DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

The Australian Manufacturing Workers' Union (AMWU)
v
ResMed Limited
(C2014/35)

Appeal against decision [2013] FWC 9725 of Commissioner Bull at Sydney on 19 December 2013 in matter number B2013/742.

Introduction

[1] The Australian Manufacturing Workers’ Union 1 (AMWU) has appealed a decision of Commissioner Bull issued on 19 December 20132 (Decision). The Decision concerned the question of whether the Commission had the jurisdiction to hear and determine an application made by the AMWU under s.236 of the Fair Work Act 2009 (the Act) for a majority support determination. That application was made following failed attempts by the AMWU to engage ResMed Limited (ResMed) in bargaining for an enterprise agreement at its Bella Vista site in Sydney. In the Decision the Commissioner rejected ResMed’s jurisdictional challenge to the AMWU’s application and found, in the AMWU’s favour, that he did have jurisdiction to hear and determine that application.

[2] The Commissioner recorded in the Decision that the parties had agreed that two jurisdictional issues were required to be determined 3:

“Issue One

Whether, under s.176 of the Act, the AMWU is a bargaining representative for one employee who will be covered by the proposed single enterprise agreement.

Issue Two

(i) Is the AMWU entitled to represent the industrial interests of all employees referred to in its application in relation to work that will be performed under the proposed agreement?

(ii) If the answer to (i) above, is no:

(a) Is the application a valid one under s.236 of the Act? And

(b) Does the Commission have jurisdiction to make a determination in respect of the application under s.237 of the Act?”

[3] In respect of Issue One, and part (i) of Issue Two, the Commissioner was required to determine whether the AMWU was entitled to represent the industrial interests of all or any of those employees whom it had identified in its application, in accordance with s.236(2)(b) of the Act, would be covered by its proposed enterprise agreement. The AMWU had identified five categories of such employees in its application as follows:

“Employees of ResMed Limited who work at the Bella Vista site, who are covered by the Manufacturing and Associated Industries and Occupations Award 2010 and who are engaged as:

(a) Production Operators, Line Leaders or Line Coordinators in the Patient Interface work group; or

(b) Production Operators, Line Leaders or Line Coordinators in the Ventilation work group, or

(c) Production Operators, Line Leaders or Line Coordinators in the Machines work group; or

(d) Warehouse Operators, Line Leaders or Line Coordinators in the Warehouse work group; or

(e) An employee in the Manufacturing Equipment and Tooling Support (METS) work group who holds a trade certificate or equivalent, or who is undertaking an apprenticeship or traineeship, other than any team leader(s) and/or any employee who is engaged as a supervisor, manager or equivalent.

For the avoidance of doubt, any employee engaged as a team leader, supervisor, manager or equivalent will not be covered by the proposed enterprise agreement.”

[4] The Commissioner determined that the AMWU was entitled to represent the industrial interests of those employees identified in category (e), but not any of the employees in any of the other categories. He then went on to deal with part (ii) of Issue 2, and concluded that the AMWU’s application was a valid one under s.236 of the Act and that the Commission had jurisdiction to make a determination in respect of that application under s.237 of the Act. In doing so, the Commissioner rejected a submission by ResMed that, because the AMWU had not been found to have the entitlement to represent the industrial interests of all the employees who would be covered by the proposed agreement, the application was invalid and the Commission had no jurisdiction to hear and determine it.

[5] ResMed appealed that aspect of the Decision, while not challenging the Commissioner’s finding that the AMWU was entitled to represent the industrial interests of category (e) of the employees to be covered by the proposed agreement. In a decision issued on 11 April 2014 (ResMed appeal decision) 4, this Full Bench of the Commission granted ResMed permission to appeal, but dismissed the appeal.

[6] The AMWU’s appeal challenges the Commissioner’s determination that it was not entitled to represent the industrial interests of the ResMed employees identified in categories (a)-(d) of its application. It contended that the Commissioner had made a “decision” on the question of its representational capacity which was capable of being appealed under s.604 of the Act. We had some doubt about this proposition, in that we consider that it was at least arguable that the Commissioner’s conclusions concerning the AMWU’s representational capacity under appeal were no more than preliminary and perhaps obiter findings made on the way to his ultimate determination that he had jurisdiction to hear and determine the AMWU’s application. We referred the parties to the Full Bench decision in Transport Workers’ Union of Australia v Coles Supermarkets Australia Pty Ltd 5 in this respect. However ResMed submitted that the matter had been run at first instance on the basis that the parties had agreed that the Commissioner should make a determination on the question of the AMWU’s representational capacity of the employees identified in the AMWU’s application, as part (i) of Issue 2 identified in the Decision (which we have quoted above) reveals, and the Commissioner did so. ResMed further submitted that because the findings on representational capacity which the Commissioner made were necessary for the resolution of the jurisdictional issues which had been raised, they could not be characterised as merely obiter (in distinction to the Coles decision6). We understood from ResMed’s submissions therefore that it agreed with the AMWU that the Commissioner had made a “decision” about the AMWU’s capacity to represent the relevant employees which was capable of being appealed under s.604. We will therefore proceed on that basis, noting that neither party contended that the Commissioner did not have jurisdiction to make a decision on the AMWU’s representational capacity.

[7] Part (i) of Issue 2 identified in the Decision and set out above refers to whether the AMWU was “entitled to represent the industrial interests” of the employees referred to in its application. That formulation of the issue appears to reflect the requirement in s.176(3) that an employee organisation may not be a bargaining representative of an employee in relation to work that will be performed under an enterprise agreement unless the organisation is “entitled to represent the industrial interests of the employee” in relation to work that would be performed under the agreement. In relation to the meaning of the expression “entitled to represent the industrial interests of the employee”, we said in the ResMed appeal decision (footnote omitted):

“[10] … Section 176(1)(b) operates subject to s.176(3), which provides that an employee organisation may not be a bargaining representative of an employee in relation to work that will be performed under the agreement unless the organisation is “entitled to represent the industrial interests of the employee” in relation to work that would be performed under the agreement. The expression “entitled to represent the industrial interests of the employee” and similar expressions are used in a large number of provisions in the Act in relation to the rights of employee organisations. The Act does not expressly define when an employee organisation is entitled to represent the industrial interests of employees, but the parties’ submissions proceeded on the premise that such an entitlement only arises when the organisation’s eligibility rules permit it to enrol as members the relevant employees. That is the way the issue has been approached in a number of Federal Court decisions and accordingly for the purpose of this decision we will proceed on the same basis.”

[8] We will likewise proceed here on the basis that the AMWU is entitled to represent the industrial interests of an employee if it may enrol the employee as a member in accordance with its eligibility rules - that is, to use a common expression, whether it has “coverage” of that employee.

The AMWU’s rules

[1] In the proceedings at first instance and in this appeal, the AMWU relied upon sub-rule 1A of its eligibility rules (Rule 1, Name Objects and Constitution) in support of its case that it had coverage of the relevant ResMed employees. Sub-rule 1A(a) is set out below, with the parts of the sub-rule relied upon by the AMWU in the appeal emphasised:

“1A. Without in any way limiting or being limited by sub-rules 1B, 1C, 1D, 1E, 1F, 1G, 1H and 1I the Union shall consist of an unlimited number of persons who are employed or usually employed in or in connection with the following trades or calling or branches thereof:

(a) Smiths, ship smiths, angle iron smiths, drop-hammer smiths, spring smiths, oliver smiths, spring fitters, swaging machine operators, operators on smithing machines similar to swaging machines, nut and bolt makers, windmill erectors, motor, motor cycle, and cycle mechanics, tuners and testers in motor industry, enamellers, typewriter mechanics, well-borers, scale-makers, metal safe makers, locksmiths, forge hammermen, forgemen, strikers, drop-hammer stampers, forging machine workers, forge, iron, and brass furnace-men, ship’s plumbers, fitters, turners, grinders, whetstone grinders and glazers, sea-going engineers, shift engineers, roll turners, patternmakers, model makers, millwrights, mechanical draughtsmen, technical assistants, planners, borers, slotters, machine drillers, milling machine workers, shapers, machinists, brass founders, brass finishers, brass smiths and operators of machines in connection with same, coppersmiths, armature winders, equipment examiners, and electrical engineers generally, radio workers, mechanical and scientific instrument makers and optical glassmakers, linotype mechanics, press mechanics, machine joiners employed in the construction of cotton, silk, flax, woollen or other machines, die sinkers, press tool makers and stampers, electroplaters, polishers, electroplate makers up, sheet metal spinners, assemblers, skilled acetylene and electrical welders, aero mechanics, duralium workers, including forgers, fitters, and all other aircraft workers who are employed on the fuselage or engine work, and all workers engaged in the engineering, shipbuilding and kindred trades.”

[2] The AMWU also relied on one aspect of its industry rule (paragraph (a) of Rule 2, Description of Industry), namely the reference to the “engineering and metal industries”, as informing the interpretation of sub-rule 1A of Rule 1.

The Decision

[3] It is necessary to set out those parts of the Decision concerning the AMWU’s coverage of ResMed’s employees at some length because the Commissioner made a number of findings of primary fact about ResMed’s operations and the work of the relevant employees which were, with one minor exception which we do not regard as relevant, not challenged by the AMWU in its appeal (although the AMWU did seek to supplement the factual picture by reference to evidence not referred to in the Decision).

[4] The Commissioner began his analysis by describing ResMed’s operations in general terms as follows (noting that he did so with the advantage of having conducted an inspection of the Bella Vista site):

“[14] ResMed is a world leading manufacturer of medical equipment for the diagnosis, treatment and management of sleep disordered breathing and other respiratory disorders. Sleep apnea being the predominant sleep disorder. ResMed submits that they are in the industry of researching and producing medical devices and do not operate in the metal trades industry. The AMWU does not dispute that ResMed  operates in the medical devices industry but adds that a business may operate in several industries simultaneously and is also in the engineering, metal and fabricating industries.

[15] The site inspections revealed a modern well laid out and impressive worksite, set amongst landscaped gardens where over 1,000 employees are engaged. The production of the various medical devices was viewed first hand by the parties. This mainly consisted of continuous positive airway pressure machines (CPAP) and their components, for example, nasal and face masks, humidifiers, accessories and spare parts.

…

[17] The Bella Vista site was purpose built between 2005/6 and comprises a manufacturing centre and an innovation centre. There is also a sleep centre which is not operated by ResMed. The manufacturing centre houses the liquid silicone rubber (LSR) area, the mask assembly and spares area and the machine and ventilation area. Also contained within the manufacturing centre are the quality control, logistics, warehousing, engineering and administrative functions.

…

[19] Much of the component parts and materials used in the final product are received at the Bella Vista site from external suppliers, for example, the circuit boards, moulded plastic chassis, liquid crystal display interface, batteries, positive pressure pumps, tubes and seals. The evidence from ResMed was that any of the components of its products created at the Bella Vista site which contain metal are not produced or manufactured on site nor is the soldering of any parts undertaken on site.

[20] All products undergo a quality and functional inspection test. The final product is then packaged and delivered to the despatch warehouse for delivery to customers.”

[5] The Commissioner, after identifying the relevant parts of the AMWU’s rules, then referred to the principles to be applied to the interpretation of those rules. 7 After referring to a number of decisions, the Commissioner said:

“[30] I intend to apply these principles in this decision, that is, objectively having regard to any previous determinations, applying the common understanding of persons concerned with the industry and the ordinary application of the words contained in the rules.”

[6] Reference was then made in the Decision 8 to a number of decisions which specifically concerned the AMWU’s eligibility rules, including Federated Tobacco Workers Union of Australia v Amalgamated Metal Workers Union9, United Dairies Ltd v Amalgamated Metal Workers Union10 and Rope, Cordage, Thread Etc. Industry Award, 198311, and another decision, Ex parte Pavlic; Re Federation of Industrial Manufacturing and Engineering Employees (Tasmania Branch)12 which referred to the meaning of the expression “machine operator” in the context of another union’s eligibility rules.

[7] The Commissioner then dealt in turn with each of the five categories of employees referred to in the AMWU’s application. The first group (category (a)) was “Production Operators, Line Leaders or Line Coordinators in the Patient Interface work group”. The Patient Interface work group was identified as having three work areas: Liquid Silicone Rubber (LSR), Mask Assembly and Accessories and Spares. In respect of the LSR work group, the Commissioner said:

“[51] The LSR work group comprises of production operators who produce the silicone rubber face cushion and the chassis seals for the flow generators. The operators follow specific work instructions for each task for which training is provided. The operators produce the rubber faced cushions from machines which mould the silicone rubber into cushions, the machines inject liquid silicone rubber into a mould called a “tool/die.” On a single cavity machine this is done by an operator pushing a button, on a double cavity machine liquid silicone rubber is dispensed automatically. An operator is stationed at a machine and manually de-moulds the cushion from single cavity machines, while on multi-cavity machines a robot de-moulds the cushion. The moulding machines are semi or fully automatic. Operators visually examine the cushion after de-moulding to check for any blemishes, an engineer (not subject to this application) is called if any defects are identified. There is limited decision making for an operator in this process.

[52] Operators conduct minor cleaning of the machines, but do not make any adjustments to the machine settings, which is a role for the engineers. Operators not working on the machines bring the raw materials and components to the machines and remove the finished product to be collected by warehouse operators.

[53] Training for production operators in the LSR is said to take around six weeks. 

[54] The commencement point to construction of the rule 1A(a) is to apply the plain meaning of the words used and apply the meaning to the relevant industrial context. Clearly neither these employees nor any ResMed employees are engaged in the shipbuilding trades, leaving the question, are they engaged in engineering and kindred trades? Nothing in the evidence or anything gleaned from the site inspection demonstrated that the LSR employees are engaged in the engineering trades or are employed in connection with a listed trade or calling in the rule 1A(a) even where a broad meaning is applied.

[55] The LSR operators produce the silicone rubber face cushion and the chassis seal for the flow generators. Little assembly work is undertaken by these employees, the skill level is minimal and repetitive. Any decision making is nominal, adjustments and settings for the machines is undertaken by others. The rubber face cushions and the chassis seals are not fabricated; their manufacture by the LSR operators consists of an operator pushing a button on a single cavity machine, whereas on a double cavity machine liquid silicone rubber is dispensed automatically. I am unable to see how an LSR operator can be described as being engaged in engineering and kindred trades or is connected to these trades.

[56] The occupation of machinist in the rules cannot be as broad to cover any employee who operates a machine of any kind. This much was established in the cases referred to above, as DP Watson remarked in the Rope Case:

“The interpretation advocated by the AFMEPKIU ascribes too broad a meaning to machinist and assemblers within Rule 1A(a).” 

[57] A similar principle was referred to in The Federated Engine Drivers & Firemen’s Union of Workers of Western Australia v Mt. Newman Mining Company Pty. Ltd., where Burt CJ observed that not every worker, who drives an engine while employed is an engine driver within the meaning of the union’s rules:

“… 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.

...

The decision upon such cases will be a decision of fact and not of law.”

[58] A reading of rule 1A(a) as a whole creates a context in which the meaning of the occupation of machinist can be ascertained. In rule 1A(a) machinist is surrounded by occupations such as “... machine drillers, milling machine workers, shapers, brass founders, brass finishers, brass smiths, and operators of machines in connection with same, ... .” The other occupations in rule 1A(a) are repeated in full above. Looking at the genus of these occupations, and having regard to the tasks performed by an LSR operator, the occupation is not a comfortable fit within rule 1A(a). No material is “machined” in the sense that a product is made, shaped or modified by the process of machining.

[59] The historical origin of the occupation of machinist is well traversed by Justice Higgins in Amalgamated Society of Engineers v Adelaide Steam-Ship Company Limited. Even allowing for the significant workplace changes that have occurred since that decision, an operator in the LSR Work Group bears no resemblance to that of machinists described by Higgins J in his decision:

“Some of the most perplexing problems that I have had to face in this Court arise under the claims for “machinists”. In recent years the work done by the fitters and turners (in particular) has been greatly aided in output in speed and in finish by divers ingenious machines worked by “machinists” “operatives” - men not having the full craftsman’s training, but placed by employers, as to pay and position, somewhere between the tradesman and labourer.” 

[60] His Honour went on to divide the occupation of machinist with the consent of the union into three classes; first, second and third class. 

[61] Having regard to the industrial context and the rule as a whole, the pushing of a button on a single cavity machine to dispense silicone and manually de-moulding the cushion and finally visually examining the cushion to check for any blemishes is not in my view a trade or calling as envisaged by rule 1A(a) or an occupation connected to such trade or callings in rule 1A(a).”

[8] In respect of the Mask Assembly work group, the Commissioner found as follows:

“[62] The AMWU rely on the coverage of this work group under Rule 1A(a) by reference to “all workers engaged in the engineering, shipbuilding and kindred trades” and the occupation assemblers as listed in the rule.

[63] As its name suggests production operators who work in the mask assembly work area, assemble masks from the various components received from outside suppliers and the cushions made in the LSR work area. A variety of masks are assembled across a number of production lines. There are a team of operators who assemble each mask on the production lines. Each operator performs a single task and after 30 minutes rotates to another task. For example, one operator will click parts onto the mask frame, a second operator applies a cushion and cushion clip, a third operator will place the head gear onto the mask frame and at the end of the line an operator will fold up the mask, place instructions sheets into a bag and heat seal it.

[64] The mask assembly operators use jigs which hold components in place and fixtures which assist in the assembly process. Their tasks include clipping components together, threading head gear onto clips and then onto headgear frames. Depending on the particular mask being assembled the number of parts ranges between 5 and 14. Once assembled, air flow tests and visual inspections are conducted and the finished product is placed into a heat sealed bag ready for despatch.

[65] The training for a mask assembly operator is said to take around two weeks.

[66] As with the LSR operators I am unable to conclude that the work of mask assembly is work engaged in engineering and kindred trades or is connected to these trades. The work performed is not of an engineering nature, nor does it have a relevant connection to engineering or kindred trades. While ResMed does employ engineers and trade qualified persons in the METS area, there is no meaningful interaction or connection between these positions and LSR operators.

[67] The AMWU argues that these employees are assemblers in the ordinary industrial meaning. I am of the view that the comments of Deputy President Watson in the Rope Case are apposite in that the occupation of mask assembler vis a vis assemblers in Rule 1A(a):

“... would not accord with the ordinary meaning given by people concerned with industrial matters in relevant or related industries and which would not accord with established representation of production employees outside of the industry described in Rule 2 of the AFMEPKIU rules.”

[68] There are many occupations that involve assembly work but the term must be given its ordinary industrial meaning ascertained within the context of the rules as a whole. The tasks of mask assembly operators ascertained on the inspection of the work site appeared to be generally that of clipping or pushing component parts together.”

[9] In respect of the Accessories and Spares work group, the Commissioner found:

“[69] The accessories and spares work group is responsible for bagging up spare parts for the mask assembly and is located next to the mask assembly work group. These operators review spare part work orders, select the appropriate spare part and place them in an auto bagger which also seals the bag.

[70] Of the three occupations in the Patient Interface work group the submission that the Accessories and Spares work group is engaged in engineering and kindred trades or is connected to these trades, has the least force. Reviewing spare part orders and placing spare parts related to ResMed’s products into an auto bagger would not accord with the ordinary meaning and application of rule 1A(a). Such employees are not assemblers in the ordinary industrial sense for the purposes of rule 1A(a) or connected to this calling.”

[10] The Commissioner then dealt with the second group (category (b)) in the AMWU’s application, namely “Production Operators, Line Leaders or Line Coordinators in the Ventilation work group” as follows:

“[71] For this work group the AMWU apply the same argument that the occupations generally fit all within rule 1A(a) on the basis that the employees “are engaged in the engineering, shipbuilding and kindred trades.” It is further put that operators in the ventilator work group are also covered in rule 1A(a) under the occupation “assemblers”.

[72] Ventilators are assembled from components sourced from external suppliers and are used as life support for patients in hospitals and private care. Due to their life saving purpose ventilators are subject to thorough testing and inspection which takes longer for than other products. The work of the Ventilator group is similar to that of the Machines work group discussed below. The main difference is that ventilators contain more components and thus their assembly takes longer, less ventilators are assembled vis a vis flow generators. There is no doubt that a ventilator is an electrically controlled device in the sense that it contains a 9 volt socket that can be connected to a power outlet. The component parts of the Stellar 150 model ventilator were tendered by ResMed and marked as exhibit A9. During the assembly process an electric screw driver is used to insert screws where necessary. The ventilator components are not made on site and are sourced externally, the parts which contain a metal component have been preassembled on arrival at the site, for example, any motors or circuit boards are supplied externally and arrive as a completed unit.

[73] Ventilators are the most intricate in terms of assembly of the ResMed products. However, like all ResMed products their components other than the silicone rubber components, are made elsewhere. The ventilation work group assembles components to produce a final product of which its components are not manufactured or fabricated at the ResMed worksite. The ventilation work group are not in my view engaged in the engineering or kindred trades, albeit a limited basic use of tools are required during the assembly process. Nor are the operators “assemblers” for the purposes of the rules, as I again apply the ordinary meaning given by people concerned with industrial matters and find the context in which the work is performed is unrelated to or connected with the engineering or metal industries.”

[11] In respect of the third group (category (c)), “Production Operators, Line Leaders or Line Coordinators in the Machines work group”, the Commissioner said:

“[74] It is again argued that rule 1A(a) employees “are engaged in the engineering, shipbuilding and kindred trades” and the occupation of “assemblers” enables employees in the Machines work group to join the AMWU under its rules.

[75] The Machines work group are responsible for assembling flow generators, which blow air though a tube into a mask worn by a patient to keep their airways open when sleeping. Humidifiers heat and increase the humidity of air, which is then drawn by the flow generator for delivery to a mask when worn. The components for these products include circuit boards, moulded plastic chassis, tubes and seals and a liquid crystal display interface. None of these parts are made by ResMed but supplied by external suppliers. Each operator is assigned a specified task while on the production line which they perform for 30 minutes before being rotated along the production line to perform a different task.

[76] Each operator has an instruction sheet which covers all the procedures including checking for defects. Operators clip the components together and use hand presses, jigs, fixtures, electric screw drivers and anti static dust removal guns to assist with the assembly process. A computer tells the operator if the machine is functional, it is then placed into a carry bag with a user manual and placed on a conveyer belt. Jigs are used by the operators to stop components from moving or sliding during the assembly process. For the reasons provided above in relation to the Ventilator work group whose work is similar to the Machines work group, I am not satisfied that this work group falls within the AMWU Rules.

[77] As with all the production operator positions, the site inspections revealed rather monotonous and simplistic tasks that belied the more elaborate position descriptions allocated to the roles. In Joyce v Christoffersen  Gray J stated: “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.”

[78] In examining the intrinsic nature and ultimate purpose of the work of production operators as a whole, I am unable to conclude that they fit comfortably with, or at all, within the eligibility rules of the AMWU. The vast majority of component parts handled by operators were made of rubber and plastic. Production operators are not required to hold any trade qualification and are not employed in or in connection with any trade or calling, nor are they engaged in the engineering, shipbuilding and kindred trades. They are not required to become involved with or provide assistance to METS employees. Even accepting as expressed by the Full Court in Co-Operative Bulk Handling Ltd v Waterside Workers’ Federation of Australia that it is inevitable that there will be a continuing change in the manner work is done. The work in question has not evolved from the trades or callings listed in the rules.”

[12] In relation to the fourth group (category (d)), “Warehouse Operators, Line Leaders or Line Coordinators in the Warehouse work group”, the Commissioner said:

“[79] The AMWU’s position in respect to the warehouse employees in their initial outline of submissions is that they are workers “engaged in the engineering, shipbuilding and kindred trades.” In further written submissions of 11 September 2013, it is said they are employed in the metal and engineering industries and their work is related to the work of production employees, thus they are employed in connection with these trades or callings.

[80] ResMed’s warehousing operations are divided into Raw Materials and Despatch of the finished product. Warehouse operators rotate between these two areas depending on workloads of the two warehouses. The finished product is sent to destinations such as Asia Pacific, Europe and the United States. Warehouse operators have three classifications which are slightly different from the classification structure for production operators:

1) Entry level

2) Multi-skilled/Multi-area competent

3) Line leader

[81] Raw Materials receive parts from external suppliers by truck which can arrive in shipping containers. Operators who hold forklift tickets unload the pallets from the trucks and place the product on warehouse racks in positions determined by logistic operators. Warehouse operators then retrieve the product according to work orders. Production operators are allocated the role of material handler to deliver items to the production line to fulfil work orders. 

[82] Assembled products are sorted by region and category and placed on pallets and either stored or directly loaded into shipping containers in the despatch dock. The main role of warehouse operators is to store, pack and move parts or the finished product. Warehouse operators also handle waste that emanates from the production areas. Their work is driven by logistics/production planners who issue work/despatch orders.

[83] The AMWU rely on the Tobacco Workers Case to support their argument. My reading of this decision reveals a different factual context to this matter. It was held that the persons engaged in the classifications in issue spend a substantial part of their working time in assisting tradesmen in performing their duties.

[84] The AMWU state that if it is accepted that any employees in the main production areas are covered by rule 1A(a) then warehouse employees are employed in connection with these trades or callings. I have not found that the various production operators are covered by the AMWU rules, therefore the warehouse employees cannot be employed in connection with eligible employees. In any event there was no evidence produced to suggest that warehouse employees work closely with or assist Production Operators. Despite my conclusions below about the eligibility of employees in the METS work group, I do not find that there is an adequate or sufficient link between these two work groups to be able to hold that warehouse employees are employed in connection with METS employees.”

[13] It is not necessary to set out in full the Commissioner’s reasoning with respect to the fifth group, “An employee in the Manufacturing Equipment and Tooling Support (METS) work group who holds a trade certificate or equivalent, or who is undertaking an apprenticeship or traineeship, other than any team leader(s) and/or any employee who is engaged as a supervisor, manager or equivalent”, because the Commissioner’s finding that employees in this category were entitled to be represented by the AMWU was not in issue in this appeal. It is sufficient to note that the Commissioner made his finding on the basis that these employees were “employed in or in connection with the trade or fitter or are engaged in an engineering or kindred trade”, and in doing so placed weight on the fact that the employees were “wholly devoted to the continuous repair and site maintenance to all plant, equipment and tools needed for the manufacturing of ResMed’s products” and were required to hold, as a minimum, trade qualifications. 13

Submissions

AMWU’s submissions

[14] The AMWU submitted that, in his general approach to the construction of the AMWU’s eligibility rules, the Commissioner erred by not applying the fundamental principle that eligibility rules should be construed in a liberal and not a narrow or technical manner. Further, it was submitted, the Commissioner erred in that he:

(1) read down the rule without adequately identifying the criterion by which this was done;

(2) applied the proposition that terms in the rule were to be assigned the “ordinary meaning given by people in industrial matters”, but did not explain how such a meaning was assessed or applied or how he reached the conclusions that he did;

(3) did not have regard or give weight to the AMWU’s industry rule as an aid to the construction of the eligibility rules;

(4) made no finding as to what industry ResMed was in, despite there being a contest between the parties about this issue at first instance;

(5) failed to make the correct finding, namely that ResMed operated in the metal and engineering industries;

(6) incorrectly construed the words “engaged in the engineering ... or kindred trades” in the eligibility rules by reading “trades” as a reference to a trade qualification, failing to treat them as words of expansion, and failing to consider how they might apply to the various work groups;

(7) appeared to accept, incorrectly, that the words “machinist”, “assembler” and “engineering ... and kindred trades” should be read as referring to a narrow concept of metal trades or heavy industry;

(8) failed to take into consideration or give appropriate weight to the words “in or in connection with” with respect to particular work groups; and

(9) relied incorrectly on the Rope Award case to justify a narrow reading of the word “machinist”.

[15] The AMWU submitted that all these errors caused the Commissioner to make the wrong findings with respect to the employees in categories (a)-(d) of its application. With respect to employees in categories (b) and (c), whom the AMWU described as being engaged in the manufacture of the core product made by ResMed, the AMWU submitted that these employees were engaged in the assembly of mechanical devices which contained metal parts, a metal motor and electrical parts or components. The assembly process involved the use of various items of equipment, including jigs, fixtures, heat sealers and electric screw drivers. The employees were therefore employed “in or in connection with” the occupation of “assembler” and/or were “engaged in the engineering ... or kindred trades”. The fact that all the components of the devices except the silicone rubber components were manufactured elsewhere was, the AMWU submitted, not relevant.

[16] In relation to category (a), the AMWU submitted that once it was accepted that the assemblers of machines and ventilators in categories (b) and (c) were within the scope of sub-rule 1A(a) of its eligibility rules, then the employees in category (a), who assembled masks and other accessories, were employed “in connection with” those assemblers and thus also fell within the scope of the rule. The necessary connection was demonstrated by the fact that the masks and other accessories assembled by the category (a) employees were an essential physical attachment to the machines and ventilator, and because employees in category (a) were rotated with those in categories (b) and (c). The mask assemblers were also “assemblers” under the eligibility rules, in that they assembled the masks using a range of tools and equipment including electronic screwdrivers, jigs, fixtures and fittings. The LSR employees made and tested the silicone rubber cushions which formed part of the masks and which were essential to their operation using moulding machines and various other items of equipment; they were therefore “machinists” under the eligibility rules.

[17] In relation to category (d), the AMWU submitted that the warehouse employees, who performed stores and logistics tasks including receiving, sorting and supplying component parts necessary for ResMed’s manufacturing operations, as well as despatching the finished products, were employed “in connection with” the production employees in categories (a), (b) and (c) and therefore fell within the scope of the AMWU’s eligibility rules.

ResMed’s submissions

[18] ResMed submitted that permission to appeal should be refused because the Commissioner determined the issue of coverage by reference to long-established and orthodox principles concerning the construction of union rules, and nothing in the AMWU’s appeal gave rise to a need to revisit these principles. The Decision contained adequate reasons which dealt appropriately with the relevant facts, issues and findings, and the effect of the AMWU’s submissions was to urge the Full Bench impermissibly to reach different conclusions to those reached by the Commission with respect to coverage. No appellable error had otherwise been identified such as to justify the grant of permission to appeal.

[19] If permission to appeal was granted, ResMed submitted that the appeal should be dismissed on the basis that it was not affected by any appellable error. The questions of coverage determined by the Commissioner involved making a finding of fact, or alternatively a mixed finding of fact and law. The Commissioner’s findings in that respect must be found by the Full Bench to be wrong before any powers of re-hearing may be exercised and, ResMed submitted, in considering this issue, the Full Bench would have regard to the significant advantages the Commissioner had in seeing and hearing the witnesses directly and being able to conduct an inspection of the workplace.

[20] ResMed submitted that the eligibility rule in rule 1A(a) was an occupational one, and was not attended by any ambiguity that required any reference to be had to the industry rule in rule 2; the Commissioner therefore did not err in not making any finding as to the industry of ResMed. The Commissioner interpreted rule 1A(a) correctly in accordance with the decisions cited in the Decision which specifically concerned that proper interpretation of that rule or expressions in it. The limited metal components in the products made by ResMed, which were manufactured off-site by external suppliers, were insufficient to establish a connection with the “metal trades” occupations, trades and callings in rule 1A(a).

[21] The term “machinist” as used in rule 1A(a), ResMed submitted, read in the context of the other trades and callings specified in the rule, referred to someone who made, shaped or modified a product by the process of machining; the Commissioner was therefore correct on the evidence in concluding that no employee of ResMed was a machinist under the AMWU’s eligibility rules. Likewise, the term “assembler” was correctly interpreted by the Commissioner, consistent with the Rope Award case, in a way which was in accord with “the ordinary meaning given by people concerned with industrial matters in relevant or related industries”. The Commissioner correctly found that the production operators were not assemblers because they merely clipped or pushed component parts together.

[22] ResMed rejected the AMWU’s submission that the Commissioner had narrowly treated the word “trade” in the eligibility rules as referring to a trade-qualified employee, and submitted that trade qualifications was only a matter which the Commissioner had taken into account in determining whether production operators came into the scope of the rule. ResMed also rejected the AMWU’s submissions about coverage based upon the expression “in or in connection with”, submitting that with respect to the Mask Assembly work group the AMWU incorrectly based its case upon the functional connection between the finished masks and the ventilator machines in their use by a patient, or in mere geographic or operational proximity between employees, rather than any operational connection between the production employees in the Mask Assembly work group and those in the Machines and Ventilators work groups. The approach taken by the Commissioner in respect of “in or in connection with” was consistent with that taken in the Federated Tobacco Workers Union case.

[23] The Commissioner was correct, ResMed submitted, in taking into account the fact that the components of the ventilators apart from the silicone rubber components were made elsewhere; this was relevant to a consideration of whether the employees were engaged in the “engineering ... or kindred trades”. Finally, the Commissioner’s finding that there was no evidence that the warehouse operators worked closely with or assisted the production operators disposed of the AMWU’s submission that the warehouse operators worked in connection with the production operators. The AMWU did not call any direct evidence about the work of any warehouse operators.

Consideration

Approach on appeal

[24] The nature of the function engaged in by the Commission (and its predecessors) when it determines whether a group of employees are eligible to join a particular union was described by the Full Court of the Federal Court in Re Australian Workers' Union; Ex parte Construction Forestry Mining and Energy Union as follows 14:

“However when the Commission construes eligibility rules and determines their application in a particular factual context, the better view is that it involves a legal question to be solved by legal considerations: see R v Aird; ex parte Australian Workers' Union (1973) 129 CLR 655 at 659 per Barwick CJ, and can involve mixed questions of fact and law.”

[25] The Full Court went on to find that, for the purposes of judicial review, an error in the construction and application of eligibility rules did not necessarily constitute jurisdictional error. However, the exercise of the appeal function under s.604 of the Act is not confined to the correction of jurisdictional error. In this appeal, as earlier noted, there is no substantive challenge to the findings of primary fact made by the Commissioner, and no real contest as to the facts at all. To the extent therefore that we come to the conclusion that the Commissioner’s conclusions as to the capacity of the AMWU to represent the relevant categories of ResMed’s employees were incorrect, that represents an error of law which (subject to the grant of permission to appeal) stands to be corrected in this appeal.

General principles applicable to the interpretation of union eligibility rules

[26] The general principles applicable to the interpretation of union eligibility rules are well established. As relevant to this appeal, they may be summarised as follows 15:

(1) Union eligibility rules will be construed objectively: R v Williams; Ex parte Australian Building, Construction Employees’ and Builders Labourers’ Federation. 16

(2) The nature of union eligibility rules means that they should be construed liberally rather than narrowly or technically: R v Cohen; Ex parte Motor Accidents Insurance Board 17; Co-operative Bulk Handling Ltd v Waterside Workers’ Federation of Australia18; Electrical Trades Union of Australia v Waterside Workers’ Federation of Australia (No. 2)19.

(3) It is permissible to have regard to any common understanding among people concerned with relevant industries and particularly with industrial matters of the ordinary application of the words used, and to the previous use of the words in the relevant organisation’s rules and in statutory provisions, decisions, determinations, awards, reports and other papers concerned with the relevant industry or industries: R v Williams; Ex parte Australian Building, Construction Employees’ and Builders Labourers’ Federation. 20 Federal awards, including consent awards, made by Commonwealth industrial tribunals at a time when the legislative award-making power was founded upon the industrial disputes power in s.51(xxxv) of the Constitution, are important sources in this respect since a union may only be a party to an industrial dispute involving employees eligible to be its members: Co-operative Bulk Handling Ltd v Waterside Workers’ Federation of Australia.21

(4) If there is ambiguity as to the meaning of words in the eligibility rules, assistance may be sought in the terms of the industry rule (subject to it being understood that the scope of the eligibility rule is not restricted by the scope of the industry rule): R v Gough; Ex parte Municipal Officers’ Association. 22

(5) Words in an eligibility rule should not be read in isolation such as to give the rule a wide and indefinite scope of operation that is unlikely to have been intended: R v Gough; Ex parte Municipal Officers’ Association 23; Construction, Forestry, Mining and Energy Union v CSBP Ltd.24

(6) Terms used in union eligibility rules should not be interpreted statically in accordance with the meaning they bore at the time that they were first introduced into the rules. Although such terms will have a fixed connotation, they bear a changing denotation - that is, they may be interpreted in accordance with their appropriate current meaning, taking into account changing technologies and methods of work: Co-operative Bulk Handling Ltd v Waterside Workers’ Federation of Australia. 25 This may mean that eligibility rules may cover industries or callings not known when the rules were originally drafted: R v Isaac; Ex parte Transport Workers’ Union.26

(7) The words “in or in connection with” are words of expansion. However, for the requisite connection to be established, the work of the employees in question must be referable or significant to the work of the second group of employees with whom there is said to be a connection. It is not sufficient that the work of the relevant employees makes it possible for an employer to conduct a business involving the performance of work by the second group of employees: Federated Miscellaneous Workers Union of Australia v Colonial Sugar Refining Co. Ltd.  27

AMWU’s eligibility rules

[27] As the Decision identified, there are a number of decisions which have specifically been concerned with the proper construction of the AMWU’s rule 1A(a). The primary decision is that of the Full Federal Court in Federated Tobacco Workers Union of Australia v Amalgamated Metal Workers Union 28. Rule 1A(a) was at that time in the same terms as it is now, except that it did not contain the initial words “Without in any way limiting or being limited by sub-rules 1B, 1C, 1D, 1E, 1F, 1G, 1H and 1I the Union shall consist of” which currently appear in the rule. In that decision, after describing in some detail the history of the development of the rule, the Court identified that the rule had arrived at its then current form in January 1972 after an amalgamation had occurred with a number of other unions. The Court then said29:

“The opening words, on their face, are words of expansion. In particular, the words "in or in connection with" show that in addition to the listed trades or callings, persons who are "employed" in connection with those trades or callings are eligible to become and remain members of the Metal Workers' Union. In this context the word "employed" is to be read as "engaged." Thus, it is quite appropriate to say of a person who is employed by an employer which is not engaged in the engineering industry, but is employed to assist another employee who is performing the tasks of a metal worker, for example, a fitter, that the first person is engaged, or employed, in or in connection with the trade or calling of that fitter. These words of expansion are separate and distinct from the concluding words of paragraph (a), namely "all workers engaged in the engineering, shipbuilding and kindred trades." The opening words of the new rule, on their face, expand further those concluding words so as to make persons engaged or employed in connection with workers engaged in the engineering or a kindred trade eligible to become and remain members of the Metal Workers' Union.”

[28] The Court then went on to emphasise the occupational nature of the rule, saying 30:

“It is necessary to construe the eligibility rule of the Metal Workers' Union in its current form. This task of construction is to be undertaken having regard to the matters already discussed. For present purposes, reference is made to Rule 1A(a) only. That rule lists a large number of trades or callings. The trades or callings are all referable to activities being carried out by employees. In the opening paragraph, the words "trades or callings" refer to the industrial occupations of employees listed in Rule 1A(a), not to the trades or callings of employers. Having regard to the definition given by the Act to the word "industry" the words "or branches thereof" are to be read as words of expansion. The words "in or in connection with" are words of expansion and provided that an industrial occupation is engaged in by an employee in connection with one of the listed trades or callings, that employee comes within the eligibility rule of the Metal Workers' Union.

The concluding words of Rule 1A(a) "and all workers engaged in the engineering, shipbuilding and kindred trades" are likewise to be construed as words of expansion. At times when technology is changing, it is not unexpected to see in an eligibility rule of an organization general words which, of necessity, cover specific matters already included in the rule. It would not be surprising to discover that several of the trades or callings listed are not now being followed by anyone. The history of the rule shows that specific trades or callings have been added from time to time. The concluding words obviate the need to continue to do that in the future. Those words refer to the activities of the employee and should be construed accordingly. The opening words expand further the concluding words.”

[29] We consider that the Federated Tobacco Workers Union case stands for the following propositions concerning the construction of rule 1A(a) of the AMWU’s eligibility rules:

(1) The rule is constructed by reference to “trades or callings”, which are all referable to activities being carried out by employees.

(2) The expression “in or in connection with” in the opening words are words of expansion, so that in addition to the listed trades or callings, persons who (for example) assist persons who are employed in any of the identified trades or callings will fall within the scope of the rule.

(3) The concluding words “all workers engaged in the engineering, shipbuilding and kindred trades” are also words of expansion, in that they refer to activities of employees in addition to those of employees in the specifically-identified trades and callings. They are general words intended to catch trades and callings which might be established as technology changes so as to obviate the need to continually vary the rule to add new trades and callings.

(4) The rule will cover not just “all workers engaged in the engineering, shipbuilding and kindred trades”, but also employees engaged in connection with such workers.

[30] The Federated Tobacco Workers Union case concerned the extent of the coverage of the Amalgamated Metal Workers’ Union (as the AMWU was then known) at a facility for the manufacture and production of cigarettes and tobacco products. One of the areas of the facility in contest was the “Central Store”, which the Court described in the following terms 31:

“The Central Store supplies machinery spare parts and materials, general engineering supplies, electrical equipment, stationery, clothing and cleaning materials to all areas. Machine parts are supplied as well to associated overseas tobacco companies. Storemen and assistant storemen are engaged in the Central Store to receive, store and distribute materials kept in the store.”

[31] The question in respect of the Central Store was whether the employees in that area (as well as some other disputed categories of employees) worked in connection with metals tradespersons who were found to come within the trades and callings specified in rule 1A(a). The Court stated its conclusions as follows 32:

“From the whole of the evidence before the Court, it is clear that persons engaged in the classifications in issue spend a substantial part of their working time in assisting tradesmen in performing their duties. The evidence does not disclose in detail the work being done by tradesmen in the different workshops but it is apparent that those persons are all eligible to be members of the Metal Workers' Union. The labourers and assistants and persons engaged in the other classifications the subject of these proceedings come within those parts of the eligibility rule of the Metal Workers' Union which extend the class of employees eligible to be members of the Metal Workers' Union. They are persons employed in or in connection with the trades or callings or branches of motor mechanics, fitters, machinists, as well as engaged in engineering and kindred trades.

Counsel for the Tobacco Workers' Union and for Wills contended that it is unusual for any of these persons to spend a majority of his or her working time actually working with a tradesman and that often that work is performed as a result of instructions received from a supervisor engaged in one of the production areas. As has been indicated, it is not necessary to be eligible for membership, that a person spend the whole of his or her time engaged in the activities of the requisite type. The test is based on whether the person is engaged substantially in those activities. In this context it is legitimate to ask whether, if Wills were to contract the whole of its maintenance operations to an outside company, it would find it necessary to employ persons in the disputed classifications. On the material before the Court, the answer to that question is that, in all probability, those persons would be employed by the maintenance contractor. That answer is consistent with the fact that all these classifications come within that part of the current Tobacco Industry Award headed "Engineering Services." That suggests that these classifications come within a discrete area having a close connection with engineering and kindred trades.”

[32] In United Dairies v Amalgamated Metal Workers Union 33 the Australian Industrial Relations Commission (Munro J) dealt with an application for representation orders under s.118 of the Industrial Relations Act 1988 concerning plastic blow-moulding employees at a milk processing and distribution plant. These employees either operated blow-moulder extruding machines or ancillary machines such as a bagging machine, de-bagging machine, labelling machine and a hopper.34 In the course of his consideration of the application, it was necessary for Munro J to determine whether the employees in question were eligible to be members of the Amalgamated Metal Workers Union, as the AMWU was then known. His Honour held that they were not. For relevant purposes, he said35:

“Likewise I am unable to find any basis upon which the work of the employees could be conceived as falling within the scope of any references in the AMWU rules to process workers, moulders or machinists.”

[33] In Rope, Cordage, Thread Etc. Industry Award 36 the Australian Industrial Relations Commission (Watson DP) considered, in the context of an application for representation orders under s.118A of the Industrial Relations Act 1988, whether the AMWU had coverage of production workers at a rope, cordage and thread manufacturing establishment. The AMWU submitted that the production workers were either “machinists” or “assemblers” under rule 1A(a), and relied upon the dictionary definitions of those terms. The Deputy President rejected the AMWU’s submissions in that respect, saying:

“I am unable to accept that the AFMEPKIU rules provide the capacity to enrol production workers at Donaghys as machinists and/or assemblers for several reasons:

1. The interpretation advocated by the AFMEPKIU ascribes too broad a meaning to machinist and assemblers within Rule 1A(a) . The dictionary meanings relied on by the AFMEPKIU apply too broad a meaning in the context of "the ordinary meaning which they bear generally among people concerned with industrial matters in relevant or related industries" (ETU v WWF at p 351). In my view the relevant industrial context, as referred to in the definitions of machinists within the Metal Industry Award 1994 [sic - 1984] - Part I, and the broader context of Rule 1A(a) do not support the extended meaning claimed by the AFMEPKIU, having regard to evidence as to the nature of work undertaken by Donaghys production employees.

2. In Pavlic 37, Gray J noted "If it is necessary to resolve ambiguity in a rule relating to conditions of eligibility, resort may be had to the rule specifying the description of industry in or in connection with which the organisation was registered" (Pavlic at p 35) Rule 2 of the AFMEPKIU supports the interpretation of Rule 1A(a) relied on by the AWU.

3. The particular facts of the ATWU case do not support the AFMEPKIU interpretation of Rule 1A(a) when applied to the circumstances of production workers at Donaghys. Whilst the broad approach taken by the Federal Court to the AFMEPKIU rules is consistent with the AFMEPKIU approach in the current proceedings, the finding that the relevant employees in ATWU were eligible to be members of the AFMEPKIU relied on their specific role supporting tradespersons.

The Federal Court found:

"Thus, it is quite appropriate to say of a person who is employed by an employer who is not engaged in the engineering industry, but is employed to assist another employee who is performing the tasks of a metal worker, for example, a fitter, that the first person is engaged, or employed, in or in connection with the trade or calling of that fitter."

(Federated Tobacco Workers Union of Australia and Amalgamated Metal Workers Unions and another at p 271)

The Court went on to conclude, in the circumstances of that case, that the employees in question were in the "Engineering Services" section, engaged primarily in the supplying and servicing of equipment used in the production area (even though they assisted actual production from time to time) and spent a substantial part of their working time assisting tradesmen in performing their duties. Those circumstances do not apply in the current matter.

4. The broad meaning of machinists and assemblers relied on by the AFMEPKIU would result in extensive coverage within the AFMEPKIU of employees working on or in connection with a wide range of machinery, an application of its rules which would not accord with the ordinary meaning given by people concerned with industrial matters in relevant or related industries and which would not accord with established representation of production employees outside of the industry described in Rule 2 of the AFMEPKIU rules.

In this respect the conclusions of Gray J in Pavlic would seem to have application to the circumstances of the current matter, whilst decided in relation to the FIMEE rules. Those rules were relevantly comparable to those of the AFMEPKIU in that they ". . . make eligible for membership persons pursuing particular occupations irrespective of the nature of businesses in which their employers are engaged . . ." (Pavlic at p 34). In that case Gray J rejected an expanded interpretation within the FIMEE rules of "machine operator", comparable to that now advanced by the AFMEPKIU. He stated.

"An analysis of r 2A leads to the conclusion that the phrase "Machine Operator" must have a more restricted meaning than that for which counsel for Ms Pavlic contended. The only aspect of the duties of Ms Pavlic that was relied on to bring her within the rule was her driving of a fork lift truck. Assuming that this constituted a substantial portion of her duties, it could not bring her within the meaning of that phrase in the rule. If it did, the rule would be broad enough to encompass any person, employed in any industry, operating a machine. Word processor operators, gardeners using lawnmowers, clerks using calculators, people making garments, canteen staff making expresso coffee and all truck and car drivers would be included. It is plain from its context that the phrase "Machine Operator" has a particular meaning, commonly understood in relation to what are known colloquially as the "metal trades." (Pavlic at pp. 34 and 35).”

[34] It is clear therefore that Watson DP regarded the dictionary meanings of the words “machinist” and “assembler” as being too broad for the purposes of the rule and as not according with the meaning of those terms in industrial usage. However, the Rope, Cordage, Thread Etc. Industry Award decision did not identify what workable definition or limitation could be assigned to those terms in order for them to accord with industrial usage.

History of the AMWU eligibility rules - machinists and assemblers

[35] Identifying a workable interpretation of the terms “machinist”, “assembler”, and “engineering... and kindred trades” appears to us to be critical to the determination of this appeal. It was common ground, based on the Rope, Cordage, Thread Etc. Industry Award decision, that at least the first two of these terms were not to be defined in accordance with their ordinary or dictionary meanings, but had a more confined meaning in industrial usage. It is necessary therefore to examine the relevant history of rule 1A(a) in order to ascertain what that relevant, limited meaning is, as well as to assist in ascertaining the meaning of “engineering... and kindred trades”. Our analysis in this respect relies upon the discussion of the history of the rule in the Federated Tobacco Workers Union case 38, the historical materials placed before us by the parties, and some other documents in the Commission’s archives.

[36] The union which is now the AMWU was first registered in 1905 as the “Amalgamated Society of Engineers”. 39 Its eligibility rule at that time read as follows (emphasis added):

“The Society shall consist of members belonging to and earning the rate of wages fixed by the District Committee for the following trades or branches - Smiths ship Smiths angle iron Smiths fitters turners roll turners, pattern makers machinists mill wrights mechanical draughtsmen planers borers slotters machine drillers, milling machine workers shapers and other machine men brass finishers and copper smiths employed in the engineering and ship building trades armature winders and electrical engineers generally, mechanical and scientific instrument makers, machine joiners employed in construction of cotton silk flax woollen or other machinery; die sinkers press tool makers and stampers or drop hammer forgers employed in the engineering and kindred trades.”

[37] This rule contained no reference to “assemblers”.

[38] The first federal award made in arbitration of an industrial dispute involving the Amalgamated Society of Engineers was made in 1921 by the Commonwealth Court of Conciliation and Arbitration, constituted by Higgins J sitting as the Court’s President. In his decision in Amalgamated Society of Engineers v Adelaide Steamship Co. Ltd 40, his Honour commenced by saying:

“The case presents many and formidable difficulties. The claimant is the well-known craft union of men engaged in the working of metals; and its members are employed not only in engineering undertakings but in undertakings as diverse as those of biscuit manufacturers and quarry owners, gold mining and brick manufacturing, cement
manufacturing, electrical works, general providers, and the great steel works of New South Wales. This union has never before approached this Court for general regulation of its conditions. It has had the benefit of State awards and determinations; but
these awards and determinations differ so much from one another that they afford me more perplexity than guidance.”

[39] In the Federated Tobacco Workers Union case, the Federal Court commented that Higgins J had, in his decision and award, considered that membership of the Amalgamated Society of Engineers was not confined to persons employed in the engineering or kindred industries, confirming the occupational basis of the eligibility rule. 41

[40] One of the matters which Higgins J grappled with in his decision was the role of the “machinist” 42:

“Some of the most perplexing problems that I have had to face in this Court arise under the claims for ‘machinist.’ In recent years the work done by the fitters and turners (in particular) has been greatly aided in output in speed and in finish by divers ingenious machines worked by ‘machinists’ - ‘operatives’ - men not having the full craftsman’s training, but placed by the employers, as to pay and position, somewhere between the tradesmen and the labourer. These ‘machinists’ are largely selected from tradesmen’s assistants or from labourers, or from lads who go to the work straight from school. By confining their energies to some particular machine, they attain exceptional speed. The employer gets a greater output; and yet the machinists are generally paid less than the fitter. The union claims here for certain machinists rates equal to the fitters’ lapper, the planer, the slotter, the shaper, the borer, the radical driller, the driller using cutter bag, the gear cutter; but for the driller or screwers 12s. less per week than the fitter, for the machinist making nuts, bolts or dog spikes 6s. less, for the casting dresser 13s. 6d. per week less...”

[41] Higgins J went on in the award he made to prescribe rates of pay for three classes of machinists, which he defined as follows 43:

“‘Third class machinist’ includes a driller not using cutter bar, screwer, machinist making nuts, bolts or dog spikes.

‘Second class machinist’ included gear cutter no using milling machine, lapper or grinder not using the same precision tools as fitters or turners.

‘First class machinists’ includes a miller (general or universal), gear cutter using milling machine, driller using cutter bar, lapper or grinder using the same precision tools as fitter or turners, planer, shaper, slotter, borer.”

[42] The award made by Higgins J also established a classification and rate of pay for a “general labourer” 44, but neither the decision nor the award explain what were the functions of employees in this classification. There was no reference made in the award to an assembler, except as one of functions of a motor mechanic.45

[43] In 1921, the Amalgamated Society of Engineers changed its name to the “Amalgamated Engineering Union, Australian Section”. Substantial additions to the union’s eligibility rule had been made in 1914 and 1921, but it was not until a further variation to the union’s eligibility rule was approved on 9 February 1926 that the term “assembler” first appeared. The full rule operative as at that date was as follows (emphasis added):

“(a) The following classes of persons shall be eligible to be elected, and having been elected, shall, subject to the Rules, continue to be eligible to be members of the Union, namely, persons belonging to, and earning the rate of wages fixed by the District Committee, as hereinafter defined, for the following the trades or branches thereof: -

Smiths, ship smiths, angle-iron smiths, drophammer smiths, spring smiths, oliver smiths, spring fitters, swaging machine (?) operators, operators on smithing machines similar to swaging machines, nut and bolt makers, windmill erectors, motor, motor cycle and cycle mechanics, tuners and testers in motor industry, enamellers, typewriter mechanics, well-borers, scalemakers, metal safe makers, locksmiths, forge hammermen, forgemen, strikers, drophammer stampers, forging machine workers, forge, iron and brass furnacemen, ships’ plumbers, fitters, turners, grinders, wet stone grinders and glazers, sea-going engineers, shift engineers, roll turners, pattern makers, model makers, millwrights, mechanical draughtsmen, technical assistants, planers, borers, slotters, machine drillers, milling machine workers, shapers, machinists, brass founders, brass finishers, brass-smiths, and operators of machines in connection with same, coppersmiths, armature winders, equipment examiners, and electrical engineers generally, mechanical and scientific instrument makers and optical glassmakers, linotype mechanics, press mechanics, machine joiners employed in the construction of cotton, silk, flax, woollen or other machinery, die sinkers, press tool makers and stampers, electroplaters, polishers, electroplate makers up, sheet metal spinners, assemblers (other than assemblers engaged solely on agricultural work in the States of Victoria and South Australia), skilled acetylene and electrical welders employed in the engineering and kindred trades, together with such trades as may be represented by Trades Unions hereinafter amalgamating with the Union.”

[44] A number of documents shed some light as to what was intended and understood by the inclusion of “assembler” in the union’s eligibility rule at that time. The union’s application for approval of this variation identified that “assembler”, together with a number of occupations which were added to the rule at the same time, were occupations that were “all engaged in the engineering industry or trade ...”. Objections to the proposed rule change were lodged by the Metal Trades Employers Association of New South Wales and H.V McKay Pty Ltd. The former objection complained that the term “assembler” was “too wide” as it would cover employees who were members of the Sheet Metal Working Industrial Association of Employees, the Federated Ironworkers Association of Australia, New South Wales Branch (FIA), and the Federated Agricultural Implement Machinery & Ironworkers Association (FAIMIA). The latter objection also contended that “assemblers” in Victoria and South Australia were members of the FAIMIA. Both objections contended that the named unions had claims for assemblers before the Court of Conciliation and Arbitration. An objection by J. Danks and Sons Pty Ltd and a number of other employers took issue with the proposed rule change more generally.

[45] The application for approval of the rule change and the objections were the subject of a hearing before the Registrar of the Court of Conciliation and Arbitration on 4 December 1925. The transcript of that hearing records that there was considerable debate about the objection of H.V McKay Pty Ltd, with the premise being that the addition of “assembler” to the eligibility rule would give the union coverage of those involved in the assembly of agricultural implements. The Registrar then indicated that to approve the rule change he required the exception “other than assemblers engaged solely on agricultural work in the States of Victoria and South Australia” to be added. The hearing was adjourned, and the union amended its rules variation to include the required words.

[46] There was then a further hearing before the Registrar on 9 February 1926. The representative for the J. Danks objection emphasised the width of “assembler” in submitting that the occupation of “assembler” was already dealt with in awards obtained by the FIA and the Australasian Society of Engineers (where it was defined as meaning “an employee engaged in assembling previously-prepared metal parts bolting together iron work metal to metal, excluding all engines and pumps” 46), and that it was capable of covering assemblers other than those in the motor vehicle industry. Notwithstanding that objection, the Registrar approved the amended rule change at the conclusion of the hearing on that day. The application, the objections and the debate during the hearings on 4 December 1925 and 9 February 1926 suggest that “assembler” was taken to refer to those engaged in the relatively unskilled work of assembling a product from pre-made components as part of a manufacturing process.

[47] In 1929 in Amalgamated Engineering Union v Metal Trades Employees Association 47 the Court of Conciliation and Arbitration (Beeby J) made a new award in arbitration of a number of industrial disputes. The Amalgamated Engineering Union was a party to two of these disputes, but there was a range of disputes settled by the award involving seven other unions; thus the award was not in its coverage confined in operation to members of the Amalgamated Engineering Union. However, where a relationship can be identified between a classification in the award made by Beeby J and a trade or calling in the Amalgamated Engineering Union’s eligibility rule as it was at the time, the award classification is likely to reflect the union’s coverage and may provide assistance as to how the trades and callings in the union’s eligibility rule were understood at that time.

[48] The history since the making of the first award in the area by Higgins J in 1921 was described by Beeby J as follows:

“On 14th June 1921, Mr Justice Higgins, then President of this Court, made an award in settlement of an industrial dispute between the Amalgamated Society of Engineers and various employers engaged in what is commonly termed as the engineering industry. In fact, the award covered the occupations of turning, fitting, machining, and blacksmithing in all important engineering establishments in the Commonwealth. Following this first award of the Commonwealth Court in the metal trades group of industries, other organizations of employees created disputes, and further awards were made covering certain other branches of the engineering work done by members of the Australasian Society of Engineers, blacksmiths, boilermakers, and steel construction workers, metal moulders, ironworkers’ assistants, and electricians. These awards were made at different times, sometimes by different Judges. Some of their provisions were not the result of judicial determination, but of some agreements arrived in different States between branches of unions and local employers. At no stage did the court make a comprehensive award after survey of the history and prospects of the whole group of industries. All the awards referred to have expired, and fresh disputes having been created, the Court was asked to make a series of awards covering various occupations according to the confused demarcations which had followed overlapping trades union organization. The employers in New South Wales, some of whom were to a limited extent carrying on operations in other States, also created disputes with the various unions, and those disputes were in due course referred into Court. For the first time the Court had an opportunity of dealing with claims both by employers and employees covering industrial relationships of the engineering and allied industries as a whole.”

[49] One of the important matters discussed in the decision was the widespread adoption of mass-production manufacturing techniques, with the associated introduction of specialisation, automatic machinery, production lines, the elimination of skill and the subdivision of hand labour into specialised repetitive processes. 48

[50] The area of employment that was to be the subject of the award was described in various ways throughout the decision, such as “engineering”, the “metal trades industries” 49, the “metal making and manufacturing industries”50 and the “making and manufacturing of iron and steel products, machinery and electrical appliances”51. Reading the decision as a whole, including its extensive appendices, it is clear that the area of employment under consideration included the manufacture of mechanical and electrical appliances, including radios, batteries, stoves, switches and electric heaters. The award that was made52 included classifications and rates of pay for employees in ten different sections: General Engineering (divided into the divisions of Jobbing and Making, Manufacturing and Window-frame-making), Electrical (divided into “Installation, Supply, and Distribution of Electric Light and Power” and “Manufacturing”), Electroplating, Welding, Smithing, Steel Construction, Moulding, Sheet Metal and Ironworking. Manufacturing was defined in the award as follows:

“‘Manufacturing’ means the making in quantities of interchangeable or standardized parts of machinery and mechanical apparatus and of electrical machinery and apparatus and of locks, scales, window frames, tin and aluminium ware and other metallic articles by specialized processes and assembling thereof.”

[51] The General Engineering Section (in the manufacturing division) retained the classifications of First-class, Second-class and Third-class machinists, now defined in the following terms 53:

“‘First-class machinist’ means a tradesman who is partly or wholly engaged in setting up and operating the following machines: - Lathe, boring machine, milling machine, planing machine, shaping machine, slotting machine, grinding machine.

‘Second-class machinist’ means an adult employee not engaged as a tradesman and without the responsibility of a first-class machinist setting up and operating the machines enumerated in the definition of a ‘first-class machinist,’ and also key-setting machine, and includes brassfinisher, other tradesman, and pipefitter not engaged on high pressure or ammonia or hydraulic work.

‘Third-class machinist’ means a machinist, not being a process worker, who operates any machine set up by a tradesman or any machine the setting up of which does not require the knowledge or skill of a second-class machinist.”

[52] There was no longer any classification of “general labourer” in the General Engineering and Electrical Sections of the award. However, the General Engineering Section (in the Manufacturing and Window-frame Making divisions) and the Electrical Section (under “Manufacturing”) contained a new classification, “Process Worker”. “Process worker” was defined in the award as follows (emphasis added) 54:

“‘Process worker’ means an adult employee engaged on repetition work on any automatic, semi-automatic or single-purpose machine or any machine fitted with jigs, gauges, or other tools rendering operations mechanical or in the assembling of parts of mechanical appliances or other metallic articles so made, or in repetitive hand processes.”

[53] Although not expressly explained in the decision of Beeby J, the introduction of the “process worker” classification and definition may reasonably be related to the issue concerning the change in manufacturing techniques discussed in the decision and earlier referred to. It is also likely that jurisdictional foundation for the introduction of the “process worker” classification in the General Engineering and Electrical Sections of the award was the inclusion of “assembler” in the Amalgamated Engineering Union’s eligibility rules, although again this is not expressly discussed in the decision.

[54] In the succeeding award made in 1935 55, the expression “Manufacture and/or manufacturing” was given an expanded definition:

“‘Manufacture and/or manufacturing’ means the making and assembling in quantities of interchangeable or standardized parts used in or in connexion with machinery and mechanical apparatus and of electrical machinery and apparatus including wet storage batteries and of locks, scales, window frames, stoves, heating and cooking appliances, radio and telephone apparatus, tin and aluminium ware, other metallic articles and plastic moulding by specialised processes.”

[55] The definitions of the various classes of machinist and of the process worker in the 1935 award were as follows 56:

“‘Process worker’ means an employee engaged on -

(1) Repetition work on any automatic, semi-automatic or single-purpose machine or any machine fitted with jigs, gauges or other tools rendering operations mechanical (and in connexion with which he is not responsible for the setting up of the machine nor for the dimensions of the products other than by checking with gauges which gauges shall be either unadjustable or, if adjustable, shall not be set by the operator), or

(2) in the assembling of parts of mechanical appliances or other metallic articles so made, in which no fitting or adjustment requiring skill is required, or

(3) in specialized processes - not requiring the use of hand tools (except hammers, screw drivers, or spanners) in or in connexion with the manufacturing, or

(4) In the manufacture of wet storage batteries by repetitive processes.

...

First-class machinists’ means a tradesman who is partly or wholly engaged in setting up and operating the following machines: - Lathe, boring machine, milling machine, planing machine, shaping machine, slotting machine and the grinding machine.

‘Second-class machinist’ means an adult not engaged as a tradesman and who is not required to work from drawings and prints or to make precision measurements, but who is engaged in operating or in the setting up and operating of machines enumerated in the definition of ‘First-class machinist’; or who is engaged operating a key-seating machine, or a second-class brass finisher or as a pipe fitter on low pressure work.

‘Third-class machinist’ means a machinist, not being a process worker, who operates any machine set up by a tradesman or any machine the setting up of which does not require the knowledge or skill of a second-class machinist.”

[56] The Amalgamated Engineering Union, Australian Section was deregistered effective from 17 February 1938 because of its participation in strike action in support of above-award wage claims. 57 It was reregistered on 8 November 1938 under the same name.58 Paragraph (a) of the union’s eligibility rules upon re-registration, as set out in the certificate of registration issued by the Industrial Registrar on 8 November 1938, provided as follows:

“The following classes of persons shall be eligible to be elected, and, having been elected, shall, subject to the rules, continue to be eligible to be members of the Union, namely, male persons belonging to, and earning the rate of wages fixed by, the district committee, as hereinafter defined, for the trades or branches thereof: - Smiths, ship smiths, angle iron smiths, drop-hammer smiths, spring smiths, oliversmiths, spring-fitters, swaging machine operators, operators on smithing machines similar to swaging machines, nut and bolt makers, windmill erectors, motor, motor cycle, and cycle mechanics, tuners and testers in motor industry, enamellers, typewriter mechanics, well-borers, scale-makers, metal safe makers, locksmiths, forge hammermen, forgemen, strikers, drop-hammer stampers, forging machine workers, forge, iron, and brass furnace-men, ships plumbers, fitters, turners, grinders, wetstone grinders and glazers, sea-going engineers, shift engineers, roll turners, patternmakers, model makers, millwrights, mechanical draughtsmen, technical assistants, planners, borers, slotters, machine drillers, milling machine workers, shapers, machinists, brass founders, brass finishers, brass smiths and operators of machines in connection with same, coppersmiths, armature winders, equipment examiners, and electrical engineers generally, radio workers, mechanical and scientific instrument makers and optical glassmakers, linotype mechanics, press mechanics, machine joiners employed in the construction of cotton, silk, flax, woollen or other machines, die sinkers, press tool makers and stampers, electroplaters, polishers, electroplate makers up, sheet metal spinners, assemblers, skilled acetylene and electrical welders, aero mechanics, duralium workers, including forgers, fitters, and all male workers engaged in the engineering, ship building and kindred trades, together with such trades as may be represented by trades unions hereinafter amalgamating with the Union.”

[57] It can be seen that the list of occupations in the above rule beginning with “Smiths” and ending with “workers engaged in the engineering, ship building and kindred trades” is the same as the trades and callings contained in the AMWU’s current rule 1A(a), except for some minor typographical matters and the attachment of the adjective “male” to “workers engaged in the engineering, ship building and kindred trades”.

[58] A further award was made in 1941 by the Court of Conciliation and Arbitration (O’Mara J). 59 Clause 1 of this award, entitled “Incidence of Award”, began by providing60:

“1. Subject to the exceptions and exemptions prescribed by this award, the industries and callings covered by this award are (as to the employers and organizations parties hereto, and as the employees who classifications are specified herein) the engineering and metal working and fabricating industries in all the branches, which, without limiting the generality of those words, include - ...”

and then set out a list of 51 industries, commencing with “Mechanical and electrical engineering” and including industries such as “Stovemaking”, “Radio and telephone manufacturing”, and “Refrigerator manufacturing and repairing”. This award retained the classification and definition of process worker contained in the 1935 award, and also contained the classifications of the three classes of machinist which were defined in similar but not identical terms to the 1935 award.

[59] In succeeding versions of what was subsequently named the Metal Industry Award, the classifications of process worker and the three classes of machinist, defined in substantially the same terms, remained in place until the classifications in the award were restructured in 1990 as part of the structural efficiency process.

[60] In relation to certain terms contained in the AMWU’s eligibility rules, we have drawn a number of conclusions from the above history relevant to the “the ordinary meaning which they bear generally among people concerned with industrial matters in relevant or related industries”. Firstly, the term “engineering” has been understood to include the manufacture of mechanical and electrical appliances, so that the “engineering ... and kindred trades” at least include persons engaged in occupations or functions which form part of the process of the manufacture of mechanical and electrical appliances. Secondly, a “machinist” is an employee who used a machine primarily for the purpose of working with metal. In this respect, we consider that ResMed’s submission, and the Commissioner’s conclusion 61 that the term machinist in the AMWU’s eligibility rules should be read as referring to a person who “made, shaped or modified a product by the process of machining” is broadly correct.

[61] Thirdly, the reference to “assembling” in the award definitions of “process workers” in the awards made from 1929 strongly indicates that an “assembler” in the union’s eligibility rules was an employee engaged at least in the “assembling of parts of mechanical appliances or other metallic articles” with no particular skill level required, and perhaps also in the other functions identified in the process worker classification, noting in particular the reference to “repetitive hand processes” in the 1929 award definition. One proviso needs to be added, namely, that in the awards in question a process worker was to be found in the general engineering and electrical manufacturing classification sections, so that the work of an assembler must be understood as being performed in relation to general engineering and electrical manufacturing. The context in which “assembler” appears in rule 1A(a), insofar as it refers to trades and callings that are relevant to engineering and manufacturing of this nature, supports this approach. Further, to the extent that “assembler” may be considered to be ambiguous such that reference to the industry rule is permissible, the references in the industry rule to the “engineering and metal industries” would also support a proviso of this nature.

[62] Thus understood, “assembler” bears its ordinary meaning but operates in a particular industrial context, consistent with the approach taken by the Federal Court in Joyce v Christoffersen 62 (Gray J) and Construction, Forestry, Mining and Energy Union v CSBP Ltd63. An employee who is engaged to perform assembly work as part of the process of the manufacture of mechanical or electrical appliances is therefore, we consider, an assembler for the purpose of the AMWU’s eligibility rules.

[63] Of course, in applying these terms to contemporary circumstances, they should not be confined to the type of manufacturing processes and manufactured appliances which existed at the time when these terms first appeared in the union’s eligibility rules. Relevantly, the fact that a mechanical or electrical appliance of a type not conceived of historically is manufactured using modern machining and assembling equipment and techniques does not render the relevant terms in the AMWU’s rules inapplicable.

Categories (b) and (c) – Ventilation and Machines work groups

[64] It is convenient to consider first the Ventilation and Machines work groups, since they appear to comprise the core production workforce at ResMed’s Bella Vista site. The findings of fact made by the Commissioner in relation to the products assembled by these work groups, and the work performed by employees in these work groups, was as earlier stated not the subject of any substantial challenge in this appeal, and in any event we are satisfied that those findings were correctly made on the evidence.

[65] The Commissioner’s findings at paragraphs [71]-[77] of the Decision make it clear that the ventilators assembled by the Ventilation work group, and the flow generators assembled by the Machines work group, are mechanical and electrical appliances or devices. They contain motors and metal parts, and are operated by electrical power. The two work groups therefore perform a function that forms part of the process of the manufacture of these mechanical and electrical appliances.

[66] The employees in the work groups are not machinists, because they do not operate machines for the purpose of making, shaping or modifying the product or any part of it. However, we consider that they are assemblers of the devices, in that their primary function is, by the use of the techniques and equipment described in paragraphs [71]-[77] of the Decision, to assemble the devices from a number of constituent parts. The Commissioner described their task as one of assembly, as did ResMed’s own documents describing the employees’ work procedures: “Assembly Procedure for the S9 Range” and “Stellar Assembly and Packaging Procedure”. ResMed’s primary witness, Mr Andrew Cameron, who holds the position of Vice-President, Manufacturing, Sydney, described the primary responsibility of production operators in these work groups as “assembly and quality inspection”. 64

[67] The Commissioner found that the employees in each work group were not assemblers applying “the ordinary meaning given by people concerned with industrial matters” 65, but he did not, with respect, explain what that “ordinary meaning” was or what it was about the work of the employees which took them outside that “ordinary meaning”. The Commissioner in a number of places made findings concerning the relatively low-skilled nature of the work, including that only a “limited use of basic tools” was required66, that the tasks performed were “monotonous and simplistic”67, and that the employees did not require a trade qualification68. However, these findings are, we consider, entirely consistent with the normal meaning and industrial usage of the term “assembler”, which has historically referred to repetitive work of a type not requiring special skill. We do not accept ResMed’s submission that the employees were not assemblers because they “merely clipped or pushed component parts together”; that is in our view a fundamentally accurate description, albeit somewhat simplistic, of the work of an assembler.

[68] The Commissioner also referred to the fact that the component parts of the ventilators and flow generators are separately manufactured offsite by external suppliers. 69 That appears to us to be, with respect, an irrelevant consideration. The manufacture of component parts of manufactured products by external suppliers and sub-contractors is a ubiquitous feature of modern manufacturing, and does not alter the character of the assembly work performed by employees in the Ventilation and Machines work groups. We also note that the Commissioner observed that the majority of the component parts of the flow generators were made of rubber and plastic70, but again we do not consider this alters the character of the work of the employees as being part of the manufacturing process of mechanical and electrical appliances.

[69] We conclude therefore that the employees in the Ventilation and Machines work groups are “assemblers” for the purpose of rule 1A(a) of the AMWU’s eligibility rules, and are thus able to be members of and be represented by the AMWU. Although it is not strictly necessary to do so, we would also find that they engaged in the engineering trades in that their work forms part of the manufacturing process of mechanical and electrical appliances. The Commissioner erred in finding to the contrary.

Category (a) - Mask Assemblers

[70] We consider that the Mask Assemblers are “assemblers” for the purpose of rule 1A(a). The work, as described by the Commissioner in paragraphs [63], [64] and [68] of the Decision is self-evidently that of assembling the masks out of a variety of components using a number of basic techniques and tools. The mask is, as the AMWU submitted, an essential physical attachment to the ventilators and flow generators such that the manufacture of the masks can be said to be a necessary part of the overall manufacture of those ventilators and flow generators, even though the masks considered in isolation may not themselves constitute mechanical or electric appliances. The Commissioner erred in finding that the mask assemblers were not “assemblers” under rule 1A(a).

Category (a) - LSR work group

[71] We agree with the Commissioner’s finding that employees in the LSR work group are not eligible to join and be represented by the AMWU. They are not machinists in accordance with the meaning of that term as we have earlier explained it. Nor does the evidence demonstrate that there is any functional connection between their work and the work of the assemblers such as to support the conclusion that they perform work “in connection” with that of the mask assemblers. Although they produce some of the components (rubber face cushions and chassis seals) which are ultimately assembled by the assemblers to form the final product, their work was not referable or significant to the work of the assemblers.

Category (a) - Accessories and Spares work group

[72] The Commissioner’s description of the work of the Accessories and Spares work group in paragraph [69] of the Decision is brief. Superficially, that description, which refers to the employees being “responsible for bagging up spare parts for the mask assembly”, makes it appear that their work may be performed in connection with the work of the Mask Assemblers, and thus within the coverage of the AMWU. However, our reading of the evidence of Ms Yvonne Avis McCarthy, the Supervisor, Mask Assembly and Spares, is that the main function of the work group is to provide loose spare parts to customers in accordance with orders received. 71 That limited evidence does not appear to establish a functional connection between the employees in the Accessories and Spares work group and the Mask Assemblers such that their work could be characterised an being “in connection” with the trade or calling of “assemblers” (noting that the Commissioner did not analyse the issue in this way because he did not accept that the Mask Assemblers were “assemblers” for the purpose of rule 1A(a)). Because the conclusion of the Commissioner concerning this group appears on its face to be erroneous, and because the evidence is not sufficient to allow us to form a proper conclusion about this group, we consider that the appropriate course is to refer this matter for reconsideration to a single member of the Commission under s.607(3)(c) of the Act. That member may admit further evidence if necessary.

Category (d) - Warehouse work group

[73] As described by the Commissioner 72, the employees in the Warehouse work group are divided into two sub-groups - Raw Materials and Despatch. Employees rotate between the two groups. Employees in the latter group store the assembled products in the warehouse and/or load the products into shipping containers for despatch to customers. It cannot be said that any of the work of this group has any substantial connection with the work of any other group of employees, including the ventilator, flow generator or mask assemblers or the METS employees. The Raw Materials group employees receive parts from external suppliers, store them in the warehouse, and then retrieve the parts according to work orders for the use of the assemblers. To that extent, their work is analogous to that of warehouse employees in the Federated Tobacco Workers Union case. However, unlike those employees, they do not deliver the parts to the assemblers; this is done by production operators acting in the role of material handler. Although the operation of the warehouse is clearly a necessity for the proper functioning of ResMed’s manufacturing activities at Bella Vista, we cannot conclude that, considered in aggregate, the work of the warehouse operators is substantially connected with the work of any of the employees in any of the other work groups. We do not, therefore, consider that the Commissioner erred in finding that the AMWU does not have coverage of the warehouse operators.

Permission to appeal

[74] Because we consider that the Commissioner erred in his conclusions concerning the AMWU’s coverage of ResMed employees in the respects we have identified, we consider that it is appropriate and in the public interest to grant permission to appeal.

Conclusions and orders

[75] We conclude that the Commissioner erred in finding that the AMWU did not have the capacity under its rules to enrol as members and to represent the industrial interests of the following categories of ResMed employees at its Bella Vista site:

(1) mask assemblers in the Patient Interface work group (category (a));

(2) employees in the Ventilation work group (category (b)); and

(3) employees in the Machines work group (category (c)).

[76] We find that the AMWU does have coverage of these categories of employees under rule 1A(a) of its rules. In respect of employees in the Accessories and Spares work group, we will refer the matter for reconsideration to a single member of the Commission as stated in paragraph [80] above.

[77] Accordingly we order as follows:

(1) Permission to appeal is granted.

(2) The appeal is upheld to the extent indicated in our decision.

(3) The issue of whether the AMWU has coverage of employees in the Accessories and Spares work group shall be referred to Senior Deputy President Drake for reconsideration under s.607(3)(c) of the Act on the basis that her Honour may admit further evidence if necessary.

VICE PRESIDENT

Appearances:

C. Howell of counsel with L. Saunders for the Australian Manufacturing Workers’ Union
A. Moses SC with S. Nettleton and T. Sebbens solicitors for ResMed Limited

Hearing details:

2014.
Sydney:
14 April.

Printed by authority of the Commonwealth Government Printer

<Price code G, PR551057>

 1   The union’s somewhat bizarre full name is “‘Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union’ known as the Australian Manufacturing Workers’ Union (AMWU)”.

 2   [2013] FWC 9725 

 3   Decision at [9]

 4   [2014] FWCFB 2418

 5   [2013] FWCFB 276

 6   Ibid at [35]

 7   At [26]-[30]

 8   At [31]-[40]

 9   (1986) 29 IR 263

 10   (1991) 42 IR 295

 11   Print N3501, 23 July 1996

 12   (1993) 51 IR 31

 13   At [103]

 14   (2002) 120 FCR 527, 114 IR 185 at [44] per Gray and Moore JJ; Merkel J expressed the same conclusion at [138].

 15   See generally Hon. J W Shaw QC, Interpreting Trade Union Constitution Rules, (1988) 62 ALJ 690 at 692-694, cited with approval in Brown v Health Services Union [2012] FCA 644 at [81] and Australian and International Pilots Association v  Network Aviation Pty Limited [2013] FWCFB 5216 at [31]

 16   (1982) 153 CLR 402 at 407

 17   (1979) 141 CLR 577 at 587

 18   (1980) 49 FLR 355 at 361-2

 19   (1982) 59 FLR 78 at 87

 20   (1982) 153 CLR 402 at 407

 21   (1980) 49 FLR 355 at 370

 22   (1975) 133 CLR 59 at 69

 23   Ibid at 68-69

 24   (2012) 212 IR 206 at [52]-[53]

 25   (1980) 49 FLR 355 at 363-4

 26   (1985) 159 CLR 323 at 331

 27  (1971) 18 FLR 386 at 393-4

 28   (1986) 29 IR 263

 29   Ibid at 271

 30   Ibid at 272

 31   Ibid at 274

 32   Ibid at 275

 33   (1991) 43 IR 295

 34   Ibid at 296

 35   Ibid at 298

 36   Print N3501, 23 July 1996

 37   Ex parte Pavlic; Re Federation of Industrial Manufacturing and Engineering Employees (Tasmanian Branch) (1993) 51 IR 31

 38   At 268-271

 39   Federated Tobacco Workers Union case at 268

 40   (1921) 15 CAR 297

 41   Federated Tobacco Workers Union case at 270

 42   Amalgamated Society of Engineers v Adelaide Steamship Co. Ltd at 312

 43   Ibid at 344

 44   Ibid at 344

 45   Ibid at 344

 46   Australasian Society of Engineers v Abbotsford Manufacturing Company (1924) 20 CAR 1075 at 1119

 47   (1929) 28 CAR 923

 48   Ibid at 930, 934, 947, 956, 961-963 and 966

 49   Ibid at 930

 50   Ibid at 934

 51   Ibid at 935

 52   Ibid at 1024ff

 53   Ibid at 1027

 54   Ibid at 1048

 55   (1935) 34 CAR 449

 56   Ibid at 482 and 483

 57   Metal Trades Employers Association v Amalgamated Engineering Union, Australian Section (1938) 39 CAR 7

 58   See Metal Trades Employers Association v Amalgamated Engineering Union, Australian Section (1938) 39 CAR 1263

 59   (1941) 45 CAR 751

 60   Ibid

 61   Decision at [58]

 62   (1990) 26 FCR 261 at 279, 33 IR 390 at 405-6

 63   (2012) 212 IR 206 at [44]-[45]

 64   Exhibit R2 paragraph 26

 65   Decision at [73], [76]

 66   Decision at [73]

 67   Decision at [77]

 68   Decision at [78]

 69   Decision at [73]-[74], [75]

 70   Decision at [78]

 71   Exhibit R3, paragraph 37

 72   Decision at [80]-[82]