Federal Court of Australia

Construction, Forestry, Maritime, Mining and Energy Union v DuluxGroup (Australia) Pty Ltd [2022] FCAFC 101

ORDERS

THE COURT ORDERS THAT:

1.    The applicant’s originating application for the issue of Constitutional writs be dismissed.

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

REASONS FOR JUDGMENT

COLLIER J:

1    I have read in draft the judgment of Justice Lee and entirely agree with his Honour’s reasons, and the orders he proposes.

Associate:

Dated:    9 June 2022

REASONS FOR JUDGMENT

BROMWICH J:

2    I agree with Lee J that the application must be dismissed, for the reasons that his Honour gives.

Associate:

Dated:    9 June 2022

REASONS FOR JUDGMENT

LEE J:

A    INTRODUCTION

3    Despite the extent of material placed before the Court, this is a confined case.

4    The applicant (CFMMEU) applied to the Fair Work Commission (FWC) for a bargaining order under s 229 of the Fair Work Act 2009 (Cth) (FW Act). The application related to bargaining being conducted by DuluxGroup (Australia) Pty Ltd (Dulux) for a proposed enterprise agreement to cover employees at a paint manufacturing facility and distribution centre in Brisbane.

5    A Deputy President of the FWC determined that the CFMMEU did not have standing to make the application. This was on the basis that the CFMMEU was not entitled under the Rules of the CFMMEU (Rules) to represent the industrial interests of a particular Warehouse Operator employed by Dulux, Mr Lambert, for whom the CFMMEU purported to be acting as bargaining representative (and upon whom it relied to demonstrate its capacity to bring its application): Application by Construction, Forestry, Maritime, Mining and Energy Union [2021] FWC 3786 (Primary Decision). Leave to appeal was granted, but the Full Bench of the FWC reached the same conclusion: Construction, Forestry, Maritime, Mining and Energy Union v DuluxGroup (Australia) Pty Ltd t/a DuluxGroup [2021] FWCFB 6020 (Appeal Decision).

6    By the present application, the CFMMEU seeks Constitutional writs in respect of the Primary Decision and the Appeal Decision, alleging that both decisions are affected by jurisdictional error because the FWC wrongly denied jurisdiction. It is contended that the FWC should have found that the CFMMEU was a bargaining representative and therefore entitled to seek bargaining orders.

7    The controversy between the parties is threefold: first, the principled role of this Court in determining the present application; secondly, whether an application for a bargaining order has been made, which turns on the issue as to whether the CFMMEU was entitled to represent the industrial interests of Mr Lambert (for whom the CFMMEU purported to be acting as bargaining representative); and thirdly, the form of any relief if the CFMMEU is successful in demonstrating jurisdictional error.

8    It is convenient to address the issues by reference to these three headings.

B    THE NATURE OF THE COURT’S ROLE

9    Section 230 of the FW Act provides as follows:

230 When the FWC may make a bargaining order

Bargaining orders

(1)    The FWC may make a bargaining order under this section in relation to a proposed enterprise agreement if:

(a)    an application for the order has been made; and

(b)    the requirements of this section are met in relation to the agreement; and

(c)    the FWC is satisfied that it is reasonable in all the circumstances to make the order.

Note:    See also section 255A (limitations relating to greenfields agreements).

Agreement to bargain or certain instruments in operation

(2)    The FWC must be satisfied in all cases that one of the following applies:

(a)    the employer or employers have agreed to bargain, or have initiated bargaining, for the agreement;

(b)    a majority support determination in relation to the agreement is in operation;

(c)    a scope order in relation to the agreement is in operation;

(d)    all of the employers are specified in a low-paid authorisation that is in operation in relation to the agreement.

Good faith bargaining requirements not met

(3)    The FWC must in all cases be satisfied:

(a)    that:

(i)    one or more of the relevant bargaining representatives for the agreement have not met, or are not meeting, the good faith bargaining requirements; or

(ii)    the bargaining process is not proceeding efficiently or fairly because there are multiple bargaining representatives for the agreement; and

(b)    that the applicant has complied with the requirements of subsection 229(4) (which deals with notifying relevant bargaining representatives of concerns), unless subsection 229(5) permitted the applicant to make the application without complying with those requirements.

Bargaining order must be in accordance with section 231

(4)    The bargaining order must be in accordance with section 231 (which deals with what a bargaining order must specify).

10    Settling upon the construction of s 230 is not attended with difficulty, if one pays proper attention to text, context and purpose. The provision is located within Div 8 of the FW Act, which deals with the general role of the FWC in facilitating bargaining and Subdiv A, which deals with Bargaining Orders.

11    Section 228 of the FW Act identifies and imposes “good faith bargaining obligations” on “bargaining representatives”. The term “bargaining representatives” is a defined term (s 12 Dictionary), which directs attention to s 176 (which identifies bargaining representatives for proposed enterprise agreements that are not greenfields agreements) and s 177 (which identifies bargaining representatives for proposed enterprise agreements that are greenfields agreements).

12    Section 229 permits a bargaining representative to bring an application concerning the alleged failure of another bargaining representative to comply with the good faith bargaining requirements in s 228. Section 229(1) restricts the ability to bring an application to a bargaining representative. Sub-section (4) sets out further pre-requisites concerning the application. These pre-requisites are states of belief or concern that must be held by the bargaining representative and the objective steps taken by the bargaining representative.

13    It can be seen from the text of s 230(1) that the FWC “may make” a “bargaining order” in respect of a good faith bargaining application in certain circumstances: first, an application for an order has been made; secondly, that the requirements set out in ss 230(2) to (4) have been met; and thirdly, that the FWC is satisfied that it is reasonable in all the circumstances to make the order.

14    Section 230(4) requires that the bargaining order must be in accordance with s 231, which deals with what a bargaining order must specify. Both ss 230(2) and (3) refer to a state of mind, requiring the FWC to have formed a particular state of satisfaction. This is in contrast to the first requirement, contained in s 230(1), which necessitates the FWC ascertaining whether an objective fact exists (“an application for the order has been made”), and does not require the formation of any opinion or state of belief.

15    It is this first requirement that is the focus of this application.

16    A jurisdictional fact is an objective precondition to the exercise of power. Determining whether a precondition is a jurisdictional fact is a question of statutory interpretation; in particular, when the expression is usually used, the question is answered by an inquiry into the existence or otherwise of a state of facts (rather than the formation of a state of satisfaction or opinion). Of course, as Spigelman CJ explained in Timbarra Protection Coalition Inc v Ross Mining NL [1999] NSWCA 8; (1998) 46 NSWLR 55 (at 63–64 [37], with whom Mason P and Meagher JA agreed), the Parliament can make any fact a jurisdictional fact, in the relevant sense, that is, the relevant fact “must exist in fact (objectivity)” and it is evident that the “legislature intends that the absence or presence of the fact will invalidate action under the statute (essentiality)”.

17    But the consequence of a conclusion that the Parliament has provided for a jurisdictional fact is that, where the existence of the relevant fact is challenged on review, it will be for the review court to determine whether that jurisdictional fact does or does not exist, and the review court will find the existence or absence of the fact for itself, perhaps on the basis of different evidence. For this reason, it is sometimes said that review of jurisdictional fact cases may amount to a form of merits review: Leeming M, Authority to Decide: The Law of Jurisdiction in Australia (2rd ed, Federation Press, 2020) p 66.

18    In the written submissions exchanged prior to the hearing, there was an asymmetry between the parties as to this Court’s role. Dulux contended that any error by the Full Bench in the Appeal Decision was not jurisdictional, but was rather an error within jurisdiction and indeed its written submissions were expressly premised on this contention. But on a proper construction of the FW Act, and properly analysed, the determinative issue in this matter is whether the first requirement identified above (an application for an order has been made) was present, which turns on the finding that the applicant was not entitled to represent the industrial interests of Mr Lambert (being an objectively ascertainable state of affairs).

19    As it turned out, any dispute between the parties as to whether an error was jurisdictional (and the conclusion that any error would not have been within jurisdiction) was not as significant as it could otherwise have been. This is because both parties did not adduce into evidence before this Court any material that was not before the Full Bench, and were content not to dispute the facts found by the Deputy President of the FWC in the Primary Decision, nor the facts found in the Appeal Decision. In essence, before this Court, this case was all about the characterisation of facts, which were not disputed.

C    WAS AN APPLICATION FOR A BARGAINING ORDER MADE?

C.1    The Underlying Facts concerning Mr Lambert

20    The important facts are set out at some length in the Primary Decision and do not require extensive summary. It is sufficient to note the following:

(1)    Dulux has a large paint manufacturing facility and a warehouse at Rocklea, a suburb of Brisbane, which is also a distribution facility. Production Operators work in the manufacturing area in four areas: raw materials, paint manufacturing, quality control and filling. In the distribution facility, Warehouse Operators fulfil customer orders for product produced in the manufacturing facility at the Rocklea Site and at other Dulux manufacturing facilities in Australia.

(2)    Warehouse Operators such as Mr Lambert operate flexibly to undertake a range of tasks involving the receipt and despatch of products including: (a) loading and unloading of trucks (also known as “out the front” or “front” work because it is performed outside the warehouse); (b) picking orders from the warehouse and placing them on a pallet; (c) “put-away” of stock that has been unloaded from a truck; (d) replenishment of stock by moving them from higher levels to lower levels; (e) “bin to bin” manual replenishment of stock; and (f) office paperwork completion, dealing with customer queries, checking stock to ensure it aligns with the order, allocating locations in the warehouse for the stock, and updating computer management systems.

(3)    Warehouse Operators use different equipment to perform their work. There are three types of material handling equipment used: high reach forklifts, which can lift up to about seven metres high (reach forklifts), counterbalance forklifts (truck forklifts) and low level order pickers (LLOP). LLOPs are used to move the picked product through the warehouse, with the lifting mechanism used only for the purpose of allowing product to be picked and stacked at an ergonomic height – there has been some debate about whether the relevant modified LLOPs are “forklifts” (notably, unlike the other forklift equipment, an operator does not require a forklift licence).

(4)    What is evident is that the LLOPs are not used to pick stock off pallet racks in the warehouse; rather, the picking is performed manually by Warehouse Operators standing on the warehouse floor and stacked on the LLOPs, and the LLOPs are used to move the product. Although the Deputy President ultimately determined LLOPs are “forklifts”, the Full Bench thought they were better characterised “as items of picking equipment with a limited forklift functionality”.

(5)    Warehouse Operators also use a radio frequency gun imputing information into a data system used to process and track customer orders.

(6)    On the premise that the LLOPs are “forklifts”, Mr Lambert was in control of a forklift for 94.5 per cent of his duties (if not, the figure was closer to approximately two-thirds of his time);

(7)    Mr Lambert could not perform his job without driving an LLOP.

C.2    The Nature of the Dispute

21    Again, the background to the current dispute was not controversial.

22    In the CFMMEU’s application for a bargaining order, it was asserted that Dulux had agreed to bargain or initiated bargaining for a new agreement and that the CFMMEU had informed Dulux that it had enrolled as members a number of employees at the site and sought recognition as their bargaining representative.

23    The CFMMEU was asked to identify which part of its eligibility rule allowed it to enrol such persons and, in response, the CFMMEU indicated that it relied upon that part of rule 2(E)(a) of its Rules, which referred to “forklift drivers”. Rule 2(E)(a) provides:

(E) Without limiting the generality of the foregoing and without being limited thereby the following are eligible to be members of the Union:-

(a) An unlimited number of all classes of engine drivers, firemen, crane drivers, mobile crane drivers, forklift drivers, tow motor drivers, excavation 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 and such persons as have been elected or appointed as paid officers of the Union or a branch of the Union or whilst financial members of the Union are elected representatives of any working-class organisation to which the Union or a branch thereof is affiliated, or as a working-class member of Parliament.

Provided that mobile crane drivers, operators of fork lifts and/or tow motors engaged on the waterfront upon which such work being that of a waterside worker or engaged in the transport of goods by road, or motor truck drivers wherever employed, shall not be eligible for membership.

(Emphasis added).

24    As the Full Bench noted in the Appeal Decision (at [9]), the Rules also contain an industry rule (“Rule 3, Description of Industry”). Rule 3(F) provides:

The group of industries comprised with in 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.

25    Dulux adopted the position that there were only either Production Operators or Warehouse Operators at the site, and did not recognise the CFMMEU as a bargaining representative. As a consequence, the CFMMEU contended Dulux had not met its good faith bargaining obligations in s 228 of the FW Act, and sought orders requiring Dulux to recognise and bargain with the CFMMEU. In response to this application, Dulux contended (and contends) the CFMMEU had no standing to make the application because it could not represent the industrial interests of Warehouse Operators or Production Operators at the site. As noted above, a Deputy President and Full Bench subsequently agreed with Dulux’s principal contention.

C.3    Is the CFMMEU a Bargaining Representative?

26    For reasons that have already been explained, the answer to the determinative question turned upon whether, by reference to the relevant eligibility rule, Mr Lambert was eligible to join the CFMMEU.

Relevant Principles

27    It is well to commence by noting that the following principles of construction of eligibility rules such as rule 2(E)(a) of the Rules, were not in dispute:

(1)    such rules are to be construed objectively, not narrowly nor technically, but rather liberally: see R v Williams; Ex parte Australian Building Construction Employees’ and Builders Labourers’ Federation (1982) 153 CLR 402 (at 407 per Gibbs, Mason, Wilson, Brennan, Deane and Dawson JJ);

(2)    the identity of the industry in respect of which the organisation is registered is not definitive of eligibility where the eligibility clause travels beyond the bounds of the industry in respect of which the organisation is registered, but where there is some ambiguity in the eligibility rule, recourse may be had to the industry rule to resolve the ambiguity: see R v Watson; Ex parte Australian Workers’ Union (1972) 128 CLR 77 (at 79 per Barwick CJ); R v Gough; Ex parte Municipal Offıcers’ Association Australia (1975) 133 CLR 59 (at 69 per Gibbs, Stephen, Mason and Jacobs JJ); and

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

CFMMEU’s Submissions

28    There was a simplicity in the submissions of the CFMMEU, which was almost beguiling. They can be summarised as follows.

29    First, and most importantly, the determinative issue is simply whether Mr Lambert is substantially engaged in the activity of driving a forklift. The fact that Mr Lambert spends other periods of time doing other things besides driving a forklift, or despite the fact that the forklift is being driven for the purpose of transporting product around its premises, does not change the nature of the activity that Mr Lambert is undertaking for 94.5 per cent of his time. The activity of driving a forklift is always an activity undertaken for some other purpose; it is a means to an end, being the movement of the employer’s product or commodities from one part of the workplace to another. In order to conclude that an employee had a primary function as a forklift driver, it is unnecessary that it be the sole and exclusive function of the employee (and there is nothing intrinsic to the activity of forklift driving suggesting it has to be an exclusive duty). This is not a case involving some form of dominant skill. Even if it was possible to characterise Mr Lambert accurately as a Warehouse Operator, “such a conclusion does not exclude his characterisation as a forklift driver”.

30    Secondly, and relatedly, it would an error to characterise activities of a forklift as something merely incidental to the employee’s other duties; such a characterisation might be open in circumstances where the driving of the forklift represents a small part of the employee’s duties but where, such as here, the vast majority of the employee’s time is spent operating a forklift (and other duties could not be conducted without a forklift), the driving of a forklift cannot be conceived as some sort of secondary function.

31    Thirdly, it is contended (contrary to the approach taken by the Full Bench), that although the industry rule (see [24] above) can be considered in circumstances where the eligibility rule is ambiguous, there is no such ambiguity present in the circumstances, and the appropriate question is the proper characterisation of the duties of Mr Lambert. Insofar as the proviso at the end of rule 2(E)(a) is concerned (bolded at [23] above), it relates to those employees who were engaged in the transportation of goods by road and does not operate to exclude any work undertaken by a forklift driver not engaged in such activity. Contrary to the approach taken by the Full Bench (at [57]), the proviso does not apply because the major and substantial part of Mr Lambert’s duties did not involve the transport of goods by road, and “there is no basis to discount the out the front work from any consideration” as to whether Mr Lambert is substantially engaged in the activity of driving a forklift.

32    Fourthly, given Mr Lambert’s work activities, it might be intuitively thought that his occupation would be classed as being a “storeman and packer”. But it is important not to approach this characterisation task on the basis of some sort of a priori view as to what a storeman and packer or Warehouse Operator customarily does. The existence of other classifications, and the fact that some of them may usually provide for the operation of a forklift, does not change the answer to the determinative question. There is nothing novel about the approach urged by the CFMMEU – as the affidavit of Ms Lucinda Weber affirmed 17 November 2021 establishes, there are a number of awards to which the CFMMEU has been a party that apply to warehousing operation of a similar type.

Consideration

Rule 2E(a)

33    I have already set out above principles applicable to construction of eligibility rules generally, and it is now appropriate to turn to understanding the history of the development and interpretation of rule 2(E)(a) so as to understand how one goes about resolving doubt as to the proper construction of the rule.

34    It is unnecessary to repeat the thorough and uncontroversial historical analysis of the Deputy President (at [30]–[70]) or the Full Bench (at [13]–[28]). It suffices to note that the coverage afforded by rule 2(E)(a) is the result of the amalgamation of the organisation currently named the CFMMEU with the Federated Engine Drivers and Firemen’s Association of Australasia (FEDFA) in 1992. The addition of “forklift drivers” to the FEDFA’s eligibility rule in 1947 was the subject of opposition and was justified to the Industrial Registrar by the FEDFA on the basis that the application was “one for the clarification” rather than “an enlargement” in that forklifts relevantly “are basically engines or cranes already comprised in [FEDFA]’s constitution”. It was recognised that the FEDFA was a “craft” organisation its members were “found in all industries wherein the generation or utilisation of power is an ordinary incident” and the proposed change did not involve any innovation. It was contended that FEDFA should be able to admit as members employees involving the “generation by a unit of power which is utilized by means of the unit itself”: see Appeal Decision [13]–[17].

35    An objector to the proposed change was the Transport Workers’ Union (TWU), which contended that “[m]embers engaged in the transport industry load and unload vehicles and stack carted goods and the work of forklifts is closely allied to this work of loading unloading and stacking”. But the Industrial Registrar concluded that the FEDFA:

is a registered Association organised on craft lines, that is to say an association combining within its ranks employees who habitually follow a given occupation and employees who follow associated activities (e.g. ‘engine drivers’ and ‘firemen’) and employees following callings comparable to the given occupation. The craft is that of employees concerned principally with the generation of power and the direct utilization of power. … It is common to the mobile crane and the fork lift that the unit generates its own propelling power and power which it utilizes for the purpose of raising, lowering and transporting goods. … The mobile crane and the fork lift are units the user of which appears to be an increasing feature of industry. In a great many instances they are quite adapted to perform the functions for which fixed or traverser cranes hitherto have been used.

[The TWU] is concerned mainly with the transport by road of goods (and to a lesser extent) of passengers; as incidental to that goods transport, members of the [TWU] load and unload vehicles and at times break down stacks of goods for loading or stack unloaded goods. The objection, as to fork lifts, would appear to be directed mainly to this work upon stacks of goods. … It appears to me that the spheres of [the TWU] and [FEDFA] respectively are fairly well recognized even if not easy of exact definition. The business of the road transport of goods is the province of the [TWU] not [FEDFA]. The [TWU] has no place in establishments where the business is the production of power or the utilization of power generated there or elsewhere. These limits have been fairly well observed by the parties and so far as my knowledge goes disputes in this connection have been very rare. But the callings which [FEDFA] now seeks to include may, I am inclined to think, open avenues for disagreement not present under the registrations as now current.

36    Against the background of these limits, the Industrial Registrar approved the proposed alteration to the eligibility rule, subject to the addition of the following proviso:

Provided that mobile crane drivers, operators of fork lifts and/or tow motors engaged on the waterfront upon work being that of a waterside worker or engaged in the transport of goods by road shall not be eligible for membership.

37    Passing over 30 years, Burt CJ, presiding in the Western Australian Industrial Appeals Court in Federated Engine Drivers and Firemen’s Union WA v Mt Newman Mining Co Pty Ltd (1977) 57 WAIG 794, had cause to make the following obiter observations about whether a particular class of workers fell within the FEDFA (WA)’s eligibility rule:

It was conceded 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 eligibility rule of the appellant union. There are today many vocations which involve the driving in the sense of the control and operation of an engine which no-one would ever think fell within that description. The taxi driver, the bulldozer operator and the airline pilot may serve as examples. The question in any particular case is, I think, whether the worker is employed to drive an engine so that he earns his wages by doing that, or whether he is employed to do something else. And if the answer is that he is employed to do something else then he is not an engine driver merely because he operates a machine and drives the engine of that machine so as to do what he is employed to do. In such a case the description of his vocation will more often than not reflect the purpose to be achieved by his work. No doubt this distinction will when applied to certain facts produce what one might call borderline cases. The decision upon such cases will be a decision of fact and not of law. And it was so in this case. In this case the Commission held that the workers described in the question were employed to drill holes in the ground. They were drillers. The fact that the machine which they use is powered by an engine which is part of it and which is operated in the course of the use of the machine enables one accurately enough to describe them vocationally as ‘machine drillers’. It does not follow that to decide that such workers are not ‘engine drivers’ or ‘stationary motor drivers’ is a decision which is erroneous in law. I do not think that it is. It is a finding of fact.

38    To similar effect, in the same case, Wickham J observed that what the worker may be described as doing is not determinative, and the factual question as to the capacity or calling of a worker is correctly approached by viewing as a whole a worker’s duties and “by giving attention to various facets”.

39    Finally, the decision of the Full Court (Keane CJ, Siopis and Rares JJ) in Construction, Forestry, Mining and Energy Union v CSBP Limited [2012] FCAFC 48; (2012) 212 IR 206 provides specific guidance as to construing rule 2(E)(a). In the Appeal Decision (at [28]), the Full Court’s relevant observations in CSBP Limited were usefully summarised by the Full Bench as follows (omitting footnotes):

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

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

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

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

. . .

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

40    This remains the approach to be followed in the present case.

The difficulty with the CFMMEU’s contentions

41    There are difficulties in accepting the argument of the CFMMEU.

42    A singular focus on text while eschewing consideration of context and the history of the rule is apt to mislead. Although the notion that anyone who drives a forklift for a significant proportion of their work activity is to be classified as a “forklift driver” has the attraction of simplicity, it is incongruent with the objectively ascertained intent of the rule when one considers the relevant context and history. As the Full Bench correctly recognised, since initial registration, “the FEDFA was established as a ‘craft union’ or, in more contemporary parlance, an occupational union”. When this is appreciated, the employment identified in the rule must be construed as a descriptor of an occupation.

43    It may be accepted that there is nothing intrinsic to the activity of forklift driving that suggests it has to be an exclusive duty. It can also be accepted that the characterisation of Mr Lambert as a Warehouse Operator, although relevant, is not determinative as a descriptor of occupation. But, although it is a necessary condition for classification as a forklift driver that an employee operates a forklift for a substantial amount of their work time, it is not a sufficient condition. On the undisputed facts, Mr Lambert had a range of activities, akin to those commonly associated with a storeman and packer; this was the purpose of his position within the context of Dulux’s business operation. Notwithstanding he used a forklift to undertake those work activities, this does not mean he is a forklift driver as that term is used in the rule.

44    It may also be accepted that Mr Lambert spent the vast bulk of his working time in control of forklifts (including spending almost a third of his time performing “picking” work using an LLOP, which requires no licence and no special skill). But his purpose (and his role within Dulux) is to work as a Warehouse Operator, including “picking”, using the RF Gun, and using the LLOP and manual handling techniques. One cannot escape the conclusion (also reached by the Full Bench (at [61])) that the purpose of his role is the performance of all tasks in connexion with the receiving, storing, picking and despatching of goods in the Dulux business (and, if required, to work flexibly in the paint manufacturing facility). The driving or other use of forklifts is best seen as a function directed to the end of fulfilling the purpose of Mr Lambert’s job, which is to carry out his assigned tasks necessary for the operation of the warehouse.

45    As the principles set out above demonstrate, when the task of identifying the employment identified in the rule is undertaken, it occurs in the context of the purpose of employment and the employer’s organisation of work. In the Appeal Decision (at [55]), the Full Bench fastened upon, and articulated the central question: Was Mr Lambert employed to drive a forklift so that he earns his wages by doing that, or whether he is employed to do something else? The Full Bench then went on to observe correctly that Mr Lambert will not be a “forklift driver” within the meaning of rule 2(E)(a) “merely because he drives a forklift in order to do what he is employed to do”.

46    The conclusion he earns his wages by being a Warehouse Operator and not as a forklift driver is not only consistent with the factual findings as to his range of activities and his work description, but also accords with both the context and history.

47    As to the context and history, when one legitimately has regard to the industry rule (see [23] above), consistently with the Full Court’s reasons in CSBP Limited, the scope of the eligibility rule is better understood. As the Full Bench recognised (at [56]), the CFMMEU’s approach would give eligibility “in respect of virtually any employee who operates a forklift to a significant degree in their employment”. Although it is to be construed objectively, the terms of the industry rule do not confirm the CFMMEU’s approach, but rather reinforce the focus of the rule on the occupation of persons “employed … as drivers of … any … fork lift”. The terms of the rule are directed to the purpose of employment, which accords with the history of approval of the rule as explained above.

48    This is sufficient to dispose of the application. Mr Lambert was not a forklift driver as contemplated by rule 2(E)(a), and the CFMMEU was therefore not entitled under the Rules to represent his industrial interests and was not a bargaining representative. Accordingly, s 229 of the FW Act did not permit the CFMMEU to bring an application concerning the alleged failure of Dulux to comply with the obligations in s 228. As such, a valid application was not before the FWC, and the relevant jurisdictional fact is not made out. No basis has been established for any prerogative relief.

49    It is appropriate, however, to make two further points.

50    The first is to deal with the submission of the CFMMEU to which reference has been made (at [31] above), that the proviso “does not apply” because the major and substantial part of Mr Lambert’s duties did not involve the transport of goods by road, and “there is no basis to discount the out the front work from any consideration” as to whether Mr Lambert is substantially engaged in the activity of driving a forklift. This is partly correct, but beside the point because both parties accepted at this hearing that Mr Lambert was substantially engaged in driving a forklift. If it was of importance (which it was not), the CFMMEU submission that the proviso “does not apply” is expressed too broadly. Obviously enough, the whole of the rule, including the proviso, is relevant to the proper construction of the rule. Having said that, reliance on the notion that the proviso is a broad one involving anyone who might be indirectly involved in road transport seems an insecure foundation for the conclusion that the proviso operates to exclude any consideration of any use of the truck forklift by Mr Lambert to perform work “out the front” loading and unloading trucks. Although nothing in the case turns on the question, I would have thought “out the front” work involving the use of a forklift cannot simply be put to one side in the characterisation exercise of determining whether Mr Lambert is substantially engaged in the activity of driving a forklift.

51    Secondly, the reasons why relief should be refused are substantially similar to the reasons for the Full Bench dismissing the appeal (or to use the statutory words in s 607(3) of the FW Act, making a decision to “confirm” the decision the subject of the appeal). Even if the alleged error was one that was not jurisdictional because it did not in truth involve a jurisdictional fact, in these circumstances the result of denying prerogative relief would, obviously enough, be the same.

D    QUESTIONS OF RELIEF

52    Given the above conclusion, the application bringing this proceeding must be dismissed. It follows that it is unnecessary to consider the submission made that a writ of certiorari be issued to the FWC removing into this Court and quashing the decision recorded in the Primary Decision and the Appeal Decision. If prerogative relief had been appropriate, then it should have been directed to the Appeal Decision as being (following the appeal pursuant to s 604 of the FW Act), the only decision of the FWC with any “operative effect”: see Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2016] FCAFC 169; (2016) 247 FCR 138 (at [39] per Barker, Rangiah and Wigney JJ).

Associate:

Dated:    9 June 2022