[2021] FWC 3029

The attached document replaces the document previously issued with the above code on 17 June 2021.

Typographical amendments at [37], [39], [84], [100] and [182]

Formatting made consistent

Associate to Deputy President Anderson

Dated 17 June 2021

Fair Work Act 2009
Section 236 - Application for a majority support determination

Construction, Forestry, Maritime, Mining and Energy Union
v
J. Blackwood & Son Pty Ltd T/A Blackwoods
(B2020/471)

Application for a majority support determination – standing as a bargaining representative – whether CFMMEU rules cover person or persons in group – distribution centre – industry rules – vocational rules – textile clothing and footwear – whether majority support – whether reliance on redacted petition a denial of procedural fairness – eligibility not established under rules of applicant union – application dismissed

[1] On 27 August 2020 the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU or the Union) applied to the Commission for a majority support determination under section 236(1) of the FW Act.

[2] The CFMMEU is seeking the determination in order to bargain for a first enterprise agreement on behalf of a group of persons employed in South Australia at a distribution centre operated by J. Blackwood & Son Pty Ltd (Blackwoods or the Employer).

[3] The application is opposed by Blackwoods on both jurisdiction and merit grounds.

[4] On jurisdiction, Blackwoods contend that no valid application has been made because the CFMMEU has no standing under the Union’s rules to be a bargaining representative for an employee in the group to be covered by the proposed agreement.

[5] On merit, Blackwoods contend that the evidence does not establish that a majority of employees want to bargain. An associated submission is that it would be procedurally unfair to rely on redacted petitions produced by the Union, and that an earlier redacted petition is stale.

[6] The CFMMEU rejects both contentions. It submits that it has jurisdiction under both its vocational and industry rules to be a bargaining representative of at least one employee in the proposed group. The Union also contend that reliance on redacted petitions is a fair, appropriate and orthodox method for the Commission to determine the matter, and that neither of its petitions are stale.

Background

[7] The application was initially allocated to Commissioner Hampton who conducted conferences of the parties on 11 September 2020 and 14 October 2020, and issued directions on 11 and 16 September 2020 and 15 October 2020.

[8] Permission was granted for both the CFMMEU and Blackwoods to be legally represented 1.

[9] The matter was reallocated to me on 23 October 2020.

[10] I issued directions on 27 November 2020, 18 December 2020 and 12 February 2021.

[11] On 7 October 2020 the Union applied under section 590(2)(c) of the FW Act for an order that Blackwoods produce documents.

[12] By decisions on 27 November 2020 2 (the production decision) and 18 December 20203 (the production order decision) I determined the production application. An order was issued4.

[13] Blackwoods produced the documents required by the order. Both the CFMMEU and Blackwoods filed materials on jurisdiction and merit, as directed.

[14] I heard the matter (jurisdiction and merit) by video hearing on 19 and 20 May 2021.

[15] I received evidence from five persons. The CFMMEU adduced evidence from:

•  Jennifer Kruschel, Textile Clothing and Footwear (TCF) National Secretary CFMMEU (Manufacturing Division) 5;

•  David Kirner, South Australian Secretary CFMMEU (Manufacturing Division) 6; and

•  Doug Nuske, Storeperson 7.

[16] Blackwoods called:

•  Ian Harris, Sales Operations Manager SA/NT 8; and

• Navin Chandra, National Head of Distribution & Transport 9.

[17] Ms Kruschel was not required for examination. All other witnesses gave oral evidence and were cross examined.

Facts

[18] Whilst this matter largely involves construction of the relevant CFMMEU rules, and whilst the underpinning factual narrative is not complex, there are some factual matters in dispute. In particular:

•  the amount of time in a day, or an average day, that Mr Nuske drives a forklift; and

•  the extent to which a storeperson in the distribution centre conducts a checking process of manufactured goods before distribution to the end customer, including the nature and extent of checking or quality control over embroidered textiles.

[19] I make findings on these disputed matters in the body of this decision.

[20] Otherwise, the largely uncontested factual narrative is as follows.

Blackwoods

[21] Blackwoods is a nationally operating retailer of industrial and safety products. Its customers are largely, though not exclusively, businesses. It supplies over 200,000 products including personal protective equipment, workwear, welding and gas tools, power and hand tools, cleaning products and toilet paper.

[22] Across Australia, Blackwoods operates sixty trade stores and six distribution centres.

Apparel products and sales

[23] In addition to stocking and retailing a wide range of external brands, Blackwoods also designs and retails a home brand of apparel (Workhorse).

[24] The home brand is designed by an in-house unit. Once designed, the product is manufactured off-shore and returned to Australia for distribution and sale.

[25] As a percentage of national revenue from sales, apparel and footwear sales represent 9.2%.

[26] As a percentage of South Australian revenue from sales, apparel and footwear sales represent 14.7%.

[27] Approximately 85% of customer orders are placed electronically, through an on-line ordering system.

The Regency Park distribution centre

[28] Of its six distribution centres, one is located at Regency Park in suburban Adelaide.

[29] The distribution centres, including at Regency Park, undertake three primary activities: receiving, picking and dispatch of goods. Manufactured products are received (in boxes or containers) in the receiving bay and moved by employees into the warehouse for picking and dispatch. Employees (the picking function) arrange customer orders from boxes of manufactured product, and send completed orders to the dispatch area for loading onto trucks and distribution to customers.

[30] Upon arrival, goods are moved into the receiving bay, and then into the picking area and then from the picking area into the dispatch area, largely by conveyor. Mobile equipment (such as a scooter or reach truck) is also used, particularly in the picking function. A forklift is used at least in the dispatch area. A degree of automation applies to the entire process.

[31] At the Regency Park distribution centre, in the dispatch area there are eight lanes.

[32] Three other activities are conducted at Blackwoods Regency Park.

[33] Firstly, managerial and administrative staff work from offices upstairs in the distribution centre building.

[34] Secondly, an adjoining trade store retails goods to trade customers and to the public. The store has internal entry into the distribution centre and vice-versa.

[35] Thirdly, customer orders for the design or placement of a logo or other embroidered product on a manufactured item of apparel are managed by staff at Regency Park. Orders for such services are made on-line or taken by the State Clothing Co-ordinator or administrative staff. The relevant manufactured item is then identified and distributed outwards with the customer order to an offsite third-party supplier of embroidery services 10. Upon inward return, the logo’d or embroidered product is delivered back to the warehouse where employees despatch the finished product (via lane 8) for outward distribution to the customer.

[36] At Regency Park, the State Clothing Co-ordinator (Ms Pehar) manages the interface between Blackwoods and the external embroidery contractors (as well as garment manufacturers). Ms Pehar is located in the administrative offices at Regency Park but is present on the warehouse floor as and when required. She also deals with customer issues or complaints concerning apparel products, embroidered or not.

[37] As noted, in dispute is the extent to which distribution centre employees involved in the dispatch of goods (including a logo’d or embroidered product) conduct checking of orders or other quality control prior to final distribution.

[38] Also in dispute is the extent to which employees, and Mr Nuske in particular, drive a forklift in the course of their daily work.

The group for whom the CFMMEU seeks to bargain

[39] The group of employees the subject of the CFMMEU’s application is:

“only employees performing forklift driving and warehouse work and covered by the Storage Services and Wholesale Award 2010”.

[40] It is not contended by the CFMMEU that persons in the group are covered by the Textile Clothing, Footwear and Associated Industries Award 2010 (TCF Award). It is accepted that they are covered by the Storage Services and Wholesale Award 2010.

[41] It is not in dispute that there have been, during the life of this application, approximately forty-two persons in the group.

[42] The proposed enterprise agreement would be the first enterprise agreement between Blackwoods and the group.

[43] Though not express on the face of the application, CFMMEU submissions indicate that the group is employed in a geographically distinct workplace being “the Regency Park Distribution Centre” 11. The CFMMEU submit that the selected group of employees has been “fairly chosen” within the meaning of section 237(2)(c) of the FW Act.

[44] Though originally disputing that the group was “fairly chosen”, in its final submissions Blackwoods did not press this objection.

[45] There are two internal position descriptions used by Blackwoods relating to persons in the group:

•  Warehouse Team Leader 12; and

•  Storeperson 13.

[46] The position of State Clothing Co-ordinator is not included in the group.

[47] Storepersons, including those in the group are multi-tasked. They work variously in picking and dispatch activities. An individual storeperson will commonly work across multiple areas of activity in the distribution centre as part of their regular workday.

First Union petition

[48] After discussions with employees and management, in August 2020 the CFMMEU circulated a petition amongst the group to ascertain interest in bargaining for an enterprise agreement. A petition was signed by twenty-seven persons between 10 and 12 August 2020 (the first Union petition).

[49] The first Union petition was provided to the Commission. At the CFMMEU’s request 14, and by consent, a direction was issued15 that the petition in unredacted form be received by the Commission but a redacted version (only) would be made available to Blackwoods, and that Blackwoods would supply a list of employees in the group confidentially to the Commission (only)16.

[50] The first Union petition comprised one page. The header read:

“MAJORITY SUPPORT PETITION – CONFIDENTIAL

We, the undersigned employees of Blackwoods 3 Naweena Road Regency Park 5010 SA, hereby wish to commence bargaining with our employer for a Single Enterprise Agreement.”

[51] On 22 September 2020 the Commission advised the parties that: 17

•  43 employees were listed in the group of names;

•  27 names were on the petition;

•  26 of the 27 names were on both documents; and

•  the 27 names represent a majority of the listed employees.

Company ballot

[52] After the first Union petition, Blackwoods formed a view that some employees in the group may have been confused as to whether they were advocating for a wage increase arising from a then occurring internal Blackwoods salary review rather than seeking to bargain for an agreement.

[53] Blackwoods decided to conduct its own ballot of the group. It assessed the group as comprising forty-two persons at that time.

[54] The company ballot was conducted electronically between 12 and 18 November 2020. The ballot question read:

“Do you want to bargain for an enterprise agreement?”

[55] The result of the company ballot was: 18

•  18 of 42 persons voted ‘yes’;

•  17 of 42 persons voted ‘no’ and

•  7 persons did not vote.

Second Union petition

[56] Directions issued by the Commission on 12 February 2021 gave the CFMMEU and Blackwoods leave to file evidence of a further petition or ballot 19.

[57] On 11 March 2021 the CFMMEU sought to file a second petition on the same basis it had filed the first Union petition 20. On 12 March 2021 the Commission advised the parties that the Commission would “receive an unredacted copy of the second Union petition on the basis that a redacted copy be provided to the Respondent and on the further basis the Respondent has leave reserved to make submissions on the material as it considers appropriate”21.

[58] On 15 March 2021 the CFMMEU filed an unredacted version of the second petition, and, consistent with the Commission’s direction, sent a redacted version to Blackwoods.

[59] The second Union petition comprised three pages. The header of each page read:

“MAJORITY SUPPORT PETITION – CONFIDENTIAL

We, the undersigned employees of J. Blackwood & Son Pty Ltd, performing forklift driving and warehouse work and covered by the Storage Services & Wholesale Award 2020 at the Regency Park Distribution Centre at Regency Park in Adelaide, South Australia hereby wish to commence bargaining with our employer for a Single Enterprise Agreement.”

[60] The second Union petition, as submitted to the Commission, contained twenty-seven names and signatures dated between 23 February 2021 and 1 March 2021.

CFMMEU Rules

[61] The former Textile, Clothing and Footwear Union of Australia (TCFUA) (together with the Maritime Union of Australia) amalgamated with the then Construction, Forestry, Mining and Energy Union on 27 March 2018 22 and thereafter ceased to exist in its own right23. A Manufacturing Division of the CFMMEU was created.

[62] From that date, relevant eligibility and industry rules of the former TCFUA became incorporated into the CFMMEU’s National Rules.

Vocational rule – forklift drivers

[63] Rule 2 is titled “2 – Constitution”. Rule 2 contains vocational rules. Relevant to these proceedings is rule 2(E)(a). This rule preceded amalgamation with the TCFUA. It arose from an earlier amalgamation 24 with the Federated Engine Drivers’ and Firemen’s Association of Australasia. Of particular relevance is the reference in rule 2(E)(a) to forklift drivers. The rule relevantly provides:

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

(a) An unlimited number of all classes of engine drivers, firemen, crane drivers, mobile crane drivers, forklift drivers, tow motor drivers, excavator drivers, pump attendants, pile drivers, motor drivers or attendants, greasers, cleaners trimmers and any other workers assisting in and about the work incidental to any engine, boiler or machinery connected with the production or utilisation of power on land or any harbour or river, and boiler attendants attending boilers not generating steam for power purposes…

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

Vocational rule – textile services

[64] Relevant to these proceedings is rule 2(R)(a). This rule arose from amalgamation with the TCFUA. The rule relevantly provides:

“(R) …The Union shall consist of:

(a) Without limiting the generality of any other part of this rule, all persons wholly or partly engaged or usually engaged in or in connection with the following industries, mills, factories, places of work, products or processes in Australia:

textile, woollen (other than wool scouring), worsted, wool tops, spinning, weaving, dyeing, finishing, waste-breaking, flock, wadding, felt and feltex, flax, cotton, carpets, silk and artificial silk, rayon and/or any vegetable or synthetic fibre or non woven substance, technical textile, textile backing, textile coating, textile services, hosiery, half-hose, knitting, textile printing, textile furnishings, tapestry, braids and tassels;”

Vocational rule – headwear

[65] Relevant to these proceedings is rule 2(R)(c). This rule arose from amalgamation with the TCFUA. The rule relevantly provides:

“(R) …The Union shall consist of:

(c) Without limiting the generality of any other part of this rule, all persons wholly or partly engaged or usually engaged in or in connection with the… preparing,…manufacturing,…processing,…finishing and/or selling from factory outlets the whole or any part of all articles of headwear and/or millinery including but not limited to hats, caps, berets, hoods and helmets.”

Vocational rule – footwear

[66] Relevant to these proceedings is rule 2(R)(d). This rule arose from amalgamation with the TCFUA. The rule relevantly provides:

“(R) …The Union shall consist of:

(d) Without limiting the generality of any other part of this rule, all persons wholly or partly engaged or usually engaged in or in connection with the…preparing,…manufacturing,…processing,…finishing and/or selling from factory outlets the whole or any part of footwear of every description...”

Vocational rule – garments

[67] Relevant to these proceedings is rule 2(R)(e). This rule arose from amalgamation with the TCFUA. The rule relevantly provides:

“(R) …The Union shall consist of:

(e) Without limiting the generality of any other part of this rule, all persons wholly or partly engaged or usually engaged in or in connection with the…preparing,…manufacturing,…processing,…finishing and/or selling from factory outlets the whole or any part of:

(i) any male or female garment;…”

Vocational rule – embroidery

[68] Relevant to these proceedings is rule 2(R)(i). This rule arose from amalgamation with the TCFUA. The rule relevantly provides:

“(R) …The Union shall consist of:

(i) Without limiting the generality of any other part of this rule, all persons wholly or partly engaged or usually engaged in or in connection with the embroidering and/or ornamenting of:

(i) any of the articles referred to in any other part of this rule;…”

Vocational rule – receiving, picking and dispatch

[69] Relevant to these proceedings is rule 2(R)(l). This rule arose from amalgamation with the TCFUA. The rule relevantly provides:

“(R) …The Union shall consist of:

(l) Without limiting the generality of any other part of this rule, all persons other than electrical workers and fitters…wholly or partly engaged or usually engaged in or in connection with:

….

(iii) receiving, dispatching, packing, unpacking, storing and/or otherwise handling goods at any premises referred to in any other part of this rule, or at any premises where any of the processes or activities referred to in any other part of this rule occurs.”

Industry rule – textile, clothing and footwear

[70] Rule 3 is titled “3 – Description of Industry”. Rule 3 contains industry rules. Relevant to these proceedings is rule 3(K). This rule arose from amalgamation with the TCFUA. The rule relevantly provides:

“(K) Without limiting the generality of Sub Rules (A) to (J) and (L) herein or being limited thereby:

The industries in or in connection with which the Union is registered are the textile, clothing and footwear industries, including but not limited to those parts of the industries referred to in Rule 2(R).”

Submissions

CFMMEU

[71] The CFMMEU submit that a majority support determination must be made because each of the requirements in section 237(2) of the FW Act are satisfied, and because it has standing (eligibility) to make the application.

Eligibility

[72] The CFMMEU submit that to make a valid application for a majority support determination it simply has to be a bargaining representative of at least one employee in the proposed group.

[73] The CFMMEU submit that under both its vocational and industry rules at least one employee in the proposed group is eligible for membership of the CFMMEU. That being so, the CFMMEU is a bargaining representative and has standing to bring this application.

[74] The CFMMEU relies on each of the aforesaid rules which it says, in the context of the group employed by Blackwoods, individually establish its standing.

[75] Without limiting the particular grounds on which the CFMMEU claims standing, the CFMMEU further submit that its standing is clearly established by reference to rule 2(E)(a) and the work performed by Mr Nuske as a forklift driver.

[76] The CFMMEU further submit that its standing is also clearly established by reference to rule 2(R)(i) and the checking work performed by storepersons prior to the dispatch of embroidered goods from lane 8.

Majority support

[77] The CFMMEU submit that reliance on redacted petitions is a fair, appropriate and orthodox method for the Commission to determine the matter. It says there is no material denial of procedural fairness to an employer by virtue of the Commission relying on a redacted petition.

[78] Whilst contending that neither of its petitions are stale, it relies on the second Union petition as the most recent and as evidence that a majority of the now forty-two persons in the group wish to bargain.

Evidentiary Support

[79] In support of its submissions, the CFMMEU relies on evidence of its TCF National Secretary Jennifer Kruschel, South Australian Manufacturing Division Secretary David Kirner, and Blackwood’s employee Doug Nuske.

[80] Ms Kruschel’s evidence was given in the context of her forty-two years associated with the TCF industry in Australia including the last twenty as a union official. Ms Kruschel’s evidence was in part expressions of opinion about the industrial usage of terms and language in the Union rules and the TCF Award as applied in the TCF sector, and in part general observations of how the industry and its supply chains now operate. Relevantly, she also deposed 25 to the fact that the CFMMEU, including after the 2018 amalgamation, has some members in distribution centres variously throughout Australia where Ms Kruschel considers textile services or work in connection with textile services are performed.

[81] Ms Kruschel’s evidence, including both its specific and general content, is of value, as are her opinions, coming as they do from an experienced union official who has traversed some of the nation’s TCF workplaces (largely in the eastern States). I give appropriate weight to it. Terms and phrases are capable of having meaning in the context of a particular industry. Union rules should be interpreted in their industrial context. Ms Kruschel’s evidence provides some context to industry usage based on her observations and opinions, and how those terms relate to the CFMMEU rules and award structures. Her evidence supports the CFMMEU contentions.

[82] There are, however, limitations to Ms Kruschel’s evidence. Where general observations are expressed they are general in nature only and do not necessarily have specific application to Blackwoods. In a number of respects they pre-suppose that Blackwoods is in the TCF industry (which is a question of fact, not opinion). There is no evidence that Ms Kruschel has had direct dealings with Blackwoods or more particularly its Regency Park distribution centre (other than being provided with documents produced by Blackwoods consequent on the production order 26 or “information available to me”27). Further, whilst Ms Kruschel’s opinions about industrial usage and the interpretation of Union rules carry some weight, ultimately they are opinions.

[83] It is the established canons of construction, which recognise both language used and its context, that determine the meaning of relevant CFMMEU rules for the purpose of these proceedings: “a legal question to be solved by legal considerations” 28. It is also the Commission’s findings of fact concerning Blackwood’s Regency Park operations and the work of persons in the relevant group that constitute the underpinning factual narrative against which the Union rules, properly construed, are to be applied.

[84] Mr Kirner’s evidence included a combination of direct observations arising from his visits to Blackwoods Regency Park (including dealing with its employees and managers) and his opinions and views about membership eligibility and the Union rules. On a site visit to the Regency Park distribution centre in 2020, in addition to speaking to employees, Mr Kirner purchased a helmet from the trade store. Aspects of Mr Kirner’s evidence were hearsay and objected to. On matters of direct observation and discussion, Mr Kirner’s evidence is broadly reliable though he was not, understandably, as familiar with Blackwood’s internal operations as its managers. I place reduced weight on hearsay but it is not unusual that a union official will relay, via witness statements, what they have been told by employees or members. I have some regard to opinions expressed by Mr Kirner, though his knowledge of and exposure to the TCF industry is considerably less than that of Ms Kruschel.

[85] I deal with Mr Nuske’s evidence in the body of this decision when considering rule 2(E)(a).

Blackwoods

Eligibility

[86] Blackwoods submit that no valid application has been made under section 236 of the FW Act because the CFMMEU has no standing under the Union’s rules to be a bargaining representative for any employee in the group to be covered by the proposed agreement.

[87] Blackwoods submit that neither storepersons working in the Regency Park distribution centre nor the warehouse team leader, when their employment is considered as a whole and by reference to its primary purpose, fall within either the vocational rules or the industry rules of the CFMMEU.

Majority support

[88] On merit, Blackwoods contend that the evidence does not establish that a majority of employees proposed to be covered want to bargain. It says that it would be procedurally unfair to rely on redacted petitions. On this basis, the second and the first Union petitions should be given no probative value. It further says that the first Union petition is stale and should not be relied on.

[89] Blackwoods submit that once the redacted petitions are set to one side, the only remaining evidence is the company ballot. Whilst that ballot produced the slightest majority in favour of bargaining from amongst those voting, it did not establish that a majority of employees in the group want to bargain. Given this, the Commission cannot be satisfied that the mandatory pre-condition in section 237(2)(a) has been met.

[90] On both jurisdictional and merit grounds, Blackwoods submit that the application should be dismissed.

Evidentiary Support

[91] Blackwoods relies on the evidence of Ian Harris (its Sales Operations Manager SA/NT) and Navin Chandra (its National Head of Distribution & Transport).

[92] The evidence of Mr Harris largely concerned Blackwoods and its Regency Park operations (including the work of storepersons). In general, on these factual matters Mr Harris was relying upon direct knowledge and observations and, in some respects, on business and sales records and his analysis of CCTV footage (of Mr Nuske). Mr Harris gave some evidence of recent dealings with Mr Kirner and on those issues his evidence is broadly consistent with that of Mr Kirner.

[93] With one caveat, I consider the evidence of Mr Harris reliable and give it appropriate weight. The caveat concerns hearsay evidence of asserted discussions between employees and another manager (Mr Joy) including at times when Mr Harris was on leave. Whilst it is understandable that a manager may include in a witness statement that which they have been informed by other managers, I give little weight to this evidence. It is hearsay, has not been tested and to rely upon it would be unfair and prejudicial to the CFMMEU given its potential materiality.

[94] Mr Chandra’s evidence concerned his direct knowledge and observation of the internal salary review, and of the employer ballot at Regency Park. His evidence can be broadly relied upon, though I give reduced weight to those hearsay aspects concerning the conduct of the employer ballot.

Consideration

[95] Sections 236 and 237 of the FW Act provide:

“236  Majority support determinations

(1) A bargaining representative of an employee who will be covered by a proposed single-enterprise agreement may apply to the FWC for a determination (a majority support determination) that a majority of the employees who will be covered by the agreement want to bargain with the employer, or employers, that will be covered by the agreement.

(2) The application must specify:

(a) the employer, or employers, that will be covered by the agreement; and

(b) the employees who will be covered by the agreement.

237 When the FWC must make a majority support determination

Majority support determination

(1) The FWC must make a majority support determination in relation to a proposed single-enterprise agreement if:

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

(b) the FWC is satisfied of the matters set out in subsection (2) in relation to the agreement.

Matters of which the FWC must be satisfied before making a majority support determination

(2) The FWC must be satisfied that:

(a) a majority of the employees:

(i) who are employed by the employer or employers at a time determined by the FWC; and

(ii) who will be covered by the agreement;

want to bargain; and

(b) the employer, or employers, that will be covered by the agreement have not yet agreed to bargain, or initiated bargaining, for the agreement; and

(c) that the group of employees who will be covered by the agreement was fairly chosen; and

(d) it is reasonable in all the circumstances to make the determination.

(3) For the purposes of paragraph (2)(a), the FWC may work out whether a majority of employees want to bargain using any method the FWC considers appropriate.

(3A) If the agreement will not cover all of the employees of the employer or employers covered by the agreement, the FWC must, in deciding for the purposes of paragraph (2)(c) whether the group of employees who will be covered was fairly chosen, take into account whether the group is geographically, operationally or organisationally distinct.

Operation of determination

(4) The determination comes into operation on the day on which it is made.”

[96] Only a bargaining representative of employees who are to be covered by a proposed agreement has standing to make an application under section 236.

[97] Whether a union is a bargaining representative is governed by section 176. Section 176(3) has the effect that the CFMMEU would not be a bargaining representative of a person unless it is “entitled to represent the industrial interests” of that person.

[98] It is the rules of a union that govern, at least in the first instance, its entitlement to represent the industrial interests of a person.

[99] Thus, the first issue to be determined is whether the CFMMEU’s rules entitle it to represent one or more of the employees in the group the subject of these proceedings.

[100] As noted, that group is limited to “employees performing forklift driving and warehouse work and covered by the Storage Services and Wholesale Award 2010”. In practice, these are persons employed by Blackwoods at the Regency Park distribution centre in the positions of storeperson and warehouse team leader.

[101] If and only if the CFMMEU establishes eligibility amongst a person in this group, does the second contested issue arise – whether the requirement in section 237(2)(a) has been met, being that a majority of employees who are employed and who will be covered wish to bargain.

[102] For the sake of completeness, I note that compliance with the remaining conditions in section 237(2) is not in dispute. I am satisfied that Blackwoods has not yet agreed to bargain (section 237(2)(b)) and that the group of employees has been fairly chosen (section 237(2)(c)).

[103] Further, should I be satisfied that the CFMMEU has standing and that a majority exists, I would conclude on the evidence before me that it is reasonable to make the determination (section 237(2)(d)). There are no discretionary reasons not to do so. The matter is in genuine dispute. Over many months the dispute has not been resolved by the parties themselves. Both the business and the relevant employees need to know if a collective bargaining process under the FW Act is to occur via the auspices of the CFMMEU. The statutory policy is to facilitate collective bargaining. The longer uncertainty remains, the more risk that damage may be done to industrial relationships and the aspirations of the Union and some employees for collective bargaining.

Eligibility – is the CFMMEU entitled to represent the industrial interests of the group?

[104] It is not in dispute that to be a bargaining representative the CFMMEU would only need to be entitled to represent the industrial interests of a single employee in the group (not all employees or each category of employee).

[105] In advance of considering the vocational and industry rules relied upon by the CFMMEU, it is appropriate to identify the general approach to the interpretation and application of union rules. These have been expressed by the High Court in R v Aird; Ex parte Australian Workers Union: 29

“This is a legal question to be solved by legal considerations but those considerations will, in relation to the present question, include any industrial meaning or usage of the words of the clause to be construed. As with all construction, the nature of the instrument in which the words appear and the purposes the instrument is evidently intended to serve or effect must be kept in mind. In this respect, it is proper, in my opinion, in the present case to acknowledge that the eligibility clause will have been drawn, more likely than not, by union officials more familiar with the practical affairs of industry than with the niceties or subtle nuances of language. The purpose of the clause is to define, in brief terms, industries or callings relevant to the representative character of the union. But, granted this generosity of approach, the question of the meaning of the words used remains a legal question.”

[106] In Argyle Diamond Mines it was further said by the High Court: 30

“It follows that the words of the rule should be given a wide meaning and interpreted according to their ordinary or popular denotation rather than by reference to some narrow construction. Nevertheless, notwithstanding this generosity of approach, the meaning of the words remains a legal question to be determined by the application of the ordinary rues which govern the construction of written documents.”

[107] Put another way, the eligibility  rules of a union are generally construed in a liberal or purposive manner 31, but the approach of giving a broad or generous construction to a legal document has limits and the meaning of the words used remains a legal question and the ordinary meaning of the words used will generally be applied32. Eligibility rules will not be interpreted in a manner that would give the rule a wide and indefinite scope of operation33 or to promote exorbitant claims to coverage.

[108] The essential task is to construe the words of the eligibility rules objectively and give the words used their ordinary meaning 34.

[109] In this matter, the CFMMEU relies on both vocational rules (rules that concern the trade or vocation of a person) and an industry rule (rules that concern the industry in which the employer of a person is engaged).

[110] With respect to the construction of industry rules, the “substantial character” of the employer must be identified 35.

[111] With respect to vocational rules, these should be construed “neither narrowly nor technically” 36.

[112] It is legitimate to have regard to an industry rule for the for the purpose of resolving doubt as to the proper construction of the eligibility rule of a union 37, understanding that the scope of the eligibility rule is not restricted by the scope of the industry rule38.

Industry rule – textile, clothing and footwear

[113] The CFMMEU submit that persons in the group fall within its industry rule in rule 3(K).

[114] On the evidence before me, including a fair consideration of both the evidence of Ms Kruschel and Mr Harris, I do not agree.

[115] Determining the substantial character of Blackwoods is a question of fact.

[116] The substantial character of Blackwoods is not as a business operating in the textile, clothing and footwear industries. Its substantial character is in the retail industry. It is a retailer of goods to trade customers and, to a lesser degree, the general public. Blackwoods does not prepare, manufacture or finish textile, clothing or footwear products. Its processes are almost exclusively concerned with a product that has been prepared, manufactured and finished by others and which is then assembled by Blackwoods into a customer order and despatched to the customer. Its business model is as the agent that connects a customer to the already manufactured product ordered by the customer. This is the orthodox activity of a business in the retail industry. The infrastructure in its distribution centres and trade stores, and the technology, plant and equipment used is purposed for the business of distributing and retailing such products to existing and new customers.

[117] For the purposes of rule 3(K) I consider it necessary to consider the character of Blackwoods as a whole and not solely the Regency Park distribution centre operated by Blackwoods. Regency Park is not a separate business. It is part of a business which has a holistic character. However, should the Regency Park premises be separately characterised for this purpose, I would not find that the distribution centre is in the textile, clothing and footwear industry. Considered in isolation from the character of Blackwoods as a whole, the Regency Park distribution centre is in the storage and warehousing industry. Whilst award coverage does not determine eligibility under union rules, this conclusion is supported by a relevant contextual consideration: persons in the relevant group are both employed under and covered by the Storage Services Award. That is the industrial instrument governing employment of the group. The industrial instrument is not the TCF Award.

[118] In so concluding, I take into account, that businesses can have more than one substantial character. Conceptually, for example, a business could be in both the retail and the textile, clothing and footwear industries. However, for three reasons that is not the case in the present matter.

[119] Firstly, by measure of sales revenue, the sale of textile, clothing and footwear products by Blackwoods is at such a low level compared to total sales that the business does not, in an objective sense, have the character of a business in the textile, clothing and footwear industries let alone the substantial character of so being. The sale of other goods such as plant and equipment is a much more substantial part of revenue than revenue from the retail sale of textiles, clothing and footwear.

[120] Secondly, the mere fact that textile, clothing and footwear products are supplied to Blackwoods for the purpose of its business operations and distributed through the Regency Park distribution centre is not, of itself, sufficient to accord the business the character of being in connection with the textile, clothing and footwear industries. As observed by the High Court: 39

“It is not enough that the products of the worker are used in the industry or that the products of the industry are used by the worker.”

[121] Thirdly, the non-retail activities undertaken by Blackwoods with respect to textile, clothing and footwear products do not accord it that character. At its highest, it can be said that Blackwoods negotiates on behalf of some customers for the external manufacture of a particular item of textile, clothing or footwear; designs a home brand label; and arranges for third party contractors to embroider labels or logos on garments that it retails.

[122] I am not satisfied that these non-retail activities either individually or in combination are sufficient for the business to be accorded the substantial, or a substantial character of being in the textile, clothing and footwear industries – even accepting Ms Kruschel’s evidence about the contemporary nature of the industry and its specialised, interrupted and diverse supply chains. That a retailer speaks to an external manufacturer about the needs of a customer or places an order on behalf of a customer does not mean that the retailer has the character let alone the substantial character of operating in the industry of that manufacturer. That a retailer arranges for a secondary manufacturing process by a third party manufacturer to align with customer needs (such as embroidery services) does not mean that the retailer has the character let alone the substantial character of operating in the industry of that secondary manufacturer.

[123] For these reasons, persons employed by Blackwoods in the group are not employed by a business operating in the textile, clothing and footwear industries. The CFMMEU cannot rely on industry rule 3(K) to establish eligibility.

[124] Given this conclusion I need not deal with the associated submission by Blackwoods 40 that the Union’s industry rule is not an independent source of standing where it is not incorporated into the eligibility rule.

Vocational rule – textile services

[125] The CFMMEU submit that persons in the group fall within vocational rule 2(R)(a) in that the storepersons or team leader are engaged in or in connection with “textile services”.

[126] On a fair consideration of both the evidence of Ms Kruschel and Mr Harris, and a reading of rule 2(R)(a) in context, I do not agree.

[127] The phrase “textile services” must be given its full ordinary meaning, in the context in which it appears. In the context of rule 2(R)(a), a “textile service” is a service associated with the manufacture of textiles. In the rules, the phrase does not sit in isolation. Around it are descriptions of activities, almost all of which are directly connected to the manufacturing process – such as “spinning”, “weaving”, “dyeing”, “printing”, “knitting” and “tapestry”. The related phrases “textile backing”, “textile coating”, “textile printing” and “textile furnishings” which also sit in and around the phrase “textile services” in rule 2(R)(a) also support a construction that directly links a “textile service” to a service associated with the manufacture of a textile.

[128] I do not consider the phrase to relate to weaving activities alone, as contended by Blackwoods. I consider that the ordinary meaning extends to associated manufacturing activities such as preparing, processing and finishing a textile product including those specifically referenced in rule 2(R)(a). I accept that the concept of “manufacturing” is not to be narrowly construed and, to the extent it includes “finishing”, it is capable of extending to quality control 41. I deal later in this decision with the issue of whether, as a matter of fact, quality control in a material sense is undertaken by storepersons.

[129] However, considered in context, the phrase “textile service” does not extend to distribution or retailing activities. Distribution and sale are part of the supply chain but are removed from the activity of manufacturing and its associated processes.

[130] Neither Ms Kruschel’s evidence nor the TCF Award provide a sufficient basis to safely conclude a special meaning or industry usage of a “textile service” that alters this conclusion.

[131] Also contextually relevant is the fact that persons in the group are performing distribution activities with respect to a broad range of goods and not exclusively (or primarily) textile products. The Regency Park distribution centre is not a centre for the receiving, picking or dispatch of textile products alone – it is a distribution centre for all products sourced by Blackwoods and on-sold to its customers. Whilst conceptually a person would be capable of performing “textile services” whilst performing other services, there is no sense in which storepersons at the Regency Park distribution centre deal with textiles as a principal part of their role.

[132] Storepersons and the warehouse team leader are employed in the provision of distribution services – not textile services.

[133] The CFMMEU cannot rely on rule 2(R)(a) to establish eligibility.

Vocational rules – headwear, footwear and garments

[134] The CFMMEU submit that persons in the group fall within either of its vocational rules in rule 2(R)(c) (headwear), rule 2(R)(d) (footwear) or rule 2(R)(e) (garments).

[135] It does so on two grounds – that headwear, footwear and garments are sold in trade shops (and in the case of Regency Park, a trade shop connected to the distribution centre); and that in the process of dispatching customer orders, boxes containing headwear, footwear and garments are opened by storepersons to check alignment between the product being dispatched and the customer order.

[136] It is not in dispute that headwear (such as the helmet purchased by Mr Kirner), footwear and garments are sold in the trade shop adjacent and connected to the Regency Park distribution centre.

[137] The CFMMEU contend that, as a consequence, persons in the group are working “in or in connection with selling from factory outlets” within the meaning of the aforementioned rule. The CFMMEU rely, in part on two references in the internal position description; that storepersons are required to give “support to all customer service team members” 42 and “provide customer service through the showroom”43.

[138] Considering the evidence overall, I do not agree with the CFMMEU submission.

[139] There is no evidence that persons working as storepersons or as the warehouse team leader in practice work to any material extent in the shop either attending to the display of products, taking customer orders or making customer sales. That a certain function is capable of being performed as part of a position does not characterise that position according to that function, particularly where that function is not, in practice, materially performed.

[140] Nor am I satisfied that the movement of any product from the distribution centre into the shop by a member of the group is of such materiality to their position as a storeperson or team leader that such activity is “in connection with” selling from the trade store. There is no evidence that direct supply of goods from the distribution centre to the trade shop by a storeperson or liaison with shop employees is anything other than an incidental part of the work of a member of the group. It is well established that mere interaction by an employee with a product of a particular industry does not render that employee’s work to be “in or in connection with” that industry 44. An overall consideration of the work of a storeperson or team leader gives rise to the conclusion that neither are working in sales or in connection with sales.

[141] Given this conclusion, I need not determine the associated question whether the trade shop can be said to be a “factory outlet”.

[142] A more substantial issue is whether the activity by a storeperson or team leader in checking customer orders for headwear, footwear or garments prior to dispatch means that they are working “in or in connection with the preparing, manufacturing, processing, finishing and/or selling” of those products within the meaning of rules 2(R)(c), (d) or (e).

[143] There is substantial evidence before me on activities conducted in dispatch.

[144] A customer order will generally identify the product (including size or size ranges) and the quantity ordered. A customer order is then picked by a storeperson and conveyed to the dispatch lanes. At the dispatch lanes a storeperson checks both the customer order and the goods that have been picked relevant to that order. The goods picked are as boxed by the manufacturer or supplier (the outer box). Inside the outer box are (in the case of footwear) other boxes (secondary boxes such as shoe boxes containing boots wrapped in tissue). In the case of garments (for example, shirts), inside the outer box are multiple loosely placed shirts individually wrapped in a clear plastic protective covering. On occasion, some garments or headwear may also be in secondary boxes.

[145] The storeperson’s duties in dispatch are to check that goods in the outer boxes broadly align to the customer order and to then convey the assembled customer order to an area for loading onto transport.

[146] Commonly, the outer box is opened by the storeperson in dispatch lanes. In the case of footwear, a shoe box inside the outer box is opened to check alignment to the product ordered. The shoe box label may be inspected to ascertain size and that the size accords to the order, or appears to do so. The shoe is not removed from the tissue or taken out of the box. In the case of a garment, such as a shirt, the top shirt in the outer box is inspected through the plastic wrapping to ascertain alignment to the product ordered, and in some cases size. Not all shirts in the outer box are required to be inspected, though some storepersons may flick through more than the top shirt. The shirt is not removed from its plastic wrapping or removed from the box.

[147] Where a picked outer box does not appear to align to the customer order, the storeperson places it to one side for inspection by others (by Ms Pehar and administrative staff).

[148] Where a picked outer box does appear to align to the customer order, the storeperson seals the outer box and forwards the product (with the customer order) for transportation.

[149] Given the existence of this checking activity, is the position of a storeperson or team leader work “in or in connection with the preparing, manufacturing, processing, finishing and/or selling” of headwear, footwear or garments?

[150] On an overall consideration of the evidence, I think not.

[151] Firstly, it is the character of the whole of the position of a storeperson or team leader that needs to be considered, not one activity. As noted, the work of a storeperson is not exclusively concerned with work in dispatch. Storepersons work across picking and dispatch. As Mr Nuske said “everyone does packing at some point” 45. The checking process only occurs in this one area (dispatch) of work. Nor is checking the sole activity performed in dispatch. Nor are position descriptions, in abstract, definitive. It is the work performed and not necessarily the work as described that ultimately defines the character of one’s employment. That said, the position descriptions in evidence are consistent with a conclusion that storepersons are multi-tasked and that checking a product prior to dispatch is an element but not a substantial part of the overall work of a storeperson.

[152] Secondly, whilst I have regard to the considered views of Ms Kruschel about how work is performed and the contemporary application of the historical concepts of “preparation”, “processing” and “finishing” in what is now an increasingly automated and specialised industry, I do not consider (leaving aside for the moment embroidery services) that work of storepersons in the distribution centre dispatch is any of “preparing, manufacturing, processing, finishing and/or selling”. At the point of checking prior to dispatch, the goods have already been prepared, manufactured, processed and finished. In fact, they have already been packaged and transported by a third party to Blackwoods, received by Blackwoods and picked for a customer order. Even giving weight to Mr Kruschel’s evidence, there is no sufficient material before the Commission to safely find that these terms have a special or established usage in the TCF industry that disturbs their ordinary meaning. I conclude that the terms “preparing”, “manufacturing”, “processing” and “finishing” have their ordinary meaning and in context of the CFMMEU rules they relate to work in the manufacturing process, not distribution.

[153] Thirdly, the checking process, whilst conducted, is limited. Storepersons have no specialist training or expertise in footwear, garment or headwear quality control. To do so across hundreds of different headwear, footwear and apparel products passing through the distribution centre would constitute a different job description. Not all items in each of the outer boxes are checked nor are all items checked for exact alignment to the customer order. The item is not laid out or handled. The evidence of Mr Harris, which I accept, is that not uncommonly dispatched orders include an incorrect quantity of product by size. Checking at the point of dispatch is to establish broad alignment to the customer order, not exactitude. If a manufacturer has erred in quality or quantity, that is a matter taken up by Blackwoods with the manufacturer and not laid at the feet of its storepersons.

[154] Storepersons checking orders are a critical element in the process of distribution, but not in the process of manufacturing or finishing. They check orders to align the product(s) picked for distribution with the order but do not undertake quality control in the sense of “finishing” a product.

[155] For these reasons, the CFMMEU cannot rely on rule 2(R)(c) (headwear), rule 2(R)(d) (footwear) or rule 2(R)(e) (garments) to establish eligibility.

Vocational rule – embroidery

[156] The CFMMEU submit that persons in the group fall within rule 2(R)(i) in that storepersons, particularly when working in lane 8, are “wholly or partly engaged or usually engaged in or in connection with the embroidering” of garments.

[157] I have found that employees working in lane 8 isolate orders required for embroidery services and, upon the embroidered product returning to the dispatch area, check the order prior to dispatch.

[158] Are these storepersons “engaged in…the embroidering” within the meaning of rule 2(R)(i)?

[159] I think not.

[160] Embroidery involves the application onto a manufactured product of a design, word or number 46. I note that Ms Kruschel expresses the opinion that this extends to procurement and oversight of embroidery services.

[161] Storepersons do not perform “the embroidering”. They are not involved in the transformation of a garment from an unembroidered product to an embroidered product. Nor are the embroidering services physically proximate to the distribution centre. At Blackwoods Regency Park, embroidering has (since June 2020) been performed off-site by third party contractors. Nor do storepersons deal with third party embroidery contractors (though this is contemplated by the position description 47).

[162] Further, storepersons do not take the customer order for embroidery services or otherwise materially deal with the customer. They exercise no discretion, trade skill or judgment concerning design, placement, cost, appropriate service provider, timing or quantity. Nor do they deal with customer complaints about the embroidery work after final dispatch. Dealings with customers, prior to embroidery services being performed, whilst awaiting the order or after final dispatch are largely conducted via Ms Pehar and administrative staff (none of which are in the relevant group). At its highest, storepersons provide “support to all customer service team members” 48 and may occasionally “provide customer service through the showroom”49. There is no evidence of material interaction by storepersons with customers of embroidery services either via the showroom (to the extent the trade store is a “showroom”) or whilst working in lane 8.

[163] Rule 2(R)(i) extends eligibility to persons “wholly or partly engaged…in connection with the embroidering”.

[164] A storeperson is required from time to time, as part of their work whilst in lane 8, to look into a box of embroidered products and form a preliminary view, as part of aligning the product to the order, whether the embroidery appears correct or is in obvious error (for example, whether it has inverted letters or logo). The CFMMEU contend that this activity means the person is “wholly or partly engaged in or in connection with…the embroidering”.

[165] I accept that this is a limited check of work that has been done by an embroidery contractor and as such is an activity related to but which goes beyond mechanically aligning the product with the customer order.

[166] However, I am not satisfied that this activity is sufficient for the work of a storeperson to fall within rule 2(R)(i).

[167] As noted, the phrase “in or in connection with” requires the relevant work to have more than a tenuous connection to the subject matter of the rule (in this case, “the embroidering”). The mere fact that embroidered products are handled, or the fact that Blackwoods has a contract with third party embroidery contractors does not render work in lane 8 to be in connection with the embroidery.

[168] The rule refers to “the embroidery”. The work activity undertaken is a cursory check of work done. No embroidered product is removed from its wrapping or laid out for examination. The process of assessment, when it occurs, is incomplete. Storepersons are not required, as part of their job, to inspect all products to ascertain if those are embroidered products, nor are they required to inspect each embroidered product even where those products are embroidered. Where it is thought that an item does not align to the order or has what looks like an error, the outer box containing the item is put to one side (quarantined) and the final assessment of whether a defect or error exists is made by Ms Pehar and her staff – not storepersons.

[169] Further, in the context of the position of a storeperson considered as a whole this assessment of embroidered logos is a limited function. To characterise a position it must be considered as a whole. Whilst working in lane 8, the assessment of embroidered logos is one activity only. Nor is the work of a storeperson limited to lane 8; each work in other areas of dispatch. Further still, storepersons in dispatch routinely work in other areas of the distribution centre, such as picking.

[170] Rule 2(R)(i) encompasses a person “partly engaged” in connection with “the embroidery”. However, to be “partly engaged” one has to be engaged in the required activity in more than an incidental or ancillary manner. On the evidence before me, the limited and incomplete checking is incidental and ancillary to the primary function of picking, assembling and aligning a customer order for delivery.

[171] These considerations, together with the fact that the embroidery function is not physically proximate and that storepersons do not materially deal with embroidery contractors lead me to conclude, considered overall, that an insufficient link exists between the overall work of a storeperson and “the embroidering”, notwithstanding the limited checking activity performed in lane 8. Storepersons are not performing the embroidering, nor procuring it nor, in a material sense, overseeing it.

[172] For these reasons, I am not satisfied that storepersons are “wholly or partly engaged or usually engaged in or in connection with…the embroidering”, within the meaning of rule 2(R)(i).

[173] The CFMMEU cannot rely on rule 2(R)(i) to establish eligibility.

Vocational rule – receiving, picking and dispatch

[174] The CFMMEU submit that persons in the group fall within rule 2(R)(l) in that storepersons and the warehouse team leader are “wholly or partly engaged or usually engaged in or in connection with…receiving, dispatching, packing, unpacking, storing and/or otherwise handling goods.”

[175] There is no doubt that the position descriptions of a storeperson and of the warehouse team leader, and the duties they perform, characterise each position as being “in or in connection with” receiving, dispatching or packing. That work is the central characteristic of each position.

[176] However, for eligibility to be established by reference to rule 2(R)(l), all elements of the rule must apply. The rule does not provide eligibility with respect to the work of a storeperson in a distribution centre generally. It does so only with respect to “any premises referred to in any other part of this rule, or at any premises where any of the processes or activities referred to in any other part of this rule occurs.”

[177] This is an important and relevant qualifier. Properly construed and applied, with respect to textiles, the rule covers storepersons working in the distribution of textile, clothing and footwear products who are working from premises where those textile, clothing and footwear products are manufactured or have a relevant manufacturing process or service applied to them, as described by the rules (for example, “preparing”, “manufacturing”, “processing” or “finishing” the product).

[178] I have found that no such manufacturing or relevant manufacturing process occurs at the Regency Park distribution centre.

[179] In these circumstances, the CFMMEU cannot rely on rule 2(R)(l) to establish eligibility.

Vocational rule – forklift drivers

[180] The CFMMEU submit that at least one person in the group falls within rule 2(E)(a) in that they are a “forklift driver”.

[181] The CFMMEU rely in particular on the evidence of Mr Nuske, and contend that Mr Nuske is a “forklift driver” within the meaning of this rule.

[182] Blackwoods submit that the evidence does not support a finding that Mr Nuske is a forklift driver. In the alternative, Blackwoods submit that the exclusion in rule 2(E)(a) applies in that Mr Nuske works in the industry of “the transport of goods by road”.

[183] This alternate submission can be readily disposed of. For the same reason that I have not concluded that Blackwoods is in the textile, clothing and footwear industries and that storepersons are not dispatching goods from a premises in that industry, Blackwoods is not in the road transport industry. I have found that Blackwoods, properly characterised, is in the retail industry. To the extent the Regency Park premises is to be separately characterised, I have found that the distribution centre is in the storage and warehousing industry. Whilst trucking contractors onto whose trucks goods are inwardly unloaded in the receiving dock and outwardly loaded in the dispatch dock may be in the road transport industry 50, the forklift drivers employed by Blackwoods undertaking that work are not in the road transport industry. They are neither driving the trucks nor using the forklifts that form part of the infrastructure of the trucks or incidental to the work of drivers employed by a trucking contractor. They are not engaged in tasks or duties that are essential to, and part of, the transport of those goods.

[184] The question which then arises is whether any employees in the group are “forklift drivers” within the meaning of the rule.

[185] If a person in the group is a “forklift driver” within the meaning of rule 2(E)(a) (properly construed) then on the authority of the High Court in Re Coldham, 51 they are eligible to be members of the CFMMEU.

[186] The principal purpose of a position as both described and performed determines its character 52.

[187] It is not contended by the CFMMEU that storepersons other than Mr Nuske are forklift drivers within the meaning of the rule. There is no evidence that persons in the group other than Mr Nuske drive a forklift to a sufficient extent so as to enable their position to be characterised as a forklift driver.

[188] What then of Mr Nuske?

[189] Firstly, the position. Mr Nuske is not employed as a forklift driver. He is employed as a storeperson with the same position description and under the same award (Storage Services Award), classification and rate of pay as other storepersons working in the distribution centre. However, the position description of storeperson contemplates the holding of a “HR Forklift” licence 53. To this extent, the position description contemplates a properly licensed storeperson performing forklift duties.

[190] Secondly, Mr Nuske does in fact hold a current licence to operate a forklift.

[191] Thirdly, as part of his duties as a storeperson, Mr Nuske is required, from time to time, to drive a forklift.

[192] Are these factors sufficient to characterise Mr Nuske as a “forklift driver” within the meaning of rule 2(E)(a)?

[193] As noted, the mere performance of a particular duty (such as operating a forklift) within the compass of a position (storeperson) does not, of itself, characterise the position as a forklift driver. The characterisation exercise requires the position, including its principal purpose, to be considered as a whole. Neither the mere performance of a particular activity nor the amount of time devoted to that activity will be determinative, though the more time devoted to that activity the more likely that the position can be properly characterised by reference to that activity 54. As observed by the Full Court of the Federal Court:55

“in applying this test one does not focus upon one aspect of an employee’s work in isolation from the totality of his or her duties.”

[194] Like all storepersons, Mr Nuske is employed, and performs work across multiple areas of the distribution centre: picking and dispatch.

[195] It is only when working in dispatch that Mr Nuske drives a forklift. This is not however his only duty when in dispatch. He also works in lane 8 and in other lanes. It is only when product needs to be loaded onto a truck or moved outside of the dispatch area into a loading bay that Mr Nuske drives the forklift. When driving a forklift, he uses a forklift provided by Blackwoods, not one associated with the transport contractor.

[196] The evidence about the amount of time Mr Nuske is required to operate the forklift is disputed. Mr Nuske estimates that he currently spends about 40% to 50% of a working day driving a forklift. This amount is not set, but in recent times Mr Nuske has been asked to drive a forklift more regularly as business picks up. Mr Nuske’s evidence is that at slower times he drives a forklift less frequently.

[197] Blackwoods submission is that Mr Nuske exaggerated the amount of time he drives a forklift. It relies on the evidence of Mr Harris 56 that Mr Nuske does not work more than approximately one third of a working day on a forklift. The evidence of Mr Harris is based on his observations whilst walking the floor of the distribution centre, and from his examination of CCTV footage of a randomly selected working day, 24 March 2021. That footage is said to establish that Mr Nuske was operating the forklift for 37% of the time across a 7.6 hour day.

[198] For different reasons, the evidence of both Mr Nuske and Mr Harris on this point needs to be approached with some caution. Mr Nuske’s evidence is impressionistic, not empirical. He accepts that the amount of time he spends on the forklift varies according to work-flow. The evidence of Mr Harris drawn from his walkabouts is not only impressionistic but also time limited. Only two or three times a week is Mr Harris on the floor, and even on those occasions his observations of Mr Nuske are peripheral not purposed.

[199] The evidence of the 24 March 2021 CCTV footage is a more empirical basis to form a view, but even that has its limits. The 37% figure calculated by Mr Harris makes no allowance for lunch or meal breaks taken that day. Taking these into account, the amount of forklift driving by Mr Nuske during rostered working time on that day would be somewhat higher (by two or three percentage points). Further, 24 March 2021, whilst randomly selected, is not necessarily typical. Mr Harris said that it was a day when the distribution centre was busier than normal, and as such, a more typical day would see Mr Nuske driving a forklift for less than 37% of the time. In response, the CFMMEU makes the valid point that the business assessed by Mr Harris is by reference to value of goods transacted outwards that day, not quantity, and that quantity would be a more accurate measure of how frequently a person operates a forklift.

[200] I have regard to both the evidence of Mr Nuske and the evidence of Mr Harris but take into account these limitations on the evidence of both. I conclude, on the balance of probabilities, that in a typical working day Mr Nuske is currently operating a forklift for between 35% and 40% of his working time but that not each day is typical. When not operating a forklift (whether a typical or atypical day) Mr Nuske is doing the other work of a storeperson.

[201] Considered overall, I do not consider the principal purpose of Mr Nuske’s position to be as a forklift driver. The principal purpose is as a storeperson working in multi-tasked functions whose duties, because of the licence he holds, result in him being the first of the storepersons tasked to operate a forklift when that is necessary. Forklift driving is an integral part of the job of Mr Nuske but not of such incidence or centrality that his position can be characterised as that of a forklift driver.

[202] For these reasons, the CFMMEU cannot rely on rule 2(E)(a) to establish eligibility.

Conclusion on eligibility

[203] I have concluded that the CFMMEU has not established eligibility to represent the industrial interests of a person in the group by reference to either its industry rules or its vocational rules.

[204] In arriving at this conclusion, I have had regard to the evidence of Ms Kruschel 57 that, in certain other distribution centres in Australia, the CFMMEU has membership and established standing to bargain for enterprise agreements. I have also considered two cases relied upon by the CFMMEU (Jeanswest and Billabong) decided by single members of the Commission58 where, following contested litigation, it was found that eligibility existed under the same TCF-related Union rules relied on in these proceedings.

[205] Whilst the principles to be applied to the interpretation and application of the Union rules are common with those applied in Jeanswest and Billabong, each matter ultimately is to be determined on its own facts. This is self-evident given an earlier decision by a different member of the Commission (also concerning Billabong) which found that the dispatch of textile products from a distribution centre did not fall within the relevant TCFUA eligibility rule 59.

[206] There are distinguishing features between this matter and each of the aforementioned decisions. Not only do the facts of each matter differ, so do the matters in issue.

[207] In the first Billabong case, the TCFUA relied on the fact of dispatch through a distribution centre of externally repaired watches, wet-suits and swim-wear. Commissioner Spencer found that this did not establish eligibility. In contrast, in the second Billabong case (a right of entry matter), the issue was whether watches and sunglasses repaired on-site were a “fashion accessory” within the meaning of rule 4(E)(v) and whether the act of re-attaching detached labels was “finishing”. Deputy President Drake found that the TCFUA established eligibility.

[208] In Jeanswest, whether re-attaching detached labels was “finishing” was again in issue (found by Deputy President Kovacic not to be so), whether the storepersons putting aside faulty items were undertaking quality control (found not to be so), whether the bundling and unbundling of orders was “preparing” or “processing” (found to be so) and whether the Jeanswest distribution centre was a factory outlet (found not to be so). In Jeanswest, the relevant distribution centre was owned and operated by a subsidiary of the parent company, which was a manufacturer in its own right.

[209] Whilst the principles of interpretation applied in each of the Billabong cases and in Jeanswest are the same as those relevant to these proceedings, the factual differences are such that the outcome of those matters cannot be determinative of this matter. This matter requires the application of the relevant Union rules relied on, properly constructed, to the factual narrative pertaining to Blackwoods Regency Park.

[210] In these circumstances, and for the aforementioned reasons, I conclude that the CFMMEU is not eligible to be a bargaining representative of a person in the group within the meaning of the FW Act. That being so, the CFMMEU has no standing to bring an application for a majority support determination under section 236 of the FW Act.

Majority support

[211] Given the above, it is not necessary to determine whether the CFMMEU has met the onus of satisfying the Commission that a majority of persons in the group want to bargain within the meaning of section 237(2)(a).

[212] However, for the purpose of completeness, and in the event that I am wrong on the aforementioned conclusion, I deal with this matter.

[213] I am satisfied, by reference to the second Union petition, that a majority of persons in the group wish to bargain.

[214] The relevant date I consider appropriate, and have determined for the purpose of section 237(2)(a)(i), is the date of filing the second Union petition (15 March 2021). Whether a majority exists is a question of fact. For the following reasons, I have accepted as probative the second Union petition which establishes the relevant fact (of a majority) as at that date.

[215] The number of persons in the group are forty-two. The second Union petition is signed by twenty-seven persons from amongst the forty-two names in the group supplied by Blackwoods. This represents a majority.

[216] I have regard to the company ballot but do not consider it to alter this conclusion. Firstly, the ballot preceded the second Union petition. Whilst not being stale, it is considerably less recent. Secondly, the company ballot did not record the views of all employees in the group. It recorded only the views of those who voted. Voting was not mandatory. Thirdly, whilst the ballot result does not establish a majority of the group, it did establish a majority of those voting, albeit a slender majority. It is a result not inconsistent with the finding I make from the second Union petition. Fourthly, whilst relevant, some caution must be had to the views expressed in a company ballot. Employees wishing to bargain may have an understandable (if not reasonably founded) apprehension of expressing a view to their employer (or apprehension as to the confidentiality of that view).

[217] Before leaving this subject it is appropriate to make some observations on the primary contention advanced by Blackwoods – that reliance on an unredacted union sponsored petition in circumstances where the respondent employer is only provided a redacted copy of the petition is procedurally unfair.

[218] When a decision in question is a statutory task, the application and content of the doctrine of natural justice or the duty to act fairly depends to a large extent on the construction of the relevant statute 60. Section 237(3) of the FW Act provides that the Commission “may work out whether a majority of employees want to bargain by using any method the FWC considers appropriate”. I accept that reaching the requisite “satisfaction” requires an evaluative assessment which should be exercised according to generally applicable judicial norms (including procedural fairness). However, the existence of section 237(3) suggests that a strict view of what is procedurally fair by reference to the conduct of courts is not necessarily the measure. Courts generally receive evidence from parties and adjudicate, not initiate or “work out” the appropriate method by which that evidence ought to be presented.

[219] That said, the evaluative exercise to be conducted under section 237 nonetheless requires procedural fairness. As noted by Colman DP in National Union of Workers v Lovisa Pty Limited: 61

“[55] Ordinarily, all material produced to the Commission by a party in a proceeding should be provided in full, un-redacted and unedited, to the other side, and only such material would be relied on by the Commission in reaching its decision. However, occasionally the interests of justice may require the Commission to take a different course. It is important then to consider how and to what extent the other party might be adversely affected and what measures can be taken to minimise any adverse effect.”

[220] Thus, there is no hard and fast rule that establishes whether reliance on an unredacted petition in circumstances where the employer is only provided a redacted version is consistent with procedural fairness.

[221] Provision of a redacted petition to an employer is common practice by the Commission in determining applications under section 236 of the FW Act and in assessing the “appropriate method” for the purposes of section 237(3). That it is common practice does not make it fair in any or every circumstance. The circumstances of each matter must be considered, including both the circumstances of the parties and the conduct of the litigation 62.

[222] In this matter, the first Union petition, by consent, was provided to the Commission in an unredacted form and to the employer in a redacted form. No demur was registered by Blackwoods at the time.

[223] In this matter, the list of names of the persons in the group were provided by Blackwoods, at the Commission’s direction and by consent, in an unredacted version to the Commission but not to the Union. Neither Blackwoods nor the Union demurred.

[224] In this matter, Blackwoods raised objection to the second Union petition being provided to it in an unredacted form. The Commission’s directions were to the effect that the employer would receive only the unredacted petition but its rights to make submissions or adduce other evidence relating thereto were preserved. In advancing its submission at the hearing that no reliance should be placed on the second Union petition given that the employer has not received the unredacted version, Blackwoods is exercising its right preserved at the time of the Commission’s direction of 12 February 2021.

[225] This notwithstanding, I am not satisfied that the provision of the unredacted version of the second Union petition to the employer, in this matter, was a denial of procedural fairness or a basis on which to not accord the second Union petition probative value.

[226] As noted by Colman DP in Lovisa, the relevant question is:

“[58] What interests of the company remain affected by a decision of the Commission to rely on the un-redacted materials that the company has not seen? What use would the company make of this information? …”

[227] In this matter, the unredacted version of the second Union petition provided the employer with the proposition (at the header of each page) that was being petitioned, and with the handwritten dates alongside the redacted names and addresses. By simple mathematics the number of separately written handwritten dates could be calculated. What was redacted were names, addresses and signatures of those who signed and dated the petition. This necessarily prevented the employer from cross-referencing the names with persons it employed and said to form part of the relevant group. It also prevented the employer from forming a view as to whether a person who signed the petition may have done so under a particular constraint (such as a disability or duress).

[228] These limitations considered, I am satisfied that in this matter, the overall interests of justice are served by the Commission, as an independent arbitrator, performing the reconciliation function, and that the limits placed on Blackwoods to test the second Union petition were justifiable.

[229] In circumstances where a first agreement is being sought, where the employer holds a view that bargaining is unnecessary and where the employer has taken the step of conducting its own ballot, it is not unremarkable that an employee may have a reasonably held apprehension about its support for a union sponsored petition being made known to its employer or fellow employees.

[230] Industrial relationships are dynamic. They exist in the real world of work, where employment, employment security and harmonious relationships matter. Whether it be membership of an industrial association or support for collective bargaining rights advanced by an industrial association, participation in these activities can reasonably be seen as controversial by some employees or managers and with potential impact on day to day work and relationships with their employer or other employees.

[231] Requiring the provision of unredacted petitions to an employer, as some general rule of procedural fairness in a contested majority support determination, is capable of dissuading employees from participating in petitions sought to be used to establish support for collective bargaining. Given that a statutory object of Part 2-4 of the FW Act is to “facilitate good faith bargaining and the making of enterprise agreements” 63, it would be undesirable, as some form of general rule, to mandate the provision of unredacted petitions to employers in contested applications under section 236 of the FW Act.

[232] Having regard to the FW Act as a whole (including Part 2-4 and sections 577 and 578), and the evidence and submissions of the parties, I do not consider it to have been appropriate to require Blackwoods to be provided with an unredacted version of the second Union petition that would divulge the identities of those who support bargaining. Nor do I consider it to have been inappropriate to rely on this evidence. I consider it fair and appropriate to have done so in the circumstances of this matter.

[233] For these reasons, were it necessary, I would find that a majority of employees want to bargain.

Conclusion

[234] As the applicant Union has no standing to bring an application for a majority support determination under section 236 of the FW Act with respect to the relevant group, there is no valid application before the Commission.

[235] In conjunction with the publication of this decision, an order 64 will be issued dismissing the application.

DEPUTY PRESIDENT

Appearances:

Mr P Dean, with permission, with Mr D Malbassa for the Construction, Forestry, Maritime, Mining and Energy Union

Mr A Longland, with Ms R Lee, with permission, for J. Blackwood & Son Pty Ltd

Hearing details:

2021.
Adelaide; by video.
19 and 20 May.

Printed by authority of the Commonwealth Government Printer

<PR730190>

 1   Email ‘Chambers-Hampton C’ 15 October 2020 10.48am

 2   [2020] FWC 6368

 3   [2020] FWC 6883

 4   PR725615

 5   A7 Statement of Jennifer Kruschel; A8 Supplementary Statement of Jennifer Kruschel

 6   A4 Statement of David Kirner; A5 Supplementary Statement of David Kirner; A6 Further Supplementary Statement of David Kirner

 7   A1 Statement of Doug Nuske; A2 Supplementary Statement of Doug Nuske; A3 Further Supplementary Statement of Doug Nuske

 8   R1 Statement of Ian Harris; R2 Supplementary Statement of Ian Harris

 9   R3 Statement of Navin Chandra

 10   Until June 2020, there had been a third party provider of embroidery services (Full Hammer) located in the Regency Park distribution centre; since then, that contractor and all other contractors of embroidery services have been located off-site

 11   CFMMEU Submissions 2 October 2020 paragraph 44

 12   IMH11 and IMH12

 13   IMH 13 and IMH14

 14   Email CFMMEU to ‘Chambers-Hampton C’ 27 August 2020 12.14pm: “This is intended only for Deputy President Hampton to verify there is a majority”.

 15   Directions 11 September 2020

 16   Email Blackwoods to ‘Chambers-Hampton C’ 18 September 2020 1.55pm

 17   Email ‘Chambers-Hampton C’ 22 September 2020 8.48am

 18   R3 paragraph 31

 19   Directions 12 February 2021 paragraph [6]

 20   Email CFMMEU to ‘Chambers-Anderson DP’ 11 March 2021 5.07pm

 21   Email ‘Chambers-Anderson DP’ 12 March 2021 12.09pm

 22   [2018] FWC 1017; [2018] FWCFB 3710; [2018] FCAFC 223

 23   [2018] FWC 1794

 24   in 1982; for a summary of the history of this rule, and in particular its proviso, see Construction, Forestry, Maritime, Mining and Energy Union v Qube Logistics (SB) Pty Ltd [2021] FWC 929 at [36] to [40]

 25   A7 paragraph 78

 26   A8

 27   A7 paragraph 92

 28   R v Aird; Ex parte Australian Workers Union [1973] HCA 53 at [9]

 29   [1973] HCA 53 at [9]

 30   The Queen v Isaac and others: Ex parte Transport Workers’ Union; The Queen v Isaac and others: Ex parte Argyle Diamond Mines Proprietary Limited and Others (1985) 159 CLR 323 at 340 per Wilson J

 31    R v Cohen ex parte Motor Accidents Insurance Board (1979) 141 CLR 577 at 587; Re Electrical Trades Union of Australia v Waterside Workers Federation of Australia (1982) 59 FLR 78 at 87; Australian Manufacturing Workers’ Union v ResMed Limited [2014] FWCFB 3501 at [34]

 32   R v Aird; ex parte Australian Workers’ Union (1973) 129 CLR 654 at 659; Co-operative Bulk Handling Ltd v Waterside Workers’ Federation of Australia (1980) 49 FLR 355 at 361

 33   R v Gough; Ex parte Municipal Offıcers’ Association Australia (1975) 133 CLR 59 at 68-69; Construction, Forestry, Mining and Energy Union v CSBP Ltd (2012) 212 IR 206 at [52]-[53]

 34   Construction, Forestry, Mining and Energy Union v CSBP Ltd (2012) 212 IR 206 at [50] – [52]

 35   King v Central Reference Board; Ex parte Thiess (Repairs) Pty Ltd [1948] HCA 9

 36   Electrical Trades Union of Australia v Waterside Workers Federation of Australia (No 2) (1982) 59 FLR 78

 37   Construction, Forestry, Mining and Energy Union v CSBP Ltd (2012) 212 IR 206 at [50]-[52]; Australian Manufacturing Workers’ Union v ResMed Limited [2014] FWCFB 3501 at [34]

 38   R v Gough; Ex parte Municipal Officers’ Association (1975) 133 CLR 59 at 69; Australian Manufacturing Workers’ Union v ResMed Limited [2014] FWCFB 3501 at [34]

 39   The Queen v Isaac and others: Ex parte Transport Workers’ Union; The Queen v Isaac and others: Ex parte Argyle Diamond Mines Proprietary Limited and Others (1985) 159 CLR 323 at 333 per Gibbs CJ, Deanne and Dawson JJ concurring

 40   Submissions 16 October 2020 paragraphs 41 to 50

 41   Textile Clothing and Footwear Union of Australia v Jeanswest Corporation Pty Ltd [2014] FWC 1024

 42   IMH13 Position Description ‘Key Responsibilities’

 43   IMH13 Position Description ‘Primary Purpose’

 44   Queen v Isaac and others; Ex parte Transport Workers Union; The Queen v Isaac and others: Ex parte Argyle Diamond Mines Proprietary Limited and Others (1985) 159 CLR 323 at 333 per Gibbs CJ, Deanne and Dawson JJ concurring

 45   A1 paragraph 10

 46   Vadain Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union [2020] FWC 487

 47   IMH 13 “External Customers: Transport Providers; Contractors”

 48   IMH13 Position Description ‘Key Responsibilities’

 49   IMH13 Position Description ‘Primary Purpose’

 50   Construction, Forestry, Maritime, Mining and Energy Union v Qube Logistics (SB) Pty Ltd [2021] FWC 929

 51   Re Coldham; Ex parte Australian Workers’ Union (1984) 56 ALR 149

 52   Carpenter v Corona Manufacturing Pty Ltd (2002) 122 IR 387 at [9]

 53   IMH 13 ‘Education/Qualifications’

 54   Brand v APIR Systems Ltd AIRC (FB) PR938031

 55   Construction, Forestry, Mining and Energy Union v CSBP Limited [2012] FCAFC 48 at [44]

 56   R2 Supplementary Witness Statement

 57   A7 paragraphs 78 to 82

 58   Textile Clothing and Footwear Union of Australia v Jeanswest Corporation Pty Ltd [2014] FWC 1024; Textile Clothing and Footwear Union of Australia v GSM Operations Pty Ltd t/as Billabong Australia [2013] FWC 3693 (‘second Billabong matter’)

 59   Re Textile Clothing and Footwear Union of Australia [2012] FWA 7906 per Spencer C (‘first Billabong matter’)

 60   Kioa and Others v West and Another [1985] 159 CLR 550 at 584

 61   [2019] FWC 2885 at [55] (‘Lovisa’)

 62   See, for example Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Kinkaid Pty Ltd t/as Cadillac Printing [2009] FWA 1123 at [13]

 63   Section 171(b)

 64   PR730191