclude that it was wrong, the appeal must be upheld and our duty becomes one of substituting our own conclusion concerning the entitlement to represent the industrial interests of the Operation Controllers.

The principles of construction of union eligibility rules were recently outlined in Construction, Forestry, Maritime Mining and Energy Union v DuluxGroup (Australia) Pty Ltd[30] by Lee J (with whom Collier and Bromwich JJ agreed):

“[27] It is well to commence by noting that the following principles of construction of eligibility rules … were not in dispute:

(1) such rules are to be construed objectively, not narrowly nor technically, but rather liberally: see R v Williams; Ex parte Australian Building Construction Employees’ and Builders Labourers’ Federation [1982] HCA 68; (1982) 153 CLR 402 (at 407 per Gibbs, Mason, Wilson, Brennan, Deane and Dawson JJ);
(2) the identity of the industry in respect of which the organisation is registered is not definitive of eligibility where the eligibility clause travels beyond the bounds of the industry in respect of which the organisation is registered, but where there is some ambiguity in the eligibility rule, recourse may be had to the industry rule to resolve the ambiguity: see R v Watson; Ex parte Australian Workers’ Union [1972] HCA 72; (1972) 128 CLR 77 (at 79 per Barwick CJ); R v Gough; Ex parte Municipal Offıcers’ Association Australia [1975] HCA 30; (1975) 133 CLR 59 (at 69 per Gibbs, Stephen, Mason and Jacobs JJ); and

(3) in determining whether an employee is engaged in a particular calling or occupation, the relevant task involves a qualitative assessment of the primary purpose of the position. Put another way, the proper approach requires an assessment of the principal purpose or primary function for which the employee was employed: see, e.g., Re Application by Prichard; Re Federated Clerks’ Union of Australia (SA Branch) (1985) 12 FCR 66 (at 77–78 per Gray J).”[31]

In considering the UWU’s assertion that it is entitled to represent the industrial interests of the Operations Controllers pursuant to its eligibility rules, the Federal Court Full Court authority of Construction, Forestry, Mining and Energy Union v CSBP Limited (CSBP Limited)[32] provides guidance. In that case, the employer manufactured and produced chemical products at a chemical plant and its operations were performed within a number of physically and operationally discrete business units. The business units relevant to the dispute employed Process Technicians whose principal role was to monitor and operate the entire production process, including pressures, temperatures, chemical reactions, flows and throughputs, so as to ensure the safe operation of the plant and the efficient production of chemicals.

The relevant eligibility rule giving rise to the dispute in CSBP Limited provided as follows:

“(2)(E) Without limiting the generality of the foregoing and without being limited thereby the following are eligible to be members of the Union:-
(a) ... all classes of engine drivers, firemen, crane drivers, mobile crane drivers, forklift drivers, tow motor drivers, excavator drivers, pump attendants, pile drivers, motor drivers or attendants, greasers, cleaners, trimmers and any other workers assisting in and about the work incidental to any engine, boiler or machinery connected with the production or utilisation of power on land or any harbour or river, and boiler attendants attending boilers not generating steam for power purposes...”

(Emphasis added)

The relevant industry rule (Rule 3) provided:

“(A) The employment of persons:
…

(F) The group of industries comprised with in[sic] the calling, service, employment, occupation, or avocation of persons employed on land or any harbour, lake or river, as drivers of or attendants to any engine, winch, crane, mobile crane, fork lift, tow motor, pile driver, excavator, pump, boiler, generator, or motor used in or in connection with the generation, production, distribution, or utilisation of power, and persons assisting in or about any work incidental thereto.”

(Emphasis added)

At first instance, the employer submitted that the primary role of the Process Technicians was to make chemicals, to “monitor, manage and optimise the production of the various chemical products” made in each business unit. The employer contended that the manufacture of chemicals was not work “incidental to” any engine, boiler or machinery connected with the production or utilisation of power. The (then) Construction, Forestry, Mining and Energy Union (CFMEU) submitted that if an engine, boiler or machinery produced or used power, the eligibility rule would be satisfied if the relevant employees were attendants or workers “assisting in and about the work incidental to” any engine, boiler or machinery. The CFMEU also argued that the production of chemicals at the employer’s Kwinana Plant was work “incidental” to any engine, boiler or machinery. The primary judge rejected this, characterising the turbines, boilers and generators as tools by which the chemical production process was carried out and concluding that the Process Technicians did not fall within the ambit of the eligibility rule.

On appeal, the Full Court determined that the duties of the Process Technicians were directed to the use of machinery which used power for the production of chemical products and not to the use of machinery for the generation or utilisation of power. The Full Court made a number of observations going to the task of resolving the dispute regarding the construction of the CFMEU eligibility rule.[33] These observations were subsequently summarised by the Full Bench of the Commission in Construction, Forestry, Maritime, Mining and Energy Union v DuluxGroup (Australia) Pty Ltd t/a DuluxGroup (Dulux).[34] In the subsequent appeal from that decision in Construction, Forestry, Maritime Mining and Energy Union v DuluxGroup (Australia) Pty Ltd (Dulux Appeal Decision),[35] Lee J (with whom Collier and Bromwich JJ agreed) addressed the summary of the Full Bench as follows:

“[39]…the Full Court’s relevant observations in CSBP Limited were usefully summarised by the Full Bench as follows (omitting footnotes):

“First, the rule had to be considered as a whole so that its parts may shed light on each other. Second, the eligibility rule conferred an entitlement to membership “by reference to the occupations of employed persons, not by reference to the industry or enterprise of the employer”. Third, the occupational focus of the eligibility rule meant that the primary purpose of employment test was appropriate. The Full Court said that, in applying the primary purpose test, “one does not focus upon one aspect of an employee’s work in isolation from the totality of his or her duties”, and referred to Burt CJ’s judgment... in Mt Newman in this respect as well as the observation of Gray J in Joyce v Christofferson [(1990) 26 FCR 261 that “the primary function of an employee must be determined by looking at what he or she does in the context of the employer’s organisation of work”. The Full Court also took into account the industry rule in assessing the scope of the eligibility rule in the following way:

‘[48] It may be accepted that the eligibility rules of a trade union must be broadly construed; and that the scope of a membership clause should not be read narrowly or read down by reference to the membership clauses of other industrial organizations.

[49] That having been said, one should not accede to attempts to promote exorbitant claims which, if allowed, would render otiose the efforts of those who laboured long and hard to produce explicit statements intended to mark out the scope of a union’s coverage of occupations in the workplace.

[50] In this regard, the context afforded by the Industry Rule, r 3(F), limits the scope of the Eligibility Rule so that it does not include those employees engaged in the generation or use of power only as an aspect of their role in an integrated process directed to the production of some other product. The Industry Rule refers to ‘drivers of or attendants to any ... pump, boiler, generator or motor used in or in connection with the generation, production, distribution or utilisation of power, and persons assisting in or about any work incidental thereto’ (emphasis added). This provision indicates that the Eligibility Clause is not concerned with the occupations of all workers who operate machinery which uses power, but with those occupations who assist in the operation of machinery which is used in connection with the utilisation of power.

. . .
[52] In our respectful opinion, it is legitimate to have regard to the Industry Rule for the purpose of resolving doubt as to the proper construction of the Eligibility Rule. It is also legitimate to eschew a construction which is so ‘extremely wide or indefinite as to be unlikely to have been intended’. Each of these propositions is supported by the decision of the High Court in R v Gough; ex parte The Municipal Officers’ Association Australia [1975] HCA 30; (1975) 133 CLR 59.’

[40] This remains the approach to be followed in the present case.”[36]

In addition to these statements of principle, we consider guidance can also be derived from the First Elgas Decision because it concerned the same workplace and cohort of workers.

The First Elgas Decision considered an eligibility rule of the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) which provides that the CFMMEU shall consist of, inter alios, “[a]ny person who intends to follow the occupation of a waterside worker…”. The Full Bench in the First Elgas Decision had regard to three Federal Court Full Court authorities that had considered who might be a ‘waterside worker’ and considered that the following propositions emerged:

“(1) A person following the occupation of a waterside worker must work on a ship at or in the vicinity of a wharf.
(2) A waterside worker need not be physically engaged in the task of actually loading or unloading a ship, but their predominant duties must facilitate or serve the purpose of the loading or unloading of cargo or constitute part of the overall stevedoring operations of loading and unloading ships. It is necessary in this connection to give contextual consideration to the nature of the business operations conducted by the employer at the relevant site.
(3) Where the employer is not a stevedoring business, its employees may nonetheless be waterside workers if they are substantially employed full-time on the site of the loading and unloading of ships and perform duties which directly relate to the function of stevedoring.”[37]

The Full Bench determined that the starting point when applying these propositions was to “properly characterise the nature and purpose of Elgas’ business activities at the Cavern.”[38]

The Full Bench had regard to stevedoring functions carried out at the Cavern and determined that there was only a limited amount of stevedoring activity and this did not permit Elgas to be described as a stevedoring business. The Full Bench characterised the business operation being conducted at the Cavern as follows:

a)When LPG is received into the facility, it has already been unloaded from VLGC vessels.

b)The LPG is then stored in the Cavern, and subsequently distributed by loading on to road tankers, by pipeline to Qenos, or by re-shipping from the multi-user berth.

c)The predominant aspect of the distribution function is truck loading.

d)The LPG is not stored for the sole or predominant purpose of being exported by ship.

e)The proper function of the Cavern is to store gas for the purpose of its subsequent distribution, primarily by road.

The Full Bench characterised the stevedoring functions carried out at the Cavern as an operational function undertaken by Elgas in a manner ancillary to its business of storing and distributing LPG.[39]

We have noted that the position description for the Operations Controller position at the Cavern was before the Full Bench in the First Elgas Decision and that it outlined the purpose of the Operations Controller position at the Cavern as follows:

“The main function of the Cavern Operations Controller position is the 24/7 monitoring and control of all plant and equipment for the safe, uninterrupted and efficient receipt, storage and distribution of LPG in accordance with the facility’s 20 Operating Standards (Operating Procedures). In addition to the control room-based duties, hands-on site duties include connection and disconnection of the Marine Loading Arm during shipping operations, daily inspection and testing of process equipment and monitoring groundwater levels.”^[40]

In the First Elgas Decision, the Full Bench observed that in outlining the key responsibilities of the Operations Controller position, the position description:

· Set out the control room duties, specifying 21 responsibilities;
· Specified seven “Day worker duties” required to be conducted within the Cavern facility but outside of the control room;
· Particularised six “Standard shipping operator duties and loadmaster duties”; and
· Referenced additional responsibilities in respect of safety, compliance and security, training and other duties.[41]

The conclusion of the Full Bench in the First Elgas Decision was that it was clear from the position description that the main function of the Operations Controller position consisted of duties in the control room at the Cavern and that stevedoring duties were merely one of a number of ancillary functions of the position.[42]

We have also had regard to the evidence of Mr Roberto Iliev, an Operations Controller at the Cavern since 2018. We note that Mr Iliev holds a Bachelor’s degree in Petrochemical Engineering and a Certificate IV in Process Plant Technology. As the Deputy President noted,[43] Mr Iliev undertook nine months of training covering twenty modules upon commencement with Elgas before he was able to become an Operations Controller. Mr Iliev said the Operations Controllers operate and monitor the Distributed Control System (DCS) on a 24/7 basis via a panel board in the control room and 7 or 8 operating screens. It was also evident the Deputy President was cognisant of Mr Iliev’s description of the broad requirements for the role in the following terms:

“Do you agree with me that this is not a job that can be done by, you know, anyone off the street; it requires specialist knowledge and training, doesn't it?---No, you have to be highly qualified, and you have to have an education in the petrochemical industry, so no. Even those nine months of training, I think they're not enough for picking someone from the street for training. Yes, that's correct.

It requires training and skills and - - -?---And qualifications.
- - - experience, and all of that takes time. It's not a job anyone could do?---Yes, that's correct.”[44]

The Deputy President also specifically noted both Mr Iliev’s testimony that he made assessments based on his skilled professional background and his evidence that as an Operations Controller, “you always use your experience to make adjustment, what's priority, what's emergency and what's not, and then you take further action...”[45]

Mr Iliev characterised the Cavern as a different storage facility to the Elgas’s facility in Dandenong in the following way:

“The storage is, as I said, is totally different. The covering [sic] is 145 metres under the ground which requires special conditions. It requires a water table to keep the propane down. It have special pumps installed down there. So it's – it is the biggest LPG storage in the southern hemisphere – how shall I put it? The Dandenong is just a depot – an LPG depot. So there's a big difference. The big difference in the storage where the LPG comes from. We import the LPG from the ships. We export to the ships. Then I have export. Then I have import. The control system is different. So there are lots of different things going on.”[46]

Mr Iliev asserted that through their work operating valves, pumps and the heater in sequence through the DCS, the Operations Controllers are directly responsible for carrying out and monitoring the unloading of LPG for storage and that the 80-100 hour unloading process cannot safely occur without them regulating discharge flowrate, temperature and pressure. The process Mr Iliev described was that after Very Large Gas Carrier (VLGC) class ships have been connected to the terminal berth and the necessary paperwork and safety checks are completed, the Operations Controllers start the discharge and receipt of propane from the VLGCs into the cavern for storage. Mr Iliev described the safety checks as taking hours and requiring him to check the fuel line between the Cavern and the VLGCs plus all the valves so the line has adequate pressure and the temperature is appropriate for the reception of the product. He said the checks also cover compressors and the Kaldair Heater, together with steps to ensure the Cavern levels are adequate to receive the relevant volume of product.[47]

Mr Iliev outlined that discharge commences when the Operations Controllers open up all the control valves between the berth and the Cavern and the VLGC opens up its manifold valve. He said the Operations Controllers then start the booster pump and fire up the Kaldair Heater. Mr Iliev described how propane is stored cryogenically in liquid form in the VLGCs at temperatures at or below - 42⁰ C in order to minimise volume and pressure during transport and contrasted this with its state when stored in the Cavern, by which time it has been heated and is in liquid form at an ambient temperature of approximately 16⁰ C in order to protect the structural integrity of the Cavern’s sandstone walls and prevent cracking.

Mr Iliev gave the following evidence when discussing the heating and subsequent processes:

“That process of course again requires scientific precision. You need to be checking throughout the process on the heating of the product, that's correct?---That's correct. Heating of the product is very complex operation; includes the (indistinct) technicians. Sometimes they're outside adjusting things. I'm watching the heater inside. I'm watching the inlet outside temperature and how the heating process goes on, and we all make adjustments, so make sure everything is at optimum and runs well and safely.

So you need to take care to make sure that the propane is at the correct temperature to be compatible with the LPG stored within the cavern?---Yes. Yes, that's correct. Otherwise it's going to crack all the rock where the cavern is; it's going to damage the cavern if it's too cold.

And when in the cavern, you have to carefully monitor not just the temperature but the moisture content in the product, that's correct?---Yes. When we load for export we monitor the moisture. That's why the propane goes to the driers, and that's why, when we refer to the cavern, we refer to it as a small gas (indistinct), because in a way we process the gas. We dry it out, we inject odorants, it will (indistinct), so yes, to make it the final product for the customer.”[48]

Mr Iliev also described:

· having to monitor LPG and waters levels in the Cavern for safety, quality and inventory control;
· the remote monitoring of 15 LNG storage tanks around Australia, which involves the use of a separate computer system and can require liaison with applicable on-site maintenance personnel to enact emergency and safety procedures; and
· the maintenance of a pressurised pipeline between the Cavern and the neighbouring Qenos manufacturing plant so as to ensure a 24/7 backup supply of propane.

Mr Iliev outlined that the loading of export ships is substantively the same as the unloading and discharge process. He described using the DCS to open up the valves on the fill line, the start-up of the second propane pump, the enabling of the Emergency Shutdown System (ESD) and the maintenance and monitoring of pressure and flowrate parameters. Mr Iliev characterised the loading process as highly technical and sophisticated but unsuitable for full automation because of the requirement for constant monitoring. Further, he said each ship differs in terms of their compressors, pumps and tanks.

Mr Iliev’s evidence was that the loading of ISO-tainers requires the manual control of the valves for discharge through the DCS. He said the loading of road tankers may require intervention if there are system inaccuracies in the specifications on the weight range of the propane to be loaded.

Mr Iliev also outlined that prior to the commencement of loading, the Operations Controllers operate a process through the DCS whereby they subject the product to a process of drying to remove the moisture out of the propane gas and add an ethyl mercaptan odourant. He described the process under cross-examination, as follows:

“But you're actually making changes, aren't you to what you import from the ships before it's in a fit state for delivery? Do you agree with that?---Yes, that's what we do. Yes, that's what we do. The drying and injection of mercaptan is conditioning the final product, yes.

Conditioning the final product?---Yes.
Because the product, as it comes in from the ship, needs to be modified?---Yes.
Needs to be changed before it's in a fit state for delivery?---Yes, that's correct.
And amongst other things, you need to extract the moisture and you need to add odorant to ensure that it's ready for delivery?---Yes, that's correct.”[49]

During re-examination Mr Iliev’s account was:

“You were also asked about the drying process and the process of adding mercaptan. What is the drying process?---Well, the dryers are big vessels where the propane goes to the bottom. We have beads which are absorbing the moisture from the propane and from the top the propane comes out with the lower moisture. For example, we keep always the moisture below 10 ppms.

The drying process, that's a manual process rather than a chemical one?---It's a physical process removing the moisture, yes.

What exactly is mercaptan?---Mercaptan, it's just a sulphuric compound which is really smelly. It's not really hazardous, it's just smelly and it's injected into the propane so for the final user they can - just for safety reasons. If they have a leak they can identify the leak and they can smell the propane, yes. That's the only reason.

Does adding the mercaptan transform the product in any way?---No, it doesn't. The mercaptan is a very inactive substance.

Even with the mercaptan added the product is still propane gas, is it?---It is, yes.”[50]

Mr Iliev described operating the DCS to open and close valves while the product is being loaded. He said the Operations Controllers are required to monitor flowrate, pressure and weight parameters and respond to any alarms. Finally, Mr Iliev identified other periphery duties, such as conducting weekly MEX checks on pumps, compressors and associated equipment and undertaking minor maintenance work where required.

Mr Iliev agreed to the proposition that in operating the control panel, he was managing a highly technical monitoring process involving taking of the raw product from the ships, converting it into a state that is fit for delivery and then maintaining it in that (fit) state.[51]

As to the Rules of the UWU, we have noted the following:

· Rule 3(a), in which:

“Industrial Member” is defined as “a person who has been admitted as a Member under these rules and who is eligible to be industrially represented by the Union”;
“Occupation” is defined as “eligibility comprised in Schedule 1 in the industries comprised in Schedule 2”; and
“Union” is defined as the UWU.

· Rule 7(a), which provides that the eligibility of a person entitled to apply for membership as an Industrial Member is set out in Schedule 1;
· Rule 11(b), which provides that an Industrial Member may seek admission to membership of the UWU;
· Rule 11(a), which provides that an Industrial Member is a person who is entitled to apply for membership, working or usually working in an Occupation and able to be industrially represented;
· Schedule 1, which provides for the eligibility rules of the National Union of Workers in Part B;
· Rule B(a) of Schedule 1, Part B (defined above as UWU Eligibility Rule), which provides that the Union shall consist of an unlimited number of employees engaged in, or assisting the reception, handling, storage, preparation, bottling, packing and delivery of goods and merchandise, and processes and activities incidental or ancillary to such reception, handling, storage, preparation, bottling, packing and delivery including the pulping, testing and/or processing of eggs;

We are satisfied LPG is capable of falling within the meaning of ‘goods’ and ‘merchandise’ in the UWU Eligibility Rule. In reaching this conclusion, we have had regard to the dictionary definitions outlined by the UWU and the following:

· The Macquarie Concise Dictionary (Fifth Edition) definition of ‘goods’ as articles of trade; wares; merchandise, especially that which is transported by land;
· The Shorter Oxford English Dictionary (Fifth Edition) definition of ‘goods’ as saleable commodities; merchandise, wares;
· The Macquarie Concise Dictionary (Fifth Edition) definition of ‘merchandise’ as goods, commodities, especially manufactured goods;
· The Shorter Oxford English Dictionary (Fifth Edition) definition of ‘merchandise’ as the commodities of commerce; goods to be bought and sold; and
· The Shorter Oxford English Dictionary (Fifth Edition) definition of ‘commodity’ as a thing that is an object of trade, esp. a raw material or agricultural crop.

As outlined above, the assessment of whether the UWU is entitled to represent the industrial interests of the Operations Controllers involves what has been described as a qualitative assessment of the primary purpose of their position or an assessment of the principal purpose or primary function for which they were employed.

More generically, the assessment calls for the application of the primary purpose of employment test and the authorities make clear:

· There should not be a focus upon one aspect of the Operations Controllers’ work in isolation from the totality of their duties; and
· the primary function of the Operations Controllers must be determined by looking at what they do in the context of Elgas’ organisation of work.

In order for the Operations Controllers to come within the UWU Eligibility Rule, the primary purpose of their employment must be engagement in, or assisting with the reception, handling, storage, preparation, bottling, packing and delivery of goods and merchandise, and processes and activities incidental or ancillary to such reception, handling, storage, preparation, bottling, packing and delivery.

When considering whether particular workers were ‘engine drivers’ in Federated Engine Drivers and Firemen’s Union WA v Mt Newman Mining Co Pty Ltd, Burt CJ outlined the following:

“The question in any particular case is, I think, whether the worker is employed to drive an engine so that he earns his wages by doing that, or whether he is employed to do something else. And if the answer is that he is employed to do something else then he is not an engine driver merely because he operates a machine and drives the engine of that machine so as to do what he is employed to do. In such a case the description of his vocation will more often than not reflect the purpose to be achieved by his work.” [52]

As to the Operations Controller position description, we have observed:

· Elgas placed the Operations Controller position description before the Commission in the proceeding that resulted in the First Elgas Decision;
· In this proceeding, Elgas did not place the Operations Controller position description before the Deputy President and remained silent in relation to it;
· Elgas instead referred to its Dandenong Bulk Terminal facility (Dandenong Facility) in this proceeding and relied on evidence from Mr Creagh Brabander that, save for port and shipping operations, the Dandenong Facility had the same function as the Cavern;
· Elgas relied on the duties of ‘Competent Plant Operators’ set out in the enterprise agreement covering the Dandenong Facility,[53] together with evidence from Mr Brabander to submit that Plant Operators at the Dandenong Facility have essentially the same duties as the Operations Controllers;
· Neither party in this proceeding has specifically cavilled with the conclusion of the Full Bench in the First Elgas Decision that the “main function” of the Operations Controller position consists of duties in the control room at the Cavern.

Elgas urged caution in relation to factual findings from the First Elgas Decision, but did not expand upon this submission to any significant extent. Certainly Elgas did not contend that the Operations Controller position has recently materially changed. We have therefore proceeded on the basis that the Operations Controller position description referred to in the First Elgas Decision remains applicable. We note the Operations Controller position description clearly identifies the primary function of Operations Controllers (within the context of Elgas’ business operation of storing LPG at the Cavern for the purpose of its subsequent distribution) as being the 24/7 monitoring and control of all plant and equipment for the safe, uninterrupted and efficient receipt, storage and distribution of LPG at the Cavern. We are therefore satisfied the position description weighs in favour of a finding that the primary purpose for which the Elgas Operations Controllers are employed falls within the UWU Eligibility Rule. We acknowledge, in fairness to the Deputy President, that neither party put the position description of the Operations Controllers before him.

We are also satisfied Mr Iliev’s evidence weighs in favour of a finding that the primary purpose for which the Elgas Operations Controllers are employed falls within the UWU Eligibility Rule. We consider Mr Iliev’s evidence establishes that the Operations Controllers are employees primarily engaged in the reception of the LPG from the VLGCs into the cavern, or at the very least assist with it. Similarly, we consider the evidence of Mr Iliev establishes that the Operations Controllers handle the LPG and assist with its storage through their operation and monitoring of the DCS panel board so as to maintain optimum flowrate, pressure, temperature and moisture level parameters. Further, we are persuaded Mr Iliev’s evidence of the Operations Controllers drying and adding odorant to the LPG indicates they prepare or assist in the preparation of the LPG for delivery, and we consider they assist in the delivery of the LPG through their subsequent tasks in the loading process. In the alternative, we are satisfied these activities are such that the Operations Controllers can be regarded as engaged in, or assisting processes and activities incidental or ancillary to such reception, handling, storage, preparation, and delivery of LPG.

We accept that both Mr Iliev’s evidence and the Operations Controllers position description establish that there are other duties attached to the Operations Controller position, but we consider that even if these are aggregated, they do not displace the tasks we have described as constituting the 24/7 monitoring and control of all plant and equipment at the Cavern as the primary purpose of the Operations Controllers’ employment.

We have had regard to the Deputy President’s conclusion that the “mere fact” that LPG is stored, handled and prepared for delivery “does not of itself engage the eligibility provisions” of the UWU rules.[54] The Deputy President’s invocation of the reasoning of Senior Deputy President Hamberger in Re Chubb Security when forming this conclusion suggests the Deputy President was troubled by what might result from a broad interpretation of the UWU Eligibility Rule in circumstances where the Operations Controllers apply specialist chemical knowledge. Respectfully, we consider the scenario in Re Chubb Security is distinguishable on its facts. In that case, the work performed by armoured vehicle operators was primarily concerned with the secure transport and collection of cash to and from customers, automatic teller machines, ticket vending machines and various other locations, whereas in this case, the primary function of Operations Controllers is the 24/7 monitoring and control of all plant and equipment for the safe, uninterrupted and efficient receipt, storage and distribution of LPG at the Cavern, albeit they apply specialist qualifications and knowledge while doing so. We do not consider the Deputy President’s finding that the primary purpose of the work of the Operations Controllers is to apply their specialist technical and chemical knowledge to the storage and manipulation of LPG[55] prevents them from coming within the UWU Eligibility Rule. The UWU’s submission that the Deputy President’s ultimate conclusion should have been that the application of such specialist technical and chemical knowledge was to “the storage and manipulation of LPG” (noting that the Deputy President appeared to conclude this at [21] of the Decision) has some force.

For completeness, we have noted that the Federal Court Full Court in CSBP Limited opined it is legitimate to have regard to the relevant industry rule for the purpose of resolving doubt as to the proper construction of the eligibility rule[56] and that the Full Court considered it legitimate to have regard to the particular industry rule in question “to eschew a construction of the eligibility rule which is so ‘extremely wide or indefinite as to be unlikely to have been intended.’”[57]

With these considerations in mind, we note that the Rules of the UWU include Rule B(i) of Schedule 2, Part B (UWU Industry Rule), which provides that the industries in or in connection with which the UWU is registered are:

“Storing and packing goods and merchandise (but not so as to limit the generality of the expression 'Storing and Packing'), the reception, handling, storing, preparing, bottling, packing and delivery of goods and merchandise so far as such reception and/or handling and/or preparing and/or delivery of such goods and merchandise is in any way incidental or ancillary to their storing and packing as above described including the pulping, testing and/or processing of eggs; …”

While Elgas maintains the work of the Operations Controllers is not the work of a storeperson, we note the language used in the UWU Industry Rule essentially mirrors the UWU Eligibility Rule. In particular, we observe the generality of the expression “storing and packing”, when used in relation to goods and merchandise, is not to be limited. It does not appear to us that the Deputy President gave consideration to the implications for the UWU Eligibility Rule in this case flowing from the context afforded by the UWU Industry Rule. In particular, the wording used in the UWU Eligibility Rule, when read with the UWU Industry Rule, does not suggest that employees engaged in, or assisting the reception, handling, storage, preparation, and delivery of goods and merchandise or engaged in, or assisting processes and activities incidental or ancillary to such functions are to be excluded on the basis that they utilise specialist qualifications and knowledge while doing so.

Because the appeal raises issues of substance and potentially wider application, we consider permission to appeal should be granted. For the reasons stated above, the appeal is upheld.

Orders

We order that:

Permission to appeal is granted.
The appeal is upheld.
The Decision ([2022] FWC 2044) is quashed.

The United Workers’ Union is entitled to represent the industrial interests of the Operations Controllers at Elgas’ Liquified Petroleum Gas Cavern at Port Botany.
The United Workers’ Union’s application for a majority support determination is remitted to Deputy President Easton for determination on the basis of the evidence and submissions received to date and such further evidence and submissions which the Deputy President may determine to admit.

DEPUTY PRESIDENT

Appearances:

Y Bakri of counsel for the Appellant

R Millar of counsel for the Respondent

Hearing details:

2022.
Melbourne (via video-link):
26 October.

[1] [2022] FWC 2044.

[2] [2012] FWAA 3896, AE893764.

[3] [2021] FWCFB 4575 at [35]-[36].

[4] [2022] FWC 2044 at [20].

[5] Ibid at [21]-[28].

[6] [2012] FWAA 3896.

[7] Construction, Forestry, Maritime, Mining and Energy Union v DuluxGroup (Australia) Pty Ltd [2022] FCAFC 101 at [39] and Construction, Forestry, Mining and Energy Union v CSBP Limited (2012) FCAFC 48, cited therein, at [44] and [45].

[8] (1980) 49 FLR 355 at 363.

[9] Co-Operative Bulk Handling Ltd v Waterside Workers’ Federation of Australia (1980) 49 FLR 355, Electrical Trades Union v Waterside Workers’ Federation (No 2) (1982) 59 FLR 78 and Re Customs Officers’ Association of Australia, Fourth Division (1984) 292 CAR 455.

[10] Relying on Electrical Trades Union v Waterside Workers’ Federation [No.2] 59 FLR 78 at 82.

[11] The Appellant also referred to National Union of Workers v Devlaun Pty Ltd & Ors[2000] AIRC 1323.

[12] [2021] FWCFB 4575.

[13] Ibid at [36].

[14] Print D8696. See clause 3, clause 4 and the definitions of “Bulk liquids”, “goods and merchandise” and “industrial undertaking” in clause 44.

[15] S110 Mis 085/85 SD Print F7873.

[16] S100 V3 SD Print E4525.

[17] 321/1996, [1996] AIRC 1454.

[18] [2022] FWC 2044 at [21].

[19] Ibid at [27]

[20] Transcript PN149.

[21] Construction, Forestry, Maritime, Mining and Energy Union v DuluxGroup (Australia) Pty Ltd [2022] FCAFC 101 at [39] and Construction, Forestry, Mining and Energy Union v CSBP Limited (2012) 212 IR 206 cited therein.

[22] Ibid.

[23] Submissions of Elgas dated 24 October 2022 at [16].

[24] Paragraph 57 of the UWU’s Submissions, referring to Construction, Forestry, Maritime, Mining and Energy Union v Elgas Ltd t/a Elgas[2021] FWCFB 4575 at [35] and [36].

[25] [2022] FWC 2044 at [22] – [27].

[26] Ibid at [28].

[27] Ibid at [27].

[28] Ibid at [21] to [27] from which Elgas relied on Mr Iliev’s evidence concerning the technical and scientific nature of the work undertaken, and the degree of judgment involved.

[29] Ibid at [15].

[30] [2022] FCAFC 101.

[31] Ibid at [27].

[32] [2012] FCAFC 48.

[33] Ibid at [39]-[45].

[34] [2021] FWCFB 6020 at [28].

[35] [2022] FCAFC 101.

[36] Ibid at [39]-[40].

[37] [2021] FWCFB 4575 at [33].

[38] Ibid at [34].

[39] Ibid at [36].

[40] [2021] FWCFB 4575 at [37].

[41] Ibid at [38]-[39].

[42] Ibid at [40].

[43] [2022] FWC 2044 at [22].

[44] Transcript 7 June 2022 at PN200-202 and noted in [2022] FWC 2044 at [22].

[45] Transcript 7 June 2022 at PN183 and noted in [2022] FWC 2044 at [26].

[46] Transcript 7 June 2022 at PN290.

[47] Ibid at PN186.

[48] Ibid at PN193-195.

[49] Ibid at PN261-265.

[50] Ibid at PN329-333.

[51] Ibid at PN286-287.

[52] (1977) 57 WAIG 794.

[53] Elgas Limited Plant Operators Dandenong Bulk Terminal – TWU Workplace Agreement 2001 (AE513426 PR734714).

[54] [2022] FWC 2044 at [28].

[55] [2022] FWC 2044 at [21].

[56] [2012] FCAFC 48 at [52].

[57] Ibid.

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