Vangedal-Nielsen v Commissioner of Patents

[1980] FCA 163

Re: CO-OPERATIVE BULK HANDLING LTD.
And: WATERSIDE WORKERS FEDERATION OF AUSTRALIA and THE AUSTRALIAN WORKERS'
UNION WEST AUSTRALIAN BRANCH INDUSTRIAL UNION OF WORKERS (1980) 49 FLR 355
W.A. Nos. 2 & 3 of 1980
Industrial Law - Conciliation and Arbitration

COURT

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY
INDUSTRIAL DIVISION
Sweeney(1), Evatt(1) and Northrop(1) JJ.

CATCHWORDS

Industrial Law - whether certain employees not entitled to be admitted as and remain members of the Waterside Workers Federation of Australia - interpretation of conditions of eligibility for membership - which rule prescribes conditions of eligibility - meaning of "waterside worker" - industrial meaning or usage - reference to industrial awards and agreements to determine meaning.

Conciliation and Arbitration Act 1904, s.144, s.139,Part 111, Divisions 3 and 4. Conciliation and Arbitration Regulations - reg. 125.

Conciliation and Arbitration - Registered organization - Eligibility for membership of Waterside Workers' Federation of Australia - Conditions of eligibility - Interpretation thereof - Industrial meaning - Meaning of term waterside worker - Conciliation and Arbitration Act 1904 (Cth), ss. 139, 144 - Conciliation and Arbitration Regulations 1956, reg. 125.

HEADNOTE

The appellant Co-operative Bulk Handling Ltd. (C.B.H.) applied under s. 144 (5) of the Conciliation and Arbitration Act 1904 for declarations that certain of its employees employed under a State award were not entitled under the constitution and admission of membership rules of the Waterside Workers' Federation (the federation) to become and remain members thereof.

The respondents to the application were the Australian Workers' Union West Australian Branch Industrial Union of Workers (the State A.W.U.) a party to the State award and the federation. The employees concerned had resigned from the State A.W.U. and applied and been admitted to membership in the federation. The application was dismissed. Both C.B.H. and the State A.W.U. appealed.

Rule 6 (a) of the federation rules stated in part: "Any person who intends to follow the occupation of a waterside worker . . . who is reasonably competent and able to perform all the duties of a waterside worker may become a member and be enrolled as such in a branch of the organization."

Held: Per curiam - (1) Rule 6 (a) contained the conditions of eligibility for membership of the federation.

(2) In determining the conditions of eligibility for membership of the federation the industrial meaning or usage of the words in the rule must be ascertained and construed in accordance with their current denotation.

R. v. Aird; Ex parte Australian Workers' Union (1973), 129 CLR 654; R. v. Cohen; Ex parte Motor Accidents Insurance Board (1979), 141 CLR 577, applied.

(3) The term waterside worker in r. 6 (a) includes persons who are engaged in the loading of cargo, including loose bulk cargo, into ships and the prior handling, treating and storage of that cargo at or in a vicinity of a wharf when that handling, treating and storing is to facilitate or is for the purpose of the ultimate shipping of that cargo.

Re Queensland Branch of Waterside Workers' Federation of Australia; Ex parte Commonwealth Steamship Owners Association (1933), 32 CAR 596; Associated Steamships Pty. Ltd. v. Waterside Workers' Federation of Australia (1969), 127 CAR 10, referred to.

(4) On the evidence the relevant employees all formed part of the loading operations involved in the shipping of grain in bulk and thus were eligible to become and remain members of the federation. Two gardeners who cared for the gardens at the grain terminal of C.B.H. were also so eligible.

(5) Appeals dismissed.

HEARING

Melbourne, 1980, November 19. #DATE 19:11:1980

APPEALS.

Appeals from judgment and orders of a single judge of the Federal Court.

S. P. Charles Q.C. and D. M. Ryan, for Co-operative Bulk Handling Ltd.

T. E. F. Hughes Q.C. and P. R. A. Gray, for Australian Workers' Union West Australian Branch Industrial Union of Workers.

T. R. Morling Q.C. and J. W. Shaw, for Waterside Workers' Federation of Australia.

Cur. adv. vult.

Solicitors for Co-operative Bulk Handling Ltd.: Jackson, McDonald & Co.

Solicitors for the Australian Workers' Union West Australian Branch Industrial Union of Workers: Paterson & Dowding.

Solicitors for the Waterside Workers' Federation of Australia: Northmore, Hale, Davy & Leake.

T. J. GINNANE

ORDER

THE COURT ORDERS that the appeals be dismissed.

Appeals dismissed.

JUDGE1

Co-operative Bulk Handling Ltd. ("C.B.H.") and The Australian Workers' Union West Australian Branch Industrial Union of Workers ("the State A.W.U.") each appeal as of right from a judgment of the Federal Court of Australia constituted by a single judge. With the consent of all parties, the two appeals were heard together.

On 19 October 1979 C.B.H. made application to the Federal Court under s.144(5) Conciliation and Arbitration Act 1904, as amended ("the Act"), for a declaration that the persons employed by it at its premises at North Fremantle and Kwinana in the various classifications provided for in the Grain Handling (Kwinana and North Fremantle Terminals) Award No. 31 of 1978 of the Western Australian Industrial Commission ("the State Award") are not entitled under the Constitution and Admission of Membership Rules of the Waterside Workers Federation of Australia ("the Federation") to become and remain members of the Federation, alternatively that the persons named in the application, being the said persons employed by C.B.H. at its premises at North Fremantle and Kwinana, are not entitled under the Constitution and Admission of Membership Rules of the Federation to become and remain members in the Federation. The State A.W.U. is an industrial union of employees under the Western Australia Industrial Arbitration Act 1912, as amended, and thus is a corporation. See now Western Australia Industrial Arbitration Act 1979. It is a party to the State Award. The Federation is an organisation of employees under the Act and thus is a corporation. It is not and cannot be a party to the State Award. C.B.H. made the State A.W.U. and the Federation respondents to its application, it not being clear on what basis the State A.W.U. was made a party. By its judgment given on 19 May 1980, the Federal Court refused to make either of the declarations sought by C.B.H.

Although the State A.W.U. is a respondent to the appeal by C.B.H., and although C.B.H. is a respondent to the appeal by the State A.W.U., they each challenge the judgment appealed from, while the Federation supports that judgment.

In February 1979 the persons specified in the application resigned their membership of the State A.W.U. and made application to be admitted as members of the Federation. The Federation admitted them as members. The application by C.B.H. was designed to determine the question of whether those persons were entitled to be admitted as, and to remain members of, the Federation.

Under s.144(1) and (2) of the Act persons complying with the specified conditions are entitled to be admitted as members and to remain members of an organisation only if they are included in a category of persons who are eligible for membership of the organisation under the rules of the organisation. Under s.144(5) where a question arises as to the entitlement under s.144 of a person to be admitted as, or to remain, a member of an organisation, the employer of that person may apply to the Federal Court for a declaration as to the entitlement of that person under s.144. Under s.144(7) the organisation concerned must be given an opportunity of being heard by the court.

The purpose of an organisation in standing in the place of its members and as representing an industrial group or class, is discussed in the joint judgment of the High Court in R. v. Dunlop Rubber Australia Ltd.; ex parte Federated Miscellaneous Workers' Union of Australia (1956-7) 97 C.L.R. 71. That case illustrates also the importance of the specification by which the industrial group or class is to be ascertained, namely by reference to the conditions of eligibility of membership of the organisation as prescribed by the rules of the organisation. The Court said at p.87:
"We are concerned with a principle developed by the Court for determining the scope within which a body recognised by the industrial law may represent a class or act in its supposed interest. A test which the industrial law approves or allows for determining who are eligible as members of an organised body registered under its provisions surely may in such circumstances be adopted as a sufficient criterion for ascertaining or defining the group or class in the place of which it stands for industrial purposes or which it 'represents'.

The result of the foregoing is that it was not beyond the capacity of the organisation to formulate industrial claims in the interests of that group or class ascertainable by reference to the 'conditions of eligibility' prescribed by its rules and the claim of the prosecutor that the operation of any award made by the Commission should be limited to those engaged in or in connexion with the rubber industry must be rejected."

This principle was confirmed by the High Court in R. v. Clarkson; ex parte Victorian Employers Federation (1974-5) 131 C.L.R. 100. In that case, after referring to the Dunlop Case and quoting the extracts therefrom already set out, Menzies J. said at p.111:
"In the field of industrial relations, every consideration is in favour of simplicity as opposed to complexity and the simple rule adopted in the Dunlop Case - that an organization can represent the group belonging to it as members in accordance with its conditions of eligibility - is greatly to be preferred to some different rule that would always throw open to examination the capacity of an organization, a party to the dispute, to represent some of those who are its members according to its conditions of eligibility by reason of the particular description of the industry in or in connexion with it when it became registered. Industrial tribunals should be spared such subtleties and the Dunlop Case should be applied in its full scope."
In the same case, Gibbs J. said at p.113:
"I regard it as established by (the Dunlop Case) that for the purposes of the Act an organization is entitled to represent a group or class comprising all those persons who are eligible to be its members even though that group or class extends beyond the industry in or in connexion with which the organization is registered. No reason has been advanced that would persuade me to depart from this decision, or to hedge round with qualifications the clear and simple principle for which it is authority."

In an appropriate case, reference may be made to the industry in connection with which the organisation is registered as an aid in construing the rule of an organisation containing the conditions of eligibility to membership of that organisation, see R. v. Watson; ex parte Australian Workers' Union (1972-3) 128 C.L.R. 77 per Barwick C.J. at p.79.

In the present appeal the first question which arises is, what are the conditions of eligibility for membership of the Federation. The second question is whether the persons specified in the application made by C.B.H. are included in the group or class specified by the conditions of eligibility for membership of the Federation.

There was some disagreement between the parties to the appeal as to what were the conditions of eligibility for membership of the Federation, both with respect to the relevant rules of the Rules of the Federation and the correct construction of the Rules. The Certificate of Registration of the Federation shows that the Federation is registered as an organisation of employees in connection with the shipping industry. We set out extracts from Rule 5 and Rule 6 of the Rules of the Federation. The following provisions are contained in Rule 5:
"5. Definitions

In these Rules unless the context otherwise requires or contrary intention appears . . . :-

'Member' means financial member of the Waterside Workers' Federation of Australia engaged in the Stevedoring Industry, and/or engaged in any duties as an official of a Branch or the Federation.
. . .

'Stevedoring Industry' means the operation of loading and discharging ships and includes the actual movements of goods on, to, or from a vessel, wharf, pier, jetty, shed, lighter, or any place in the vicinity of loading and discharging operations for the purpose of putting goods at a point or points within that place, so as to facilitate the ultimate actual loading or discharging and/or ultimate removal from that place, and also includes the stacking or arranging within that place of loading or discharging so as to further that ultimate loading or discharging of cargo in relation to trade or commerce by sea with other countries or amongst the States. For the purposes of these operations any such place may include any shed, wharf, or pier or any place in the vicinity of the spot at which the vessel is to be loaded or discharged or where goods are to be shipped or that have been unshipped or are temporarily deposited or stacked for the purpose of facilitating the ultimate loading or the ultimate adequate discharge of cargo."
The following provisions are contained in Rule 6:
"6. Admission to Membership

(a) Any person who intends to follow the occupation of a waterside worker, who is of respectable character and of the age of at least 18 years and not exceeding 45 years and who is reasonably competent and able to perform all the duties of a waterside worker may become a member and be enrolled as such in a Branch of the organisation within the Commonwealth, subject to the following provisions: -"'
There then follow provisions of a procedural nature to be followed by a person seeking membership of the Federation:
"(b) Employers of labour shall not be eligible for membership."
Paragraph (c) contains the form of application to be filled in by the person seeking membership of the Federation. The form contains words showing that the person makes application "to be enrolled as a member" of a specified branch of the Federation and requires a person to state whether he is at present a financial or unfinancial "member" of a union. The form has a notation on it "that the member's registration" cannot be completed before certain other things are done. Paragraph (d) makes special provisions for admission of "members" of another union, and paragraph (e) modifies the requirement relating to age, as specified in paragraph (a), and makes other special provisions where the applicant "is a worker already working in the Stevedoring Industry or in an occupation associated with or ancillary to the Stevedoring Industry" (emphasis added).

Rule 2 of the Rules of the Federation is headed "Constitution" and under that heading there appear the words "Take in Insert. See Rule 6". Prior to 6 July 1973 Rule 2 read:
"2. Constitution The purpose of the organisation is to combine in one body all persons engaged in loading, discharging and coaling of vessels, in order that their interests may be protected, their status raised and their conditions improved."

On 6 July 1973, the Industrial Registrar, in the exercise of the powers conferred by s.139(1) of the Act, gave his consent to an alteration to the Rules of the Federation insofar as they related to the conditions of eligibility for membership by deleting Rule 2 and leaving Rule 6 which since 1949 had been, with minor changes, in the form of the present Rule 6. On 30 September 1975 the Industrial Registrar gave his consent to a further alteration to Rule 6 to bring it into its present form. On each occasion the Industrial Registrar acted on the basis that he was consenting to an alteration to the conditions of eligibility for membership of the Federation. Rule 6 in its present form is endorsed on the Certificate of Registration of the Federation as the conditions of eligibility for membership of the Federation under the heading:
"Alteration hereunder to the rules of the Organization insofar as they relate to the conditions of eligibility for membership of the Organization were consented to on 30 September, 1975 - Recorded hereon on 30 September 1975."
This is in compliance with the Conciliation and Arbitration Regulations, see Regulation 125 and Form 32.

In these circumstances it seems to us quite clear that the conditions of eligibility for membership of the Federation are as stated in Rule 6 and as endorsed on the Certificate of Registration of the Federation. The trial judge so held. We also are of the opinion that Rule 5 does not, and does not purport to, cut down the provisions of Rule 6. The definitions contained in Rule 5 apply only where the context does not otherwise apply or a contrary intention does not appear and it may well be that the word "member" appearing elsewhere in the Rules does not always have the defined meaning. For example, the word "member" where secondly appearing in the form to Rule 6(c), and when appearing in Rule 6(d), of necessity cannot have the defined meaning. Apart from its use in the definition of the word "member" insofar as that definition applies to that word appearing in Rule 6(a) the term "Stevedoring Industry" is used only in Rule 6(e) of Rule 6. Under Rule 6(a) the word "member" is used in connection with what may occur in the future and cannot be used to limit applications for membership to persons who are already "members" of the Federation. We shall comment on this aspect later.

The terms of Rule 5 then, and particularly the opening words, seem to us to be strong indications that it was never intended or approved as the conditions of eligibility rule. It is just not conceivable that the Industrial Registrar would give his consent under s.139 of the Act to a rule where its application may be excluded by the context of other rules or where a contrary intention appears. If this was possible a change to the conditions of eligibility for membership could be effected by altering rules to which the consent of the Registrar was not required. This would defeat the clearly stated purpose of the Act. Moreover, it would be most unusual to find the conditions of eligibility for membership set out in a definition rule.

In construing Rule 6 we adopt the approach expressed in the opinion of the Chief Justice in R. v. Aird; ex parte The Australian Workers' Union (1972-3) 129 C.L.R. 654 at p.659:
"I now turn to consider the meaning of the eligibility clause in relation to the manufacture in the batching plants of ready-mixed concrete. This is a legal question to be solved by legal considerations. But those considerations will, in relation to the present question, include any industrial meaning or usage of the words of the clause to be construed. As with all construction, the nature of the instrument in which the words appear and the purposes the instrument is evidently intended to serve or effect must be kept in mind. In this respect, it is proper, in my opinion, in the present case to acknowledge that the eligibility clause will have been drawn, more likely than not, by union officials more familiar with the practical affairs of industry than with the niceties or subtle nuances of language. The purpose of the clause is to define, in brief terms, industries or callings relevant to the representative character of the union. But, granted this generosity of approach, the question of the meaning of the words used remains a legal question."
See also R. v. Cohen; ex parte Motor Accidents Insurance Board (1979) 53 A.L.J.R. 719 where Mason J. in construing the construction of the eligibility rule of an organisation said at p.723:

"In considering whether the Board is engaged in 'the business of insurance', it should be recognized at the outset that we are concerned with the use of that expression in the eligibility clause of a trade union's registered rules. The expression is, in such a context, no doubt intended to have a wide meaning and it should be interpreted and applied in accordance with its ordinary and popular denotation rather than with some narrow or formal construction. Thus the question is whether, as a matter of ordinary usage, the Board can properly be said to be in 'the business of insurance'."

The relevant part of Rule 6(a) of the Federation is:
"Any person who intends to follow the occupation of a waterside worker . . . who is reasonably competent and able to perform all the duties of a waterside worker may become a member and be enrolled as such in a branch of the organisation . . ."

The answer to the first question in this case really turns on the meaning of the term "waterside worker" in Rule 6(a). Even if the word "member" when used in Rule 6(a) is to be given its defined meaning, it cannot restrict the class of persons who can make application for membership. In this respect the wording of Rule 6(a) is clear and unambiguous. For present purposes, the only restrictions imposed on persons intending to make application for membership are that they must intend to follow the occupation of a waterside worker and they must be reasonably competent and able to perform all the duties of a waterside worker. The meaning of the term "waterside worker" is not to be construed by dividing it into its two parts and seeking to construe each part separately. When considering it as a composite phrase it is unfortunately indefinite and flexible and those within it if so read, could range from a lifesaver on Bondi Beach to those doing a host of other activities beside or even on water.

In those circumstances His Honour sought to ascertain the common understanding among people concerned with shipping and stevedoring, particularly with respect to industrial matters therein, and the nature of the employment to which the term is ordinarily applied. In other words, he sought to ascertain the industrial meaning or usage of the words. He sought evidence of that meaning from awards, agreements and judgments of various courts where the question had arisen for decision. It was a ground of appeal that His Honour was wrong in placing any or undue weight on industrial awards and agreements as an aid, but His Honour's approach is, in our view, quite consistent with that referred to by the High Court, see for example R. v. Hickman; ex parte Fox (1945) 70 C.L.R. 598 per Dixon J. at 613-4.

A number of authorities were referred to us, some by the appellants, some by the Federation. The earliest was Brooks v. S.A. Stevedoring Co. Ltd., (1920) S.A.L.R. 207. In that case a question arose as to entitlement under a Commonwealth award. The terms of the award, as appears from the judgment, were that the award applied to waterside workers. A waterside worker was defined in the award as meaning a "wharf labourer", a member of the Federation. The Court then looked at the phrase "wharf labourer" and decided that what the man was doing was labour but that it was not done at a wharf.

The Court looked at other clauses of the award and decided that the intention was that it should only apply in respect of work done on a wharf. It is, we think, a dangerous method of definition to divide a composite phrase into its component parts and then seek a meaning for each of these, but in any event we think the case of little use because it concerned the term "wharf labourer" rather than "waterside worker".

In the Waterside Workers' (Geraldton Branch) Union (1961) 41 W.A.I.G. 1140 the President of the Court of Arbitration of Western Australia considered the meaning of the word "lumpers" in the Constitution of a State Industrial Union. His Honour referred to the technical meaning of the word "lumper" and to the fact that in Western Australia, the word was understood to mean also a workman who unloads bagged wheat or other grain from farm trucks into stacks and such bags from stacks into railway wagons. His Honour held that having regard to other rules of the Union, the word "lumpers" should be limited to workers engaged in the loading and unloading of ships and other work on the wharf at Geraldton directly connected with such loading or unloading of ships. We consider that that case, concerned as it was with the meaning of the word "lumpers" is of little use in considering the term "waterside worker".

In considering the conditions of liability for membership of an organisation of employees it is necessary to bear in mind that the organisation represents the industrial interests of a group or class of employees designated by reference to those conditions of eligibility. It is notorious that there are and have been great changes in all industries including the shipping and stevedoring industries, both in the degree of mechanisation and in the bulk handling and shipping of cargo and other goods. During the period of this change it is clear from the Statutes relating to the stevedoring industry that there have been vast changes in stevedoring and it seems to us most unlikely that the Federation in making changes in its conditions of eligibility intended that the words "waterside worker" should thereafter always retain the meaning that they either then had or originally had. Rather we think it is a case where the words in Rule 6(a) are to be construed in accordance with their current denotation. Unless this is done serious restrictions would be placed on the effectiveness of organisations and the objects of the Act would be adversely affected. Generally, see Lake Macquarie Shire Council v. Aberdare County Council (1970-1) 123 C.L.R. 327.

If there is, as appears clearly inevitable, a continuing change in the manner in which work is done, we see no reason why the new forms of work should not come within words used in a conditions of eligibility rule if those words are capable of bearing the appropriate current meaning. Ample scope exists in the Act for action by either the Commission or some other body to correct any injustice which may arise therefrom. In the present case we are concerned with eligibility to become members, not with industrial disputes that might follow.

There are, moreover, a number of more contemporary documents of great assistance in ascertaining the meaning which those concerned with the words and engaged in the relevant industries have given to the term "waterside worker". The first is The Queensland Branch of the Waterside Workers Federation of Australia (1933) 32 C.A.R. 596. In that case Dethridge C.J. was concerned with an application to restrain a State Industrial Authority from dealing with an application for an award for members of the Queensland Branch of the Federation applying to persons engaged in the vicinity of wharves as shed hands, carriers, riggers, truckers, stackers and railway truck hands on the ground that the wages and conditions of such employees were provided for in the Waterside Workers Award of the Commonwealth Arbitration Court. His Honour defined the issue as being whether the work of the men in the vicinity of wharves was covered by the Waterside Workers Award. The judgment continued at pp.597-8:
"The work covered by the Federal Waterside Workers award is in substance concerned with the loading or unloading of vessels. It is done either on or with the vessel itself and its apparatus, or on a wharf or other place used for loading or discharging operations. No question arises here as to work done on or with the vessel's apparatus, and nothing said here applies to that branch of the work. I am only concerned with that branch of the work done outside the vessel in a place used for loading or discharging operations. A place so used is ordinarily a wharf or pier, but it may be any place in the vicinity of the spot at which the vessel is to be loaded or discharged. It is a question of fact in each case what place is used for loading or discharging operations. Any such place may include in its area sheds or other spots where goods that are to be shipped, or that have been unshipped, may be temporarily deposited or stacked for the purpose of facilitating the ultimate loading or the ultimate adequate discharge of the goods. A shed, however, or other place so far as it may be used substantially as a store or factory, and not as a mere convenience for furthering the loading or completing the discharging of goods, would not, in my opinion, constitute a place or part of a place used for loading or discharging operations, even though it be within or contiguous to that place. Loading operations include not only the actual movement of goods on to a vessel, but also work done within the place of loading operations for the purpose of putting goods at a point or points within that place so as to facilitate the ultimate actual loading, and also the stacking or arranging them within that place of loading operations in such a form as to further that ultimate loading. Conversely, discharging operations include not only the actual moving of goods off a vessel, but also work done within the place of discharging operations, after goods have been so moved, for the purpose of putting them at a point or points within the place of discharging operations so as to facilitate their ultimate removal from that place, and also the stacking or arranging them in such a form as to further that ultimate removal. Not only is this the natural meaning to be given to the terms 'loading and discharging vessels', but the evidence shows that in practice both employers and employees have long recognized and acted upon it. The whole of such work has frequently been claimed and admitted to be work ordinarily done by men, who, like the members of the Waterside Workers Federation of Australia, are, as its rule states, 'engaged in the loading, discharging and coaling of vessels'." (Emphasis added.)
Later at pp.598-9 His Honour said:
"I have stated that work done within the place of loading or discharging operations for the purpose of putting goods at a point or in a form which will facilitate ultimate loading or removal is waterside work, and therefore, in my opinion, covered by the award. But it is necessary to note that on sites surrounded by or contiguous with the place of landing or discharging operations, other work may be carried on which is not that of waterside workers. For example, a wool dumping or wheat conditioning store may possibly be within a place of loading or discharging, but the work of wool dumping or wheat conditioning is not waterside or wharf labouring work within the Federal award, even though members of the Waterside Workers Federation be employed by an employer party to do it."
In Clause 26 of the Waterside Workers Award (1932) 31 C.A.R. 23 at p.51 the following definition appears:
"(d) Waterside worker or employee means a workman engaged in the loading, discharging, and/or coaling of vessels, but does not include -

(1) A workman engaged in re-conditioning wheat, sweeping up and re-bagging wheat, or in tallying, stencilling, or sewing bags of wheat.

(2) A workman handling and stacking wheat at stacks or in railway trucks not on the wharfs at the ports of Geelong, Geraldton, and Bunbury.

(3) A seaman doing such work as is authorized by this award ' ' ' ' ' ' ' so long as he receives the rates of pay fixed by his agreement or award for loading and discharging cargoes."
This definition explains why His Honour said "the work of wheat conditioning is not waterside or wharf labour work within the Federal award, even though members of the Waterside Workers Federation be employed by an employer party to do it". In other words, His Honour is saying that that type of work is excluded from the award coverage even though the person doing that work comes within the conditions of eligibility rule of the Federation which, at that time, and for present purposes, was expressed in the form of persons engaged in the loading, discharging and coaling of vessels.

His Honour then stated at p.599 two suggestions that had been put in argument but were rejected by him, and it is important to quote them in full:
"It is not disputed that members of the Waterside Workers Federation, who acting as carriers, riggers, truckers and stackers work on land upon the actual moving of goods on to or from a vessel, when the vessel is there, do work covered by the award. In my opinion, equally clearly, members who, while the vessel is there, work in sheds or at railway trucks upon such actual moving of goods come within the award.

But two suggestions are made:
(1) That if the vessel is not there, the movement or handling of goods, although done within the place of loading or discharging operations for the purpose of so placing or arranging the goods as to facilitate their ultimate loading upon a vessel or removal from that place, is not covered by the award.

(2) That if within the place of loading or discharging operations, goods to be loaded or discharged are handled in stages separated by a substantial interval of time, only that stage comprising the actual movement of the goods on to or from a vessel is covered by the award; for instance, if goods are stacked in a shed within the place of loading or discharging operations, it is suggested that only the work of moving them from the shed to the ship (in the case of loading) or from the ship to the shed (in the case of discharging) is covered and not any other handling of the goods within that place.

I do not think either of these suggestions is well founded. Whether the vessel be present or not, and whether the work done within the place of loading or discharging operations be done in one or in several periods of time or parts of that place, the work retains the same intrinsic character and the same ultimate purpose of loading the vessel or of enabling cargo to be completely and properly discharged from the vessel to consignees. In all these cases the men who do the work 'are engaged in the loading or discharging of vessels' within the meaning of Rule 2 of the Waterside Workers Federation which prescribes the qualifications of its members. And the terms of clauses 13(c), 16(m), 16(o) and 26(d) of the award show either expressly or by implication that it was intended to have an operation at least as wide as that just stated." (Emphasis added.)
It is interesting to note the Order made in that case at p.600:
"That the said Industrial Court of Queensland be and it is hereby restrained from dealing with the following matter provided for in the award of this Court Nos. 11 and 13 of 1932, namely the wage rates, terms and conditions of the employment by any employer a party to the said award of any member of the Waterside Workers Federation of Australia as a shed hand, carrier, stacker, rigger, trucker or railway truck hand in an area used for loading or discharging at or near the spot where a vessel is being or is intended to be loaded or discharged in any operation there carried on for the purpose of a present or future loading or discharging or removal of discharged goods from such area or for the purpose of preparing for or furthering any such present or future loading, discharging or removal."

In 1933 then, it could be said that a worker performing work having the ultimate purpose of loading a vessel came within the denotation of the term "waterside worker" even when the work was performed in the vicinity of the place of loading a vessel and even when there was no vessel present to be loaded, provided the work was being done to facilitate the ultimate loading of the goods on to a vessel. In all cases it was a matter of fact to be decided from all relevant evidence whether the work to be done was being done to facilitate the ultimate loading of the goods.

Since 1933 there have been a number of awards and agreements made and consented to by the Conciliation and Arbitration Commission relevant to the construction of the term "waterside worker". Of importance is Associated Steamships v. Waterside Workers Federation (1969) 127 C.A.R. 10. In that matter Moore J. was dealing with a dispute arising from a log of claims served by employers upon a number of organisations of employees seeking the demarcation of work at container terminals and container depots brought into existence upon the introduction of new methods of shipping cargo. In substance, a container terminal is the land and buildings, including a wharf, which are used principally to marshall, receive, and handle containers for shipment or for delivery after discharge from a vessel. In substance, a container depot is the land and buildings at which loose goods or packages are received and stowed into containers and at which containers are unpacked and the contents sorted and prepared for delivery and for the receipt and delivery of containers. Moore J. made demarcation orders in the bitterly contested dispute. In making his determination His Honour had to consider the conditions of eligibility rules of the various organisations. At p.20 His Honour said:
"(2) Constitution of unions

There is a clear legal principle that a union cannot claim to deal with the industrial interests of employees whom it cannot cover by its registered constitution (see for example Dunlop Rubber case). This principle, however, is not of easy application in the circumstances of this case. The particular kind of operation which these employers either carry on now or will carry on in the future was not and could not have been in contemplation when the rules of any union concerned were registered. It is therefore necessary to make the best assessment one can of the meaning of the rules of competing unions in the various fields of these operations and this is discussed in detail when the claims of individual unions are discussed. It must also be pointed out that the test of union constitutional coverage is really a negative one. If a union's constitution does not cover particular work that union cannot represent industrially employees doing that work. The converse, however, does not necessarily follow. If there is only one union the constitution of which can cover a particular class of employees, then that union has an exclusive right to look after their interests. If, however, there is more than one union the constitution of which covers a particular class of employees then, as I have held when dealing with the question of jurisdiction, this Commission can decide whether any union should have an exclusive right and, if so, which union."
At that time the relevant part of the conditions of eligibility rule of the Federation referred to persons engaged in the loading, discharging and coaling of vessels. In making his determination His Honour disregarded the limiting provisions of the Stevedoring Industry Act 1956 as amended, see p.15. We shall refer to this Act later. In the result His Honour made orders by which the work done at the container terminals and at one container depot was demarked to the Federation. The work so demarked involved a large number of duties including driving of cranes and mobile equipment, driving of vehicles in the terminal area, maintenance and cleaning of containers, general inspection of a variety of vehicles including refrigerating units, maintenance work on vehicles, mechanical equipment and cranes, cleaning and keeping tidy the space within and around the terminal area and building, shunting of rail trucks, securing and releasing of containers on to and from rail trucks, and many other duties.

Awards have been made covering the work at container terminals on a number of occasions since then, the latest being the Waterside Workers' (Container Terminals) Award, 1976, 179 C.A.R. 267, made by consent by Robinson J. Clause 8 of that Award sets out the type of work provided for and shows its application to both container terminals and container depots.

Having regard to those two Awards, it seems to us clear that the work denoted by the term, "waterside worker", is not limited to the actual loading and unloading of cargo but includes a number of tasks directed to the preliminary stages of those functions including the handling, treating and storing of cargo to facilitate those functions, and it is also clear that the work is not limited to work performed at wharves.

Some other awards and agreements reinforce this conclusion. A decision of Robinson J. of 11 February 1980, Print E1970, dealt with an application for demarcation orders pursuant to s.142A of the Act. The orders sought were for a demarcation of work between the Federation and the Transport Workers' Union of Australia at the Port of Burnie. The order made was that the Federation should have the right to represent employees engaged in the mooring and unmooring and shifting of vessels, engaged in work in connection with the receiving or delivering of cargo at or adjacent to wharves at that port and engaged in the steam cleaning of containers at or adjacent to those works. His Honour in making this order considered the conditions of eligibility rule of the Federation and treated Rule 6 as that rule.

An earlier agreement between the Federation and Mercantile Stevedores (S.A.) fixed rates and conditions of persons employed in a variety of occupations at Port Pirie. The agreement has to be looked at in the light of evidence given in the present case on behalf of the Federation dealing with the work at Port Pirie. This evidence was given by Mr. Docker, the Assistant General Secretary of the Federation and was not contradicted. It showed that concentrates are brought from Broken Hill to Port Pirie by rail and are then stacked in two separate stacks. One is used by Broken Hill Associated Smelters Limited in the course of its production activities; the ore in the other stockpile is exported. Waterside workers work on the stockpile which goes to export. Among the tasks they perform is recovering the ore from the stacks by front-end loaders, dumping into a hopper which feeds a ship-loader and operating the spout of the feed-loader which feeds into the ship. Waterside workers watch conveyor belts looking for foreign material, use bull dozers, water trucks and hosing apparatus and do cleaning work. The most remote part where waterside workers work is 200 yards from the waterline.

A reference was also made in evidence to work performed by waterside workers at Newcastle. The relevant award (Print No. D6254) applies to employees of the Maritime Services Board of New South Wales working on the cranes and other loading and unloading facilities in the Newcastle area. It contains classifications for ship-loader operators, crane drivers, reclaimer and stacker attendants, coal control room assistants and others. Evidence as to this work was also given by Mr. Docker and shows that the occupation of a waterside worker is, in terms of location, not confined to the wharf and that it covers a range of functions connected with the storage and movement of goods destined for shipment.

The awards and the judgments to which reference has been made, all seem to us important sources from which to decide the meaning of the term "waterside worker" as used in the conditions of eligibility rule.

In considering awards, with a view to ascertaining the meaning given to words in an industrial sense, it is of equal value to look at consent awards as to look at those which are contested and agreements between parties seem to us of no less value. It is trite law and well understood by both unions and employers that demands can be made and agreement reached by a union only if its conditions of eligibility entitle it to represent the group of employees concerned.

The Stevedoring Industry Act 1956 was passed to regulate the stevedoring industry. It replaced the Stevedoring Industry Act 1949. Their validity depends upon the trade and commerce power (see Constitution s.51(i)). The 1956 Act provided for the registration of employers and of waterside workers as defined in s.7 of that Act. In many respects the definition of waterside worker was expressed in wide terms, but there was expressly excluded from the definition persons being workers doing work of a character which one would expect to come within the term "waterside worker" according to normal canons of construction. Among the group excluded were persons employed directly at a port in or in connection with stevedoring operations which consisted of the loading or unloading into ships of loose bulk cargo by means of equipment based on the shore, not being persons of a specified kind, and excluded persons in the regular employment of a person engaged in an industrial undertaking, being persons whose duties included the performance of stevedoring operations in connection with that industry. The same section gave a very wide meaning to the phrase "stevedoring operations". At the same time complementary provisions were introduced into the Conciliation and Arbitration Act as Division 4 of Part III, see Conciliation and Arbitration (No. 2) Act 1956. Under that Division the Commission, in addition to having power to settle the traditional interstate industrial dispute, was empowered to determine industrial matters and questions affecting waterside workers insofar as those matters and questions related to trade and commerce with other countries or among the States. For the purposes of that Division industrial matters and questions meant all matters and questions pertaining to the relations of employers and waterside workers, each of which words was given the same meaning as it had in the Stevedoring Industry Act. The effect of those legislative provisions was that a part only of the work done by persons coming within the term "waterside workers", was made subject to the special regulation, but that did not affect the wider scope of the concept of waterside worker. This is made clear by a reference to what was said, quite correctly in our opinion, by Moore J. in the Demarcation Case, supra, 127 C.A.R. at p.15:
"The final submission in opposition to the demand went to the special position of waterside workers and the provisions of the Stevedoring Industry Act and division 4 of Part III of the Conciliation and Arbitration Act. It was held by Ashburner, J. in what is known as the Preference case 89 C.A.R. 17 that because of the provisions of both acts he could not award preference and I have subsequently and recently held that I have no jurisdiction to demark the interests of waterside workers and other employees working on the wharves. These decisions, however, all related to waterside workers registered under the Stevedoring Industry Act, and it is my understanding that at least in part the reference to waterside workers in this demand is not a reference to registered waterside workers. This being so, it seems to me that if there is a problem about waterside workers this is a matter which will arise for consideration later in the proceedings when the facts are more clearly established."
See also Waterside Workers Federation v. Adelaide Stevedoring (1969) 128 C.A.R. 523, especially at pp.528-532.

Following upon the introduction of permanency of employment of waterside workers, the position altered. On 5 December 1977 the Stevedoring Industry Act 1956 as amended, and other specified stevedoring industry acts, ceased to exist, see s.4 Stevedoring Industry Acts (Termination) Act 1977. At the same time consequential amendments were made to Division 4 of Part III of the Conciliation and Arbitration Act. These amendments continued to extend power to the Commission with respect to determining industrial matters and questions pertaining to the relations of employers and waterside workers, the definitions of which words were then inserted in the Conciliation and Arbitration Act, see Conciliation and Arbitration Amendment Act (No. 2) 1977.

These special provisions do not in our opinion restrict the class of persons who come within the term "waterside worker" in Rule 6(a) of the rules of the Federation. We are not concerned in this case with the powers conferred upon the Conciliation and Arbitration Commission. We are concerned to construe the term "waterside worker" in Rule 6(a). The peculiar legislative history of the Stevedoring Industry Acts may explain the existence of the definitions of "member" and "stevedoring industry" in Rule 5 of the Rules of the Federation, but that explanation does not restrict the construction of the term "waterside worker". If a person is eligible to become a member of the Federation, he is entitled to remain a member of the Federation. Any limitation imposed by the definitions in Rule 5 cannot affect the right of entitlement of a person to become and remain a member of the Federation. In these circumstances, we do not find it necessary to express an opinion on the correct construction of those two definitions.

Without attempting to give an exhaustive definition, in our opinion the term "waterside worker" in Rule 6(a) of the Rules of the Federation includes persons who are engaged in the loading of cargo, including loose bulk cargo, into ships and the prior handling, treating and storing of that cargo at or in the vicinity of a wharf when that handling, treating and storing is to facilitate or is for the purpose of the ultimate shipping of that cargo.

We turn now to the second question, namely whether the persons specified in the application made by C.B.H. are included in the group or class specified by the term "waterside worker". This involves a consideration of the duties of those persons, the place of their employment and the activities of C.B.H. at that place and at other places. The fact that similar work may be performed by members of another union, or that C.B.H. may be engaged in activities and in an industry distinct from the stevedoring industry is not in any sense conclusive.

The facts found by the learned trial judge are not really in dispute. What is disputed are the inferences to be drawn from those facts and in particular the conclusion that those persons are waterside workers within Rule 6(a) of the Rules of the Federation. It is clear that C.B.H. carries on activities at a number of places in Western Australia. It has established in the State of Western Australia facilities for the reception and handling of grain in bulk. Grain is harvested in Western Australia in the months of November, December and January and is received by C.B.H. at a number of receival points throughout the State. It is taken to those points by road truck and then from those receival points by rail to what are termed transfer depots situated at inland country towns. From the transfer depots the grain is loaded onto rail trucks and then transported to terminals at Kwinana, North Fremantle and certain other ports in Western Australia. Kwinana has replaced Fremantle as the primary place from which wheat is loaded for export, the grain is now presently held at Kwinana for export. Some is forwarded to Fremantle for loading purposes. Ultimately it is loaded into ships and shipped from Kwinana. The operations performed by C.B.H. also include some stevedoring operations at Bunbury where some eight waterside workers are employed by C.B.H. on a casual basis. Those eight workers discharge grain from railway trucks and operate what are known as ship loaders and other waterside workers are stationed on the ship loading.

Most of the evidence was directed to what is done at the Kwinana terminal conducted by C.B.H., and the second question is to be determined by reference to those facts. At the Kwinana terminal the grain is received from rail trucks and discharged. The grain then proceeds by way of conveyor belt to various points within the terminal until finally it proceeds by way of conveyor belt along a jetty to loading gantries erected on the wharf at the end of the jetty from where it is loaded in bulk directly into ships. C.B.H. engages a stevedoring contractor to actually load the grain into the ships. We do not find it necessary to set out the details of the duties performed by the employees working within the terminal. Apart from the control room operators and the two gardeners, all the employees are required to do one or more of some twenty seven different classes of duties. The duties are interchangeable and from time to time the employees, including the control room operators, are engaged to perform the whole range of those duties. All those duties relate to the receival, distribution, storage, checking, conditioning, treating and discharging of the grain, together with general cleaning duties and general supervision and oversight of the grain as it is transported on the conveyor belts.

Kwinana was chosen by C.B.H. as the site for its bulk grain terminal for a variety of reasons, including the fact that a large area of land was available, some 50 acres in all, and was in close proximity to Perth and Fremantle. It was anticipated that the size of the bulk therefore constructed as also were large terminal buildings. The jetty is some 2,500 feet long with a separation of about half a mile between the wharf and the terminal buildings. A public road runs along the area apparently close to the buildings but between them and the jetty. The jetty was built in this way so as to gain the depth of water which would enable ships with a capacity of up to 100,000 tonnes to be used requiring a depth of water of 35 feet. It appears from exhibits that one particular problem with the construction of the buildings was the high natural water table and the poor consistency of the beach sand soil which rendered it necessary to have new compaction techniques in order to bear the weight of this complex. It appears to have been either one or both of these factors which made necessary construction with such a distance separating the jetty and the terminal buildings.

There can be no doubt that the Kwinana terminal is in the vicinity of the wharf from which the loose bulk grain is loaded directly into ships. On the evidence, we are satisfied that the terminal is in the vicinity of that wharf and that the grain is handled, treated and stored in the terminal prior to its being ultimately loaded into ships and is so handled, treated and stored to facilitate and for the purpose of its ultimate loading into ships. It is true that some small part of the grain handled and stored at the terminal is not exported, for example, for the 12 months' period ending 31 December 1979 some 6,000 tonnes of barley were railed back to maltsters, but this forms such a small proportion of the grain handled that it cannot alter the intrinsic character of the terminal.

The activities performed at the terminal are, necessarily, preliminary to the loading and shipping of the grain for export. The harvest months are three only and during that time the grain must be received, but since shipping goes on through the whole of the year, obviously to suit customer requirements and having regard to shipping availability, there must be grain stored for shipping during various parts of the year and some of this stored at the Kwinana terminal.

So far as the duties of the employees are concerned, an attempt was made to analyse those activities and show the percentage of them which were performed before and after the waterline. This, in our opinion, is not the test and is contrary to the examples set out in the references given earlier. Considering the nature of the work performed, it is all done for the purpose of export and for that purpose only. The reception of the grain, the examination, taking of samples, testing and treating are all done to enable wheat to be shipped and to arrive in a suitable condition at the port to which it is exported. The conditioning and treating serves the same purpose as the removal of foreign matter from the ore bodies at Port Pirie or from the belts of coal at Newcastle and the checking of refrigerated containers while being held at container terminals. The movement of the grain within the terminal again bears a close resemblance to the stacking and restacking of cargo for shipping and loading and transport of containers and movement about a container terminal. Truly, they all form part of the loading operations involved in the shipping of grain in bulk.

His Honour adopted the view that the operations at Kwinana were the operation of what had been described by C.B.H. in its literature as "the largest and most modern grain receival storage and shipping complex in the world, enabling it to meet all the demands of complex export requirements". The evidence was that the production of wheat varied from year to year, from 3.6 million tonnes in the 1976/77 season to 5 million tonnes in the 1978/79 season. It was of course notorious that that was a bumper season. There was shipped from Kwinana 2.5 million to 3.5 million tonnes of grain each year. At Kwinana, during the harvesting season, grain was received at the rate of 90,000 tonnes per week, and during the rest of the year grain was received at the rate of 60,000 tonnes per week.

We are of the same opinion as the learned trial judge. He considered the general character of the work done by the employees within the terminal and the character of the terminal. The men were not only interchangeable in their duties, but even when they had some specific task, they filled any intervals in their work with sweeping and cleaning up and generally doing the type of work, which Moore J. in the Demarcation Case, supra, allocated to the Federation, which was there called general sweeping, cleaning and keeping tidy space within and around the container terminal area and buildings, not only for the purpose of good industrial housekeeping but for the purpose of saving wastage. This type of work is clearly necessary with all loading operations.

We were referred to Cliffs Robe River Iron Associates v. Seamen's Union of Australia, (1974) I.A.S. 200. That was a decision by the Australian Conciliation and Arbitration Commission where the issue was the meaning of the word "Seaman" in s.71 of the Act. Division 3 of Part III of the Act contains provisions giving particular power to the Commission in dealing with industrial matters in respect of the maritime industry in a manner not dissimilar to the power given under Division 4 of Part III of that Act. "Seaman" is defined as meaning a person who is, or whose usual occupation is that of a seaman as defined in s.6 of the Navigation Act 1912, as amended. The Navigation Act in that section defines "Seaman" as meaning a person employed or engaged in any capacity on board a ship on the business of a ship. The employees in question performed the bulk of their work ashore in the crushing and processing of ore. Some of them for short periods worked on tugs and a line boat, but that was not the primary purpose of their employment and was subordinate to the other work. The other work of course could not in any way be said to be performed on board a ship. The other phrase considered by the Commission was the phrase "employees working on tug boats", said to be contained in the rules of the Seamen's Union. The Commission held that the employees were not seamen as defined, nor were they employees working on the tug boats, and the decision of the Commission seems to us to be of little assistance in this case. There the place of performance of the duties, namely on a tug boat or a line boat, was of importance. That, of course, is not the only issue in the present case.

We were referred to some other cases where it had been held that in awards specifying two or more classifications, the question whether an employee was engaged in one or the other, depended on a finding as to which one he was engaged on for the major and substantial part of his duties. Those cases had their origin in two decisions of the New South Wales Industrial Commission brought under s.92 of the Industrial Arbitration Act of that State and one Western Australian decision. Section 92 gives a right to a person to sue an employer where an employer employs a person to do work for which the price or rate has been fixed by an award and the cases seem to us to turn on the question - What work the employer employed the person suing to do? Moreover, they turn on particular awards and the provision found therein, and in our view the principle cannot be extended to determine the appropriate construction of words contained in the rules of an organisation.

Earlier, we made reference to the fact that two of the persons specified in the application by C.B.H. were employed solely as gardeners. It appears that no particular submissions were made to the learned trial judge with respect to them. They are not engaged directly on the duties of handling the grain within the terminal. Their duties are the mowing of lawns, trimming of edges and caring for the gardens, trees and shrubs planted around the terminal building. At the most, their duties can be likened to good housekeeping, being of a similar nature to the general sweeping, cleaning and keeping tidy of the space within and around the container terminals and buildings demarked to the Federation by the Demarcation Case, supra. These days, the importance of presenting industrial complexes with a neat and attractive appearance is generally accepted. We have held that the Kwinana terminal is a place for the handling and storage of grain to facilitate the ultimate shipping of that grain. In all the circumstances we are of opinion that the gardeners also are eligible to become and remain members of the Federation.

Accordingly, we are of the opinion that each of the persons named in the application by C.B.H. is entitled to be admitted as a member of the Federation and to remain a member so long as he complies with the Rules of the Federation. The learned trial judge formed the same opinion and refused to make the declarations sought by C.B.H. We dismiss each appeal.