FEDERAL COURT OF AUSTRALIA

CSBP Limited v Construction, Forestry, Mining and Energy Union [2011] FCA 917

THE COURT DECLARES THAT:

1.    The Construction, Forestry, Mining and Energy Union is not entitled to represent the industrial interests of persons employed by CSBP Limited as Process Technicians in the Ammonia/Ammonium Nitrate business unit and the Sodium Cyanide business unit at the chemical plant in Kwinana, Western Australia in relation to work performed by them as Process Technicians.

THE COURT ORDERS THAT:

1.    There be no order as to the costs of the application.

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

REASONS FOR JUDGMENT

INTRODUCTION

1    The applicant (CSBP) manufactures and produces chemical products at a chemical plant in Kwinana, Western Australia (the Kwinana Plant). Currently, 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 has always employed people as ‘Process Technicians’. Presently there are approximately 66 Process Technicians in the Ammonia BU and 26 Process Technicians in the SCBU.

2    CSBP contends the primary or predominant role of the Process Technicians is to ‘make chemicals’. They ‘monitor, manage and optimise the production of the various chemical products’ which it makes in the relevant business unit. Process Technicians are separated into two types; Lead Operators and Field Operators.

3    The respondent (CFMEU) claims that it is legally entitled, by virtue of its Registered Rules (the Rules), to represent the industrial interests of all or some of the Process Technicians.

4    CFMEU relies on r 2(E)(a) of the Rules (the Eligibility Rule) which relevantly provides as follows:

(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, 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 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 as representatives of any working-class organisation to which the Union or a branch thereof is affiliated, or as a working-class member of Parliament. (emphasis added)

5    CSBP contends that CFMEU has never been and is not now entitled to represent the industrial interests of the Process Technicians as Process Technicians do not ‘fall within’ the provisions of the Rules and specifically not within the Eligibility Rule. It therefore seeks a declaration that CFMEU is not entitled to represent the industrial interests of persons employed by CSBP as Process Technicians in the Ammonia BU and the SCBU at the Kwinana Plant in relation to work performed by them as Process Technicians.

BACKGROUND

6    The current CFMEU is the culmination of a series of amalgamations of unions during the early 1990s such as the Federated Engine Drivers’ and Firemen’s Association of Australasia, the Operative Plasterers’ and Plaster Workers’ Federation of Australia, the Construction, Forestry and Mining Employees’ Union, the Federated Furnishing Trade Society of Australasia and the Operative Painters and Decorators Union of Australia. Those unions amalgamated along industry lines to form the divisions of the CFMEU. Each division operates autonomously, with its own membership, executive, resources, industry policies and campaigns.

7    Although CFMEU and its predecessors represent the industrial interests of a wide range of employees, there is no evidence that CFMEU have ever represented Process Technicians. CFMEU say that this is a neutral factor and that CSBP has the onus to prove that it is entitled to the declaration it seeks. I accept this submission. The question of whether or not it has in the past represented Process Technicians is presently of marginal relevance, if any. In my view, the task for the Court is to construe the Eligibility Rule in context of the Rules and in light of the activities of the Process Technicians in the course of their employment.

8    There is no suggestion that access to union representation is unavailable for employees at CSBP. The CSBP Limited Enterprise Agreement 2010 (the Enterprise Agreement) between CSBP and its employees records the registered interest of three other unions. Again, this is a relatively neutral feature but is part of the background against which the parties debate this issue.

9    As will be evident from a discussion of the evidence and the respective arguments below, there was very little divergence on the evidence. On the other hand, there was much divergence on what evidence was capable of being relevant or determinative. For CSBP, a predominant focus in the case was the high level of training, skill, experience and responsibility required of the Process Technicians in discharging their functions of producing chemicals. For CFMEU, the argument was much more focused on the literal wording of the Eligibility Rule.

10    If, contrary to my view, the preferable approach to the question of construction is the approach advanced by CFMEU, then it seems clear that there is a more than adequate evidentiary basis to support that approach.

11    CSBP contends that the appropriate test is the ‘primary purpose’ test. In other words, are the Process Technicians primarily engaged in a sophisticated exercise in the production of chemicals in the course of which (like many other people), they have access to the items of equipment highlighted by CFMEU or, alternatively, were they ‘simply’, for example, pump or boiler attendants or any other worker assisting in and about the work incidental to any engine?.

12    For CFMEU, it is strongly submitted that such an approach to construction of the Eligibility Rule is impermissible. It is argued that it is necessary to adopt a liberal, broad and beneficial approach to the construction of the words appearing in the Rules. Any approach which involves reading down a rule ought not be accepted.

13    It is common ground that it is necessary to examine the activities of Process Technicians in the context of their employment in order to ascertain whether they qualify within the definition of the Eligibility Rule.

14    CSBP, in presenting its case in relation to the activities of Process Technicians, relied on the evidence of four witnesses and upon numerous lever arch volumes of documents illustrating, among other things, the complex nature of the training activities and responsibilities of the Process Technicians.

15    CFMEU, for its part, relied upon three witnesses, each of whom gave not dissimilar evidence from that adduced for CSBP but which was also directed to the construction which CFMEU advances in relation to the Eligibility Rule.

THE STATUTORY CONSIDERATIONS

16    It is necessary first to examine the statutory context in which the dispute arises. The Fair Work (Registered Organisations) Act 2009 (Cth) (FW(RO)A) contains provisions outlining the requirements of registered organisations and the rights and interests of employees.

17    Section 141 FW(RO)A provides that the rules of an organisation ‘must specify the purposes for which the organisation is formed and the conditions of eligibility for membership’. Section 142 FW(RO)A outlines the general requirements for rules. This prevents demarcation disputes. For an organisation to be registered, the criteria of s 19 FW(OR)A must be satisfied. In particular, there must be no other organisation to which members of the association could more conveniently belong or would more effectively represent those members, unless an undertaking is given (s 19(1)(j) and s 19(2) FW(OR)A). Fair Work Australia also has the power to determine alterations to the eligibility rules of organisations when, in Fair Work Australia’s opinion, it is necessary to remove the overlap (s 157 FW(OR)A).

18    Chapter 6 of the FW(RO)A deals with rules about membership of organisations. It addresses the entitlements to membership, circumstances in which a person may cease to be a member, recovery of money from a member by organisations and conscientious objection to membership. Section 166 establishes that a person is entitled to become a member of an organisation of employees where the person was eligible under the eligibility rules of the organisation relating to the occupations in which, or the industry or enterprise in which, its members are to be employed. Section 167 provides that the Federal Court may declare as to a person’s entitlement to membership.

19    Section 166(1) provides that:

Subject to any modern award or order of FWA, a person who is eligible to become a member of an organisation of employees under the eligibility rules of the organisation that relate to the occupations in which, or the industry or enterprise in relation to which, members are to be employed is, unless of general bad character, entitled, subject to payment of any amount properly payable in relation to membership:

(a)    to be admitted as a member of the organisation; …

20    Section 167 provides:

(1)    Where a question arises as to the entitlement under section 166 of a person:

                        (a)    to be admitted as a member of an organisation … ; or

(b)    …

application may be made to the Federal Court for a declaration as to the entitlement of the person under this section be either of the following:

(a)    the person;

(b)    the organisation concerned.

(2)    On the hearing of an application under subsection (1), the Court may, in spite of anything in the rules of the organisation concerned, make such order to give effect to its declaration as it considers appropriate.

…

THE APPROACH TO CONSTRUCTION OF THE ELIGIBILITY RULE

21    Eligibility for membership in CFMEU is determined by r 2 and r 3 of the Rules.

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

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

(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 (Part Two);

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

23    These parts also apply to the Eligibility Rule. The current question is whether Process Technicians fall within one of these three groups.

CSBP’s argument

24    As outlined above, CSBP contends that the test to be applied in determining whether a disputed classification falls within the eligibility rules of a union requires an assessment of the ‘primary purpose’ for which the employees are employed. This requires an examination of the duties of the worker viewed as a whole and having regard to the context in which the work is done. It is the capacity in which the work is done which is important. The question is one of fact.

25    In Federated Engine Drivers & Firemen’s Union (WA) v Mt Newman Mining Co Pty Ltd (1977) 57 WAIG 794, Burt CJ noted (at 794) that not every worker who in the doing of 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 …

26    In the same case Wickham J said (at 795):

… It is to be observed that what the worker may be described as doing does not determine the matter. The subsidiary question is the capacity in which he is employed or usually employed. The worker literally in this case could be said to be doing three things, driving an engine, operating a machine and drilling holes, or he could be said to be doing one thing, namely drilling holes with an engine-driven machine, or another thing, driving a machine which drilled holes.

The capacity or calling of such a worker is a question of fact and the Commission correctly approached that question when it said that ‘The duties of the workers involved should be viewed as a whole’…

27    More recently in Joyce v Christoffersen (1990) 26 FCR 261 Gray J noted (at 279) that ultimately, 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.

28    On this argument, while the turbines, generators and boilers at the Kwinana Plant are connected with the production of power for the purpose of Part Two of the Eligibility Rule, Process Technicians will only come within Part Two if the primary purpose of their employment is to assist in and about the work which naturally appertains to engines, boilers or machinery connected with the production or utilisation of power. In that regard, CSBP argues that the manufacture of chemicals is not work ‘incidental to’ any engine, boiler or machinery connected with the production or utilisation of power (though the operation of an engine, boiler or machinery may be said to be incidental to the manufacture of chemicals).

29    CSBP further argues that the phrase ‘any other workers etc’ follows ‘attendants, greasers, cleaners [and] trimmers’, all of which are ‘low skilled’ occupations. The preceding words establish a genus such that the phrase ‘any other workers etc’ is to be read ejusdem generis, (i.e. of the same kind) so as not to extend to skilled work. The words used in the phrase (‘any other workers’, ‘assisting in and about’, ‘work incidental to’) also indicate that the phrase was intended to cover work of a subordinate nature. They support the application of the ejusdem generis rule or, alternatively, a restriction based on the context and subject matter. Were it otherwise, the phrase ‘any other workers etc’ would extend to a wide range of professional persons including engineers, laboratory technicians and scientists.

30    CSBP argues that Process Technicians are highly skilled, as appears from their required training and the breadth of their actual responsibilities. To categorise 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.

CFMEU’s argument

31    In response to CSBP’s primary argument, CFMEU contends that a key to the construction of Part Two of the Eligibility Rule is the ordinary meaning of the words ‘engine’ and ‘machinery’. The Macquarie Dictionary Online (© Macquarie Dictionary Publishers Pty Ltd, http://www.macquariedictionary.com.au, viewed on 8 August 2011) (the Macquarie Dictionary Online) definition of ‘engine’ is as follows:

noun

1.    any mechanism or machine designed to convert energy into mechanical work: a steam engine; an internal-combustion engine.

2.     a railway locomotive.

3.    any mechanical contrivance.

4.    a machine or instrument used in warfare, as a battering ram, catapult, piece of artillery, etc.

5.    a driving force.

6.    Obsolete an instrument of torture, especially the rack.

[Middle English engin, from Old French, from Latin ingenium nature, invention]

32    The Macquarie Dictionary Online definition of ‘machinery’ is as follows:

noun (plural machineries)

1.    machines or mechanical apparatus.

2.    the parts of a machine, collectively: the machinery of a watch.

3.    contrivances for producing stage effects.

4.    personages, incidents, etc., introduced into a literary composition, as in developing a story or plot.

5.    any system by which action is maintained: the machinery of government.

33    Both these definitions in turn refer to a ‘machine’. The Macquarie Dictionary Online definition of ‘machine’ is as follows:

noun

1.    an apparatus consisting of interrelated parts with separate functions, which is used in the performance of some kind of work: a sewing machine.

2.    a mechanical apparatus or contrivance; a mechanism.

3.    something operated by a mechanical apparatus, as a motor vehicle, a bicycle, or an aeroplane.

4.    Mechanics

a.    a device which transmits and modifies force or motion.

b.    simple machines, the six (sometimes more) elementary mechanisms, i.e., the lever, wheel and axle, pulley, screw, wedge, and inclined plane.

5.    a contrivance, especially in the ancient theatre, for producing stage effects.

6.    some agency, personage, incident, or other feature introduced for effect into a literary composition.

7.    any complex agency or operating system: the machine of government.

8.    the body of persons conducting and controlling the activities of a political party or other organisation.

9.    a person or agency acting like a mere mechanical apparatus.

34    CFMEU contends that similar dictionary definitions have been applied in cases that have considered the meaning of ‘engine’ and ‘machinery’ in the Eligibility Rule and its equivalents. (CFMEU point to Re Abbot Point Bulkcoal Pty Ltd (1992) 5 CAR 278 and Sydney Coal Lumpers Union v Federated Engine Drivers and Firemens Association of Australasia (NSW) (1991) 38 IR 265 (at 269)).

35    CFMEU argues that the ordinary meaning of the word ‘machinery’ is broader than the ordinary meaning of the word ‘engine’. A broad construction of the ordinary meaning of the word ‘machinery’ embraces each of the relevant plants at CSBP’s premises because each plant, viewed as a whole, is a machine, mechanism and/or apparatus.

36    CFMEU says that CSBP’s submissions conflict with important principles on the construction of union eligibility rules, the first of those being that the words in the eligibility rules of a union must be construed broadly. In R v Cohen; Ex parte Motor Accidents Insurance Board (1979) 141 CLR 577, the High Court set out the broad approach to the construction of union rules. Mason J said (at 587):

… 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... (emphasis added)

37    CFMEU argues that this broad approach to construction of union rules has been consistently taken by this Court: see Electrical Trades Union of Australia v Waterside Workers Federation of Australia [No 2] (1982) 59 FLR 78 (at 87); Federated Tobacco Workers Union of Australia v Amalgamated Metal Workers Union (1988) 29 IR 263 (at 266); Food Preservers Union of Australia v Manufacturing Grocers Employees Federation of Australia (1986) 29 IR 243 (at 253).

38    Further, CFMEU contends that the broad approach is reinforced by the objects of the Fair Work Act 2009 (Cth) (the Fair Work Act) which include ‘enabling fairness and representation at work and the prevention of discrimination by recognising the right to freedom of association and the right to be represented’ (s 3(e)). CFMEU contends that the right to freedom of association is a basic human right enshrined in the Universal Declaration of Human Rights, Art 20(1) of which provides that everyone has the right to freedom of association. This in turn led to the right to freedom of association being enshrined in the International Covenant on Civil and Political Rights as follows (Art 22(1)):

Everyone shall have the right to freedom of association with others, including the right to form and join trade unions for the protection of his interests.

39    The primary purpose test only arises, according to CFMEU, where some of the duties of a relevant employee fall outside the broad construction of the relevant eligibility rule. In submitting that the primary purpose of the employment of the relevant employees is ‘the manufacture of chemicals’ and that they are ‘chemical workers working in a chemical factory’, it is argued that CSBP ignores the important principle in the construction of union rules that an industry or calling can accurately be described in a number of ways and the fact 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 per Gibbs CJ said (at 332-333).

40    The CFMEU case is that if there is an engine, boiler or machinery connected with the production or utilisation of power on land, the Eligibility Rule will be satisfied if the relevant employees are attendants or workers ‘assisting in and about the work incidental to’ the engine, boiler or machinery. The Macquarie Dictionary Online definition of ‘attendant’ is as follows:

Noun

1.    someone who attends another, as for service or company.

2.    someone employed to take care or charge of someone or something, especially when this involves directing or assisting the public: a cloakroom attendant.

3.    someone who provides personal support and physical assistance for a person with a physical disability.

4.    someone who is present, as at a meeting.

5.    that which goes along with or follows as a natural consequence.

41    CFMEU submits that the Process Technicians, be they Lead Operators or Field Operators, are attendants in the ordinary sense of that word. If the Lead Operators and Field Operators are not attendants, it is submitted that they are ‘any other workers’ which are words that should be construed as words of expansion.

42    CFMEU disputes the contention of CSBP that the employees in Part Two of the Eligibility Rule do not include ‘skilled’ workers. It is relevant to this argument that all work has become more skilled with developments in technology. Callings that might originally have been ‘unskilled’ can no longer be described in that way. Associated with the principle of the broad construction of union rules, is the principle that the meaning of descriptions of callings may change over time. CFMEU argues that it is readily apparent that ‘work’ can refer to the production process as well as the activity of persons. Hence, in Part Two of the Eligibility Rule the production process at CSBP’s premises falls within the meaning of ‘work’ and the eligibility is not restricted to those ‘assisting in and about’ the work of other persons.

43    I will return to determine the competing arguments under ‘Consideration’.

THE EVIDENCE AND ITS EFFECT

44    I propose discussing the evidence given by the witnesses for each of the parties before turning to the arguments that the parties each advance as to the effect (on construction of the Eligibility Rule) of the evidence which was adduced. Those arguments focus on cross-examination as well as examination-in-chief.

45    I have adopted substantial portions of the submissions of the parties as to the effect of the evidence (often without attribution) largely because, as indicated above, the evidence is not in any substantial measure in dispute.

46    It follows that I have, as the evidence of each witness was entirely plausible and credible, accepted the evidence of the respective witnesses and reached findings in turn, in accordance with the submissions which are made by the respective parties.

47    Determination of the primary question depends, however, on the approach to the question of construction rather than the weight of the evidence advanced by one side or the other.

48    As stated, if, contrary to my impression, the preferable approach to the question of construction is the approach advanced by CFMEU, then it seems clear that there is a more than adequate evidentiary base to support that approach.

Mr Matthew Riordan

49    The first witness relied upon by CSBP was Mr Matthew John Riordan. The evidence was essentially background and Mr Riordan was not required to be called. Mr Riordan is the Divisional Human Resources Manager of CSBP. He confirmed that CSBP employed approximately 66 Process Technicians in the Ammonia BU and approximately 26 Process Technicians in the SCBU at the Kwinana Plant.

50    He described the role of the Process Technicians as ‘to make chemicals’ as they ensure that proper and effective chemical production process takes place at CSBP. He also stated that, presently, Process Technicians are covered under the Enterprise Agreement.

Mr Alberto Romano

51    The first viva voce witness for CSBP was Mr Alberto Romano, a Production Manager (Ammonia/Ammonium Nitrate) of CSBP (since 2006). Mr Romano has been employed by CSBP for about 16 years. Previously, he was employed as a Technical Superintendant (Fertiliser Production) for about five and a half years, a Process Chemist/Team Leader for about three years and as an Analytical Chemist in the central laboratory for about three years at the Kwinana Plant.

52    He has a number of degrees in Science and, as Production Manager (Ammonia/Ammonium Nitrate), is responsible for ammonia and ammonium nitrate production including the management of the operational areas of the Kwinana Plant comprising of:

(a)    Ammonia manufacture (high pressure gas plant);

(b)    Ammonia storage (cryogenic refrigerated atmospheric pressure storage) and distribution;

(c)    Nitric Acid (NA) production (there are two NA plants which are gas/liquid plants);

(d)    Ammonium Nitrate (AN) solution manufacture/storage/distribution; and

(e)    AN Prill manufacture which involves handling of solids.

53    He is responsible for safety and compliance aspects of the operational areas mentioned above, process engineering matters, personnel matters, production commitments including process quality control, maintenance, reliability, change management, general and capital expenditure, cost control and budgeting of the Ammonia and AN train at the Kwinana Plant and ensuring that the running of the processes satisfies the requirements of ‘Major Hazard Facility, Dangerous Goods and Environmental licences’.

54    Although Mr Romano’s evidence was directed to the ammonia and AN production area and Process Technicians working in them, he did give a brief overview of the Kwinana Plant. He discussed the different categories and levels of Process Technicians and the training and competencies required. He also discussed the Systems Manuals, standard operating procedures (SOPs) and the piping and instrument diagrams (P and IDs) that Process Technicians must be familiar with. He gave evidence in the roles of Lead and Field Operators in the Ammonia Plant with specific references to the stages of the ammonia production process and in the NA/AN Plants with references to stages of the AN production process. Similar evidence was also given concerning the AN Prill Plant.

55    Mr Romano explained the main products manufactured by CSBP at the Kwinana Plant, excluding intermediary products, as being ammonia, AN, sodium cyanide, carbon dioxide (CO2), fertilisers and flurosilicic acid. He confirmed that the Kwinana Plant was divided into the Ammonia and AN production area, Sodium Cyanide production area, Fertiliser production area and Receivables and Despatch (the area for handling the receipt of ingredients and dispatch of products for stock). Within the Ammonia and AN production area there is an Ammonia Plant which produced ammonia, a Demineralised Water Plant, a Plant and Instrument Air Facility, the CO2 Operations of CSBP, Ammonia Storage, Liquefaction and Distribution area, two NA Plants being the intermediate step in production between ammonia and AN solution (ANSOL), two ANSOL Plants producing ANSOL and an AN Prill Plant where the ANSOL is converted into solid granules. He produced various diagrams illustrating the configuration of the Ammonia and AN production area amongst others.

56    Evidence was given by Mr Romano in relation to the central control room of the ‘Ammonia and AN production area’ (the control room) and a similar room in the AN Prill Plant.

57    Mr Romano explained that the workforce of the Ammonia and AN production area included:

(a)    the management, supervision and various support personnel whose role is to oversee and coordinate the running of the Ammonia and AN production area;

(b)    engineers whose role is to provide technical support to improve process plant efficiencies and cost optimisation in the production area;

(c)    mechanical and electrical instrument maintenance workers whose role is to maintain the safe operation of the Kwinana Plant;

(d)    Process Technicians; and

(e)    within the ammonia loading facility, there are also workers involved in despatch (product despatch operators).

58    As at 24 November 2010 there were 65 Process Technicians in the ammonia and AN production area. Mr Romano described the basic role of the Process Technician as being to:

achieve set targets in the chemical production process by contributing to and performing the operation and maintenance of plant and equipment within specified guidelines within the chemical production process.

59    As discussed by other witnesses, the Kwinana Plant is operated using a computer control system referred to as a distributive control system or ‘DCS’. It is monitored and controlled through graphic user interfaces (computer control panels) in several different control rooms around the Kwinana Plant.

60    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.

61    Field Operators, on the other hand, mostly work in the field inspecting plants, monitoring temperatures, flows and pressures, taking samples and performing any field adjustments or isolation work that is required.

62    Mr Romano said that almost all Lead Operators are qualified to work as Field Operators from time to time and the majority of Field Operators are being trained in the Lead Operator functions. In addition, there is a trainee level Process Technician classification.

63    There are ‘A’, ‘B’ and ‘C’ Process Technicians, these being common terms that are used to classify the level of training and competency that Process Technicians have. They are covered by the Enterprise Agreement which provides for eight different classifications of Process Technicians. The eight different levels recognise those Process Technicians who hold multiple ‘A’, ‘B’ and ‘C’ levels across different plants. There are multiple combinations of these competencies set out in the Enterprise Agreement. Mr Romano explained the different levels of training and competencies.

64    ‘A’ Process Technicians are entry level Process Technicians that typically commence training on the ‘A’ module training. They are required to perform that module before moving onto the ‘B’ and ‘C’ modules. There are plant specific training materials that teach Process Technicians the processes and equipments in the Kwinana Plant. An ‘A’ Process Technician works in the field and must have the support of at least a ‘B’ level operator in order to perform his or her work. Completing the ‘A’ level training module in the Ammonia BU normally takes a few months although that can be a formality for new workers who have prior experience. 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.

65    ‘B’ Process Technicians are Field Operators who take direction from ‘C’ Process Technicians, the Lead Operators. Field Operators typically do not do anything in the field without a Lead Operator at least being aware of the action. Typically it takes some six months for a Process Technician to complete ‘B’ class training although it can vary depending on the Process Technician’s abilities and training opportunities provided to them. The ‘B’ Process Technicians complete training involving an introduction to P and IDs, identification and location of all major items in the relevant plant and provided with a basic explanation of the chemical processing that takes place at each stage of the process. ‘B’ Process Technicians should have an understanding of the process flow diagrams for each section of the relevant plant, recognise all valves and their location in the field, be able to prepare sections of the relevant plant for maintenance including isolation, purging and draining as required according to standard procedures, be able to identify ‘other specification’ operation of the plant from field observations, be able to investigate causes of ‘problems’ in the field and detail the necessary actions to take in response. ‘B’ Process Technicians or Field Operators are also taught the operation of pipes and valves at each stage of the process, performing routine checks and operations, routine inspections and sampling, taking directions from the Lead Operator in relation to response to abnormal conditions and gas testing.

66    ‘C’ Process Technicians are Lead Operators. In Mr Romano’s estimate, it takes around 12 to 18 months to finish the ‘C’ training module depending on the Process Technician’s abilities and training opportunities provided. On completion of the ‘C’ training module, Process Technicians should, amongst other things, have a detailed knowledge and understanding of P and IDs, 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. The graphic user interface provides Lead Operators with the ability to manipulate process variables in the chemical process at their fingertips, adjust automatic controls on the panel, identify and locate all major items of equipment in the relevant plant within the graphic user interface, identify ‘out of specification’ operation of the Kwinana Plant, investigate the cause of the ‘out of specification’ and detail the necessary actions to take in response. Lead Operators also perform routine checks and operations within the control room including shift handover and notations required to be made in the shift log, respond to abnormal conditions and alarms, direct Field Operators as required and issue authority and ‘permitting’ to allow maintenance to take place at the relevant plant.

67    Mr Romano stressed that it was 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 abnormalities appropriately and efficiently. It is only possible for this to occur if they have a sound understanding of the process.

68    The particular competencies required by Process Technicians are detailed in various training modules for each plant area. An extensive number of training module bundles were produced by Mr Romano for both introductory field and lead competencies in four different areas, namely, Ammonia Liquefaction, Storage and import-export area, Ammonia Plants, NA/AN Plants and AN Prill Plant.

69    In addition to the training modules, the System Manual, SOPs and P and IDs are also widely used in training and for ongoing familiarity of the various processes. Those documents were also produced and detailed evidence was given.

70    Self-paced and classroom style training packages, involving written and practical assessments, are also used by CSBP to assist its Process Technicians. Anyone with a higher level than the individual concerned can assess a Process Technician. Practical assessments are recorded, however, the detail of the assessment is not necessarily documented. Those assessments involve observation in the field and performance of procedures in front of an assessor. On completion of the training module, the individual concerned signs a ‘Learning Agreement’ to confirm that he or she is competent at that level. The ‘Learning Agreement’ is then countersigned by Mr Romano or a delegate and is forwarded to ‘payroll’.

71    In addition to the training discussed above, all Process Technicians are required to complete ongoing generic safety training including training in site and area inductions, safety rules and first aid.

72    As at the date of commencement of exchange between the parties, not including ‘A’ level operators, there were 11 persons with Lead Operator competencies, 21 with ‘front-end’ Field Operator competency and 22 with ‘back-end’ Field Operator competency in the Ammonia Plant. In the Ammonia Storage, Liquefaction and Distribution area there were 15 persons with Lead Operator competency and 28 persons with Field Operator competency. In the NA Plants, there were 15 persons with Lead Operator competency and 22 persons with Field Operator competency. In the AN Prill Plant, there were 24 persons with Lead Operator competency and 29 persons with Field Operator competency.

73    In the Ammonia Plant there are two sub-categories of Field Operators; front-end and back-end Field Operators. Front-end Field Operators perform work in the desulphurisation process, primary reformer, secondary reformer, shift converters (for carbon monoxide conversion), CO2 and methanator. Back-end Field Operators perform work in the syngas compressor and converter (which involves the air compressor and the cooling tower) and in product storage and refrigeration.

74    Mr Romano stated that the basic objective of CSBP’s training procedure is to continually train Process Technicians into areas of higher competency. However, not everybody wishes to take advantage of that opportunity.

75    It is common ground that there are several boilers and steam turbines at the Kwinana Plant. Mr Romano said that the primary purpose of the steam turbines is to drive compressors in order to maximise the process air and gas required by the various plants as ‘feed’. Four of the five steam turbines at the Kwinana Plant are also connected to generators which allows any excess steam generated by various exothermic (heat producing) chemical processes to be utilised by producing electricity rather than being wasted by venting into the atmosphere. It is a requirement from WorkSafe (a State authority) for one person on the plant to have a ‘high risk licence’, also referred to as a ‘ticket’, for running a boiler or for operating a turbine. CSBP’s practice, however, is to have Process Technicians obtain these ‘tickets’ as it provides CSBP with more flexibility. Normally Process Technicians obtain their ‘tickets’ at the Field Operator stage as it is more convenient to release these employees from a continuous shift roster and during this earlier stage in their training, for example, they may not be occupying a manned position. Mr Romano gave evidence that as at 2 December 2010, out of the 65 Process Technicians in the Ammonia BU approximately 48 held ‘boiler tickets’ and 46 held ‘turbine tickets’.

76    Again, under cl 15 of the Enterprise Agreement which was in evidence, an annual allowance is paid to Process Technicians in the Ammonia Plant, NA Plants or liquid Sodium Cyanide Plants (LiqSC Plants) who hold and utilise a ‘ticket’ to operate a boiler and turbine.

77    In contrast there are no boilers or steam turbines in the AN Plants (excluding the NA Plants), Ammonia Storage, Liquefaction and Distribution area, AN Prill Plants, Demineralised Water Plant, Plant and Instrument Air Facility or in the CO2 Operations.

78    Mr Romano described the Ammonia Plant, manufacturing process and uses of ammonia. The Ammonia Plant was commissioned in 2000 and was originally built as a 650 tonnes per day plant. Ammonia is manufactured for use as a building block for making NA, AN, sodium cyanide and compound fertiliser. More than 100% of the ammonia manufactured at the plant is required to meet the production requirements of CSBP’s NA, AN, sodium cyanide and compound fertiliser facilities. Therefore, some of the ammonia is imported. In addition to ammonia used on-site, it is also sold in smaller quantities to external customers. Raw materials required for the manufacture of ammonia are air, water (including steam) and natural gas (methane). Nitrogen is obtained from the air and hydrogen is obtained from water and methane. They are combined to make ammonia which has the chemical symbol NH3. To get to that point, there are various steps in the plant, namely, the sulphur removal process by which traces of sulphur are removed in the natural gas feed to the Ammonia Plant, primary reforming which is the process of ‘reforming’ natural gas and steam to form hydrogen and carbon monoxide in the primary reformer and secondary reforming which is when air is added containing nitrogen to various gases in the secondary reformer and further reacting to any oxygen present. Next, is the high temperature, low temperature shift conversion which is the process of converting carbon monoxide to CO2 in the shift converters. Carbon monoxide is removed in a two stage process and CO2 is compressed and transferred off-site for sale and venting into the atmosphere (process known as CO2 absorption). Then there is methanation which is the conversion of traces of carbon monoxide and CO2 left in the process to methane and finally, the culmination of nitrogen and hydrogen under high pressure/temperature to create ammonia which is converted into liquid and cooled to separate ammonia from the remaining gases (ammonia synthesis).

79    Amongst those processes, there are usually at least two Lead Operators and two Field Operators per shift in the Ammonia Plant. The Lead Operators are responsible for the operational duties in the plant. If the Lead Operators do not perform their functions correctly, ammonia cannot be produced safely and reliably. Lead Operators manage the various chemical processes required from both a production process perspective and from an occupational health, safety and environmental perspective. They routinely monitor and review the optimisation of all aspects of the process and monitor, amongst others, main screens which reveal the parameters associated with natural gas which is the density, flow, temperature and pressure, the process temperature and the flow and pressure of the ammonia synthesis loop. Lead Operators typically evaluate variation inputs and outputs of a plant and use this information to optimise production. If there is a problem, such as cooling water temperature being high on a hot day, the Lead Operator will observe the changes and then take steps to improve production, for instance, by increasing feed rates into the plant. It is necessary also for them to respond to alarms and to determine what actions to take, if any. Lead Operators liaise with process engineers as necessary. They are also required to progressively fill out a log of the relevant ‘things’ that take place during a shift to assist with providing information to the incoming Lead Operator as part of the handover at the end of the shift. Lead Operators are assisted by Field Operators.

80    Field Operators ensure that the ammonia production operational systems are routinely reviewed within the Ammonia Plant itself and perform a variety of field tasks necessary to achieve this. A primary function of the Field Operators in the Ammonia Plant is to monitor a range of measurements including the temperatures, flows and pressures of devices in the field. They also perform any field adjustments or isolation work in the chemical processing plant. They are required to perform a set ‘round’ of the Ammonia Plant and, in doing so, carry out routine running checks and operations. For example, Field Operators are required to check the demineralised water quality which is measured for conductivity, pH, silica and iron content once per shift. Twelve hourly checks are required on the boiler feed water which is measured for conductivity, pH and phosphate concentration. Field Operators perform important process functions at the Ammonia Plant including reviewing all process variables in the field that relate to the chemical material within the plant, ensuring that adjustments are made to field devices such as valves to allow parameters to be kept within specified limits and other duties including sampling and testing, isolating equipment for maintenance, cleaning and housekeeping. Where more sophisticated laboratory testing is required, it is carried out by laboratory technicians. For example, gas samples are taken by the laboratory technicians (not Field Operators) and taken to the main laboratory and tested in a gas chromatograph.

81    Mr Romano then proceeded to give a detailed explanation of the roles which each of Lead and Field Operators carried out in the Ammonia Plant by specific reference to each stage of the ammonia production process. That evidence involved a much more explicit development of the evidence already given. The evidence was not the subject of criticism or scrutiny. While CFMEU would not accept that the level of skill and expertise required as significant as that emphasised by CSBP, the qualitative distinction was largely a matter of impression. The impression I formed was that the level of skill and expertise, training and responsibility was more in line with that advanced by CSBP than that suggested by CFMEU.

82    Evidence was also given in relation to the NA and AN Plants. The AN production area or the AN production facility manufactures AN primarily for use in the mining industry and in the production of liquid fertilisers. Mr Romano explained that the AN production area consists of two NA Plants, two AN or ANSOL Plants, an AN Prill Plant, an AN Prill storage and despatch and an ANSOL storage and despatch. The key feed stock for the production of NA is ammonia which is supplied from the Ammonia Plant. Mr Romano explained the functions of Lead and Field Operators in the NA and the AN Plants. The two NA Plants and the two AN Plants are controlled from the same central control room as the Ammonia Plant. Typically, there is at least one Lead Operator per shift for each NA and AN Plant and one to two Field Operators per shift shared between the four Plants.

83    Mr Romano explained that the Lead Operators in the NA and AN Plants are responsible, again, for monitoring and optimising the chemical process in the area performing a similar role to Lead Operators in the Ammonia Plant. There is, however, a particular focus on monitoring and managing pH levels of various process fluids which is a crucial perimeter in the safe handling of NA and AN Plants. If AN becomes acidic it can then potentially become sensitised so as to lead to spontaneous decomposition of the AN and a possible explosion. On the other hand, if it becomes alkaline it will result in the release of ammonia gas to the atmosphere constituting a potential environmental and safety issue. The Lead Operator must also review all pH data, whether it has been measured online by analysers or through manual sampling and analysis. The Lead Operator must make the necessary adjustments to maintain the pH of the process within strict control limits. The pH instruments must also be checked with manual sampling and analysis by Field Operators.

84    Mr Romano said that although Lead Operators in the Ammonia Plant and NA Plant spend a relatively small proportion of their time on the ‘steam system’, Lead Operators in the NA Plant spend more time monitoring and adjusting the operation of the ‘steam system’ than do Lead Operators in the Ammonia Plant. That is because the production of NA requires more monitoring of the process air compressor so that production can be maximised throughout the whole day. Process air is one of the main feeds to the plant. Oxygen in the air is required when ammonia is burnt to produce nitrogen gas which in turn forms NA. Variations in climatic conditions require the compressor to be adjusted. The temperature, humidity and density of the process air being drawn into the compressor varies throughout the day. This change in density changes the load required to drive the compressor so that the steam turbine will require more or less steam. This affects the steam used. As the amount of process air delivered changes, so too does the amount of required ammonia being mixed with the process air. This changes the overall production rate and overall heat produced as a result of the chemical process which affects the steam generated. The steam generated is used to drive a turbine that runs the process air compressor. The steam usage and steam generation varies throughout the day. Thus the Lead Operator in the NA Plant will need to make small adjustments to compensate for these variations.

85    Lead and Field Operators in the NA Plants have important roles in the cooling water system. Each NA Plant has a separate cooling tower which consists of an open loop system, a chloride free closed loop and an acid cooling and storage system where product acid from the absorber is cooled to approximately 35 degrees Centigrade and pumped to storage. If the cooling water is operated outside of its operating parameters it can result in excessive corrosion, damage to the plant and/or fouling of heat exchanges and may also result in production losses. A Lead Operator is required to monitor and control pressure, temperature, flow and water quality of the system, paying particular attention to pH and conductivity levels. Mr Romano explained the reasons for all these things.

86    Mr Romano also explained the role of Field Operators in substantial detail which, once again, was not specifically the subject of challenge. He also explained their respective roles in each of the various stages of the NA and AN Plants. It appears to me that the functions performed by both Lead and Field Operators in this area requires a reasonably high level of technical expertise and skill. The consequences of failure to exercise technical skill in accordance with the training processes is a consequence extending substantially beyond the merely commercial.

87    In cross-examination Mr Romano confirmed that usually employees responsible at any one time for the two NA Plants were also responsible for the two ANSOL Plants. At each shift there would be one Process Group Leader supervising the Lead Operators and Field Operators for the plant as a ‘go to person’ who would ensure the efficiencies that need to happen on that particular shift. In the Organisation Charts, the Process Technicians are shown as being below the Process Group Leader. Above the Process Group Leader, there is an Operational Supervisor.

88    It was put to Mr Romano that the plants mainly run on autopilot by the DCS and other systems. To this, Mr Romano said the DCS have individual controllers which can be used to specify a set point in terms of a process parameter required to be targeted. The DCS will adjust items in the field so that the set point which is being measured can be achieved. For example, if the set point was five and in the field it was measuring six, something would ‘move’ automatically, which is governed by the DCS, so that the six turns into a five. Most of the time the plant runs on autopilot but there is capacity to intervene if the process is upset or some kind of problem arises ‘so that the primary purpose’ of making chemicals can be maintained.

89    At the end of a shift there is a handover document written for the following incoming shift. It goes from the Process Group Leader to the Operation Line Supervisor containing information such as production rate, storage level of tanks and information in relation to matters which might require attention, for example, something has gone wrong overnight and must be addressed during the day.

90    Mr Romano also explained various equipment and instruments found and used in the plants. He commented that there were numerous pumps in the plants. Mr Romano defined a pump to be a machine or device that increases pressure. He confirmed that the Ammonia Plant and the Demineralised Water Plant had pumps and that ‘the others probably do not’. He suspected that all but the Plant Instrument Air Facility and the CO2 Operations would probably have pumps. He considered there to be hundreds of pumps driven pneumatically or by electric motors or steam turbines. The majority are powered by electricity and relatively few are powered by air. There are also several hundred valves in the plants. The valves are operated manually by Field Operators with a relatively small proportion driven electrically from the control room. The vast majority of control valves, a sub-set of valves, are operated pneumatically and a relatively small number operated electrically. There are emergency diesel generators used when there is an electric power failure. They automatically start and initiate through an electric ignition system which starts in the diesel motor. There are cooling towers which have fans run by a motor and a pump that moves water around. There are compressors operated by electrical power and others which use a steam turbine to rotate the compressor. There are two waste heat boilers and an auxiliary boiler located at different stages of the process in the Ammonia Plant. There are cooling fans powered by electric motors. The weak acid system has pumps, as do the cooling towers, which are run by electrical motors and fans run by electrical motors. There are pumps and control valves in the concentrated process condensate system. In the AN Prill Plant there are fans, conveyor belts, both powered by electric motors and pumps and cyclones which are powered by the fans. Forklifts are used intermittently. In the Demineralised Water Plant there are pumps, control valves operated pneumatically, air-blowers powered electrically and compressors, one or two of which are diesel powered for emergency purposes. In the CO2 Operations, there is a compressor with a blower which is electrically powered and valves operated pneumatically.

Mr Michael Rodriguez

91    Mr Michael Steven Rodriguez swore two affidavits and gave oral evidence. He is the ‘Manager of the ammonium nitrate expansion’ for CSBP. He has held that position since August 2010 and has previously held other positions, having been employed with CSBP for 20 years. His roles have included process engineer, senior process engineer, process superintendant as well as training manager. In the latter capacity, his core duty involved the development of reporting systems and training materials to support the operational areas to achieve their compliance and operational competency training objective. He holds a Bachelor of Chemical Engineering from Curtin University.

92    Mr Rodriguez provided a general overview of CSBP’s business and an overview of training and required competencies for Process Technicians generally. The detail of his affidavit evidence focused on SCBU and the roles of Lead Operators and Field Operators in that business unit. I will not dwell as extensively on his evidence. While not at a technical level, in substance for the purposes of the issues in this proceeding, it was similar in nature to the evidence adduced by Mr Romano.

93    Mr Rodriguez provided an overview of the role of Lead Operators in the SCBU and made specific references to the LiqSC Plants and the Solids Sodium Cyanide Plant (SolidSC Plant) within that business unit. He gave the same evidence in relation to Field Operators and described the SOPs and P and IDs in the SCBU. He described the processes used to make the product and the roles of the Lead Operators and Field Operators by reference to each stage of the relevant process.

94    He confirmed that the main products made by CSBP at the Kwinana Plant were those listed by Mr Romano. In relation to sodium cyanide, CSBP is the 75% owner of a joint venture company. That joint venture company sells sodium cyanide primarily to goldmining companies in Australia for use in extracting gold from gold bearing ore. It also exports solid sodium cyanide. CSBP is the operator and sales agent for the joint venture company. Sixty percent of sodium cyanide made is sold as solid and 40% in solution.

95    He also gave evidence as to the three levels of competencies of Process Technicians and the technical processes and the training processes involved. Also, evidence of the ‘turbine and boiler tickets’ was given in similar fashion to Mr Romano.

96    In relation to the SCBU, there are two LiqSC Plants and a SolidSC Plant. The two LiqSC Plants are not identical as they were built at different times and about 10% of the equipment is different. However, there is one control room for all of the SCBU. Work at the SCBU is performed by Process Technicians, trades and maintenance employees and other staff.

97    There are approximately 30 Process Technicians working across four shifts in the SCBU, being 16 Process Technicians at Lead Operator competencies and 14 at Field Operator competencies. Five Process Technicians work within the SCBU on any one day or night shift with three of them working in the two LiqSC Plants, a Lead Operator in the control room and two Field Operators working in the field. The two remaining Process Technicians are in the SolidSC Plant, one Lead Operator in the control room and one Field Operator in the field. Additionally, there are two Process Technicians in the SCBU available to rotate into shifts should any of the five be away. When those additional Process Technicians are not needed within the SCBU they are used for other tasks within the sodium cyanide area such as shut-down planning, procedure reviews, training or other special projects.

98    In cross-examination, Mr Rodriguez accepted that one of the tasks of Lead Operators was to give instructions to Field Operators. There is an operating log kept for the running of the plant by the Lead Operator so that any information of events during the shift have been recorded. The report is on a shared network drive so that it is open for anyone within the business unit to look at but is predominantly for engineering people, management and the other operating shifts. There is one Process Group Leader in charge of personnel on any particular shift in the plants. Mr Rodriguez explained that the Process Group Leader is one of the shift Lead Operators. Therefore, on a rotation basis, the operator holding the lead role would write the report.

99    Mr Rodriguez described the equipment in the SCBU in detail. In the LiqSC Plants, there are incinerators used to incinerate waste gas. In the incinerators there is a combustion air fan powered by electric motor. Each incinerator boiler has boiler feed water pumps powered by electric motors and control valves controlling the pressure, temperature or flow. The control valves respond to an instrument and open and close to control that variable. They are normally instrument air powered. In the ‘new incinerator’ there is a fan condenser with two pumps and four fans, all electrically powered. In the LiqSC Plants, there are about 25 to 30 pumps in each plant all run by electric motors, approximately 50 to 70 control valves per plant and hundreds of manually operated valves controlled by Field Operators. Most of the control valves are operated by air rather than by electricity. Air is supplied by big fans or blowers. There are cooling tower fans powered by electric motors, pumps in the cooling towers powered by electric motors and pumps to the de-aerator. There are blowers in the blowing room powered by electric motors (two large motors) and extraction fans in the blowing room also powered by electric motors. There are circulation pumps in the storage tanks and in each of the pumps there is a glycol system. The glycol system has pumps and valves and a caustic system which also has pumps and valves. There are condensers on the steam turbine to condense steam using cooling water. Also, there is a start-up fan in each LiqSC Plant powered by an electric motor.

100    The SolidSC Plant has similar equipment to the LiqSC Plant. In addition, there is also a centrifuge, a spin flash dryer powered by an electric motor, a briquetting machine or compactor powered electrically and a vibrating screen driven by an electric motor. There is also a venturi system, packed bed scrubber and venturi scrubber. In the venturi system there is a circulation pump which is a fan delivering air to the venturi. The venturi scrubber also has circulation pumps used to circulate solution going through the scrubber. The packed bed scrubber also has a circulation pump. There is a transfer pump in the storage tank or in the product storage process stage powered by electric motors. There are five to six pumps that pump effluent or waste water through the reverse osmosis filters for waste water treatment and one powder screw associated with the cyclone system which is powered by electric motor. In the SolidSC Plant there is also a slurry system with an agitator driven by electric motor, an ‘ID’ fan operated by electric motor and an emergency generator used ‘in case of an emergency’ such as a power outage for some of the ‘drives’ which ‘need to be operated’ but not for the plant as a whole. For example, the slurry tank agitator and oil pump on the steam turbine in the LiqSC Plant is connected to the emergency generator run by diesel. These plants as a whole cannot run without electricity. However, if the power generators on the LiqSC Plants were tripped and shut-down, the rest of the plant could continue to run. This situation may arise if something forces the plant to shut-down, such as a protection system, that would trip the generator or if there is no steam available because the incinerator is tripped and there is no steam to run the turbine resulting in no power generation, the plant could continue to run. There are no boilers or steam turbines in the SolidSC Plant.

Mr Dallas Pohatu

101    Finally, for CSBP, evidence was given by Mr Dallas Pohatu. Mr Pohatu is the Process Group Leader supervising six Process Technicians at the SolidSC Plant. He has held the position for about three years. As a Process Group Leader he is required to ensure correct manning levels, ensure the crews’ training is up to date, schedule training, make sure that the product is ‘on spec’ which involves testing tank strengths, pH levels as well as for excess caustic, ensure that CSBP is not breaching its environmental licences, manage safety issues, coordinate maintenance and attend management meetings for the SolidSC Plant. Although his position is usually supervisory, in circumstances where there are not enough Process Technicians to fulfil the manning requirements on a shift, ‘he steps into that position’.

102    Mr Pohatu’s evidence was directed to SCBU and the Process Technicians working in that unit. He explained the three levels of Process Technicians and the general responsibilities of each level. He stated that they were generally the same across the Kwinana Plant. He described the training required for Process Technicians and the ‘boiler and turbine tickets’ which Process Technicians hold. He explained the roles of Lead and Field Operators at each stage of the production process in the LiqSC and Solid SC Plants (the sodium cyanide plants). He also discussed the processes used to make the product in the sodium cyanide plants.

103    Mr Pohatu’s evidence in relation to the number of Process Technicians in the sodium cyanide plants was similar to the evidence adduced by Mr Rodriguez.

104    Mr Pohatu explained that in the SCBU, ‘A’ level Field Operators are required to take samples in the field, test basic samples, give the information to the experienced Field Operator or Lead Operator, assist the experienced Field Operator as required and perform housekeeping duties as necessary. ‘A’ level operators are generally being ‘trained up to be’ ‘B’ level operators, spending time with experienced Field Operators to gain experience.

105    ‘B’ level Field Operators are required to respond to abnormalities, perform isolation work for maintenance, take and test samples in the field and perform housekeeping duties as necessary. If time permitted, they are also required to complete a routine walkthrough of the plant at least twice a shift to listen to abnormal noises, make sure there are no leaks from the seal or shaft and check pipe work, flanges, bund levels and sump levels. They are required to respond to issues arising around the plant, for example, if there is a ‘trip’, they may be required to do some field testing to ascertain the cause of the problem. They may also call upon the duty site controller to perform some external testing in relation to storage of products from the liquids and solids plants. ‘B’ level operators are required to manually switch between storage tanks so as to prevent overflow and spillages and control pipe quality and strength. They are also required, in addition to their maintenance function, to open the breaker and closer valves so that no one is hurt while maintenance is performed. This is done in accordance with the isolation checklist which is normally checked by a second operator to ensure that it is correct for the scope of work. Once Field Operators perform their isolation work, they then return the checklist to the Lead Operator. Isolation work is often performed during nightshift so that the maintenance personnel can complete their work during the dayshift. ‘B’ level operators may also perform simple maintenance tasks as well as simple repairs. During shut-down Field Operators generally do not fix leaks or replace parts as maintenance personnel usually perform that function. Field Operators may assist one of the maintenance personnel although to do so would be rare. Some of the Field Operators working in the field are also qualified as ‘C’ level or Lead Operators. Sometimes they may need to take on a Lead Operator’s duties temporarily, for example, a Field Operator who is qualified as a Lead Operator may need to take control of the DCS if the designated Lead Operator for that shift needs to leave the control room for a short period of time. The objective of the company is to ensure that everyone is qualified ultimately as a Lead Operator.

106    ‘C’ level or Lead Operators are also known as Core Operators. They look after the DCS and the overall running of the plant. They monitor the equipment around the plant from the DCS computer screens in the control room. If there are any issues, they send out the Field Operator into the field to check. In the control room, there are four workstations for the LiqSC Plants. Operators can access up to 64 screens for each of those two plants. Of those screens, there are about 20 main screens that Lead Operators are required to monitor. In the SolidSC Plant there are about 15 main screens to monitor. In addition to those screens, there are a lot of ‘trends’ that Lead Operators must monitor on the DCS. There is a ‘trend directory’ in the DCS that can be used in order to search for a trend. The key trends a Lead Operator would look out for are the ratio trends, plant rate trends, vibration trends, product tank level trends, waste water tank level trends, air supply trends, pressure trends, caustic trends and pump arm trends. There are many other duties carried out by Lead Operators including the monitoring of alarms around the plant and liaising with contractors on a regular basis and maximising the efficiency of the plant. To perform all these tasks, specialised training is necessary.

107    In cross-examination Mr Pohatu said two reports were written at the end of the shift. The ‘End of Shift Report’ goes onto the operator log available for ‘pretty much everyone to see’ including the managers and supervisors. Any difficulties that may have taken place in the shift is identified mainly on the End of Shift Report. Secondly, there is a Production Report for the other incoming Process Group Leader. The information contained in the Production Report is totalised production for the 24-hour period, any issues that might have occurred, any maintenance issues and anything that requires focus or that could possibly hinder production. Other Process Group Leaders deliver similar information. A production meeting report is held every morning, Monday to Friday. Mr Pohatu confirmed that he was the lowest level of management at those meetings.

EVIDENCE CALLED BY CFMEU

108    Of the three witnesses called for CFMEU, only Mr Trevor Lyall Harman and Mr Gordon Watson were cross-examined and then only briefly.

Mr Evan Mitchell

109    Mr Evan James Mitchell affirmed an affidavit on 2 February 2011. Mr Mitchell is a Lead Operator in the NA/AN Plant. At the time of giving evidence he was undertaking training as a Field Operator in the Ammonia Plant and was working in that plant. He commenced employment in September 2005 as a Field Operator in the NA/AN Plant. In 2007/2008, he became a Lead Operator in the NA/AN Plant and in early 2010, transferred to the Ammonium Plant. He explained that he was also qualified and experienced in the power management system on the Kwinana Plant. That system was located in the NA/AN Plant before being transferred to the utilities section of the Ammonia Plant.

110    The power management system allowed the operator to monitor the electricity coming onto the site from the external electricity grid and the electricity produced on the site going onto the external electricity grid. The system operates in accordance with guidelines established by CSBP with external power usage set at 11 megawatts. Any excess site electricity is exported to the external electricity grid.

111    As a Field Operator Mr Mitchell had undertaken and completed the training in what was known as the ‘back-end’ of the Ammonia Plant involving some of the final stages of the ammonia production process. Formal classroom and self-paced training was complemented by ‘on the job’ training. On completion of training in the ‘back-end’, he undertook some informal training in the ‘front-end’ and formal training was to commence after that. That involved training in some of the initial stages of the ammonia production process. As Lead Operator in the NA/AN Plant he has some understanding and knowledge of the operation of the Ammonia Plant.

112    He holds a licence in boilers and turbines (boiler and turbine ticket), being a mandatory requirement for any employee wishing to become a Lead Operator in the Ammonia Plant. Similar to evidence given by Mr Romano, he undertook training for the licence whilst training as a Field Operator in the Ammonia/NA/AN Plants. Mr Mitchell said the possession of a boiler and turbine licence was a mandatory requirement of CSBP and the State Government Regulator for persons who work with that type of plant and equipment. He confirmed that a boiler and turbine licence certifies that the person who holds it is trained to work with various steam based pressure vessels and turbines generating electricity. Mr Mitchell stated that the boilers and turbines operate as an integral part of the Ammonia Plant. Whilst the training of a Field Operator took place in two parts, the front-end and the back-end, the training for the qualification of a licence in boilers and turbines was undertaken in whatever part the operator initially undertakes the training. The holding of the boiler and turbine licence is essential to the whole operation of the Ammonia Plant.

113    Mr Mitchell explained that a Field Operator performed his or her work within the plant including monitoring the state of the production process and the plant. A Field Operator would expect to conduct at least two rounds of the Ammonia Plant in each shift of 12 hours duration. He or she liaises with and reports to the Lead Operator. The Lead Operator’s position is a promotional position for a Field Operator. A Lead Operator would provide instructions to the Field Operator. The Lead Operator constantly monitors the overall processes from the control room by a series of monitors presenting data and schematics of various parts of the plant. In addition to monitoring the process from the monitors, the Lead Operators obtains information from the Field Operators on what was happening within the plant.

114    Mr Mitchell explained that the production of ammonia involved the mixture of a number of gases to produce a series of reactions. These combined with the feeding of other feed stock and the use of heating and cooling at various stages, finally producing ammonia as the end product. Integral to the production of ammonia is the use of steam and compressed air. The steam comes from a number of boilers. The heat from the boilers comes from the reaction of various gases. The steam is either used again within the production process or to power a turbine that in turn is used to generate electricity and to power a compressor for the production of compressed air. There are two stream turbines in the Ammonia Plant. One of the turbines provides for the production of compressed air and electricity, the other is used in the synthesis gas compressors. There are also two waste heat boilers and an auxiliary boiler in the Ammonia Plant. The waste heat boilers use the heat and gases from the production process to produce steam. That steam in turn is used in the production process either as steam or to power to the turbines for electricity or compressed gas. The auxiliary boiler is critical to the start-up procedure of the Ammonia Plant as the plant cannot commence operation without a particular level of compressed air. It is used to produce steam to drive the turbine that, in turn, drives the compressor that produces the compressed air. The auxiliary boiler also provides steam to the NA/AN Plants to aid in its start-up process. Mr Mitchell said the whole nature of the ammonia production process depends on the use of the boilers and the turbine. Without them, there would be no process.

115    Equally, pumps are an essential feature of the production process. To move the feed stock, water and process fluids through the system it requires the operation of pumps. Only the movement of steam does not require the operation of a pump. The operators are required to constantly monitor the operation and status of the pumps to ensure they are operating in accordance with the specification. They also prepare the pumps for any maintenance work.

116    Mr Mitchell disagreed with Mr Romano’s view in connection with the provision of compressed air that the primary reason for the steam was the delivery of compressed air which was maximised in advance of generating electricity. He said that in normal operating conditions in the Ammonia Plant, the speed of the turbine was geared to producing electricity at 50 Hz not to the amount of compressed air required by the plant.

117    He also took issue with the question of whether it was possible to divide the Ammonia Plant into discrete sections as far as the utilisation of the boilers and turbines were concerned. Rather, he said that the boilers and turbines were an integral part of the process of producing ammonia as it used the steam, compressed air and electricity produced from the boilers and turbines.

118    Mr Mitchell also disagreed with Mr Romano’s description of the production of electricity being a way of ‘reducing the waste’. The production of electricity is a very important way of operating an efficient and effective operation. The more electricity produced, the more that CSBP can return to the external power grid. If the site was not producing electricity the cost of production would increase. CSBP has an arrangement with the electricity provider to supply up to 11 megawatts to the Kwinana Plant. If more electricity is used over an extended period, CSBP must pay a premium. On some days, in the absence of the internal production of electricity, it would be necessary to either reduce the power usage by closing or reducing some of the operations or to pay a premium charge. It is the production of electricity on-site that minimises or prevents that cost.

Mr Trevor Harman

119    Mr Harman was called by CFMEU. He is a Lead Operator in the SCBU. He has been employed with CSBP since 21 January 1989 in various positions and has an extensive history in the relevant areas. He described the general production processes at the sodium cyanide plants and the roles of Process Technicians at each stage. The sodium cyanide plants produce steam at both high pressure and low pressure. The steam is used in the process of producing sodium cyanide and generating electricity. With respect to the generation of electricity, the steam is used to drive a turbine which in turn generated the electricity. That electricity is either fed back into the sodium cyanide production process for power usage or transferred to other plants at the Kwinana Plant such as the Ammonia Plant. Any excess electricity is sold into the Western Australian power grid.

120    Mr Harman explained that the production of liquid sodium cyanide at CSBP essentially involved the mixture of three raw products; vaporised ammonia, appropriately treated natural gas and heated air, followed by an absorption process. The reaction process produces heat that is used to produce low pressure steam which is then used in the production of sodium cyanide. The absorption process produces the final product, sodium cyanide. The process also results in the production of waste gas that is burnt together with natural gas in an incinerator. This heat is used to produce high pressure steam. Of that steam, 90% is used to operate a turbine in the LiqSC Plant and 10% is used in the production of solid sodium cyanide.

121    Mr Harman said that the boilers and turbine were an integral part of the operation of the LiqSC Plants with the turbine costing approximately $10 million. The solid sodium cyanide, in the form of a power, is converted from a liquid sodium cyanide to a solid using low pressure steam. The production process is not composed of discrete parts that operated at any one time. All parts of the process operate simultaneously. Mr Harman stated that the general preparation of the LiqSC Plant, including tests run and nitrogen start-up, would take a minimum of 12 hours. The preparation of the natural gas plant to the production of the final product would take about six hours and the preparation of the incinerator boiler to take waste gas would require a minimum of 12 hours. For the waste gas to get to the incinerator boiler it would take approximately 30 minutes and 6-12 hours before the plant could produce sodium cyanide to the required specification.

122    He also explained the three levels of Process Technicians and said that as a Lead Operator he could also perform the duties of Field Operator. He undertook the Field Operator duties on an occasional basis when there was a shortage of Field Operators on the shift. Further, he would do parts of the Field Operators’ job from time to time depending on the work that needed to be done and the operators available to do the job. On occasions, it was simply a matter of getting the job done by those with the requisite training regardless of what operator level they hold.

123    He clarified that a Field Operator does not perform the actual maintenance work in the plant. The Field Operators may assist in ensuring the plant is ready for maintenance work to be performed, such as isolating various plant and equipment, but the actual maintenance was undertaken by maintenance trade persons such as fitters and electricians. This is similar to the evidence given by Mr Pohatu.

124    Mr Harman gave evidence that depending on the state of the production process he may spend more time on one part of the process than another. For example, if there was a problem with a production of steam, he may need to spend a lot of time attempting to remedy that problem. In the normal operating environment when production proceeds unhindered, it was critical that the process be constantly monitored. As a Lead Operator, he kept a constant eye on the entire production process, with a combination of heat, high and low pressure steam, power generation, chemical reactions, various pressures and gases and liquid flows. He said it was critical that a Lead Operator know that the process is proceeding as expected.

125    Lead Operators and Field Operators were also required to have licences to operate forklifts. It is necessary for the transport of peroxide in the SolidSC Plant and the transport of hydrogen bottles on a plant start-up in the LiqSC Plants.

126    Mr Harman described the Training and Learning Agreements. An understanding of the boilers and turbines and their operation in the sodium cyanide plants is necessary. He said that the production of steam and electricity by the boilers and turbines respectively was a prominent and vital part of the process. Without them, the plant could not operate. It also allowed for the plants to operate at the maximum level of efficiency throughout the productive use of all the material produced during the production process.

127    He also gave evidence that the sodium cyanide plants were shut down on a planned and unplanned basis. The plant shut-downs are undertaken to perform maintenance work and could take place every couple of months. Unplanned shut-downs occurred when there were problems in the plant that could not be fixed other than by shutting it down. There was no set pattern but unplanned shut-downs were a feature of the plant. As an example, he spoke of the possible need to change the gauze used in the reaction process. The gauze may last for a couple of months or for a couple of weeks.

128    He gave evidence that the assessment criteria for the steam turbine training identifies that the holder of the turbine licence must be competent in the selection and the use of protective clothing and equipment, performing the pre-operational checks, maintaining health and safety standards, starting the turbine, operating the turbine, monitoring the turbine, shutting down and storing the turbine and performing the specified maintenance of the turbine. For this, it was necessary for the Lead Operator to have a turbine licence.

129    He stressed that steam and power were an essential part of the process as they have an impact throughout the entire process and not just in parts of the process. Unless they were available, the plant could not operate.

130    When the plant is restarted after a shut-down, one of the first priorities was to get the boilers and steam up to the required levels. The production process relies heavily on the use of pumps to maintain the movement of various feed stocks, liquids and process gases through the system. The pumps were also important in maintaining the requisite pressure in the pipes and vessels. Mr Harman stated that there are 40 main pumps in the sodium cyanide plant. Mr Harman explained ‘main pumps’ to mean pumps that must be operating continuously during the production process. Of the 40 pumps, 20 operated continuously while the other 20 were backup pumps. There may also be other pumps such as dispatch pumps used as required during the production process. Lead Operators also monitors the pumps from the control room. When necessary, adjustments would be made to the operation of the pump. The Lead Operator also set in place any maintenance requirements. The Field Operator monitors the status of the pumps from the field, taking measurements from the various pumps to ensure they are operating as required.

131    Mr Harman and other CFMEU’s witnesses disagreed with the suggestion that Lead Operators ‘managed’ contractors. They accepted that Lead Operators issued contractors with permits to work telling them that they could safely commence that work. However, on-site they are actually managed by other CSBP personnel.

132    Mr Harman and the other CFMEU witnesses also took issue with the assessment by CSBP witnesses of the relative time spent on certain tasks. Essentially the operation was too dynamic, in Mr Harman’s view, to fix on such percentages. I accept that this is simply a matter of impression, the percentage of time spent on various tasks must change according to the requirements from time to time. That aspect of the commentary by CSBP witnesses is not of particular significance as far as my assessment of the issues is concerned.

133    Mr Harman did stress on numerous occasions that he regarded the boilers and turbines as playing a vital role in the production process.

Mr Gordon Watson

134    Finally, Mr Watson gave evidence for CFMEU. He is a Lead Operator in the CSBP’s NA/AN Plants and had a similar detailed history of working with CSBP from the early 1990s. As a Lead Operator he has responsibility for the operation of four plants, being the 1 and 2 NA Plants and 1 and 2 AN Plants.

135    He stressed that both NA Plants operated a boiler and a turbine as an integral part of the production process. The turbines are connected to an air compressor and an electricity generator. The steam produced in the boilers is used in the production of compressed air and electricity, both of which are used in the production process. Steam is also used as feed stock in the production of AN. He explained that the production of NA and AN essentially involved a mixture of air and ammonia being ignited over a gauze. The result of this process was the build-up of heat to a temperature in excess of 900 degrees Centigrade. This temperature is too high to allow absorption of liquid to make NA. Therefore, the gas is cooled in several heat exchangers. The first of the heat exchangers is a super heater and a boiler which dramatically reduces the temperature of the gas from 900 degrees Centigrade to 400 degrees Centigrade. This results in not only a cooler processed gas but also steam as the excess heat is used in the boiler to produce it. The steam is then used within the plant to run a steam turbine and in turn the air compressor and also as a heating agent. For example, low pressure steam could be used to superheat the ammonia at the commencement of the process. In a subsequent absorption process, further heat and steam is produced which is used both within the process and as a source of power.

136    Mr Watson explained the different roles of Lead Operators, particularly the function carried in the control room, and Field Operators. He referred to the various training components of the Learning Agreements which have been exhibited by Mr Romano and noted the training elements referring to the recording of training in boilers and turbines. He described the actual work carried out by Field Operators with respect to the boilers which were an integral part of the process. The turbine is started independently of the rest of the plant because of the need for the turbine to supply the compressor as part of the initial start-up process. The start-up of the turbine requires the Lead Operator to ensure that the relevant equipment is in place, that the steam and water are ready and that the necessary vacuum has been created before the turbine is set in motion to ‘roll up to speed’. The Lead Operator then needs to synchronise the turbine with the generator. As a Lead Operator, he did not undertake any routine or planned maintenance although, he would be aware from operating the plant whether or not certain maintenance or repair work needed to be done and would produce an engineering work order form for the maintenance crew should it be needed.

137    He disagreed with the observations of Mr Romano concerning the proportion of P and IDs directly applying to boilers, turbines and electrical generators showing that such a proportion was no indication of the prominence and importance of the performance of the overall plant. They were merely diagrams of various plant operations drawn up in the most convenient way of reflecting the various plant layouts. What diagrams were used depended on the condition of the plant at any particular time.

138    He also disagreed with the suggestion by Mr Romano that Lead Operators spent a relatively small proportion of their time on the steam system. A Lead Operator is constantly monitoring the steam system as a vital part of the process. In addition, if that part of the plant was presenting a problem, then a Lead Operator would focus his or her time on that part. Given the nature of the Lead Operator’s job, it is difficult to divide the work up into various periods of time on each task. The plant is not divided into sections of tasks neither are Lead Operators allocated to a particular section or task or series of tasks.

139    He said that the cooling towers are important to the boiler, turbines and generators as it keeps the oil in the turbine and generator cool and steam from the boilers is used as part of the ammonia evaporator and pressure control system. The heat exchangers produced heat, some of which is used to produce steam.

140    He stated that the turbine system is an integral part of the plant and that the suggestion that the production of electricity was simply to reduce the waste is incorrect. It is an essential part of conducting an efficient and operative plant. Steam is used to drive a turbine that in turn drives both the compressor and the generator for purposes that are integral to the operation of the plant. Neither is more important than the other in the operation of the plant. In the absence of this operation, the amount of steam that would have to be vented would be colossal and the absence of the operation would result in an increase in the cost of production and possible environmental issues.

CFMEU’s submissions and the effect of the evidence

141    From this evidence, CFMEU submits it has been established that Lead Operators and Field Operators are clearly ‘assisting in and about’ the production process at the relevant plants. The evidence shows that:

(a)    during a typical 12 hour shift a Field Operator would spend 30-50% of his/her time monitoring temperatures, flows and pressures of material inputs and outputs;

(b)    the Ammonia Plant basically runs on autopilot using the Direct Control System and Programmable Logic Control;

(c)    the plant in the SCBU is automatically controlled;

(d)    Lead Operators are required to ensure that required standards are met, Process Group Leaders are not necessarily experts in all areas of plant;

(e)    Lead Operators have constant contact with Process Engineers;

(f)    Field Operators play an important role in preparing equipment for maintenance work including isolating equipment and this must occur before a maintenance employee is allowed to perform the maintenance and Maintenance;

(g)    Field Operators inspect for leaks or equipment failures and more generally for maintenance and operational purposes;

(h)    Field Operators assist Lead Operators; and

(i)    Field Operators also assist in the testing of product and, in particular, assist CSBP’s laboratories .

142    CFMEU also correctly argue that the evidence shows that, alternatively, Lead Operators and Field Operators do work in a subordinate role to the work of some persons at CSBP’s premises, including the Process Group Leaders as:

(a)    the supervision of the operators in the Ammonia and AN production area involves various persons including Group Leaders, a Site Supervisor and an Area Day Supervisor;

(b)    Mr Romano in cross-examination conceded that on CSBP’s line diagrams showing the chain of command that the operators were below the Process Group Leaders who were in turn below Operations Supervisors;

(c)    in the SCBU, the Lead Operators were under the direct responsibility of the Process Superintendent. Process Group Leaders are rostered on every shift to ensure required standards, employee conduct and performance; and

(d)    Mr Pohatu as a Process Group Leader supervises Process Technicians in the SolidSC Plant.

143    Further, the Field Operators work in a subordinate role to the work of Lead Operators. The evidence is that:

(a)    Field Operators in the Ammonia Plant and Ammonia production areas assist the Lead Operators;

(b)    Lead Operators in the NA/AN Plants may instruct Field Operators to make adjustments to remedy problems;

(c)    Lead Operators may issue advice or instructions to Field operators;

(d)    Lead Operators will liaise with and receive reports from Field Operators;

(e)    Field Operators in the NA/AN Plants perform a similar role to Field Operators in the Ammonia Plant; and

(f)    Lead Operators in the SCBU will similarly, on a typical shift, ensure that

(i)    the Field Operators conduct his or her routine plant inspections;

(ii)    liaise with Field Operators;

(iii)    receive reports from Field Operators; and

(iv)    regularly give directions to Field Operators.

144    CFMEU contends that it is clear that the production process is work that is liable to happen in connection with and therefore is incidental to the engines, boilers and machinery found in the plants. In fact the turbines, compressors, generators, boilers, pumps and other machinery have a close connection to the production process at the Kwinana Plant and the production process is dependent on them. Even if the engines, boilers and machinery are confined to those that produce power, there is a close connection between them and the production process at the Kwinana Plant and the production process is dependent on them. The evidence shows that:

(a)    In the Ammonia Plant, integral to the production process, is the use of:

(i)    steam and compressed air;

(ii)    boilers and turbines; and

(iii)    pumps.

(b)    Both NA Plants:

(i)    operate a boiler and turbine as an integral part of the process; and

(ii)    rely heavily on the use of pumps.

(c)    In the sodium cyanide plants:

(i)    the production of steam and electricity by the boiler and turbines respectively is an integral, prominent, vital and essential part of the process; and

(ii)    the production process relies heavily on the use of pumps.

145    CFMEU argues that even if the ‘work’ is confined to the work of persons, the work of the Process Group Leaders and/or the Lead Operators, is also work that is liable to happen in connection with and therefore is incidental to the engines, boilers and machinery found in the plants. It is clear that there is a close connection between the work of the Process Group Leaders and/or Lead Operators and the engines, boilers and machinery at the Kwinana Plant. The three witnesses for CSBP set out some aspects of the equipment which the Lead Operators and Field Operators are responsible for. The cross-examination demonstrated that many of these and other items of equipment included engines, boilers and machinery utilising power.

146    CFMEU says there are items of the relevant plants that are either engines or machinery which are found at most stages of the process in each plant. These were identified in the cross examination of Messrs Romano and Rodriguez. It says that some of the evidence of such items is as follows:

(a)    Steam driven turbines are engines used to drive an electric generator or compressor, or both. Mr Romano gave evidence during cross-examination that the steam turbines rotate compressors or generators and creates torque in otherwise static equipment. Turbines are found in the following areas:

(i)    The Ammonia Plant has two steam turbines;

(ii)    Both NA Plants operate a steam turbine; and

(iii)    The Two LiqSC Plants also share one steam turbine.

(b)    There are compressors, which are machines, in both the Ammonia and AN Production area and the SCBU. They are identified in the evidence as follows:

(i)    In the Ammonia Plant there are compressors;

(ii)    Mr Romano said there were more than 10 compressors and that, of those, three are electrically powered. The others are steam driven;

(iii)    In each NA Plant there is an air compressor;

(iv)    In the SCBU there are 2 or 3 air compressors run by electric motors; and

(v)    In each of the Plant and Instrumental Air Facility and the CO2 Operations there are compressors.

(c)    There are also generators which produce electricity in both the Ammonia and AN Production Area and the SCBU as follows:

(i)    One of the steam turbines in the Ammonia Plant is coupled to an electric generator;

(ii)    Each of the NA Plants has a steam turbine coupled with an electrical generator;

(iii)    Emergency diesel generators for the Ammonia Plant and NA Plants; and

(iv)    An emergency diesel generator in the SCBU.

(d)    Mr Romano in cross-examination described CSBP’s pumps as machines or devices that increase pressure.

147    CFMEU submits, and I accept, that the pumps used by CSBP are driven by electrical motors or air from the compressors. There are pumps throughout the plants and the processes in each plant other than the Plant and Instrumental Air Facility and the CO2 Operations:

(a)    The Ammonia and AN production area has hundreds of pumps;

(b)    Mr Romano in cross-examination said that there were pumps in six of the eight plants in the Ammonia and NA/AN Production Area. The exceptions being the Plant and Instrument Air Facility and the CO2 Operations;

(c)    The majority of pumps in the Ammonia and AN production area are powered by electric motors. Only some are powered by the air compressors;

(d)    The NA/AN Plants and Ammonia Plants have pumps;

(e)    The two LiqSC Plants also have pumps which are relied on heavily in the production process;

(f)    In Mr Rodriguez’s cross-examination he identified two electrically driven boiler feed pumps in each of the incinerators as well as pumps in the LiqSC Plants, cooling towers, absorber, centrifuge, glycol system, caustic system, condensers, venturi scrubber, product storage system, reverse osmosis plant, ammonia stripper, cyanide destruction plant (involved in water waste treatment), slurry system and emergency generators;

(g)    The AN Prill Plant and Demineralised Water Plant has pumps; and

(h)    Mr Romano during cross-examination accepted that the valves used in CSBP’s plant fitted the following description:

a device for closing or modifying the passage through a pipe, outlet, inlet, or the like, in order to control the flow of liquids, gases, etc.

148    Further, Mr Romano gave evidence that there were several hundred valves. He said most of the valves were control valves that were operated from the control room. A majority of those were pneumatically operated, but some were electrically controlled. He also said that there were many valves that were manually operated.

149    Mr Rodriguez gave evidence in cross-examination that valves in the SCBU are found in the incinerators and the LiqSC Plants. He said that in the LiqSC Plants there are 50 to 70 control valves and hundreds of manually operated valves.

150    There are also rotary valves found at the bottom of the cyclone tubes which are mechanical and are driven by electric motors. Mr Romano gave evidence in cross-examination that these are found in the Ammonia and AN production area. Mr Rodriguez gave evidence in cross examination that rotary valves are also found in the SCBU.

151    Further, fans and blowers are mechanical and driven by electric motors. Mr Romano gave evidence in cross examination that fans are found in the Ammonia and AN production area. In particular fans are used in the cooling towers. There are also fans in the AN Prill Plant. Blowers are found in the Demineralised Water and CO2 Operations. Fans are also found in the SCBU. Specifically, there are combustion air fans in the incinerators, cooling towers, blowing room and condensers. Mr Rodriguez also gave evidence that there is an ‘ID’ fan in the SolidSC Plant which draws air through the whole of the plant. Blowers are also used in the blowing room in the SCBU using large motors.

152    The oil centrifuge which is used in the Ammonia and AN production area is another machine. Mr Romano gave evidence during cross-examination that the centrifuge was electrically powered. Mr Rodriguez also gave evidence of the oil centrifuge being used in the SCBU in the LiqSC Plants. There is a centrifuge in the SolidSC Plant as well which is described as a machine that has a basket spinning at high speed.

153    Other machines used by Process Technicians include:

(a)    the spin flash dryer, powered by an electric motor;

(b)    in the AN Prill Plant, the cyclone and conveyor belts which Mr Romano accepted in cross-examination were electrically powered;

(c)    the Ammonia Plant’s agitators in the MDEA stage of the plant and run by electrical power;

(d)    augers driven by electrical motors found in the Ammonia and AN production area;

(e)    vibrators in the Ammonia and AN production area where they are mechanical and driven by the compressors. The vibrating screen is driven by an electric motor; and

(f)    the Briquetting machine, which is the same as the compactor, powered by an electric motor.

154    Many of the relevant plants have boilers.

(a)    In the Ammonia Plant there are:

(i)    two waste heat boilers; and

(ii)    an auxiliary boiler;

(b)    Both NA Plants also operate a boiler; and

(c)    There are two boilers in each of the LiqSC Plants.

155    Part Two of the Eligibility Rule requires that the engine, boiler or machinery be connected with the production or utilisation of power on land. CFMEU accepts that, since the word ‘machinery’ was first inserted in the FEDFA rule, much machinery that was previously manually operated now uses power. However, it is no reason to read down or ignore the word ‘utilisation’.

156    I accept that the plants as a whole utilise power and cannot and do not normally function without electricity. Moreover, the items of engines, boilers and machinery in all plants and most stages of the production process, with the exception of the manually operated valves, utilise power.

157    CFMEU also argues that, while it is not necessary, in order to satisfy Part Two of the Eligibility Rule that a plant produces and utilises power, the plants actually produce and use power produced by other plants. This is clear as:

(a)    steam is fed into steam turbines which are attached to generators connected to the CSBP power grid;

(b)    in the Ammonia Plant steam compressed air is produced by two waste heat boilers and either used in the production process or to power turbines that are used to generate electricity and to power compressors for the production of compressed air;

(c)    in the Ammonia Plant there is an auxiliary boiler which is critical to the start-up procedure and used to produce steam to drive the turbine that in turn drives the compressor that produces the compressed air;

(d)    in the NA plants the turbines are connected to an air compressor and an electricity generator and the steam produced in the boilers is used in the production of compressed air and electricity both of which are used in the production process;

(e)    the sodium cyanide plants produce steam which is used in the production process and to drive a turbine which generates electricity. The electricity is either fed back into the sodium cyanide production process for power usage, transferred to other plants such as the Ammonia Plant or sold into the West Australian power grid; and

(f)    the SolidSC Plant only receives and uses steam rather than produces it.

158    CFMEU argues that all of the Lead Operators and Field Operators at the Kwinana premises fall within the Eligibility Rule in that they are attendants and/or 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’.

Possible alternative conclusion

159    Alternatively, CSBP argues that it is open to conclude that some of the Lead Operators and Field Operators are eligible for membership of the CFMEU. One example of such an alternative finding would arise if Part Two of the Eligibility Rule did not apply to ‘highly skilled’ employees and that Lead Operators, but not Field Operators, are found to be ‘highly skilled’ employees. Another example of an alternative finding would arise if the ‘work’ referred to in the Eligibility Rule is confined to the work of persons and that Field Operators, but not Lead Operators, are assisting in and about the work of other persons. Another circumstance in which an alternative finding might arise is if the Court were to find that for eligibility for membership the work must involve an engine, boiler or machinery which in turn is connected with the production of power. Such a finding could only apply to exclude from eligibility for membership Lead Operators and Field Operators who work exclusively in the SolidSC Plant or the AN Prill Plant where there is no engine, boiler or machinery that produces power.

FINDINGS AND CONSIDERATION

Findings

160    The evidence establishes that the main products made by CSBP at the Kwinana Plant include ammonia, 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).

161    The Kwinana Plant is divided into four logistical areas. The first logistical area is the Ammonia BU also referred to as ‘Chemicals North’ made up of the Ammonia Plant, two NA Plants, two ANSOL Plants, a Ammonia Storage, Liquefaction and Distribution area, a Demineralised Water Plant, a Plant and Instrument Air Facility, a AN Prill Plant and the CO2 Operations. The second logistical area is the SCBU also referred to as ‘Chemicals East’ made up of CSBP’s joint venture Cyanide operations consisting of two LiqSC Plants and a SolidSC Plant. The third logistical area is the Fertiliser Production Plant and the fourth logistical area is the Receivables and Despatch area handling the receipt of ingredients for producing product and the dispatch of products from the Plant.

162    CSBP employs approximately 92 employees as Process Technicians in the Ammonia BU and in the SCBU. There are three levels of Process Technician in the Kwinana Plant including the entry level (‘A’ Level operators), the Field Operators (‘B’ Level trained to work in the field) and Lead Operators (‘C’ Level trained to work in the control room or in the field).

163    The Training Modules applicable to each level were explained in detail by Mr Rodriguez including the extensive competencies required of each level involved in the various aspects of employment.

164    The entry level takes one to three months to complete, the Field Operator’s level takes approximately six months to compete and the Lead Operator level takes approximately 18 months to complete. Process Technicians do not work across Business Units. They do not perform work in both the SCBU and Ammonia BU because there are different chemical processes and different pieces of equipment in each area. The LiqSC Plants and the NA Plants, for example, are similar in that they have some similar unit operations in them such as reactors and vaporises. However, a Process Technician could not change between those areas without first completing the necessary training.

165    In addition to the internal training there is a legal requirement that each plant that has an operating turbine or boiler must have an individual present who holds a ‘turbine and boiler ticket’. CSBP encourages all Process Technicians 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 that have boilers and turbines, Lead Operators are required to hold ‘turbine and boiler tickets’ while it is discretionary for Field Operators. However, if a Field Operator is required to work on a turbine or boiler, the Field Operator must either have a ‘turbine and boiler ticket’, be directly supervised by someone holding such a ‘ticket’ or be signed off by a ticket holder confirming that the Field Operator is competent to perform each relevant task.

166    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 production of chemicals. The Lead Operator does it from the control room. The Field Operator does it from the field.

167    There are numerous boilers and steam turbines in the Kwinana Plant. The primary purpose of the steam turbines is to drive compressors in order to maximise the process air and gas required by the various plants as feed. Four of the five steam turbines at the Kwinana Plant are also connected to generators. This allows any excess steam generated by the various exothermic (heat producing) chemical processes to be utilised by producing electricity rather than wasted by being vented into the atmosphere. It is a requirement from WorkSafe for one person in the plant to have a high risk licence for running a boiler or operating a turbine. Process Technicians with CSBP generally have these licences. Of the 65 Process Technicians in the Ammonia BU as at 2 December 2010, 48 held boiler tickets and 46 held turbine tickets (which qualified them for an additional annual allowance).

168    However, there are no boilers or steam turbines in the AN Plants (excluding the NA Plants), the Ammonia Storage, Liquefaction and Distribution area, the AN Prill Plant, the Demineralised Water Plant, the Plant and Instrument Air Facility or the CO2 Operations.

169    The Process Technicians in the Ammonia and the AN Production Areas work on a four shift roster structure, 12 hours per shift (two day shifts, two night shifts, four days off). As a result, of the 65 Process Technicians employed in the Ammonia and AN Production Areas, there are approximately one quarter of those Process Technicians working on any given shift. The Process Technicians are supervised by Process Group Leaders who are present on every shift in the control room including the night shift. They assist the Operations Supervisor to manage the day-to-day activities of the Process Technicians. There is also a Site Shift Supervisor present on every shift acting as the most senior staff representative for the site outside normal business hours, that is, on weekends and night shifts. There is also an Area Day Supervisor employed Monday to Friday during normal business hours to ensure continuity and consistency of operational manning aspects across all shifts.

170    Mr Romano produced a bundle of the System Manuals for the Ammonia Plant and the AN Production Area, Ammonia Storage, Liquefaction and Distribution area, NA/AN Plants and the AN Prill Plant. The System Manuals are used by CSBP as reference materials as part of a training and ongoing familiarity with the processes. As should be expected in an operation of this nature, there are numerous SOPs applicable to the Ammonia BU. They set out detailed instructions for the Process Technicians performing certain tasks around the plants. They are used as resource material and for traceability purposes being a requirement by law to have every task of any significance documented and risk assessed. The SOPs are also referred to in the Process Technicians modules. The training materials contain electronic web links to the relevant SOPs. The System Manuals and the SOPs are very extensive and complex documents. This is an important part of CSBP’s case.

171    The training regime for Process Technicians, both Lead and Field Operators, but particularly Lead Operators, is sophisticated and complex. I do not perceive CFMEU as seriously challenging this proposition, although it did put a slightly different slant on it. It was not part of CFMEU’s case that no skills or even insubstantial skills were required to carry out the relevant work conducted by Process Technicians. Rather, it was submitted it would be wrong to describe the Process Technicians as ‘highly’ skilled. It was not, for example, a prerequisite for appointment to the position that an external qualification, such as a tertiary degree, be held.

172    Again, to bolster this complexity argument, Mr Romano produced 268 P and IDs covering the Ammonia BU. The diagrams are used extensively in the process and manufacturing industry and other similar industries providing a summary of all piping. They include the physical sequence of branches, reducers, valves, equipment, instrumentation and control interlocks. P and IDs are used by Process Technicians when they are learning about a system during training, when isolating or issuing permits and when commissioning or recommissioning a system. Of the 268 P and IDs, approximately 46 related to boilers, turbines and electrical generators.

173    Mr Romano explained the features in a P and IDs as being:

    Instrumentation and designations;

    Mechanical equipment with names and numbers;

    All valves and their identifications;

    Process piping, sizes and identification;

    Miscellaneous fixed items such as vents, drains, special fittings, sampling lines and reducers;

    All permanent piping including start-up and flush lines; and

    Flow directions and interconnections.

174    Prior to a total shut-down of the plant for maintenance work, Field Operators need to open or close valves along the pipes, drain the contents of any vessels and clear the plant so it is safe for maintenance personnel to work with the equipment. Similarly, to a lesser degree in a partial shut-down, Field Operators must again manually isolate particular equipment, redirect the flow of the product, drain the contents of the required vessels and clean the equipment for maintenance.

175    During a typical 12 hour day shift a Field Operator would spend 30-50% of his or her time monitoring, checking and adjusting temperatures, flows and pressures of raw material inputs and product outputs, 20% of his or her time sampling, 20-30% of his or her time completing isolation work and 10% of his or her time completing ancillary duties such as general cleaning duties. This information was broken down into great detail which was not specifically unchallenged. As with the Ammonia/AN operations, there were extensive SOPs and detailed manuals spelling out those important procedures and similarly, P and IDs. Many examples of these were produced in evidence.

Consideration

176    Against those findings, it is now convenient to set out (once again) the Eligibility Rule:

(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)    An unlimited number of 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 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 as representatives of any working-class organisation to which the Union or a branch thereof is affiliated, or as a working-class member of Parliament. (emphasis added)

177    The Eligibility Rule needs to be seen in context of the Rules or the Constitution (r 2 of the Rules) as a whole. By r 3 of the Rules (the Industry Rule), (which was also derived from the old constitution of FEDFA), the description of eligibility by industry is in these terms:

(A)    The employment of persons:

(1)    employed or seeking to be employed in or in connection with the industry or industries, and/or occupations, and/or calling, and/or vocations, and/or industrial pursuits of:

and/or

(2)    who, otherwise than as employees or employers, follow an occupation in or in connection with the industry or industries of:

and/or

(3)    who, otherwise than as employees or employers, are engaged in the industrial pursuit or pursuits of:

(i)    the industries in connection with which the Union is formed are the carpentry, joinery, ship carpentry, ship joinery, bricklaying, tuckpointing, tile laying and stonemasonry industries, including the industries of persons employed in the laying or fixing of tiles, faience, mosaic, ceramic, opalite and … as stone masons …

…

(B)    And an unlimited number of persons employed or usually employed as workers, other than tradespersons, engaged in or in connection with any of the following work, occupations or callings:

(1)    workers (other than tradespersons), on any work in or in connection with or incidental to the erection, repair, renovation, maintenance, ornamentation, alteration, removal or demolition of any building. …

(2)    …

(C)    The industry of any person employed in any position on or in or in connection with:

(1)    (a) saws and woodworking machines; (b) handling and treating timber and articles manufactured therefrom;

…

(4)    The industry of any person employed in or in connection with hewing splitting and falling timber; and

…

(D)    The Industry of paper-making, strawboard making, paper-bag making or the making of any similar commodity.

(E)    And an unlimited number of persons employed or usually employed as workers engaged in or in connection with the Coal Mining industry.

(F)    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.

(1)    Further, without limiting the foregoing, the group of industries comprised within the calling, service, employment, occupation, or avocation of persons employed in a classification in (2) hereunder in or in connection with or incidental to the erection, repair, renovation, maintenance, ornamentation, alteration, removal or demolition of any building. …

(2)    Dogman

Hoist or Winch Driver

Gantry Hand or Crane Hand

Crane Chaser

Dogman/Crane Hand

Pile Driver

Pile Driver Assistant

Rigger performing rigging work that is an integral part of, or is incidental to, cranage operations

Assistant Rigger

Drilling Machine Operator

Dump Cart Operator in respect of Victoria only

(3)    Provided that, nothing in sub-rule (1) shall render eligible to join the Union any person employed:

(a)    on a building or structure which building or structure is for the purpose of housing mechanical or electrical plant on civil or mechanical engineering site.

(b)    ….

(c)    in the mining or exploration or hydro-carbons industries.

(G)    The industry in or in connexion with which the Union is registered is the industry of the employment of persons employed or seeking to be employed in or in connexion with the industries and/or occupations and/or callings and/or vocations and/or industrial pursuits of the painting and decorating industry in connexion with buildings, and structures, plant, machinery and equipment, fences and posts (commercial, residential, industrial or otherwise), general and ship painting, including the following:-

…

(H)    The furnishing and wood working industries, including coffin making and the industry of making musical instruments of which wood forms a part.

(I)    … independent contractors who … would be eligible for membership of the Union, shall be eligible for membership of the Union.

(J)    Without limiting the generality of the foregoing and without being limited thereby, the industry in connection with which this Union is formed is the Brick, Tile and Pottery Industry. (emphasis added)

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. There 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.

181    It would be unrealistic to consider eligibility for the purposes of the Eligibility Rule without having regard also to the industry or industries set out in the Industry Rule. 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. The addition of these words was necessary to extend the category of persons beyond those involved in the generation of steam for power purposes in the first grouping of workers assisting in and about the work incidental to any engine, boiler or machinery connected with the production or utilisation of power on land. Once again, this construction is also supported by the Industry Rule (r 3(F)), which is derived from the former FEDFA industry rule, referring to ‘… 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)

185    As to the debate concerning the effect of the expression ‘incidental to’, CSBP contends that incidental, in the context in which it is used in Part Two of the Eligibility Rule, should be construed as referring to activities which are ‘subsidiary’ to the relevant machinery.

186    CFMEU argues that even if ‘incidental’ were construed that way (which it rejects), the work of chemical production is nonetheless ‘incidental’ to the turbines, boilers and generators. This is a fundamental point of departure between the parties and one in respect of which I consider the argument for CSBP is correct and critically determinative. All of the evidence shows that the chemical production process which is highly sophisticated does not exist to serve the turbines, boilers and generators. They are merely tools by which the chemical production process, which is the undoubted primary purpose of the Process Technicians, are used to achieve the production. The machinery has no reason for existence other than to be used as a tool in that production. Although it must be accepted that electricity is critical to the running of the plants, that does not change the nature of the function of the machinery and the primary purpose which it is designed to serve. Nor does it change the sophisticated nature of the employment of the Process Technicians. I would agree entirely, with respect, with the approach taken by Burt CJ and Wickham J in Mt Newman (discussed at [19]).

187    I also note in Re Pavlic; Ex parte Federation of Industrial, Manufacturing & Engineering Employees (1993) 51 IR 31 that Gray J observed that the relevant part of the unions’ industry rules specified ‘engineering’ as the industry. His Honour said (at 35) that this supported the restriction of the phrase ‘machine operators’ in r 2A(a) to ‘what might properly be called operators of engineering machines’. Having reached that conclusion, his Honour then applied the primary function test and held (at 35) that the employee concerned was not covered by the rules as so construed: see also R v Gough; Ex parte Municipal Officers' Association (1975) 133 CLR 59 (at 69).

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.

190    R v Cohen does not assist the argument advanced by CFMEU in my view. When Mason J (as his Honour then was) said (at 587) that words in the eligibility clause of a trade union’s registered rules should be given a wide meaning, his Honour was referring to a wide meaning as distinct from ‘some narrow or formal construction’. Moreover, his Honour said (at 587) that the expression in such a context ‘should be interpreted and applied in accordance with its ordinary and popular denotation rather than with some narrow or formal construction’. This is quite a different notion from disregarding the general context of the rule and relying upon an equally narrow or literal view of the words in the Eligibility Rule which identify ‘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’. In this age it is almost impossible to imagine an employee who would not be a worker assisting in and about work incidental to any machinery connected with power.

191    CFMEU argues that a broad approach is reinforced by the objects of the Fair Work Act. The objects include ‘enabling fairness and representation at work and the prevention of discrimination by recognising the right to freedom of association and the right to be represented’ (s 3(e)). The objects of the Fair Work Act are met because Process Technicians, like other employees of CSBP, are entitled to become members of an organisation (s 166 FW(OR)A). That applies especially to CFMEU’s argument that the right to freedom of association is a basic human right enshrined in the Universal Declaration of Human Rights, Art 20(1). That Article does not assist with the construction of the Rules. In particular, the Enterprise Agreement specifically refers and applies to Process Technicians. The Enterprise Agreement defines ‘respondent unions’ to be the ‘Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union’ also known as the Australian Manufacturing Workers’ Union, the Liquor, Hospitality and Miscellaneous Union now known as United Voice and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia. These unions were also the bargaining representatives involved in the negotiation of terms and conditions on behalf of the employees in the Enterprise Agreement.

192    Process Technicians are specifically referred to in the Enterprise Agreement. Paying particular attention to the rules prescribing eligibility for membership and description of industries of the registered rules of the ‘respondent unions’, it is of note that United Voice may better represent Process Technicians. Eligibility for membership of United Voice is outlined in r 3 which provides that persons eligible for membership are those:

Part 1

… employed to perform work in or in connection with any one or more of the following industries and/or industrial pursuits, namely:-

… chemical … chemical workers … persons designated as attendants and/or assistants and performing work which is otherwise covered by this present rule 3 part 1.

…

PART 5

Without in any way limiting and without in any way being limited by the conditions of eligibility for membership elsewhere in this rule, the Union shall also consist of persons who are employed or usually employed in or in connection with any one or more of the following industries and/or industrial pursuits, namely:-

…

In the State of Western Australia

(A)    … artificial fertilizers, acids … and/or other chemical industries including … ammonium-nitrate … nitric acid … carbon-di-oxide … synthetic ammonia ….

193    Rule 4 Pt 1 states that the relevant industries are:

The description of the industries and/or industrial pursuits in or in connection with which the Union is registered is as follows:-

The industries and industrial pursuits of persons employed in … chemical (other than persons engaged principally in or in connection with the making, preparation, handling, putting up, reception, sale demonstration and/or delivery of drugs, pharmaceutical goods and medicinal chemicals); chemical workers; …

The generality of description of any of the foregoing industries or industrial pursuits is not to be limited by reference to any other industry or industrial pursuit.

…

Provided further that tradesman's assistants, riggers and metal workers employed in maintenance sections of any establishments in the foregoing industries and/or industrial pursuits shall not be eligible for membership pursuant to the foregoing provisions.

…

194    CFMEU argues that CSBP’s approach involves a narrow construction of the Eligibility Rules impermissibly reading down expressions such as ‘any other worker’. However, in my view, the construction advanced by CFMEU is not one which involves the normal reading of the words concerned. It gives an unrealistically wide reading which would indeed open the floodgates to almost any employee. This is not to say that work may not accurately be described in a number of ways and the fact that it comes within one description does not mean that it cannot also come within another.

195    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’.

196    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.

CONCLUSION

197    As I accept the construction advanced by CSBP for the Eligibility Rule, Process Technicians do not fall within the ambit of the Eligibility Rule. CSBP is entitled to the declaratory relief it seeks. Accordingly, I propose granting the declaration sought.

198    Section 570 of the Fair Work Act deals with costs in proceedings arising under that Act. It provides as follows:

(1)    A party to proceedings (including an appeal) in a court (including a court of a State or Territory) exercising jurisdiction under this Act may be ordered by the court to pay costs incurred by another party to the proceedings only in accordance with subsection (2) or section 569 or 569A.

(2)    The party may be ordered to pay the costs only if:

(a)    the court is satisfied that the party instituted the proceedings vexatiously or without reasonable cause; or

(b)    the court is satisfied that the party’s unreasonable act or omission caused the other party to incur the costs; or

  (c)    the court is satisfied of both of the following:

(i)    the party unreasonably refused to participate in a matter before FWA;

  (ii)    the matter arose from the same facts as the proceedings.

199    As CSBP has been successful in the proceeding, it cannot be said that the proceeding was instituted vexatiously or without reasonable cause. There was also no contention by either party that any unreasonable act or omission had occurred. For these reasons, there will be no order as to the costs of the proceeding.

Associate:

Dated:    12 August 2011