FEDERAL COURT OF AUSTRALIA

Construction, Forestry, Mining and Energy Union v CSBP Limited [2012] FCAFC 48

THE COURT ORDERS THAT:

1.        The appeal be dismissed; and

2.        The appellant pay the respondent’s costs to be taxed if not earlier agreed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

INTRODUCTION

1        CSBP Limited (CSBP) instituted proceedings seeking a declaration that the appellant, the Construction, Forestry, Mining and Energy Union (CFMEU) is not entitled to represent the industrial interests of persons employed by CSBP as Process Technicians. The point of contention which had arisen between the parties depends on the correct construction of CFMEU’s Registered Rules (the Rules), and in particular r 2(E)(a) of the Rules (the Eligibility Rule). The task for the primary judge was to construe the Eligibility Rule in light of the activities of the Process Technicians in the course of their employment.

2        The primary judge held that Process Technicians did not fall within the ambit of the CFMEU’s Eligibility Rule and declared that CFMEU was not entitled to represent the industrial interests of the CSBP’s Process Technicians.

3        The CFMEU now appeals to this Court. The principal issue in the appeal remains the construction of the Eligibility Rule.

4        Before we turn to discuss the arguments agitated on appeal, it is necessary to set out the factual background, a summary of the issues at trial and the reasons of the primary judge. His Honour’s findings of primary fact are not disputed.

BACKGROUND

5        CSBP manufactures and produces chemical products at a chemical plant in Kwinana, Western Australia (the Kwinana Plant). The products include ammonia, ammonium nitrate (or AN) (which can also be mixed with urea to make a liquid fertiliser branded as ‘flexi-N’), CO2 (a by-product of ammonia production), sodium cyanide (for sale within a joint venture company to goldmining companies in Australia for use in extracting gold from gold bearing ore), fertilisers and fluorosilicic acid (a by-product of the superphosphate manufacturing plant operated by CSBP).

6        CSBP’s operations are performed within a number of ‘business units’ which are physically and operationally discrete. The business units to which this proceeding relates are the Sodium Cyanide Business Unit (SCBU) and the Ammonia/Ammonium Nitrate Business Unit (Ammonia BU). In each Unit, CSBP employs people as ‘Process Technicians’. The principal role of the Process Technicians is 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. There are approximately 66 Process Technicians in the Ammonia BU and 26 Process Technicians in the SCBU.

7        Process Technicians are separated into two categories: Lead Operators and Field Operators. Lead Operators control the operation of the Kwinana Plant from the control rooms, monitoring temperatures, flows and pressures through the graphic user interfaces and making adjustments as required. Field Operators work mostly in the field inspecting plants, monitoring temperatures, flows and pressures, taking samples and performing any field adjustments or isolation work that is required. Almost all Lead Operators are qualified to work as Field Operators from time to time and the majority of Field Operators are trained in the functions of a Lead Operator.

8        The Training Modules applicable to each level require extensive competencies in the various aspects of employment. The training regime for Process Technicians, both Lead and Field Operators, is sophisticated and complex.

9        There are “A”, “B” and “C” Process Technicians. These terms are used to indicate levels of training and competency. “A” Process Technicians are entry level Process Technicians that typically commence training on the “A” module. They are required to perform that module before moving onto the “B” and “C” modules. Examples of tasks taught at the “A” level are how valves work, when to open and close them, the operation and function of actuated (automated) valves, environmental training, products and customers, general workplace procedures, location of major buildings and equipment related to the relevant plant, location of safety equipment and housekeeping.

10        “B” Process Technicians are Field Operators who take direction from “C” Process Technicians, the Lead Operators. Typically, Field Operators do not do anything in the field without a Lead Operator at least being aware of the action. The “B” Process Technicians’ training involves an introduction to the piping and instrument diagrams, identification and location of all major items in the relevant plant and the provision of a basic explanation of the chemical processing that takes place at each stage of the process. “B” Process Technicians are also taught the operation of pipes and valves at each stage of the process, performing routine checks and operations, routine inspections and sampling and taking directions from the Lead Operator in response to abnormal conditions and gas testing.

11        “C” Process Technicians are Lead Operators. On completion of the “C” training module, Process Technicians should, amongst other things, have a detailed knowledge and understanding of the piping and instrument diagrams, chemical processing that takes place at each stage of the process including flows, temperatures and pressures of the process, online analysers and what they measure and why, the sequence of plant start-ups and plant shut-downs and operation of the graphic user interface.

12        It is important for a Lead Operator to understand the chemical processes involved in the Kwinana Plant and its operational areas because the success of the operation is dependent on them responding to operational abnormalities appropriately and efficiently. It is only possible for this to occur if they have a sound understanding of the process.

13        Each plant that operates a turbine or boiler must have an individual present who holds a “turbine and boiler ticket”. All Process Technicians are encouraged by CSBP to have a “turbine and boiler ticket” as it provides operating flexibility and a higher level of operator competence. Under CSBP’s standards in relation to plants with boilers and turbines, Lead Operators are required to hold “turbine and boiler tickets”. If a Field Operator, however, is required to work on a turbine or boiler, the Field Operator must either have a “turbine and boiler ticket”, or be directly supervised by someone holding such a “ticket”, or be certified by a ticket holder as competent to perform each relevant task.

THE ELIGIBILITY RULE

14        The Eligibility Rule provides 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).

15        Rule 3 of the Rules (the Industry Rule), provides relevantly:

(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).

THE ISSUES BEFORE THE PRIMARY JUDGE

16        CSBP submitted that the primary role of Process Technicians in its employ is to “make chemicals”, to “monitor, manage and optimise the production of the various chemical products” made in each business unit. CSBP noted that “attendants, greasers, cleaners [and] trimmers” and “any other workers” are “low skilled” occupations; whereas, as appears from their training and the breadth of their actual responsibilities, Process Technicians are highly skilled. Categorising them merely as “other workers assisting in and about work incidental to” engines and boilers ignores the full extent of their responsibilities, duties and training and the ordinary use of language.

17        CSBP contended that the manufacture of chemicals is not work “incidental to” any engine, boiler or machinery connected with the production or utilisation of power. While the turbines, generators and boilers at the Kwinana Plant generate and use power, the primary purpose of the employment of Process Technicians is not to assist in and about work which appertains to engines, boilers or machinery connected with the production or utilisation of power.

18        The CFMEU argued for a liberal and “beneficial” approach to the construction of the Eligibility Rule. Thus, if an engine, boiler or machinery produces or uses power, the Eligibility Rule will be satisfied if the relevant employees are attendants or workers “assisting in and about the work incidental to” any engine, boiler or machinery. The work “incidental” to any engine, boiler or machinery was said to be the production of chemicals at CSBP’s Kwinana Plant. Process Technicians, be they Lead Operators or Field Operators, are said to be attendants in the ordinary sense of that word in that they assist in the operation of the machinery which operates in each part of the plant; and if the Lead Operators and Field Operators are not “attendants”, they are “any other workers”.

19        According to the CFMEU, the “primary purpose” test urged by CSBP is only applicable where some of the duties of a relevant employee fall outside the broad meaning of the words of the relevant eligibility rule. The CFMEU argued that to say that the primary purpose of the employment of Process Technicians is “the manufacture of chemicals” and that they are “chemical workers working in a chemical factory”, is to ignore the important principle in the construction of eligibility rules that an occupation or calling may accurately be described in a number of ways, so that the circumstance that it comes within one description does not mean that it cannot also come within another: R v Isaac; Ex parte Transport Workers Union of Australia (1985) 159 CLR 323 at 332-333.

20        The primary judge accepted the submissions advanced by CSBP, concluding that Process Technicians did not fall within the ambit of the Eligibility Rule. Accordingly, the primary judge declared that the CFMEU was not entitled to represent the industrial interests of persons employed by CSBP as Process Technicians in the SCBU and the Ammonia BU at the Kwinana Plant in relation to work performed by them as Process Technicians.

THE REASONS OF THE PRIMARY JUDGE

21        His Honour held that the Eligibility Rule must be construed in the context of the Rules as a whole, and so he referred to the Industry Rule. He said (Reasons at [178]-[180]):

178    While it is clear that conditions of eligibility may validly extend beyond the industry in respect of which an organisation is registered, an ambiguity in the eligibility clause may be resolved by reference to the industry clause: R v McKenzie; Ex Parte Actors and Announcers Equity (1982) 148 CLR 573 (at 576-577). Although in Re Coldham the High Court held (at 150) that the corresponding FEDFA rule was not ambiguous so that resorting to the organisation’s industry rule was unnecessary in the context of considering whether the position of mobile crane drivers was covered by Part One of the rule[,] [t]here was no ambiguity, at least in that case, about the expression ‘crane driver’. In those circumstances, it was unnecessary and the Court was not asked to consider the ambit of Part Two of the rule.

179    In my view the words used - both ‘generation’ and ‘distribution of power’ - in the Industry Rule and in the Eligibility Rule are concerned with, as was put by Higgins J in Federated Engine Drivers’ & Firemen’s Association of Australasia v Master Builders Association of Western Australia (1983) 291 CAR 530, the production of and ‘giving of’ power.

180    In that context there is a description of industry within which prospective members might be employed. A reference back to industry and the employment is set out in r 3(A) of the Rules.

22        In relation to the implications of the Industry Rule for the construction of the Eligibility Rule, the primary judge said (Reasons at [181]-[184]):

181    … If it were clear, for example, that the industry or industries contemplated under the Rules included the work being carried out by Process Technicians, that would support the construction of the Eligibility Rule contended by CFMEU. In my view the industries so described do not support that construction. Viewing the industries as a whole, it is difficult, in my view, to identify the technical work of production of chemicals as falling within any of the description of the industries, let alone within the specific Industry Rule, r 3(F), or the Eligibility Rule.

182    The argument for CFMEU is that the chemical production process at CSBP is work ‘incidental’ to machines which use power. It follows that any workers ‘assisting’ in and about the chemical production process fall within the Rule. As an alternative to this, CFMEU argued that even if the relevant machinery is confined to boilers, turbines and generators, the chemical production process is, again, work ‘incidental’ to those machines giving rise to the same outcome.

183    I do not consider this to be an appropriate reading of the Eligibility Rule. In my view, the words ‘machinery connected with the production or utilisation of power’ does not simply mean ‘machinery which uses power’. There is no evidence and no other indication that the Eligibility Rule has ever been understood or applied to give it such breadth that it covers any worker assisting in and about machinery which uses power. If that were so, there would no point in different unions having different spheres of operation. It would be difficult to imagine any worker who does not work in and around some machine that uses some power. Such a construction of the Eligibility Rule must be rejected.

184    The words in bold in the Eligibility Rule (above [176]), are intended to relate to engines or boilers connected with the production or utilisation of power, that is to say, engines, boilers or machines which produce electric power. This construction is given support by the addition of the words ‘and attendants attending boilers not generating steam for power purposes’. In other words it was necessary to include, within the Eligibility Rule, such boiler attendants who in contradistinction to the first category of workers were not actually generating steam for power purposes but for some other purpose.

23        The primary judge rejected the CFMEU’s argument that the work of chemical production at the Kwinana Plant is “incidental” to the turbines, boilers and generators. In his Honour’s opinion, the evidence showed that the chemical production process did not exist to serve the turbines, boilers and generators (Reasons at [186]). Rather, the turbines, boilers and generators were merely the tools by which the chemical production process was carried on. The production of chemicals at the Kwinana Plant was not incidental to the machinery. It was the production of chemicals which was the primary purpose of the machinery operated by Process Technicians. The machinery had no reason for existence other than to be used as a tool in that production process. Although the use of electricity was critical to the running of the plants, its use did not change the function of the machinery or the purpose which it was designed to serve: (Reasons at [186]).

24        The primary judge went on to say (Reasons at [188]-[189]):

188    Both Lead and Field Operators are responsible for the operation of the whole of the plant or the part of the plant in which they are employed. They have different functions. They have extensive technical training in those functions. The Lead Operator is responsible from the control room and the Field Operator reports to and assists the Lead Operator from the field. It is clear that they perform different functions and the work of a Lead Operator is more advanced and, in effect, at a higher level. Nevertheless, they participate in a common purpose of monitoring and operating the entire production process including observation of and responding to pressures, temperatures, chemical reactions, flows and throughput so as to ensure the safe and productive operation of the plant and production of chemicals.

189    In my view it is unnecessary to distinguish between the work of the Lead Operator and the Field Operator as neither of them fall within the ambit of the Eligibility Rule.

25        The primary judge did not consider “attendants” to be an apt description of the duties of Lead Operators and Field Operators because of the level of sophistication of their occupation. His Honour said (Reasons [195]-[196]:

CFMEU submits that Lead Operators and Field Operators are ‘attendants’ in the ordinary sense of that word. Lead Operators and Field Operators, it is said, can be regarded as persons employed to take care or charge of the plant. Their work at each stage of CSBP’s process involves this. Lead Operators manage the chemical processes by monitoring, reviewing and optimising the status of processes from the control rooms while the Field Operators assist the Lead Operators by performing a variety of field tasks. I do not consider ‘attendants’ to be a suitable description for the work carried out by Lead Operators and Field Operators. There was no evidence that such a description had ever been given to them. The level of sophistication of their calling is more than required of someone simply taking care or charge of someone or something. The second part of the Macquarie Dictionary definition of an ‘attendant’ goes on to extend such a description to ‘especially when this involves directing or assisting the public: a cloakroom attendant’. The interaction of Lead Operators and Field Operators with the highly technical processes stands in stark contrast to the role performed by a ‘cloakroom attendant’.

CFMEU argues that the expression ‘any other workers’ cannot be given any narrow meaning. In my view, the meaning needs to be understood by the context in which it is found in the Rules. The expression ‘any other workers’ is not intended to describe the typist who uses an electric typewriter in the adjacent office. Within the context of the Eligibility Rule, it is describing any other worker as working in proximity to one or more of those described in the first limb. This does not require invocation of the doctrine of ejusdem generis. It simply requires a natural meaning of the words in context.

CFMEU’S SUBMISSIONS IN THIS COURT

26        The CFMEU points out that the Eligibility Rule is derived from the equivalent rule in the old constitution of the Federated Engine Drivers’ and Firemen’s Association. In Re Coldham; Ex parte the Australian Workers’ Union (1984) 56 ALR 149 at 150, the High Court held that the equivalent FEDFA rule naturally fell into three parts:

(a)    all classes of listed drivers (i.e. engine, crane, mobile crane, forklift, tow motor, excavator, pile and motor drivers), firemen and pump attendants;

(b)    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

(c)    boiler attendants attending boilers not generating steam for power purposes.

27        The CFMEU contends that the Process Technicians fall within part (b) of this classification. It contends that three issues arise in determining whether Process Technicians are eligible for membership. In relation to these issues, it submits that the primary judge erred in deciding that:

1.    the engines, boilers and machinery are not connected with the production or utilisation of power;

2.    none of the Process Technicians are assisting in and about the work incidental to the engines, boilers and machinery; and

3.    none of the Process Technicians are “attendants”… or “any other workers”.

28        With respect to the first issue, the CFMEU argues that the primary judge erroneously limited the words “connected with the production or utilisation of power”, in the Eligibility Rule, to the production of electric power by failing to have regard to the word “utilisation”. It further contends that the primary judge erred in construing the Eligibility Rule so that the engines, boilers and/or machinery were not “connected with” the production of power, that construction being inconsistent with his Honour’s finding of fact that such engines, boilers and/or machinery actually produce power. The words “connected with” are, it is said, of wide import and should not be arbitrarily read down.

29        The CFMEU also argues that the primary judge had no occasion to limit the Eligibility Rule by reference to the Industry Rule as the Eligibility Rule was not ambiguous. In the absence of ambiguity, reference to the Industry Rule as aid to the proper construction of the Eligibility Rule was not permitted.

30        As to the second issue, the CFMEU submits that the primary judge should have given the words “incidental to” their ordinary meaning so that the Eligibility Rule covers activities which are apt naturally to happen in connection with the engines, boilers and machinery. Importantly for its argument, the CFMEU contends that “the work” referred to in the Eligibility Rule is the work of the enterprise being conducted by the employer, that is to say, the production process of the Kwinana Plant in its entirety.

31        The CFMEU also argues that “incidental to” should be understood as meaning “naturally appertaining to” rather than “subordinate” or “subsidiary to” that work.

32        In relation to the third issue, the CFMEU argues that Process Technicians are “attendants” because they are employed to “take care or charge” of the plant. It supports this submission by the finding of the primary judge that the principal role of the Process Technicians is to monitor and operate the production process so as to ensure the safe operation of the plant and the production of chemicals.

33        In the alternative, the CFMEU contends that the Process Technicians fall within the ambit of the residual category, “any other workers”.

34        The CFMEU argues that the application of the primary purpose test of employment was not appropriate. The CFMEU argues that, in times of technological change, it is to be expected that general words will be used to give wide coverage even though some specific callings are already included in the rule. These specific references and the circumstance that another union might be a more natural representative of Process Technicians should not lead to a reading down of general words.

CSBP’S SUBMISSIONS IN THIS COURT

35        CSBP took up the CFMEU’s challenge to treat the construction of the Eligibility Rule as involving three separate exercises. But even though CSBP responded to the form of the CFMEU’s submission, it is apparent that the substance of CSBP’s argument urges an understanding of the Eligibility Rule considered as a whole and in light of the Industry Rule.

36        With respect to the first issue raised by the CFMEU, CSBP contends that the words “any engine, boiler or machinery connected with the production or utilisation of power” should not be construed in isolation. Rather, these words should be read harmoniously with the Industry Rule. CSBP contends that the primary judge correctly considered that the whole of the phrase “boiler, generator or motor used in or in connection with the generation, production, distribution or utilisation of power” informs the meaning of “utilisation” for the purposes of both the Industry Rule and Eligibility Rule. “Utilisation” is concerned, not simply with the use of power, but with the facilitation of the use of power. The primary judge’s preferred construction is supported by the words “boiler, generator or motor used in … the generation or utilisation of power” in the Industry Rule (emphasis added). CSBP submits that the words “connected with the production or utilisation of power” refer to power generation or utilisation as an industrial activity rather than to the use of any and all machines that use power.

37        As to the second issue, CSBP submits that the primary judge was correct in holding that the phrase “incidental to” refers to activities which are subsidiary to the operation of machinery, and the primary judge held, the chemical production process is not incidental to the operation of machinery. Rather, the machinery serves, and so is incidental to, the chemical production process.

38        In relation to the third issue, CSBP argues that the Eligibility Rule is concerned with employees whose principal purpose of employment is in and about work of a subordinate or subsidiary nature in relation to engines, boilers and machinery. While Process Technicians may perform some work in relation to turbines, boilers and generators, that is not the principal purpose of their employment because they are responsible for the successful operation of CSBP’s Kwinana Plant or of its constituent units. In terms of the principal purpose of their employment, they are chemical workers working in a chemical factory.

CONSIDERATION

39        It is convenient to commence with two general observations about the approach to the question of construction which arises in this case. The first point is that the CFMEU’s attempt to analyse three parts of the Eligibility Rule in isolation from each other ignores the assistance legitimately and necessarily to be gained from reading the Eligibility Rule as a whole. One should seek to understand the rule by considering it as a whole so that its parts may shed light on each other. This is so apart from the question raised by the CFMEU as to the legitimacy of reference to the Industry Rule as an aid to the construction of the Eligibility Rule, a question to which I will return. The first point to be made is that the CFMEU’s attempt to present what is truly one question of interpretation as if it were three distinct exercises in construction to be performed separately is an invitation to error.

40        The second general point to be made at the outset is that one must have regard to the statutory context in which the question of construction arises. Section 166(1) of the Fair Work (Registered Organisations) Act 2009 (Cth) (the Act) provides for the entitlement of a person to become a member of an organisation of employees. It is relevantly in the following terms:

(166(1))… a person who is eligible to become a member of an organisation of employees under the eligibility rules of the organisation that relate to occupations in which, or the industry or enterprise in relation to which, members are to be employed is, … entitled, subject to payment of any amount properly payable in relation to membership:

(a)    to be admitted as a member of the organisation[.]

41        This second point has a number of ramifications. First, as to the CFMEU’s contention that “the work” referred to in the Eligibility Rule is the work of the Kwinana Plant, it should be noted that the Eligibility Rule confers an entitlement to membership by reference to the occupations of employed persons, not by reference to the industry or enterprise of the employer.

42        In relation to the phrase “incidental to”, it should be understood that in construing the words of the Eligibility Rule in their unique legal and industrial context little assistance can be expected from decisions upon the construction of different words in a different legal and industrial context. We are not here concerned with an Eligibility Rule which operates by reference to the employer’s industry or enterprise. Moreover, in the Eligibility Rule, the meaning of the phrase “incidental to” is informed by the context in which it appears. That context includes reference to “attendants, greasers, cleaners, trimmers and any other workers assisting in and about the work …”. The common characteristic of the occupations listed is that they perform a subsidiary role in relation to the operation of machinery. The phrase “the work incidental to any engine etc” is a reference to the kind of work performed by the occupations earlier listed. The work so described is generically subsidiary to the operation of “any engine, boiler or machinery connected with the production or utilisation of power …”. It is not the “work” of the totality of the employer’s enterprise. The primary view of the meaning of “the work” advanced by the CFMEU should be rejected. If it were adopted it would lead to the absurd conclusion that an industrial chemist is within the Eligibility Rule.

43        The CFMEU advanced an alternative view of the meaning of “the work” in this context. On this alternative view, the “attendant” or “other worker” is a worker providing assistance to another employee performing one of the named occupations. In this regard, there is no basis in the primary judge’s findings of fact, or in the evidence, for the unlikely conclusion that Process Technicians actually assist one or more of the named occupations to perform the work involved in those named occupations. And in any event, even if Process Technicians do provide assistance of this kind from time to time, it cannot be said that the provision of this assistance is the primary purpose of their employment.

44        Secondly, the circumstance that, in conformity with s 166(1) of the Act, the focus of the Eligibility Rule is upon the occupations of the employees covered by it as opposed to what s 166(1) contemplated it might have covered, but did not, namely the industry in which their employers are engaged, also means that the primary purpose test of employment is appropriate. In applying this test one does not focus upon one aspect of an employee’s work in isolation from the totality of his or her duties. Thus in Federated Engine Drivers & Firemen’s Union (WA) v Mt Newman Mining Co Pty Ltd (1977) 57 WAIG 794, Burt CJ observed in this regard at 794 that not every worker, who in doing the work which he is employed to do drives an engine, is an engine driver within the meaning of the rule. Rather:

… 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.

45        Similarly, in Joyce v Christoffersen (1990) 26 FCR 261 at 279, Gray J observed 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”.

46        The Process Technicians employed by CSPB perform duties more sophisticated and extensive than those contemplated by any of the particular occupational descriptions listed in the Eligibility Rule. Moreover, their duties are directed, not to the use of machinery for the generation or utilisation of power but to the use of machinery which uses power for the production of chemical products. As a matter of ordinary language one would not describe Process Technicians as “attendants”. As to the catch-all “other workers”, it pays scant regard to the language of r 2(3) or to the skills of Process Technicians to suggest that technicians responsible for the entirety of a production process are included in the residuum of occupations which generically serve to facilitate the operation of particular items of machinery. It is hardly surprising, therefore, that there is no suggestion that anyone has ever referred to the Process Technicians as “attendants”.

47        Senior Counsel for the CFMEU fought a gallant, but, in our respectful opinion, ultimately unsuccessful battle to maintain that the construction for which the CFMEU contended would not lead to an impossibly wide operation for the rule. It is difficult to see how, on the CFMEU’s construction of the rule, any worker who turns on an electric switch in the course of his or her employment would not be within the Eligibility Clause.

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: R v Cohen; Ex parte Motor Accidents Insurance Board (1979) 141 CLR 577 at 587 per Mason J. It may also be accepted that it is not relevant to the construction of the Eligibility Rule that there may be another industrial organisation that might be a more natural representative of a given employee: Electrical Trades Union of Australia v Waterside Workers Federation of Australia [No 2] (1982) 59 FLR 78 (at 87); 42 ALR 587, 595.

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.

51        The CFMEU’s argument that recourse to the Industry Rule is impermissible because there is no ambiguity in the Eligibility Rule is difficult to accept, given that the dictionary meanings of “incidental” cited by Counsel for the CFMEU include the meanings “naturally appertaining to” as well as “happening or likely to happen in … subordinate conjunction with something else”: see Re IBM Global Services Australia Ltd (2005) 144 IR 389 at [62]. The CFMEU argued for the former meaning and argued against the latter.

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) 133 CLR 59. At 68-69 Gibbs, Stephen, Mason and Jacobs JJ said:

The contention on behalf of the Association is that the members of the university staffs in question are persons employed by statutory corporations, it being conceded that the adjective “statutory” in r. 5 governs not only “authorities” but also inter alia, “corporations”. It is submitted that the words “statutory corporations” simply mean corporate bodies which are created by statute and whose powers are conferred by statute. It is common ground that each of the universities concerned is constituted by a statute which provides that the university shall be a body corporate and proceeds to endow it with legal capacity. Therefore, it is submitted, each university is a statutory corporation within the natural meaning of the words of the rule.

The argument of the Association as to the meaning of r.5 cannot be accepted. We are not concerned with a rule which appeared alone or in another context. If it were right to sever the words “Statutory Authorities, Corporations, Trusts, Boards or Commissioners” from the rest of r.5, and to construe them as meaning any authority, corporation, trust, board or commission constituted under statute, the condition of membership stated by the rule would be extremely wide and indefinite and the rule would permit the Association to enrol as its members persons employed by all sorts of bodies, public and private, whose only common characteristic would be that they were set up under the provisions of a statute. Such a result would not be likely to have been intended. However, it is not permissible to construe those words in isolation; in accordance with ordinary principles they should if possible be given a meaning that will render them harmonious with the rest of the instrument in which they appear. If statutory authorities and corporations within the meaning of r.5 included all authorities and corporations set up by statute, they would embrace all the “Local Authorities, Cities, Municipalities, Towns Boroughs, or Shires” previously mentioned, because in Australia today such instrumentalities of local government are constituted under statutory provisions; the result would be that the earlier words of the rule would be rendered quite superfluous. In the context of the rule the generality of the words “Statutory Authorities, Corporations, Trusts, Boards or Commissions” must be limited by the other words, earlier and later, with which they are associated, and which show that they were intended to have some flavour of local government. This is not to ignore the words “or by” on which the Association so strongly relies; those words introduce a new class, but it is a class not unconnected with that earlier described. Moreover, the context provided by r.3 provides further assistance in resolving the ambiguity in r.5. Although it is established that the conditions of eligibility of a registered organization may validly extend beyond the industry in respect of which the organization is registered, that is no reason why, in attempting to place a meaning on ambiguous words in the eligibility clause, any assistance provided by the industry clause should be rejected: see per Barwick C.J. in Reg. v Watson; Ex parte Australian Workers’ Union (25). The industry clause in the present rules (r.3) supports the conclusion that the statutory corporations mentioned in r. 5 form part of one “industry” whose other parts are local government and municipal bodies. In the context provided by rr 3 and 5 it is apparent that the expression “statutory corporations” must be limited to corporations exercising functions of a public nature in some way analogous to those exercised by local authorities

(Emphasis added).

53        The broad construction of the Eligibility Rule for which the CFMEU contends is forced and awkward. An occupation which involves the monitoring and operation of the production process of a chemical production plant requiring attention to pressures, temperatures, chemical reactions, flows and throughputs, would not ordinarily be described as an “attendant”. Further, the suggestion that the functions of highly skilled Process Technicians are subsumed by the residual catch-all “other workers” when the Eligibility Rule specifies other classes of employee by reference to a skill characteristic of the occupation is distinctly odd and unconvincing.

54        For these reasons we conclude that the challenge to the decision of the primary judge must fail.

CONCLUSION AND ORDERS

55        The appeal should be dismissed.

56        The appellant must pay the respondent’s costs to be taxed if not earlier agreed.

Associate:

Dated:    2 April 2012