DECISION

Fair Work Act 2009
s.185—Enterprise agreement

John Holland Queensland Pty Ltd
(AG2022/545)

Application for approval of the John Holland Queensland Pty Ltd Gold Coast Light Rail Stage 3 Project Agreement

[1] On 1 March 2022, John Holland Queensland Pty Ltd (the Applicant / John Holland Qld / JHQ) filed an application with the Fair Work Commission (the Commission) for the approval of the John Holland Queensland Pty Ltd Gold Coast Light Rail Stage 3 Project Agreement (the Agreement). The application set out that it was a greenfields agreement made under s.182(3) of the Fair Work Act 2009 (the Act).

[2] The Australian Workers’ Union (the AWU) advised the Commission on 7 March 2022 that it wished to be heard on the matter and asserts that it has a right to be heard.

[3] The Form F19 application for approval of the Agreement signed and filed on 1 March 2022 by Trent Smith, the Group Manager, states at clause 4 that the Union Bargaining Representatives for the Agreement were the CFMEU, ETU, AMWU and CEPU (Plumbers Division).

[4] The Form F20 Employer statutory declaration also signed and filed on 1 March 2022 by Trent Smith describes at clause 1.4 the kind of work to be covered by the Agreement as civil and rail construction. The statutory declaration states at clause 2.1 that the date the Agreement was made was 22 February 2022.

[5] The Agreement filed with the Form F19 and Form 20 contained an Appendix H titled ‘Endorsement of Agreement’. Appendix H included a signature of Trent Smith dated 22 February 2022 underneath the following:

“I, Trent Smith, of John Holland am authorised to sign the Agreement on behalf of John Holland Pty Ltd.”

[6] The signature of Jade Ingham dated 17 February appears below the following:

“Signed for an on behalf of the Construction, Forestry, Maritime, Mining and Energy Union

I Jade Ingham, Assistant Secretary of the Construction, Forestry, Maritime, Mining and Energy Union, Construction and General Division, Queensland Northern Territory Divisional Branch am authorised to sign the agreement on behalf of The Construction, Forestry, Maritime, Mining and Energy Union:”

[7] The signature of Gary O’Halloran dated 16 February 2022 appears below the following:

“Signed for an on behalf of the CEPU Plumbing Division

I, Gary O’Halloran, Divisional Branch Secretary of the CEPU Plumbing Division, Queensland & Northern Territory Divisional Branch am authorised to sign the Agreement on behalf of the CEPU Plumbing Division”

[8] The signature of Rohan Webb dated 18 February 2022 appears below the following:

“Signed for and on behalf of the AMWU

I, Rohan Webb, Secretary of the AMWU, Queensland and Northern Territory Divisional Branch am authorised to sign the Agreement on behalf of the AMWU”

[9] At a Directions Hearing on 16 March 2022, the AWU was directed to file an outline of submissions by 25 March 2022 including why it should be granted permission to be heard. The Applicant was to file its submissions by 4:00pm on 13 April 2022, and any other bargaining representatives to file material by 4:00pm on 22 April 2022, with AWU to file any material in reply on 6 May 2022.

[10] The AWU opposes the application on the following three grounds:

•  Ground 1: The Agreement has not been properly made in accordance with s.182(3) of the Act and cannot be subject of a valid application for approval; and/or

•  Ground 2: The CFMMEU, AMWU and CEPU (or Plumbing Division Qld of CEPU) are not, taken as a group, entitled to represent the industrial interests of a majority of the employees who will be covered by the Agreement; and/or

•  Ground 3: It is not in the public interest to approve the Agreement for the purposes of s.187(5)(b) of the Act.

[11] The matter was listed for Hearing in person on Wednesday 18 May 2022.

[12] As stated above, the AWU sought to be heard with respect to the application for approval. The primary position of AWU is that it has the right to be heard in order to ensure that the requirements of procedural fairness are met in the circumstances of this application.

[13] Mr Follett of Counsel appeared for John Holland instructed by KHQ Lawyers. Mr Massy of Counsel appeared for the CFMMEU and the CEPU instructed by Hall Payne Lawyers. Mr Gibian of Counsel appeared for the AWU instructed by Mr Crawford of the AWU. The AMWU advised my chambers by way of email on 16 March 2022 that they were unavailable on the date of the hearing but were content for the CEPU to represent their interests at the hearing. I advised the parties at the commencement of the hearing on 18 May that I had determined to exercise my discretion to grant the AWU permission to be heard including the right to cross examine witnesses. No objection from any party was made to legal representation and it was granted for all parties appearing in the matter.

[14] The AWU filed an expert report of Omar Faruqi dated 4 May 2022 1 as well as an Outline of Objection filed on 25 March 2022, and its Outline of Submissions dated 6 May 2022.

[15] John Holland filed an Outline of Argument as well as statements from Andrew Priem 2 and Trent Smith on 13 April 2022,3 and filed a further statement from Andrew Priem on 17 May,4 the day before the hearing. The AWU objected to the further statement of Mr Priem being admitted into evidence for a number of reasons including its late receipt and what were described as the making of various generalised assertions in conclusionary terms, including utilising legal language, in relation to some of the roles that were referred to in his earlier statements causing prejudice to the AWU as the material was not put in as evidence in chief. I allowed the statement in on the basis that the AWU could raise any issue as to prejudice it may suffer by the statement being admitted before closing submissions.

[16] The CFMMEU, CEPU and AMWU all filed submissions on 22 April 2022.

GROUND 1: THE PROPOSED AGREEMENT HAS NOT BEEN PROPERLY MADE

[17] In its first ground of objection, the AWU submitted that the Agreement was not properly made as it had not been signed by the CEPU, which is the “organisation” the Agreement is expressed to cover. The AWU bases this ground on ss.12 and 182(3) of the Act.

[18] Section 182 concerns how an enterprise agreement is made for both a single enterprise agreement that is not a greenfields agreement and a greenfields agreement. Section 182(3) specifically concerns how a greenfields agreement is made:

“182 When an enterprise agreement is made

…

Greenfields agreement

(3) A greenfields agreement is made when it has been signed by each employer and each relevant employee organisation that the agreement is expressed to cover (which need not be all of the relevant employee organisations for the agreement).”

[19] Section 12 of the Act defines “employee organisation” as an “organisation of employees”. The section further defines “organisation” as “an organisation registered under the Registered Organisations Act”.

[20] The AWU contended that the Agreement is expressed to cover the CEPU Plumbing Division Queensland. However, the Plumbing Division Queensland is not an “organisation” within the meaning of s.12 of the Act. The AWU argued that the relevant organisation is the CEPU, and that the CEPU had not signed the Agreement in accordance with Rule 17 of its registered rules, which provides:

“17.1 Responsibility for the Execution of Documents

17.1.1 Subject to the endorsement of the National Council, any agreement may be made, and/or document entered into, executed, varied and/or cancelled by the National Security or the National President on any matter covered by section A of these rules, after consultation and with the other National Executive Officers, or person acting in their capacity.

17.1.2 Any agreement which directly affects the employment of members of only one Division may be executed by that Division in accordance with its rules.

17.1.3 Any agreement which directly affects the employment of members of only one Divisional Branch may be executed by that Division in accordance with its rules.”

[21] The AWU noted that the Agreement was signed by Mr Gary O’Halloran (Mr O’Halloran) as the Divisional Branch Secretary of CEPU Plumbing Division, Queensland & Northern Territory Divisional Branch. The AWU submitted that Mr O’Halloran is not authorised under the CEPU’s rule to sign an enterprise agreement that affects the employment of CEPU members outside of his Divisional Branch, for example, ETU members.

[22] This position is consistent with clause 7 of the Form F21 as declared by Mr Peter Ong of the ETU where he stated, “the CEPU does not intend to sign the agreement on the basis that it does not meet its expectations…” As a result, the AWU argued that the Agreement was not properly made as it had not been signed by CEPU as the organisation expressed in the Agreement to cover. The AWU submitted that the application for approval relates to an enterprise agreement that has not been made and cannot be subject of an application under s.185(1) of the Act. It follows that the application is invalid and must be dismissed.

[23] The Applicant refuted this submission, saying that the objection is misconceived and lacking in substance on multiple levels. The Applicant raised that the asserted construction of rule 17.1 of the CEPU is incorrect, and that Mr O’Halloran had apparent authority to sign the Agreement on the part of the CEPU, such that the CEPU is taken to have signed the Agreement in accordance with its rules. 5 The Applicant further asserted that the CEPU’s appearance in this proceeding and its support for the approval of the Agreement is an act of ratification of Mr O’Halloran’s actions in signing the Agreement, such that the CEPU is treated as itself having signed the Agreement in accordance with its rules. In any case, any deficiencies in the signature requirements imposed by the Act and the Fair Work Regulations 2009, are capable of correction and/or waiver under s.586 of the Act.6

[24] The Applicant went further advising that the Acting National Secretary of the CEPU had signed the Agreement (on 8 April) for and on behalf of the CEPU, in undoubted compliance with the CEPU’s rules. The Applicant contended that the Commission is entitled to (and should) accept the newer amended signatory pages pursuant to s.586 of the Act. Upon doing so, this (erroneous) ground falls away.

[25] The CFMMEU goes further contending that the AWU’s objection of the Agreement not being properly made is without merit for three reasons. The first being that the parties to the Agreement are entitled to avail themselves of the indoor management rule in respect of whether the legislative requirement that the Agreement be signed has been discharged. As was explained by Gummow J in Australian Capital Television Pty Ltd v Minister for Transport and Communications: 7

“In a case such as the present, where the question propounded by the applicant is whether a legislative requirement had been satisfied at a particular date by what was put forward as the act of a company, and where the point is taken against the company and the party dealing with the company by a third party in proceedings to which all of them are joined, in my view the company and the party dealing with it may, in those proceedings, claim the benefit of the rule in Turquand’s case to support their case that what took place did comply with the relevant legislative requirement. This is so irrespective of what consequences might flow from a purported ratification by the company after the occurrence of events relied upon for the making of decisions as to statutory rights and duties.”

[26] The CFMMEU also referred to AWU v Leighton Contractors Pty Ltd, 8 where the Full Court considered the indoor management rule applicable to circumstances relevantly indistinguishable from these. Secondly, the CFMMEU submitted that the CEPU’s ongoing support for the approval of the Agreement operates to ratify any defect in the signing of the Agreement.9 Thirdly, and lastly, the asserted defect with the signing of the Agreement on behalf of the CEPU has been rectified with the Acting National Secretary having executed the Agreement. Therefore, the CFMMEU advised that even if there was any substance to the point, the matter has now been addressed and the AWU objection falls away.

[27] The CEPU made submissions in reference to ground 1 of the objection by AWU. The CEPU submitted that the AWU had no legitimate business in matters concerning the internal management of the CEPU and further asserted that any objection to the signing of the Agreement was negated following the filing of a signature from the Acting National Secretary of the CEPU.

[28] The CEPU also referred to s.586 and submitted that any deficiencies in the signature requirements are capable of correction under s.586 of the act and that the Commission is entitled to (and should) accept the amended signatory page to rectify the alleged deficiencies.

[29] The AMWU in their submissions, adopted the submissions and positions from the Applicant, the CFMMEU and the CEPU.

[30] Clause 1 of the Agreement is titled “Scope and application of the Agreement” and reads as follows:

“1.1 This Agreement is made under the Fair Work Act 2009 (Cth) and those covered by this Agreement are:

1.1.1 John Holland Queensland Pty Ltd ABN: (67 133 069 280) (Employer);

1.1.2 Employees employed by John Holland on the Gold Coast Light Rail Stage 3 Project (Project) for which classifications and rates of pay are prescribed by this Agreement (Employees)

1.1.3 The Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union Queensland (AMWU); and

1.1.4 The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, the Plumbing Division Queensland (CEPU); and

1.1.5 The Construction, Forestry, Maritime, Mining and Energy Union (CFMEU)

1.2………..”

[31] Mr Smith for JHQ gave evidence that on 20 October 2021 he wrote to Beau Malone of the ETU Queensland and Northern Territory – CEPU Electrical Division, Jade Ingham of the CFMEU QLD/NT Branch, and Luke Barden of the Plumbing and Pipes Trades Employees Union Qld Branch to notify them of JHQ’s intended commencement of a negotiations period for a greenfields agreement to cover work on the Stage 3 Project.

[32] Mr Smith said that on 21 October he also wrote to Steve Baker of the Australian Workers’ Union Queensland Branch, to notify him of JHQ’s intended commencement of a negotiation period for a greenfields agreement to cover work on the Stage 3 Project.

[33] Mr Smith said that following the letters to the Unions, JHQ commenced negotiations for the Agreement. Mr Smith said the AWU declined to participate and was not involved in negotiations. Mr Smith said meetings occurred on 22 October, 11 November, 29 November, 1,6,7 and 8 December 2021. He said Mr Ingham, Mr Malone, Mr Barden and he attended the meetings along with Mr Priem, Operations Manager.

[34] Mr Smith said to his knowledge and belief the PPTEU invited the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (AMWU) to participate in bargaining meetings however the AMWU did not wish to attend the meetings.

[35] Mr Smith said that the Queensland Department of Transport and Main Roads provided John Holland with its proposed Best Practice Industry Conditions for Transport – Gold Coast Light Rail Stage 3 Project dated May 2021 (BPIC) as its proposed basis for the Agreement, discussions with the Unions were extensive and many changes were made to the BPIC in order to tailor it to the Project. Mr Smith said the final agreement made between JHQ and PPTEU, CEPU and CFMEU contained substantial variations to the BPIC.

[36] Mr Smith agreed in oral evidence that at the conclusion of bargaining meetings John Holland reached agreement with the CFMMEU and the PPTEU as to the terms of the greenfields agreement, and sometime before February 2022 the ETU communicated that it did not agree to the terms of the Agreement. He agreed John Holland then prepared a signature page to the Agreement to be signed by Mr O’Halloran. He agreed this was after the meetings but during or before February.

Did the CEPU make the agreement in February and was an agreement made at all in February?

[37] The Applicant submits that the AWU submission in relation to this issue is misconceived as the AWU appears to submit that the CEPU plumbing division is not an employee organisation.

[38] It was put for the Applicant that even if the Commission were to accept that, that is not an impediment to approval, it would only have a consequence that the CEPU wouldn’t be covered. It was put that there is no obligation to have signatures of organisations not covered, it’s only signatures of those who will be covered. The Applicant confirmed its view that the Agreement was made on the last date that a signature was appended being 22 February 2022.

[39] I asked a question to Counsel for the Applicant that if it submitted that the Agreement was made in February 2022 whether the Electrical Division should be included. The query was intended to explore whether the entitlement to represent existed because of the entitlement to represent electrical workers through the Electrical Division.

[40] Counsel responded that the Plumbing Division is not an employee organisation under the Act and cannot be party to a Greenfields Agreement and it cannot be covered by any agreement. It was submitted that there are other examples of Greenfields Agreements being signed by a division of a branch of a union, however everyone proceeds on the basis that the intention was to cover the organisation because it is the only entity that can be covered.

[41] I asked Counsel for the Applicant what should be made of the Statutory Declaration of Mr Ong, the Divisional Branch Secretary of the Electrical Division saying he did not want to sign. Counsel responded that Mr Ong is not here to explain that position and that is a question best left to be addressed by the CEPU.

[42] The Form F21 completed by Mr Ong on 3 March 2022 declared that he was making the declaration on behalf of the “Electrical, Energy and Services Division, Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the ETU)”.

[43] In response to the question at clause 7 of the Statutory Declaration asking for details of how the approval of the Agreement would be in the public interest Mr Ong stated as follows:

“Whilst the CEPU does not intend to sign the agreement on the basis that it does not meet its expectations, it nevertheless agrees that it provides industrial stability and certainty to the parties to the Agreement which results in employees being significantly better off overall than relevant awards.

On this basis the CEPU seeks to be covered by the agreement and does not object to its approval.”

[44] The Applicant submitted that the Commission's traditional approach to these sorts of matters is to simply regard it as a construction exercise and to ask who is intended to be covered.  The Applicant submits that it is evidently the CEPU because it is the only organisation that can be covered, so when Mr O'Halloran is signing the document, he's signing the document on behalf of the CEPU irrespective of him putting 'plumbing division'. 

[45] The Applicant referred to the Federal Court decision in AWU v Leighton Contractors relating to greenfields agreements where Mr Peter Close purported to sign agreements on behalf of the Construction, Forestry, Mining and Energy Union Construction and General Division Queensland Construction Workers Divisional Branch and the Queensland Divisional Branch is identified as a party. It was common ground that the intended party was an employee organisation and not the Divisional Branch.

[46] The Applicant argues the same approach applies in this case as the obvious reality is that the CEPU is the only entity that can be covered. The Applicant submits the argument about Mr O’Halloran’s authority appears to be based on rules, and the Applicant submits that the rules were not construed as limited in the AWU v Leighton Contractors case with respect to the CFMEU (now CFMMEU) which were essentially similar rules identifying the authority of the national secretary and the authority of secretaries of branches.

[47] The Applicant submits Mr O’Halloran had apparent authority to act on behalf of the CEPU if one construes the reference to the Plumbing Division as a reference to the CEPU and Mr O’Halloran was purporting to act on behalf of the CEPU in signing it.    

[48] The Applicant asserts that the indoor management rule applies and relies on the decisions of Dowsett J at paragraphs 13 and 30, with McKerracher J agreeing at paragraph 35. It was submitted that it only needs to be an act of signing that is put forward as an act of the CEPU. It is submitted that once that is done what took place is taken to have complied with any relevant legislative requirement because of the operation of the indoor management.

[49] The Applicant also submitted that in any case the CEPU is now ratifying the signature of Mr O’Halloran and the act of ratification, if there was one, was Mr Setches signing the Agreement in April which was described as evidence of ratification as Mr Setches signed as the Acting National Secretary, and also the evidence and submissions of the CEPU supporting the application is itself a relevant act of ratification.

[50] The Applicant referred to paragraph 96 in the decision in AWU v Leighton Contractors which included the following:

“In any event, the CFMEU should be taken to have ratified the conduct of Mr Close. Any principle may ratify the unauthorised act of its agent. While there is no evidence of express ratification, for example by a resolution of the CFMEU's National Executive, ratification may be implied by conduct.  Conduct will be effective to ratify an unauthorised act where it is in terms sufficiently unqualified as to justify the inference that the principal intended to take responsibility for whatever transaction the agent entered on the principal's behalf, such as where the principal commences proceedings to enforce the contract effected by the agent: Halbury’s Law of Australia at [15-150]. Ratification can occur by the position taken in litigation: Bowstead and Reynolds on Agency (19th ed, 2010) (“Bowstead”) at [2-073].”

[51] The Applicant also referred to paragraphs 97 and 98 of the decision in AWU v Leighton Contractors which is as follows:

“97. Rule 31 of the National Rules entitled the National Secretary, the National President or National Assistant Secretary (or their delegates) to bring and defend proceedings on behalf of the union. These are the very office bearers who are authorised under r 30 to execute any agreement without qualification. The CFMEU appeared both in FWA and in this Court to maintain the validity of the agreement and to support the conduct of Mr Close. If, contrary to the opinions I have expressed and the conclusions reached below, he did not have authority to sign the agreements, the positions taken by the CFMEU in the litigation relating to the approval of the agreements and in this proceeding operated to ratify his acts. The effect of the ratification is that the agreements are valid ab initio: Alexander Ward at 678, 683. The agreements were therefore made on the days they were signed and there can be no question that the Senior Deputy President had jurisdiction to approve them. In Re Construction Forestry Mining Energy Union: Ex parte WJ Deane & Sons Pty Ltd (1994) 181 CLR 539 the Full Court of the High Court explained:

There is authority for the proposition that, where an act is done in the name of or on behalf of another (“the principal”) by a person who has no authority to do that act, the principal, by ratifying the act, may make it as valid and effectual as if it had been originally done with the principal’s authority, whether the person doing the act was exceeding his or her authority or had no authority at all. Central to the proposition is the retrospective or retroactive effect of the ratification; the act done is put in the same position as if it had been authorised antecedently.

98. As the authors of Bowstead put it (at [2-048]), ratification should be regarded as providing a normal case of agency but one in which the intention of the parties is given effect retrospectively. Ratification must occur within a time that is reasonable in all the circumstances. Here, it appears the AWU’s position was made known to the parties within a couple of weeks of the signing of the agreements and ever since the CFMEU had stood by them.”

[52] The Applicant submitted that there is a corresponding provision in the CEPU's rules at rule 18.1 that authorises the national secretary to bring and defend proceedings. The Applicant submitted that if the Commission accepted that  Mr O'Halloran's act was an act of agency, the agreement was made when he appended his signature in February 2022.

[53] The Applicant submitted that if that argument is not accepted but that the Commission accepted that the CEPU has now ratified Mr O'Halloran's conduct, the act of ratification gives validity to the action of Mr O'Halloran when he did it. 

[54] Mr Massy wished to emphasise that his appearance in the matter for the CEPU was on behalf of the CEPU and not a particular branch. Mr Massy described the description of the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, the Plumbing Division, Queensland, at 1.1(4), as a misnomer.  He submitted that there is no juristic person which answers that description.

[55] Mr Massy posed the question that as a matter of construction focussing on the text, did the parties objectively intend to make an agreement with the CEPU or did the parties intend to make an agreement with a party not known to the law and that couldn't be made.  Mr Massy submitted that the answer is obvious, and objectively construing the terms of the agreement the parties intended to make an agreement with the juristic person. Mr Massy submitted that the parties intended to refer to the registered organisation.

[56] I raised with Mr Massy that this case may be distinguishable from the AWU v Leighton Contractors matter as in that matter there was not another part of the CFMEU saying they did not want to part of the Agreement. Mr Massy disputed that was the case, and submitted he was appearing for the CEPU and the position expressed by Mr Ong in February or March is not the position of the CEPU, and the fact of Mr Ong saying he didn’t think the union should be party to the Agreement is not relevant where there has been an act from the CEPU complying with the statutory requirement.

[57] In the alternative, Mr Massy submitted that the issue of ratification defeats the AWU contention which is evidenced by the CEPU supporting the approval in these proceedings and Mr Setches the Acting National Secretary of the CEPU signing the Agreement in April.

[58] The CEPU referred to a High Court decision in the matter of Davison v Vickery's Motors and page 19 of that decision in Isaac J’s judgement which reads as follows:

“The basic assumption of the case cannot, therefore, in my opinion, be supported. But once the act of the professing agent is adopted, the effect of adopting it is expressed in the maxim Omnis ratihabitio retrotrahitur et mandato priori aequiparatur. On the assumption that the Company has itself purported to ratify, the following propositions are all that are necessary in this case: - (1) The general rule is that no person can become a party to a bilaterial contract unless he enters into it personally or by an authorised agent. (2) An exception is recognised where a person ratifies an agreement made by another as for him but without his antecedent authority. (3) On ratification, and not before, the agreement is as a general rule deemed by a fiction to have been made by the antecedent authority to the person actually making it. (4) Fictions, however, are not arbitrary. They are not allowed to work an injury; their operation is to prevent a mischief or to remedy an inconvenience that might result from the general rule of law. (5) Where, therefore, an injury would be caused by the operation of the fiction, it cannot be invoked to alter the general course of the law. (6) An injury would be caused in this case certainly by the known basis of the agreement having disappeared followed by the withdrawal of Davison from the agreement.”

[59] Mr Massy submitted for the CEPU that the effect of the High Court decision is that once the matter is ratified it is ratified from the time of the act of the agent.  On that basis the CEPU submits that what ratification has done here is not signing the Agreement again or making the Agreement anew but endorsing Mr O'Halloran's signing of the Agreement.

[60] Mr Massy submitted that in any event because there is no debate that the CEPU through both of its branches participated in the negotiation for the Agreement, that is sufficient to make the CEPU a bargaining representative for the purposes of section 177.  Through both of its branches it has now applied to be covered by the Agreement and would be entitled to be covered by the Agreement because it was a bargaining representative.

[61] I noted an odd feature at clause 7 of the Form F21 Statutory Declaration filed by Mr Ong, was that he said the CEPU did not intend to sign the Agreement, however the CEPU seeks to be covered by the Agreement and does not intend to object to its approval. Whilst none of the parties spent any significant time on what was to be made of this language, Mr Massy made brief reference to it in oral submissions. It appears from the language as if Mr Ong may have been under a misapprehension that the Electrical Division could avail itself of the entitlement that exists under section 183(1) for an employee organisation that was a bargaining representative to give the Commission written notice stating the organisation wants the enterprise agreement to cover it, however that would seem surprising given Mr Ong is a very experienced Union official and it may also have been an administrative oversight.

[62] Mr Massy did submit that section 187(5)(a) isn’t concerned with organisations who are a party to the agreement, but it is concerned with organisations who will be covered by it, and so ultimately the CEPU eligibility is still relevant for the question of compliance with 187(5)(a).

[63] The AWU submits the circumstances here are novel and distinguishable from cases where power under section 586 has been exercised and is also distinguishable from the AWU v Leighton Contractors case.   The AWU submits that in this case JHQ commenced bargaining for a greenfields agreement, based on the correspondence on 20 and 21 October, separately addressing the ETU Queensland and Northern Territory - CEPU Electrical Division, and the Plumbing and Pipe Trades Employees Union, Queensland Branch.

[64] The AWU submitted that the evidence is bargaining meetings occurred as Mr Smith described, involving separate representatives of both of the ETU and the Plumbing and Pipe Trades Employee's Union, and the outcome of that bargaining was that the CFMMEU and the Plumbing and Pipe Trades Employees Union agreed to the terms with the company and the AMWU subsequently signed as well. 

[65] Before the Agreement was made and signed by those organisations, JHQ was informed and aware that the ETU on behalf of its membership, did not agree to the terms.  Mr Smith, or someone within JHQ then formulated the Agreement for signature including the indication at clause 1.1.4 that the Agreement would cover the CEPU Plumbing Division, Queensland

[66] The AWU submitted that the signature page was prepared by Mr Smith and indicated that at the top of page that Mr O'Halloran was to sign as Divisional Branch Secretary of the CEPU Plumbing Division Queensland & Northern Territory Divisional Branch as authorised to sign this Agreement on behalf of the CEPU Plumbing Division, and that was who it was understood by JHQ was signing, in the circumstances in which the ETU had said it did not agree to the terms that Mr O'Halloran was being asked to sign.

[67] The AWU submitted that the circumstances are not merely as it was in AWU v Leighton Contractors of whether the individual who had signed had authority under the rules.  It is more fundamental that the agreement was not made and did not purport to be made with a registered organisation at all, contrary to the requirements of section 172(2)(b). 

[68] The AWU submitted that in addition to that, Mr O'Halloran did not, and nor did he purport to sign on behalf of the CEPU as a whole, in circumstances in which it was well understood the Agreement would have implications or would affect members beyond the Plumbing Division, mainly those within the Electrical Division, the ETU having been incorporated in the negotiations. The AWU referred to rule 17 of the CEPU’s registered rules set out earlier in this decision.

[69] The AWU submits in those circumstances, no greenfields agreement was made, because it was not signed with the organisations it purported to cover, and even if it was, Mr O'Halloran didn't have authority to execute the Agreement.  As the application for approval relates to an enterprise agreement that has not been made and cannot be subject to an application under s.185(1) of the Act, it follows that the application is invalid and must be dismissed.

[70] AWU submits that this outcome has been attempted to be avoided by reference to either a concept of apparent authority that everyone believed that despite the ETU having advised that it didn't agree with the Agreement, everyone thought that Mr O'Halloran was speaking on behalf of the whole of the CEPU and had apparent authority to do so. 

[71] The AWU submits that given Mr O’Halloran signed the Agreement on behalf of the Plumbing Division where it states that is the basis on which he was authorised to sign, and everyone was aware that the other division of the CEPU did not agree.  The AWU submitted that it is obvious that it is not open to conclude that Mr O’Halloran was signing on the basis of apparent authority to sign on behalf of all of the CEPU as his obvious intention was to only sign on behalf of the plumbing division.

[72] The AWU submitted that in regards to apparent authority, whether generally or in reliance upon section 793 of the Act, apparent authority could not be relied upon here, where negotiations were conducted separately with the Plumbing Division and the ETU.  JHQ understood it was negotiating with the two divisions and understood it was negotiating separately and was on notice at that very time and prepared the signature page and the coverage provision entirely on the basis that it understood the Electrical Division did not agree.

[73] The AWU submitted that it is plain that that is a distinguishing feature from the circumstances in AWU v Leighton Contractors.  The AWU referred to paragraph 82 and 83 in Justice Katzmann's judgment. Section 793(1) of the Act is set out as follows:

“793 Liability of Bodies Corporate

Conduct of body corporate

(1) Any conduct engaged in on behalf of a body corporate:

(a) by an officer, employee or agent (an official) of the body within the scope of his or her actual or apparent authority; or

(b) by any other person at the direction or with the consent or agreement (whether express or implied) of an official of the body, if the giving of the direction, consent or agreement is within the scope of the actual or apparent authority of the official;

is taken, for the purposes of this Act and the procedural rules, to have been engaged in also by the body…”

[74] The AWU submitted that apparent authority depends upon the circumstances of the case and in AWU v Leighton Contractors at paragraph 88 her Honour set out as follows:

“There is no doubt that Mr Close signed the agreements on the union's behalf as he did so in the course of the affairs or activities of the CFMEU (see Walpan Pty Ltd v Wallace (1985) 8 FCR 27 at 37).  Although he purportedly signed them on behalf of the divisional branch, the evidence was that this was an error and the AWU appears to have accepted that.  The negotiations were conducted on the CFMEU's behalf.  Mr Close's signature was placed on the agreements to certify its consent, not (or not only) the consent of the divisional branch.”

[75] The AWU submitted the conclusion above in AWU v Leighton Contractor’s is not available here as there is no suggestion, or evidence to support such a conclusion and the evidence is Mr O'Halloran was not signing on behalf the CEPU as a whole and that the ETU did not, in fact, agree at all.

[76] The AWU submitted that the second basis upon which the conclusion that the Agreement was not made, is sought to be avoided, is by way of a correction or amendment under section 586, and reliance is placed upon authorities which are said to allow amendments to a signature page of an agreement under section 586 to permit amendments.  It was accepted that the decisions relied upon in this respect were in relation to regular enterprise agreements, not greenfields agreements. 

[77] The AWU submitted that in those cases the agreements had been made by vote and it was accepted they were made. The AWU referred to a passage in Full Bench decision Construction, Forestry, Maritime, Mining and Energy Union v Griffiths Cranes Pty Ltd 10 at paragraphs 41 as follows:

“The scheme of the Act as we have described above mandates that once an agreement has been made under s.182(1), a bargaining representative for an agreement must make application to the Commission for its approval within the prescribed (or extended) time. The requirement in s.185 that an application for approval of an agreement be made within 14 days is in our view a clear signal that the legislature intended that once an agreement is 'made' it must come to the Commission for consideration of approval. An application for an approval is to be made in accordance with the Act. But an application that is unaccompanied by one or more of the instruments required by s.185(2) (or in the case of a signed copy of the agreement that does not meet the requirements of reg 2.06A) is an application that is not made in accordance with the Act.”

[78] The AWU submitted it is clear that what the Commission was dealing with an agreement which had been made.  The legislative structure which dictated that an agreement which had been made or properly come before the Commission for consideration and merely a non-compliance with the signature requirements dictated by the regulations.  The AWU noted at paragraph 45 of the decision that a supportive consideration in favour of permitting the amendment to the formal requirements or waiver of the irregularity was the statutory purpose of requiring a bargaining representative to apply for approval, is that an agreement made is not to be treated as a nullity merely because a bargaining representative could not comply with the formal requirements in 185(2).

[79] The AWU submitted that none of that reasoning supports the proposition that there can be an application in relation to an agreement which had not been made and that it would be the subject of rectification or amendment under section 586. 

[80] The AWU submitted that the third basis that is sought to be relied upon is ratification and there's reference to ratification in AWU v Leighton Contractors and the Applicant referred to paragraphs 96 and 97 of that decision. The AWU submitted that the circumstances that were said to give rise to ratification in AWU v Leighton Contractors were circumstances in which an agent, an unauthorised agent had purported to execute an agreement on behalf of the principal and the principal could subsequently ratify that conduct.

[81] The AWU submitted that the difference here is that Mr O'Halloran did not purport to make the Agreement on behalf of the CEPU, nor was he understood to attempt to make the agreement as an agent.  If he had done so and the sole defect was one of authority which was the circumstance found with Mr Close in Leighton Contractors then the principal ratification would be capable of application.  The AWU submitted that it does not allow ratification of something which was never purported to be done in the first place as Mr O'Halloran did not purport to sign the Agreement on behalf of the CEPU as a whole.  The AWU submitted that he purported to do so erroneously, on behalf of the Plumbing Division, because the circumstances were that the other relevant division of the CEPU did not, in fact, agree.

[82] In reply oral submissions, the Applicant submitted that if the Commission forms the view that the Agreement was objectively intended to cover the CEPU as the registered organisation, the only legal entity that could be a party to the Agreement and the only legal entity that exists, then that has an influence on how one assesses the agency question as well as the ratification question.

[83] The Applicant submitted that if the Commission forms the view that the CEPU is, as the organisation, not covered by the Agreement, that doesn't mean the Agreement hasn't been made.  The Agreement has unarguably been made with the employer, the AMWU and the CFMMEU.  That flows from section 182(3) of the Act.  That is a greenfields agreement that is made when it is signed by each employer and each relevant employee organisation that the agreement is expressed to cover.  The Applicant says if the Commission forms the view that the Agreement is not expressed to cover the CEPU, it doesn't matter whether they signed it; they're just not covered by it.

[84] Mr Massy submitted that it is abundantly clear that the CEPU wanted to be covered by the Agreement, and he referred to Mr Ong’s Form 21 Statutory Declaration which says the CEPU wishes to be covered by the Agreement.

[85] In reply, Mr Massy submitted the argument that Mr O’Halloran did not undertaken his actions on behalf of the CEPU misapprehends that the Plumbing Division is an administrative unit of the body corporate and when Mr O'Halloran acts on behalf of the Plumbing Division, he is acting on behalf of the body corporate. 

[86] Mr Massy submitted that there is no separate legal personality attaching to the Plumbing Division and Mr O’Halloran cannot act on behalf of something that does not exist.  Mr Massy submits that when Mr O’Halloran says he is acting on behalf of the Plumbing Division, he is acting on behalf of the CEPU. Mr Massy submitted that regardless of the ETU position at the time, the agent of the body corporate Mr O’Halloran has acted on behalf of the body corporate and now the body corporate has ratified that act and that is sufficient for there to be an agreement which the CEPU has made.

Conclusion on whether CEPU made an agreement in February and whether an agreement was made at all in February

[87] The difficulty for the case of Applicant, the CEPU and the CFMMEU as it pertains to the argument that the CEPU made the agreement in February, whether by force of agency, apparent authority, section 793 of the Act or ratification, is that it is sufficiently clear the act that Mr O’Halloran intended to undertake, was that of purporting to sign the Agreement on behalf of the Plumbing Division of the CEPU and not for other divisions of the CEPU, or put another way, for the CEPU more broadly. Whilst I appreciate the argument as put that Mr O’Halloran could not do what he appeared to purport to do, and therefore must have intended to sign for CEPU, it is sufficiently clear from the evidence that his understanding was that he was signing for the Plumbing Division alone, and it is clear Mr O’Halloran was not purporting to sign the Agreement on behalf of the Electrical Division and the Plumbing Division, or for the CEPU generally or at large.

[88] Because I have found Mr O’Halloran was purporting to sign the Agreement on behalf of the Plumbing Division and no one else, the indoor management rule does not apply as the subsequent signing of the Agreement by Mr Stetches was not an act seeking to ratify Mr O’Halloran’s act, it was an act seeking to do something entirely different, which was to sign on behalf of the CEPU covering both divisions who would be covered by this Agreement. The acts are two different acts with different intentions as is made clear by the Statutory Declarations of Mr O’Halloran and Mr Ong, and clause 1.1, and Appendix H of the Agreement.

[89] Whether the argument is based on apparent authority or ratification, I have already concluded that Mr O’Halloran did not purport to make an agreement in February 2022 for the CEPU and only intended to make an agreement for his division of the CEPU. On the basis of that conclusion, the submissions regarding either apparent authority or ratification fail because it is not possible for the CEPU to ratify an action which has not occurred, that is purporting to sign for the CEPU.

[90] The argument as it pertains to section 793 of the Act fails because it is clear in reference to the language in section 793(1)(a) that the conduct engaged in, must be within the scope of his or her actual or apparent authority and Mr O’Halloran did not have actual or apparent authority to sign an agreement on behalf of the Electrical Division of the CEPU or the CEPU generally. In respect of section 793(1)(b) there is no evidence that anyone within the CEPU had directed, or consented, or agreed for Mr O’Halloran to sign the Agreement on behalf of the CEPU generally including for Mr Ong’s division at the time that he signed the Agreement in February.

[91] There is force however to the submission made by the Applicant and Mr Massy that despite the CEPU not having made an agreement in February 2022, an agreement was made between the Applicant, the CFMMEU and the AMWU before the Application was filed on 1 March 2022. The words in section 182(3) provide that a greenfields agreement is made when it has been signed by each employer and each relevant employee organisation that it is expressed to cover (which need not be all of the relevant employee organisations for the agreement), and on the evidence that is what occurred as the entity that Mr O’Halloran purported to sign the Agreement for, and as is described at clause 1.1 of the Agreement is not a relevant employee organisation. What flows from that is dealt with further below.

Alamo Submission

[92] In what the Applicant submitted was its Alamo submission, it said if the Commission were to rule against the Applicant on its earlier submissions and then look at the act of Mr Setches signing the Agreement, then the Agreement was made on 8 April 2022, and that is a mere procedural defect.  That is, that the application for approval has been made before the Agreement itself was made.  The Applicant submitted that is an irregularity in the way in which compliance with the statutory requirement has occurred.

[93] The Applicant relied upon a decision of the Full Bench of the Commission in Construction, Forestry, Maritime, Mining and Energy Union v Griffith Cranes Pty Ltd 11 and paragraph 43 of that decision in respect of the operation of section 586(b) of the Act. The relevant part of the decision reads as follows:

“[43] In the context of its use in s.586(b), the ordinary meaning of “manner” is “a way in which a thing is done or happens”. “Irregularity” is “a defect, failure, or mistake” or a “departure from a prescribed rule or regulation.” Taken together, their use in s.586(b) connotes a failure to comply with or a departure from a prescribed requirement in the way in which an application permissible under the Act is made; that is, an irregular way in which an application is made.”

[94] The Applicant submitted that it is irregular to file an application for approval of an agreement before it's made.  The Applicant submitted that the Commission would therefore have power under s.586(b) if the Commission thought necessary to regard the Agreement as being made on 8 April and that the irregularity with the fact that the application precedes that as being waived.

[95] The AWU submitted that if the Agreement were made by being signed by Mr Setches on 8 April that would mean that the Agreement was made after the application for its approval was made on 1 March (a period approximately five weeks after it was filed and six weeks after it was purported to have been made). The AWU submits if reliance has to be made on the signature of Mr Setches it is an agreement made after the application for its approval, and the proper course would be to make an application for approval of that agreement if that is what is said to be its content.

[96] The AWU submitted that no submission in writing had been advanced to this effect, but the Applicant did say in the hearing that section 586 could be relied upon to, presumably 586(b) to waive any irregularity in permitting an application to be made.  The AWU described this as waiving an irregularity concerning an application that was made before the agreement itself had been made to which the application related. 

[97] The AWU submitted that it did not know of any authority for an application being filed in the Commission prior to the agreement having in fact been made, and there is no precedent for that having occurred in the context of a greenfields agreement or enterprise agreement of any other nature and it would be very surprising if that were permitted to occur. 

[98] The AWU submitted that course would have a range of consequences, one of which is the time for considering whether in fact, the agreement was a greenfields agreement would change. The AWU drew the Commissions attention a Full Bench decision of the Commission in the matter of Mihajlovic v Lifeline Macarthur (2014) 241 IR 142 in relation to an unfair dismissal application which had been made before the dismissal took effect.  The Full Bench accepted in that instance that it wasn't a valid application, but it was an irregularity that was potentially capable of being waived under s.586(b) in that context. 

[99] The AWU submitted in this case it would change the whole of the dynamic of the consideration the Commission is required to make, and even if it were available the Commission should not waive the irregularity in that respect.  The AWU submitted that the agreement should be made, and then a further application should be made, if that's the course that the other parties choose to adopt.

[100] The AWU submitted that Mr Setches ultimately signed the signature page in response to the AWU submissions in this very proceeding which was already halfway through preparation.

[101] The Applicant submitted in response that there is not a statutory criterion that differs except regarding whether employees had been employed before the agreement is made and the unchallenged evidence is that had not occurred before 8 April.

[102] The Applicant submitted that the decision referred to by the AWU in Mihajlovic v Lifeline Macarthur is authority that the early lodgement of an application is an irregularity within the meaning of section 586. The Applicant said that otherwise a new application could be refiled tomorrow based on an agreement made on 8 April, and with a request for an extension of time simply to deal with this technical point.

[103] Mr Massy submitted that even if an agreement was not made with the CEPU (in February) an agreement was made between JHQ and the CFMMEU and there is still a valid agreement and the AWU offers no answer to the fact that the CEPU seeks to be covered by the Agreement, if it is not a party to it.

[104] Mr Massy responded to the AWU submission that if an Agreement was made in April, the Commission shouldn't exercise its discretionary power, by saying the AWU did not say why any of those enquiries would need to be made or why it wasn't appropriate.

[105] Mr Massy drew attention to the evidence of Mr Priem that nobody has yet been employed, because they're waiting for the Agreement to be approved, so there's no suggestion that any of the mandatory requirements for there being a greenfields agreement aren't met, or couldn't be addressed on the material that's presently before the Commission, and there is no reason why compliance with the requirement that the application be made after the agreement was made could be waived.

[106] Despite having found the CEPU had not made an agreement in February 2022, I am satisfied an agreement was made between the Applicant, the CFMMEU and the AMWU at that time. Having reached that conclusion, it is the Agreement made between the Applicant, CFMMEU and the AMWU which is the Agreement currently the subject of these proceedings before the Commission.

[107] As far as I understand the Alamo submission made in the alternative, it appears to be that a fresh greenfield agreement was made between the Applicant the CFMMEU, AMWU and CEPU on 8 April, and it can only be presumed if I have properly comprehended the submission, that the new agreement made on 8 April should be treated by the Commission as being a fresh application, which can be entertained because of powers available under section 586.

[108] Prior to having to rely on the Alamo submission, given submissions were made to the Commission that it was open for the Commission to find an agreement was made in February between the Applicant, the CFMMEU and the AMWU (as I have done), there were no specific submissions regarding the impact of such a finding on the Alamo submission.

[109] In any event, I have concluded that the correct approach is to proceed to deal with the application that I have found is the application currently before the Commission, which is the application for approval of the greenfields agreement made between the Applicant, the CFMMEU and the AMWU in February.

[110] I have concluded on the basis of the evidence before me that there is currently no separate application before the Commission for approval of a greenfields agreement made between the Applicant, the CFMMEU, AMWU and the CEPU on 8 April, as there has been no suggestion that the application filed on 1 March has been withdrawn. That is not to reach a conclusion as to whether such an agreement has been made between the parties, only that if it has been made, it is not yet the subject of an application before the Commission. On that basis I have determined it strictly unnecessary to deal with the Alamo submission any further.

[111] For completeness however, it may be of assistance to indicate to the parties that if I am wrong about the application that is before the Commission, and there is an application before the Commission for approval of a greenfields agreement filed on 1 March, but not made until 8 April between the Applicant, the CFMMEU, CEPU and AMWU that I was required to deal with, then I would not have exercised my discretion under section 586(b) to waive an irregularity in the form or manner in which an application is made to the Commission.

[112] I am unaware of any precedent for allowing an enterprise agreement to be filed before it has been made. If the submission that an agreement was made on 8 April is correct, then the agreement would have been made 5 weeks after it was filed. That goes beyond the nature of an irregularity ordinarily contemplated as falling within the ambit of section 586(b) and the proper course if the parties wish to press the agreement for approval, is to make an application to do so noting of course that such an application would be out of time.

GROUND 2: MAJORITY COVERAGE

[113] Given I have concluded that there is an application for approval of an agreement before the Commission made between the Applicant, the CFMMEU and the AMWU, it is necessary to deal with the second limb of the AWU objection. For completeness, I will address the submissions on the basis of both the scenarios where the CEPU is and is not a party.

Evidence on majority issue

[114] In his first statement Mr Priem said he was the Infrastructure Manager for JHQ. Mr Priem completed a Bachelor of Mechanical Engineering at Central Queensland University in 2005 and has been employed at JH Group since 2005 and has held his current position since October 2016.

[115] Mr Priem said that although the purported coverage of the Agreement gives JHQ the capacity to employ a wide range of employees covered by the classifications in the Agreement, JHQ intends to self-perform parts of the work by employing a limited number of employees under the Agreement, and it then intends to outsource the remainder of its works on the Project.

[116] Mr Priem said that as a tier one contractor, John Holland Group entities (including JHQ with respect to this Project) generally outsource a large portion of the work having regard to the overall volume of work, the ability to package sections of the work, accessibility to, and specialisation of skills required to deliver the Project, within the timeframes and pricing required to successfully achieve the Project.

[117] Mr Priem said that a forecast of the anticipated amount of work which is likely to be outsourced verses how much work is expected to be self-performed is made at the time that JHQ tenders for work so as to be able to settle, among the variety of pricing factors, the final bid to not only win the tender but then to also deliver the project.

[118] Mr Priem said that having regard to the factors above, at the time of making the Agreement, JHQ expected, and it currently continues to expect, that it would outsource approximately 40% of the work to be performed on the Project.

[119] Mr Priem said as to the amounts of work to be self-performed, the initial step as part of the tender was to forecast labour hours across the various types of functions to be performed by JHQ on the Project. Mr Priem said that the number of labour hours across these functions has since been translated to the expected headcount that will be required having regard to when the work needs to be performed in terms of the program of construction of the Project, and the expected durations of those types of work.

[120] Mr Priem said that JHQ has determined that it expects to directly employ approximately 366 employees over the life of the Project, subject to the timing and finalisation of the Agreement. Mr Priem provided a table which he said set out the specific classifications and number of employees that will be employed in the relevant classifications of the Agreement.

[121] Mr Priem also provided as an attachment to his statement setting out tables that provided forecasts of FTE numbers by work package, discipline, role title and classification as well as a forecast of roles in delivery summary.

[122] The AWU provided an expert report prepared by Mr Omar Faruqi. Mr Faruqi is a civil engineer with over 35 years of experience in the planning, design and construction of infrastructure and transport works.

[123] Mr Faruqi is a Transport Infrastructure expert with extensive experience in design, planning, procurement, construction, and maintenance of building and infrastructure projects for public and private sector clients across a broad range of industry sectors including road, rail, tunnel, marine, power, and water. Mr Faruqi provided an extensive curriculum vitae with his report.

[124] Mr Faruqi provided a detailed description of the projected required employees to complete the stage 3 of the light rail project. This description disputed the forecast provided by Mr Priem.

[125] Questions that Mr Faruqi was asked to address in preparing his report included:

(a) What are the different scopes of work that will be required to complete the Stage 3 Project?

(b) What classifications of workers will be required to complete each scope of work for the Stage 3 Project? Please provide a separate response for each scope of work.

(c) For each type of classification identified above in (ii), what is an estimate of the total number of workers that would be required? Please provide a separate response for each scope of work.

[126] Mr Faruqi provided Table 1 in Appendix 4 of his report in answer to question (a) above, Table 2 in Appendix 4 in answer to question (b) and Table 3 in Appendix 4 in answer to question (c). Each of the Tables goes into detail in regard to the activities to be undertaken, the classifications of workers required and the projected number of full-time equivalent employees required for the activities described.

[127] Mr Faruqi’s report concluded that in order to complete the project within a three-year time frame, the scope of works relating to on site construction activities needs to be completed within a period of approximately 24 months, and this compressed time frame requires an estimated 809 FTE to complete the planned works.

[128] In his second statement Mr Priem referred to the list of classifications in his first statement and said that the jobs listed in the table are the substantive job activities (and principal purpose) that employees employed by JHQ in those roles will be employed to perform and for which they will earn their wages under the Agreement.

[129] Mr Priem said that the sequencing and staging of work on the Project has primarily been planned with regard to the logical progression of the work (e.g relocating and replacing underground services before proceeding to pavements and above ground works etc), the extent of the physical and network constraints in the corridor (e.g the extent to which they are able to close roads or work to the network constraints of utility providers) and client requirements.

[130] Mr Priem said that from that optimised program, they then estimated the resourcing for the completion of the works on the basis that this program is best achieved in terms of time, cost, quality and safety outcomes by way of dedicated roles with specialist skills and experience. Mr Priem said that it is for this reason that they have forecast the special/dedicated roles as set out in his first statement.

[131] Mr Priem gave the example of plant operator roles, where he said these employees will be employed principally to be specialist operators of that specific plant class. He said this is because the plant operation work is complex and hazardous, and therefore JHQ is only engaging those roles as specialist/dedicated roles.

[132] Mr Priem said this is the same for the great majority of other roles on the Project, in that the employment of the employees within them will be for the principal purpose of undertaking the specific roles as described in his first statement.

[133] Mr Priem gave a further example as follows:

(a) The formwork and concreting works require specific skills and experience for constructing and stripping formwork or placing and finishing concrete such as for the roles of formwork labourer, concrete gang and concrete float hands; and

(b) Similarly, the employees in the overhead wiring roles will be specifically employed for that purpose due to the specialist skills and experience required and the potential hazards of the electrical work involved.

[134] Mr Priem said in response to the report of Mr Faruqi that it overestimates the number of people that will be employed because JHQ’s significant factors in planning have been prepared to include;

(a) The duration of construction activities on the Project;

(b) The extent to which the design and sequencing of particular work fronts/sections is planned for the most efficient completion of the work as distinct from the mere number of work fronts to be used (JHQ now expects there to be 9 work sections);

(c) The proportion of work to be contracted out versus the amount to be actually self-performed; and

(d) The extent to which one only counts the internally employed roles to be covered by the Agreement as opposed to those other directly employed roles which are not covered by the Agreement in arriving at a relevant total number of employees.

[135] Mr Priem said construction will not be completed within the 24-month construction timeframe as assumed by Mr Faruqi. Rather, he said completion of construction is scheduled for January 2025, with overall Project completion (including commissioning) scheduled for 17 July 2025. Mr Priem said that this longer timespan means that less employees are forecast to be employed over a longer period, rather than needing to employ more people to finish work within a shorter timeframe as estimated by Mr Faruqi.

[136] Mr Faruqi in oral evidence said Mr Priem’s evidence agrees with his timeline that construction activities finish in January 2025 and, he said for them to commence, you need six months of design approvals so that leaves you 24 months.  Mr Faruqi agreed that a longer time frame would result is less people being employed.

[137] Mr Faruqi was asked to indicate whether a three-month or a six-month longer period would have a significant effect on the total number of employees. He responded that based on the latest advice, it is still a 24-month construction program however if it went from 24 to 26 (months), the decrease would be marginal. He said maybe 10 per cent.

[138] In oral evidence in chief Mr Priem was asked by reference to the conclusion of the construction scheduled for January 2025, how long is the construction process scheduled for and he answered approximately 34 months in total, finishing in January.

[139] Mr Priem said preparatory works need to be done before construction commencing and he said the designs were ongoing and commenced in June last year. He said there can be overlap between design and commencement of construction. Mr Priem said at this stage design is forecast to finish around September (2022).

[140] It was put to Mr Priem that there is less than 34 months between now and January 2025 and he said construction commenced at the end of March. He said onsite set-up had started and said there are workers there working on the site set-up, setting up fencing and the like. He confirmed that no employees had yet been directly employed pending the outcome of this matter.

[141] Mr Priem was asked if the reason why JHQ chose to include the wide range of classifications or the wide range of employees, was to give John Holland flexibility through the project to employ anyone in those roles as and when it becomes necessary. Mr Priem agreed, saying within reason, yes. He agreed that as the project goes along, there will be decisions made about what works are most effectively or efficiently or cost-effectively done directly or contracted out. The following question was put to Mr Priem:

“That is, you haven't made, at this stage, concrete decisions about each and every part or which particular works will be contracted out and which will be self-performed? ---So, whilst it will be reassessed, our tender and therefore our contract price is based on an assumption of what we will self-perform and subcontract.” 12

[142] Mr Priem agreed that the 40 per cent figure was an overall assessment of what he thought is possible based on past experience of other projects, skills availability and the like. Mr Priem agreed skills availability referred to what was able to be contracted out and what was able to be performed directly depending upon the availability of plant and equipment to hire and a number of factors.  Mr Priem said it gets reassessed at the time. He agreed this would include availability of contractors who are considered appropriate and skilled to do the particular work and the availability of direct hire employees to do particular work. Mr Priem said it was not JHQ’s preference to use labour hire and as a rule they try and avoid it, but it is generally a necessary evil as far as peaks and troughs go. His current assessment was 5 or 6 per cent labour hire. Mr Priem said the 40 percent outsourcing was based on the scopes that they intend to subcontract, versus the scopes that they self-perform.

[143] Mr Priem agreed they do not have arrangements to outsource the specific works but expect they would look to outsource if that proved to be the viable alternative at the time. Mr Priem said the tender is based on their contract prices, so it is a change if they need to go away from that, and it's very much the plan to do that, to deliver it in that way. He agreed that JHQ may turn out to contract out particular work or not, depending upon the way in which the contract plays out. He added also referred to the timing within the market, however there are certain works that JHQ would never self-perform. He gave the example of asphalting. He later added directional drilling as another example, as well as several landscaping type activities that have specialist people that it would not be worth their while to get.

[144] Mr Priem was asked about excavation work, and whether JHQ has its own equipment or does it hire in equipment. Mr Priem said they hire in equipment however do have some of their own, but limited. He agreed that JHQ could do wet or dry hire and he agreed that assessment would be made at the particular time.

[145] Mr Priem was taken to the two documents attached to his first statement. He said the first document is a graph of the data in the spreadsheet. He agreed the document was created for the Commission proceedings after the AWU had objected to the application.

[146] Mr Priem agreed the first graph concerning work packages is referring to certain types of works within the construction project. Mr Priem was asked whether the 15 FTE under the package called stations is 15 FTE for the whole period between March 2022 and January 2025. Mr Priem said ‘no’ and there are various durations for different scopes of works. Mr Priem said he did not know off hand the duration for the stations package; however the estimate is based on the program put together and is a summation based on hours and durations.

[147] Mr Priem agreed that assuming the duration of the stations package is six months, that the 15 FTE’s will work for six months. He said the FTEs are derived from hours required in that period. He agreed in that period there can be higher or lower intensity of work, and it may be that in three months of that period 40 people are needed, and in the other three months only 10 however 15 FTE is the average over the total period.

[148] Mr Priem was then taken to the second page of attachment AP-1 setting out the forecast roles in delivery and a reference under the headings to the concrete gang being 0.8 total FTE. Mr Priem agreed that did not mean someone would be employed part time on a 0.8 basis for 34 months, and that a number of people would be employed for a much smaller period. He agreed the 0.8 is not measured over the 34 months but is over a segment of work during the period of the stations work package. Mr Priem agreed it could be for example 5 people for a shorter period of work.

[149] Mr Priem was then taken back to paragraph 13 of his statement where he said JHQ had determined that it expected to directly employ approximately 366 employees over the life the project. He agreed that the total that was described in the Forecast Roles Delivery Summary was 365 and that it was 365 FTE derived in the manner that he had just discussed.

[150] He agreed that therefore the number of actual employees will be different, and it won’t be exactly 366. He confirmed that the in the example discussed the 0.8 concrete gang FTE could be five people and not 0.8 people. Mr Priem also agreed that would apply to other classifications.

[151] Mr Priem indicated that as at the time of the hearing he could not forecast the number of CW2 concrete gang workers but referred to the total FTE column for CW2 Concrete Gang which said around two, and so they would be looking to employ two concrete gang personnel workforce. He accepted that again the number two in the FTE column was referring to FTE’s not people. He confirmed he did not know what the actual number in the concrete gang would be and it depended on what JHQ ended up employing and the actual number will depend on when they build up the crew, and the skills.

[152] Mr Priem also agreed he could not tell how much time the concrete gang will be needed for doing that work at the time of the hearing. Mr Priem added that it needed to be looked at with the program, and JHQ employ people and then they are kept busy, so they don’t employ people and let them go.

[153] In re-examination Mr Priem was asked about his earlier evidence that employees within an FTE may work on different areas, and his evidence about keeping employees busy and not employing them and letting them go. Mr Priem was asked what impact that would have comparing FTE’s to actual headcount. Mr Priem said as far as possible they would seek to reduce the total headcount, but on average it's the same number of hours as some level of the work has to be done and it would be relatively consistent, possibly slightly lower as far as FTEs goes. Mr Priem said his estimate was the 365 FTE would translate between 300 and 360 actual employees. This evidence appeared to be to the effect that Mr Priem was saying actual employees could perform work categorised under different columns in the Forecast Roles in his attachment AP-1. He gave the following evidence: 13

“And is that how headcounts can be lower than the FTEs?---Very much so, yes.  So when we actually employ and the crews are made up, you know for efficiency reasons, you want to, as I say, keep people as far as you can because of experience and everything that goes with it so the programming is all around ensuring that you don't have down time and those sort of things so our crews ideally - it doesn't always work, but you work across multiple and that extended duration for the same amount of works means that you don't need as many people to burn the hours.”

[154] On this particular point Counsel for the AWU requested that Mr Priem be recalled after the conclusion of Mr Priem’s evidence as it was submitted that the AWU did not understand Mr Priem’s evidence regarding the claim that the number of actual employees could be less than the projected FTE count. The Applicant did not oppose the request.

[155] On being recalled Mr Priem accepted that the FTE numbers were derived from material produced for tender purposes for the purpose of working out labour costs on the project. Mr Priem said the hours’ drive the estimate and the hours also drive the cost of labour.

[156] Mr Priem said it is also used to price things that are FTE related such as crib rooms and site inductions. He accepted that for these associated matters one FTE is the same as another for cost. He gave the example of a crib room seating 20 people and based on how many people they have evaluated need to be in that area, they will derive the number of crib rooms that are priced or the number of inductions undertaken. Mr Priem gave the following evidence: 14

“All right.  And would you use the FTE for that purpose, do you?---No.  No, it's not the FTEs, it's the equivalent of but - because it's obviously when you say, 'People', so you know, FTE is not specifically the term that's used but it's the equivalent of but it's calculated - it depends on what we're trying to calculate to how you use the data, it's derived from the man hours and the durations from, you know, so the program and the estimate is what drives all of those sort of things to assess how many you need of each including what we estimate to be the total number of people on the project or the bits that go with it, you know.”

[157] Mr Priem was taken back to the example he gave earlier evidence concerning the concrete gangs working on the stations and he agreed that the concrete gang would be laying concrete for station structures on the project. He agreed the number of FTE’s he had projected was 0.8 and he agreed there is not going to be a 0.8 of a person doing that work and a number of people will be doing the work. He said crews would range anywhere from 10 to 15, or 18 people depending on the pour. He added that a supervisor would be in the vicinity, and it doesn’t mean they are all working on the same thing at once. He agreed one person would not be doing the work.

[158] Mr Priem was asked how long it would take and he said he didn’t have that level of detail at hand, but a crew would be put on that, would become a blended crew and they would sequence the works so that they are kept productive. He said at the time of doing the pour it could be the whole crew or it could be half the crew depending on the size of the pour, where they need joints in and what the design calls for.

[159] He agreed that the FTE number across the whole project for the concrete gang was two, but the crew (of 10 to 15) is not made up of all concrete gang people and there are other skills in that. Mr Priem was asked how many concrete gang people would be in the crew and he said the crew makeup will depend on the people that they are interviewing and what skills they've got.  He said notionally they will need the concrete gang sort of skillset, float hands, concreters themselves, and that crew mix will depend on who they interview and what skills they have, and people can work generally down in that space. He said there will be a blend of concrete hands or float hands, concrete finishers, steel fixers or form work. He said he was not saying there would only be two float hands on the project. He did not agree there would be significantly more and did not agree they would employ more than two float hands. He said they may employ more concrete finishers as an example.

[160] Mr Priem said how they deliver it, and the people that they employ depends on the skills available at the time and if there is someone that is of a higher skill level that can do the work they need, they would consider that as opposed to having someone at the lower skill level like the float hand.

[161] Mr Priem’s evidence was to the effect that the numbers were an estimate for a reason, but they have to price, which they have and have taken the lump sum responsibility to deliver the works.  With the information they have and with the team of people that work on the tenders, they understand quite well what roles they need to deliver that work, what activities they can get, and how they are going to sequence the work.  On that basis they price it, and they run the job and this reflects what they generally would be considering they need to employ. 

[162] It was put to Mr Priem that the numbers may be more or less depending upon how things work out. He said he expected the number of personnel will be less than 365.

[163] Mr Priem was asked when he made his second statement, and he answered that he thought last Thursday or Friday (which would have been 12 or 13 May). Mr Priem said given his time he asked that a draft be put together which he said he received and added to and changed. He was not able to say which bits he changed or did not change, however he said it was various bits. Mr Priem was asked what he meant by the words in paragraph 5 of his second statement and he was asked if he meant in relation to graders, that he wanted to employ someone with specific skills in grading a load surface in preparation for laying of asphalt and he agreed.

[164] In relation to paragraph 12 of Mr Priem’s second statement where he said completion of construction is scheduled for January 2025, it was put to him that a public timeline of the Queensland Government suggested testing and commissioning would occur in 2024 and he was asked whether that had now changed. He said that would still be correct and, similar to design activities, it can overlap.

[165] Mr Priem was asked what supervisors he was referring to regarding white collar roles at paragraph 15 of his second statement. His evidence was that JHQ does not have construction workers who are supervisors as they are all staff. He said they have leading hands not supervisors. He said the role of leadings hands was to assist the supervisor or the crew in their activities. He agreed leading hands have a leadership role.

[166] Mr Priem’s evidence was he thought using concrete rather than ballast as referred to in Mr Faruqi’s report would be relatively comparative in terms of labour and the workforce requirement would be much the same.

[167] Mr Priem was asked what the difference was between Mr Faruqi’s assumption about the depot in his report and JHQ’s intention. Mr Priem said Mr Faruqi’s report (Appendix 4 Table 3) under Depot talks about a number of activities that are not part of the scope.

[168] Mr Priem said that Appendix 3 of the Report assumes that the Project will involve 13 design sections and appears to assume workforce numbers from that assumed number of sections alone. Mr Priem said that JHQ has planned its work fronts for the Project based on efficiency rather than the numbers of sections in light of the physical and network constraints and to minimise temporary works.

[169] Mr Priem said that for example, the network constraints involved in utility relocations mean that work fronts are planned not solely around the length of the section but on the efficiency of the time to access the corridor in response to the network constraint. This results in lower workforce forecasts by JHQ than assumed by Mr Faruqi due to the greater economies of scale and more efficient deployment of labour than can be achieved.

[170] Mr Faruqi responded to Mr Priem’s evidence concerning Mr Faruqi’s assumption that there would be 13 sections when JHQ expected to have 9, by saying that would mean the work effort would increase by each team by about 40 per cent, which would require extra resources as well. Mr Faruqi said there would be a lesser number of teams, but the team may be larger, and he would expect that to be about 20 per cent.

[171] Mr Priem repeated the evidence in his first statement that JHQ had forecast for 40% of the construction work on the Project otherwise within the scope of the classifications in the Agreement to be contracted out, and he observed that Mr Faruqi does not appear to have factored into his total assumed employee numbers that, as examples:

a. Traffic control, asphalting, concrete truck operations and depot building works (among others) have been assumed by Mr Faruqi to be included in employee numbers. Mr Priem said these are specialist functions expected to be subcontracted. He also said Mr Faruqi also appears to have included a large number of truck drivers which appears to imply that he has included haulage roles within his assumed employee numbers, whereas JHQ is expected to subcontract haulage also.

b. There are also scopes that JHQ will partially self-perform, but which they also expect to subcontract types of roles within those scopes. For example, roles included in this category that have been wrongly assumed as entirely self performed are parts of the finishing works, landscaping, and mobilisation and demobilsation.

[172] Mr Faruqi in responding to this evidence said based on his numbers the work teams would comprise 741 people and based on John Holland’s nine sections that would be 513, but to allow for a 20 per cent increase, that would mean 615 FTEs for the six and a-half kilometre construction of the track, not the other works. Mr Faruqi’s evidence was that other works not included in his estimation of 615 FTE would include the depot, landscaping and traffic control.

[173] Mr Faruqi accepted that he could not comment on the proportion of work subcontracted and his evidence concerned a projection of the workforce required for the work to be performed. Mr Priem said that Mr Faruqi also included white collar roles such as supervision, survey and technical leads in his assumed employee numbers and these roles are not covered by the Agreement.

[174] Mr Faruqi accepted that he assumed these roles would be included. He said if you take out the surveyors there are about 50 or 55 - 50 surveyors. He maintained that supervisors are blue collar, and this was referring to superintendents or the engineers. He said he was referring to construction workers at a senior level. He accepted he had not gone into detail about the classification of construction supervisors, and he described it as a generic classification of worker. He said the supervisors that he had in mind would have been construction workers and they would be under the Agreement. However, he accepted he did not know whether, in John Holland, that's the case or not. He confirmed he had counted 55 in this category.

[175] Mr Priem said Mr Faruqi’s Report also makes some other incorrect assumptions about the work (and the types of roles required). Mr Priem gave the example that there will be no ballasted track out of the depot as all tracks will be concrete slabs, nor is the depot being expanded as extensively as assumed by Mr Faruqi.

[176] Mr Faruqi agreed that he had assumed a ballasted track because in his experience that is the fastest and the cheapest, but if it is concrete, then that does not make any difference, it just needs extra resources to do the concreting compared to ballast. Mr Faruqi said the numbers would go up because concreting requires reinforcement, extra skills, compared to just ballast. He said there would be more concrete and reinforcement-related workers.

[177] In relation to Mr Priem’s evidence that the depot would not be being expanded as extensively as assumed by Mr Faruqi, Mr Faruqi responded that assuming five new train sets, he assumed two lanes, because you don't want more than three trains in a lane, otherwise, if one breaks down, you've got two locked up, and that was the assumption that he had made, and that's standard practice, but if the design requires less, then he couldn’t comment on that.

[178] Mr Faruqi agreed during cross examination that his estimate of labour of some 800 FTEs is referable to 'site work/construction activities' as set out in Appendix 3 on line 90 to line 188 and this accords with the list of construction activities in table 1 in Appendix 4.

[179] Mr Faruqi explained that the FTE figure for a particular classification in his report is the equivalent of a full-time person working for one year, so there will be more than 800 people employed on the job, but if they were converted into a full-time person working for 220 days a year, that is the number you would end up with. He agreed with the example that a labourer working for three months equals 0.25 FTE, or alternatively if there is one FTE for a whole year but that work is only required for a three-month period, that would require four employees.

[180] Mr Faruqi accepted that he had not seen the contract for the design and construction of the project. He accepted an extraordinary amount of work goes into tendering for large construction projects and John Holland would have a large team of designers and planners and knowing how many employees are needed in what classifications influences the costs of labour.

[181] Mr Faruqi accepted that persons internal to John Holland have exact actual specific knowledge of how they intend to deliver the project. Mr Faruqi rejected the proposition that his estimate was a guess, saying that is how he would do it. He accepted that his expert report was only as good as the assumptions within it.

[182] Mr Faruqi accepted less people are required if the project is longer than his assumption. Mr Faruqi accepted he did not know the sequence in which JHQ intended to perform the sections and economies of scale that may be derived from that.

[183] Mr Faruqi accepted that if JHQ engaged subcontractors for certain work activities, the head count required for direct JHQ employees would go down and he also accepted that his estimate is not an actual estimate of how many direct JHQ employees under the agreement there are likely to be. He said he never claimed that.

Submissions on majority issue

[184] Based on earlier stages of the project, the AWU submitted that the Gold Coast Light Rail Stage 3 Project is likely to entail the following types of work:

•  road construction and maintenance work to create space for the rail line;

•  installation of railway tracks;

•  erection of overhead lines;

•  landscaping; and

•  installation of building components, such as small-scale shelters.

[185] The AWU summarised the primary relevant coverage for the unions that the Proposed Agreement is expressed to cover, in very broad terms, as:

•  CFMMEU: the former FEDFA coverage of crane drivers, excavator drivers, forklift drivers and pump attendants.

•  AMWU: It is not clear what occupations the AMWU can cover.

•  CEPU: Electricians and plumbers.

[186] The AWU submitted that while the AWU’s industry coverage of civil construction and rail construction allows it to represent all workers engaged by JHQ on the Gold Coast Light Rail Stage 3 Project, the AWU submitted that the CFMMEU, AMWU and CEPU can generally only cover employees if the primary function of their employment falls within limited occupations identified above. The AWU argued that the overwhelming majority of workers who are likely to perform work on the Gold Coast Light Rail Stage 3 Project will not fall within the occupations covered by the CFMMEU, AMWU and CEPU.

[187] Therefore, it submitted that the Commission cannot be satisfied that the relevant employee organisations that will be covered by the Agreement are entitled to represent the industrial interests of a majority of employees who will be covered by the Agreement for the purposes of s.187(5)(a) of the Act.

[188] The Applicant submitted that the phrase “employees who will be covered by the agreement” under s.187(5)(a) refers to a quantitative assessment of the actual employees who will be covered by the Agreement, rather than all of the employees who could conceivably fall within the coverage of the Agreement. 15 The Applicant contended that the evidence before the Commission is that despite the breadth of the classifications referred to in the Agreement, JHQ only intends to employ a certain number of employees in a limited number of classifications. The Applicant argued that most of those classifications (or jobs) plainly fall within the collective occupational coverage of the CFMMEU, AMWU and CEPU. Similar to that of Re Besix Watpac and CFMEU Minor Civil Construction Union Collective Agreement 2021 – 2025 (Watpac),16 even if s.187(5)(a) referred to all classifications covered by the Agreement, most of the classifications are also within the collective occupational coverage of the CFMMEU, AMWU and CEPU in any case.

[189] Mr Massy adopted the Applicant’s submissions concerning the number of employees and the contest between Mr Priem and Mr Faruqi's evidence, and also adopted the Applicant’s submissions concerning the proper approach to section 187(5)(a) and what was said by Colman DP in Besix Watpac, accepting the approach is prospective and involves an element of speculation.

[190] The AWU referred to the submissions of the Applicant regarding the decision of Coleman DP in Besix Watpac and advised that decision was the subject of an appeal, and the decision is reserved at the moment and there was an argument in relation to that point specifically.  The AWU submitted the correct approach is not one or the other.  That is the Commission must have regard to such evidence as to the class of employees that may be employed, and the potential coverage of the agreement, and taking all of those matters into account, consider whether it can be satisfied that the organisations to be covered, will have an entitlement to represent the majority of the employees concerned. 

[191] Mr Massy submitted in respect of section 187(5)(a), the AWU suggested approach to the extent that it departed from Besix Watpac did not grapple with what Coleman DP said about the difficulties with the approach.

[192] Mr Massy submitted that even if one was to take into account the classifications contained in the Agreement, along with the evidence, the majority of those classifications can be covered by the union parties.  After the conclusion of the hearing the instructing solicitors for the CFMMEU and CEPU advised chambers that the Appeal decision in Besix Watpac had been issued however for reasons given in that decision it was unnecessary for the Full Bench to deal with the appeal point concerning the correct approach to assessing majority under section 187(5)(a).

The Numbers

[193] That Applicant submits the factual question to be determined in relation to section 187(5)(a) is how many employees will be covered to perform work under the agreement and in what classifications.  Then, having regard to that factual finding, are the CFMMEU, AMWU and CEPU eligible to represent 50 per cent plus one of those persons. 

[194] The Applicant submits that the only direct evidence the Commission has as to the first factual finding is from Mr Priem. The Applicant submits that Mr Faruqi gave evidence about how he would run the project, but he is not an expert on the project and is an outsider looking in and his opinions are speculative. The Applicant submitted that Mr Faruqi was wrong concerning the duration of construction activities which was fundamental to his head count, and his assumptions concerning work segments and sequencing at work were wrong. 

[195] The Applicant submits Mr Faruqi’s report includes a large number of roles that are not covered by any classification in the Agreement and there are a large number of roles that are not going to be performed as Mr Priem's evidence was there is an estimate of some 40 per cent of subcontract labour.

[196] The Applicant submitted the cross-examination directed towards FTEs and head count was a distraction because what is crucial is the proportions.  The Applicant submitted that there could be 10,000 employees of JHQ on this project but provided the proportions of those 10,000 employees accord with the proportions of the planning document undertaken by Mr Priem, you get the same outcome. The Applicant submits on the probabilities from a factual perspective the Commission would accept the evidence or Mr Priem over the fundamentally less relevant and less informed opinion of Mr Faruqi. 

[197] The CFMMEU referred to Mr Priem’s witness statement where Mr Priem detailed the extent to which the Applicant intends to employ persons on the project. It was submitted that based on Mr Priem’s evidence regard prospective employees, the union parties to the Agreement are eligible to represent more than 86% of the proposed workforce. Further, even if, contrary to its submissions, the assessment was conducted on the basis of the classifications contained in the Agreement, the union parties could cover a majority of the classifications. In those circumstances, the CFMMEU argued that there is no merit to the AWU’s contention.

[198] The CFMMEU submitted by reference to the Schedule A attached to the AWU’s 6 May submissions listing the coverage of roles in Mr Priem’s statement that assuming there are 365 total workers, 183 workers need to be eligible.

[199] The CFMMEU submits as follows:

•  The two CW2 concrete float hands identified at Item 12 are eligible under the Terrazzo rule,

•  The 10 CW2 heavy plant spotters at Item 14 are eligible under the FEDFA rule. The CFMMEU submitted that a spotter in those circumstances is a person who is either attending an engine or working incidental to the work of the engine, and consistent with the decision in coal lumpers would be eligible.

•  The 9 CW3 Form Worker Labourers at Item 16 are eligible under the Terrazzo rule.

•  The 22 CW3 Heavy Mobile Plant Operator (0-5T) at Item 17 are eligible under the FEDFA rule.

•  The 22 CW3 Road Roller Plant Operators under 12T at Item 19 are eligible under the FEDFA rule.

•  The 6 CW3 Plant Operator/Telehandler (up to 4.5T) at item 21 are eligible under the FEDFA rule.

•  The 22 Ticketed Dogman or Ticketed Rigger are eligible under the FEDFA rule on the basis that they are either attending the crane or working incidental to the crane. 

[200] It was submitted that if there was doubt as to the proper construction of the second part of the FEDFA rule because of ambiguity, it's permissible to have regard to the industry rule in Rule 3F and that makes plain that it is attendants to cranes, forklifts and engines of that kind.

[201] The CFMMEU submitted on review of the balance of the circumstances where the AWU submits the role is not eligible, they are plant operators and when that is taken into account, there is more than sufficient to move past the 50 per cent plus one and under those circumstances, the Commission should have no difficulty in accepting that the requirements of 187(5)(a) can be met.

[202] The AWU submitted that the limitation in section 187(5)(a) concerning majority coverage is an important limitation on the capacity to make greenfields agreements as greenfields agreements are a departure from the usual approach which requires that bargaining occur and a vote occur, involving employees who are to be covered by the agreement, at least so far as they are employed at the time. 

[203] The AWU submitted that section 187(5)(a) provides some protection to the employees who will in future be employed but have no opportunity to participate in bargaining for the agreement that will apply or not at least for some period of time to their employment. 

[204] The AWU submitted that the assessment of the entitlement to represent is one that will necessarily be speculative to a greater or lesser degree.  Ultimately the question posed is whether the Commission can be affirmatively satisfied that the requirement is met.  There must be material before the Commission to permit a positive answer to the question that is posed by section 187(5)(a), that is, it must be satisfied that the relevant employee organisations that will be covered by the agreement are entitled to represent the industrial interests of the majority of those employees.

[205] The AWU submitted that there must be material before the Commission sufficient to satisfy that the majority coverage requirement is met.  The AWU further submitted that it may be that there are cases where the knowledge that anyone has, employer or anyone else, as to the types of employees and their numbers to engage in a particular project or undertaking, is not sufficiently developed that anyone can say with any certainty, as to whether the majority coverage provision will be met.

[206] The AWU submitted that this is not a difficulty that would arise in circumstances in which the unions that are involved in the making of the greenfields agreement cover everyone who could potentially be employed under the agreement.  But where there is a range of classifications capable of being covered in an agreement, which on everyone's case fall outside the coverage of the unions that are party to, and will be covered by the agreement, if there's not sufficient certainty on the material before the Commission as to the composition and numbers of the workforce, to satisfy it that the majority coverage requirement is met, then the Commission must refuse to approve the agreement.

[207] The AWU submitted that JHQ primarily relies upon the numbers given in the first statement of Mr Priem, and that there are a number of fundamental difficulties with the reliance upon the figures given in the table and Mr Priem's first statement at paragraph 13.

[208] The AWU submitted the Commission is required to reach a state as to whether it can be affirmatively satisfied of the matter of whether the unions that will be covered are entitled to represent the majority. It is a matter as to whether the Commission can reach an affirmative mental state of satisfaction as to whether the requirement is met on the material before it.

[209] The AWU submitted that firstly, the numbers are based upon a general estimate of the proportion of work it is said would be out-sourced, rather than any particular assessment as to which work will or will not be out-sourced.  The AWU submitted that Mr Priem's evidence was that that is a matter that they will consider, depending upon availability of labour and availability of equipment as the project went along.  There may be more; there may be less, and they may contract out different works than were expected, depending upon those considerations.  The AWU submitted that all of those matters would upset the number of employees said to be forecast in the tables in Mr Priem’s statement.

[210] The AWU submits secondly, that despite what was said both in paragraph 13 of the first statement and in the header of the table which referred the number of employees forecast to be employed, Annexure AP1 makes plain the numbers do not pertain to the number of employees but to FTE employees.  The AWU submitted that Mr Priem’s evidence was fatally unclear as to how that would work out.  In initial cross-examination, his evidence was that the FTE figure was the average full time equivalent work undertaken for each of the work packages.

[211] The AWU submitted that when Mr Priem was asked about the period works in relation to stations, he said it would be FTE 15, FTE on average required for that period.  The AWU submitted that he was unable to say what that period was, whether it was two weeks or 20 months, over the whole period, and that affects the number of employees that are being considered. 

[212] The AWU submitted that Mr Priem also accepted that there would be a variation within that works period and work intensification.  That is, for half the time, you might need 20 employees and for the other half, you'll need two, and that means there's not 15 employees employed, but rather, 20, if in that period there's a greater intensity and that number of persons is needed in that period of time.

[213] The AWU submitted that Mr Priem agreed that that would apply to all of the other work packages and all of the other classes of employees as well, meaning that one can't know whether one FTE means one person or five people, in a particular case 14 people.  The AWU submitted that means that the numbers that he's given on his evidence in cross-examination, initial cross-examination, are entirely unreliable regarding the employees who would be covered.

[214] The AWU submitted that in re-examination Mr Priem said that the total number of employees who would be employed, would actually be less than the FTE numbers and the AWU didn’t understand how that could possibly be the case.  The AWU referred to the example of the concrete gang, which Mr Priem said would have two FTE concrete float hands. Mr Priem accepted that there would be teams of 10 to 15 workers when the stations were being constructed that he said may be drawn from a range of classifications, however Mr Priem could not say which ones they would be or wouldn’t be and the only other ones he mentions were labourers and concrete finishers and there’s only 11 concrete finishers for the whole project on an FTE basis as well.

[215] The AWU submitted that clearly there would be in many of the categories, because of the fluctuations of work intensity which were averaged out on the FTE calculations significantly larger numbers. 

[216] The AWU also submitted that what is plain from Mr Priem's evidence is that the proportions might swing very widely if there's an intense work process of any type which has to be done with a large number of employees in a short period of time, which has been averaged out by the FTE calculations he undertook, and it would throw all of the proportions out.

[217] The AWU submitted that by Mr Priem proving the information on an FTE basis averaged over the period of time without looking at the total employees in each category that are expected, does not assist the task that the Commission is required to undertake for the purposes of section 187(5)(a).

[218] The AWU also submitted that in addition to that, Mr Priem's evidence was that there were a wider range of classifications in the Agreement that are not taken into account at all in his numbers, on the basis that he said they intend to contract certain work out, however he agreed that JHQ put those additional classifications in the Agreement to allow flexibility, to allow them to employ employees across the whole of those range of classifications to the extent that it proves necessary.  The AWU submitted that the Commission can't ignore that matter in considering whether it is able to be satisfied that the majority coverage requirements are met.

[219] Contrary to the Applicant, the AWU submits Mr Faruqi can provide an independent understanding of the labour needs that are likely to exist in a project of this type and no issue is taken as to Mr Faruqi's expertise in that respect.  The AWU submits that the evidence of Mr Faruqi by comparison to Mr Priem suggests a somewhat plant heavy side in the JHQ estimates when one compares the two.

[220] In relation to the CFMMEU rules issues, the AWU submitted that even if one were to take Mr Priem's figures as representing employee numbers, which they do not, the Commission would still not be satisfied. 

[221] The AWU submitted that given the uncertainty as to the composition and nature of the workforce that will be engaged, even before considering issues of coverage provisions is a fundamental difficulty.

[222] The Applicant submitted that if the Commission accepts Mr Massy's submissions about the FEDFA rule, there's no issue with respect to majority coverage because assuming plant operators are in, there's only 65 other roles that are out, plus 24 if you exclude the terrazzo rule employees.  That's 89 out of 360.  Even if the 360 are going to be going a little bit this way, a little bit that way that’s about 25 per cent, and the Commission would have to be satisfied that there's a more than 25 per cent swing in the vagaries of proportion within classifications.

[223]   In oral submissions in reply, the Applicant submitted the test to reach a state of satisfaction concerning majority does not require a state of certainty, its balance of probabilities or what is more likely to be the case, or more probable.

[224] In relation to the evidence of Mr Priem with respect to the concrete gang which has two FTEs allocated, that there would be 15 people in that classification at some point in time. The Applicant submitted the actual evidence was that there might be 15 people performing that work made up of a team of various classifications, not all of which would be concreters within the concrete gang classification. The Applicant said the FRP crew was said to be a blend of concrete hands, concrete finishers, labourers, skill fixers, form workers, and Mr Priem said  with respect to the two float hands, there would not be more than two or a lot more than two.

[225] In regards to the AWU submission regarding Mr Priem’s evidence about variations of 20 versus two within a classification within a particular work period, the AWU sought from Mr Priem’s evidence to apply that classification variation to all other classes of employees, however the evidence was that there is work broken down into packages or activities, and exactly who performs it, as long as they have the skills, will be determined.  The Applicant referred to the evidence that concrete finishers might be doing the work of a concrete float hand, because they're a higher qualification or skill level. The Applicant submitted this is not evidence to say there might be more people at a particular point in time doing that activity or more people in that classification.  The evidence is that there's going to be more people at a particular point in time, and it ignores the fact that construction is dynamic activities, and that is the gravamen of Mr Priem's evidence.

[226] The Applicant submission was to the effect that in construction you don't just have people working on a particular point for a particular point in time, and then they stop and they wait around until something else happens, and then they go to some other site.  The Applicant submitted They are constantly working.  The Applicant submitted that Mr Priem’s evidence was they keep them busy and they move them around.  They're doing concreting work here and then concreting work under another class of work, and then concreting work under somewhere else, and the plant operator's doing the same thing.  The Applicant said there is X number of plant operator's hours required for this activity, but that plant operator is then going over to another activity to do more work over there, and it’s not head count. 17 

[227] The Applicant submitted that the Appendix (with FTE numbers) is drawn from thousands of lines of programming that comes up with the proportion and the number of persons doesn't matter much if the proportion is derived from thousands of lines of programming.

[228] The Applicant submitted the only evidence going to the issue of the primary purpose issue was Mr Priem's evidence and there was no cross-examination about it.  The Applicant submitted to then say they will not be engaged for the purpose as stated by Mr Priem is unavailable because the propositions were not put to the witness to give him an opportunity to answer.  The Applicant characterised the AWU submission as being that the purpose of the roles is to build a civil construction project and the ultimate aim of the role is to deliver the project therefore they are classified as construction workers.

[229] The Applicant submitted that is not the way to assess occupational classification coverage of union rules as if it were the CFMMEU could not accept excavator drivers or crane driver which the AWU accepts it can, because they should be properly classified as rail workers because they're only driving the crane for the purposes of delivering a rail project.  The Applicant submits the AWU did not explain why it concedes crane operators and excavator drivers by reference to the principal purpose test, but then asserts you wouldn't accept the principal purpose of any other plant operator. 

[230] Mr Massy advised the Commission near the conclusion of the hearing at the Full Bench decision in Dulux is the subject of a reserved application for constitutional writs. On 10 June 2022 Mr Massy’s instructing solicitors brought to the attention of chambers the decision of the Full Federal Court in Construction, Forestry, Maritime, Mining and Energy Union v DuluxGroup (Australia) Pty Ltd [2022] FCAFC 101. The Full Court dismissed the application for constitutional writs. The Full Court in its decision endorsed the approach of the Full Bench of the Commission in Dulux observing that the employment identified in the rule must be construed as a descriptor of an occupation at paragraph 42 of the decision, and in the context of the purpose of employment and the employers organisation at paragraph 45 of its decision.

Conclusion on the reliability of the projected numbers

[231] Having considered all of the evidence, there are a range of factors which undermine the ability of the Commission to be confident about the employment numbers forecast by the Applicant.

[232] Mr Priem accepted that the Agreement included a wide range of classifications in order to give John Holland flexibility through the project to employ anyone in the roles as and when it becomes necessary. Mr Priem agreed that as the project goes along, there will be decisions made about what works are most effectively or efficiently or cost-effectively done directly or contracted out.

[233] Mr Priem agreed his reference to skills availability referred to what was able to be contracted out and what was able to be performed directly depended upon the availability of plant and equipment to hire and a number of factors.  Mr Priem’s evidence is it gets reassessed at the time. He agreed this would include availability of contractors who are considered appropriate and skilled to do the particular work and the availability of direct hire employees to do particular work. This tends to indicate that the proportion of work that may or may not contracted out is somewhat fluid and subjection to variation.

[234] Mr Priem’s estimate of the 40% of work being contracted out did not specifically break down the numbers of the work that will be out-sourced and was a more general estimate, which appears to be consistent with his evidence that the final decision on these matters is subject to factors that are prevailing at a future time. 

[235] There is also a fundamental difficulty with the numbers provided by Mr Priem being provided as FTE numbers and are not as a forecast of employee numbers. I understood his evidence is the FTE figure was based on the estimated hours required for given packages of work, however the intensity of work during a package of work could go up or down causing employment numbers to potentially vary across all the work packages. On the basis of this evidence, I found it difficult to be confident about the projected FTE numbers being an accurate reflection of likely employment numbers.

[236] It is apparent Mr Faruqi is highly credentialled and well qualified to provide the expert report he did. The Applicant did not question Mr Faruqi’s expertise but did question his knowledge of the specifics of the Project on the basis that he was an outsider to it. His report projected a significantly larger workforce, even taking into account the discrepancies because Mr Faruqi did not make assessments based on the 40% outsourcing projection. He did however exclude from his calculations some of the work that Mr Priem foreshadowed was intended to be outsourced. Overall, the discrepancy between the projections to Mr Faruqi and Mr Priem tends to persuade me to a view that a more accurate number may lie somewhere between the two projections resulting in a somewhat higher number than projected by Mr Priem based on his FTE figure.

[237] I am inclined to accept the submission that given the uncertainties arising from Mr Priem’s evidence as to the composition and nature of the workforce that will be engaged, even before considering issues of union coverage, it is difficult to be confident that the FTE projections provide a reliable projected employee number on which to move forward to examine the eligibility rules of the unions. Given this uncertainty it would be necessary to be confident of a significant buffer in the majority to outweigh the uncertainty arising from the FTE numbers in order to be satisfied of the requirements in section 187(5).

FEDFA Rule

Engine Drivers

[238] Mr Massy referred to rule 2(E)(a) within the CFMMEU rules known as the FEDFA part of the CFMMEU's eligibility rule. Mr Massy submitted that insofar as the question concerning plant operators arises in this matter, the question is what is the proper construction of the introductory words to subparagraph (a), being 'an unlimited number of all classes of engine drivers.'  Mr Massy referred to the High Court's decision in Re Coldham ex parte The Australian Workers’ Union 18.  Mr Massy submitted the important part of Re Coldham is that it is authority for the proposition that the first part of the rule which lists the occupational classes of enumerated drivers, fireman and pump attendants as not being limited to a particular industry.

[239] Mr Massy also referred to a 1958 Full Bench decision of the New South Wales Industrial Commission in Re The Federated Engine Drivers and Firemen’s Association of Australasia, Coast District 19 an application for the FEDFA to be reregistered following an earlier deregistration, where the AWU contended that the FEDFA rule was not broad enough to capture plant operators. Mr Massy referred to passages from that decision at pages 694 and 695 discussing the meaning of the word ‘engine’ and that it should be read broadly and as embracing plant operators.

[240] Mr Massy also referred to a 1967 decision of McCreadie C of the Commonwealth Conciliation and Arbitration Commission concerning an application by the FEDFA for a new award for engine drivers and firemen that was opposed by a range of objectors on the basis that a classification sought to be included in the award went beyond the FEDFA coverage.  Mr Massy referred specifically to pages 100 and 101 of that decision. Mr Massy drew particular attention to the following paragraph:

“To hold that ‘engine drivers’ in the context of the registered constitution is confined to drivers of steam engines and stationary engines, as was suggested, would be wrong, unrealistic, without equity and not a reasonable construction of the registered constitution. For example the driving of a modern diesel operated non-stationary engine in some circumstances may fall within the classification of ‘engine driving’. There are also compressed air engines and others which the Association has had coverage of for many years.”

[241] Several paragraphs below McCreadie C also said as follows:

“After carefully considering the submissions, the Association’s registered constitution and the history of the Engine Drivers’ and Firemen’s (General) Award, I am satisfied that the correct principle to apply to classifications claimed as coming under the term ‘all classes of engine drivers’ is to decide the issue on the basis of the prime or main purpose or function of the classification. This of course has to be done within the context of the Association’s constitution and as it has been understood and reflected in the award over the years.

In applying this principle the first thing to be determined is whether the main purpose of the classification is that of engine driving within the context of the Association’s constitution using as a guide the arbitrated awards of the Commission to which the Association is bound. Any classification which clearly complies with this principle cannot with equity be denied the Association.

Because driving engines is the prime function the following classifications come within ‘all classes of engine drivers’ driving the tractor prime mover of drawn ditcher or dawn grader, operating a winch which drives or retracts the hammer of a pile driver, driving a tractor to which is attached a forced feed loader belt, bulk loading by grab crane or driving a machine activating a loader conveyor belt, driving a bank of compressors or driving refrigerating compressors or engines.

Driving a post hole digger or drill mounted on a truck is not truck driving. Here the main function is to drive the engine which lines up, lowers, raises and drives the drill. This classification is therefore one of engine driving and covered by the Association’s constitution.

Where the prime purpose is not that of engine driving then it cannot fall under the heading of engine driving. Driving a dumper truck used for transporting materials could not be classified as engine driving. Similarly the classifications of ganger, launch driver, activator truck driver could not be classified as engine driving.”

[242] Mr Massy submitted this list should not be treated as an exclusive listing of the engines and referred to page 115 and specifically the classification section 'Mechanical plant drivers or operators' which provided for pneumatic tyre tractors, crawler tractors, road rollers, navy and dragline or dredge type excavation and pile driving machines and a separate reference to loaders. At page 117 there is reference to an excavator, grader, loaders, front-end or overhead. 

[243] Mr Massy took issue with the AWU submission that while this decision and another decision of the New South Wales Industrial Commission in Sydney Coal Lumpers Union v FEDFA 20 offer some support for a broad interpretation of the reference to ‘engine drivers’ these cases have been overruled by more recent decisions set out in the AWU submission such as the 1977 decision in Federated Engine Drivers and Firemen’s Union (WA) v Mt Newman Mining Co Pty Ltd21 where Burt CJ addressed the meaning of ‘engine driver’ and stated:

“…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.”

[244] Mr Massy submitted that Hungerford J in the 1991 decision of the New South Wales Industrial Commission in the Coal Lumpers case, cited the FEDFA Registration Case with approval and in particular the expanded definition of 'engine' at page 269 and 270. The case involved a coal loading machine at a port, and his Honour accepted that the control room assistants in the control room, were workers attending an engine or assisting the work incidental to an engine.

[245] The AWU submitted that in citing the Mt Newman Mining case the 2012 decision of the Full Federal Court in Construction, Forestry, Mining and Energy Union v CSBP Limited 22 expressly stated the following regarding the primary purpose test for occupational coverage:

“In applying this test one does not focus upon one aspect of an employee’s work in isolation from the totality of his or her duties. Thus in Federated Engine Drivers & Firemen’s Union (WA) v Mt Newman Mining Co Pty Ltd (1977) 57 WAIG 794, Burt CJ observed in this regard at 794 that not every worker, who in doing work which he is employed to do drives an engine, is an engine driver within the meaning of the rule.”

[246] The AWU drew attention to the recent Full Bench of the Commission decision in Construction, Forestry, Maritime, Mining and Energy Union v DuluxGroup (Australia) Pty Ltd t/a Dulux Group 23 where the Full Bench said as follows at paragraph 55:

“Third, the decisions in Mt Newman and CSBP make it clear the employment in question must be assessed in the context of the purpose for which the employer has employed the employee and the employer’s organisation of work. To paraphrase what Burt CJ said in Mt Newman, the question here is whether Mr Lambert was employed to drive a forklift so that he earns his wages by doing that, or whether he is employed to do something else, and Mr Lambert will not be a “forklift driver” within the meaning of rule 2(E)(a) merely because he drives a forklift in order to do what he is employed to do. The additional observation made by Burt CJ that the description of the employee’s vocation will more often than not reflect the purpose to be achieved by the employee’s work must be given weight in this respect.”

[247] The AWU submitted that applying these precedents to this case, it is inconceivable that any of the workers that will be engaged by JHQ will be employed for the purpose of ‘engine driving’. The employees will operate machines with engines for the purpose of constructing a light rail line, and that does not make them an ‘engine driver’. The AWU submitted that as a result, the FEDFA coverage in rule 2(E) of the CFMMEU’s rules will only be relevant where the occupation of an employee, as assessed by the primary purpose test, is a firemen, crane driver, mobile crane driver, forklift driver, tow motor driver, excavator driver, pump attendant, pile driver or motor driver.

[248] Mr Massy submitted that in the Mt Newman case The FEDFA case below was that because a drill rig had an engine, it was an engine within the meaning of the rule.  At first instance on the evidence the FEDFA lost and it was found to be a drill machine, and therefore not covered by the rule, and on appeal the Industrial Court found the appeal was not competent because it went to matters of fact, and it was in that context that the passage from Burt CJ was made, and it is a relatively obvious observation that not every piece of machinery that has an engine is an engine within the meaning of the FEDFA rule. 

[249] Mr Massy submitted that Burt CJ’s observation is not authority for the proposition that prior decisions which have held that the phrase ‘all classes of engine drivers’ encompasses plant are wrongly decided.  Mr Massy referred to a 1990 decision of the Western Australian Industrial Appeal Court in Australian Builders’ Labourers’ Federation Union of Workers, Western Australian Branch v The Construction, Mining and Energy Workers’ Union of Australia, Western Australian Branch 24 and page 1657 and the judgment of Rowland J citing the extract from Mount Newman Mining where the notion that Mount Newman Mining is authority for the proposition that the phrase 'an unlimited class of engine drivers' should be read narrowly or strictly was expressly rejected.

[250] Mr Massy also referred to a 2005 decision of Kenner C of the Western Australian Industrial Relations Commission in The Construction, Forestry, Mining and Energy Union of Workers v Kemerton Silica Sand Pty Ltd 25 regarding a dispute between the parties involving four employees involved in the operation of a dredge, mobile equipment including a front loader and an integrated tool carrier and working in a processing plant.

[251] Mr Massy submitted that the decision in Mount Newman Mining was relied upon to support a case that the relevant employees were multi-skilled operators outside the CFMEU rules, and the Commission disposed of that argument citing the decision of the 1958 New South Wales Full Bench decision with approval and the decision of Justice Hungerford in Coal Lumpers. Mr Massy submitted that there is no suggestion there that any of those cases have been overruled or no longer accurately reflect a position in respect of the FEDFA rule.

[252] Mr Massy referred to a decision at first instance of Hartigan IC in the Queensland Industrial Relations Commission in Enco Precast Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union 26  where the Commissioner cited the 1958 New South Wales decision of Federated Engine Drivers' & Fireman's Association of Australasia with approval and found that a bobcat skid steer was plant which fell within the engine driver's rule. The decision was upheld by President Davis in the Industrial Court.  

[253] Mr Massy also referred to a 1992 decision of the Full Bench of the Australian Industrial Relations Commission in Abbott Point Bulk Coal Pty Ltd v State of Queensland and pages 286 to 289 of that decision where earlier decisions referred to above by Mr Massy were cited with approval by the Full Bench and an acceptance that the FEDFA rule was broad enough to embrace the work of control room operators and ship loader operators.

[254] Mr Massy further referred to a 1988 decision in Federated Tobacco Workers Union of Australia v AMWU 27 where the Full Court of the Federal Court of Australia Industrial Division Court comprising Justices Northrop, Gray and Ryan JJ at page 267 stated as follows:

“If the contentions of the Tobacco Workers’ Union and of Wills are correct, it would mean that Wills is not bound to accord the wages and conditions of employment stipulated by the Metal Industry Award to metal tradesmen and other employees engaged in the occupations, industries or callings specified in the award and employed by Wills despite the fact that for many years Wills has acted on the basis that it is bound by that Award and earlier Metal Industry Awards in respect of its metal tradesmen and machinists. It would therefore follow that a long standing acceptance of a legal position would no longer apply. Any construction of an eligibility rule having such drastic results should not be adopted unless the language of the rule compels it.”

[255] Mr Massy submitted the recent Full Bench decision in Dulux has nothing to do with the question of the proper construction of the rule, as the question was whether an employee who drove a forklift for a great deal of the employment was a forklift driver, or whether that was just a tool that they used in some other job, and reliance was placed on the Full Court decision in CSBP. Mr Massy submitted that CSBP was concerned with a different question, and the question here is whether the CFMMEU can cover plant operators and he submitted the answer is undeniably yes.

[256] Mr Massy submitted if the Commission accepts that, then when you add up the plant operators, there is far more than a majority with the other workers which are conceded by the AWU.  Mr Massy submitted out of an abundance of caution, he would also deal with the second contention advanced by the AWU, that the CFMMEU cannot cover the various workers who are described as either form workers, concrete finishers, concrete float hand or concrete gang workers.

[257] Mr Massy referred to the supplementary statement of Mr Priem where he said that is the only purpose for which the employees will be employed, is to drive specialised plant.  Mr Massey said there was no suggestion that those employees would have been engaged for some sort of multi-skilling or to do other roles and there was no challenge or cross-examination on that point. 

[258] Mr Massy submitted that on the AWU analysis, they have excluded any classifications which involve the operation of plant, because they say that the CFMEU rule does not extend to plant, however the AWU has accepted that the crane operators and the excavator drivers and those explicitly mentioned in rule 2(E)(a) are entitled to be represented by the CFMMEU. 

[259] Mr Massy submitted that if the evidence is good enough to grant a finding that those people are being principally employed in the role of excavator driver, or crane driver, then the same evidence about the plant operators is sufficiently good. 

[260] Mr Massy submitted that during the second part of the cross-examination of Mr Priem, it was put to Mr Priem that when he was being cross-examined about the station work, that the construction of the stations involved the construction of a building which had a roof and a structure and Mr Priem agreed with that.  Mr Massy said that if that is the case, then the concrete workers would be eligible under rule 2(B) of the CFMMEU rules because they would be involved in the construction of a building.  Mr Massy referred to the High Court's decision in the R v Marks [1981] 147 CLR 471 which discusses what is building work in that context and there's a question as to whether the building of a communication tower was a building.

[261] In relation to the FEDFA rule, rule 2(E)(a) the AWU submits that the only specifically nominated classes of workers that the CFMMEU rely upon are crane drivers and excavator drivers. 

[262] The AWU submits that in the table in its submissions it gave those roles to the CFMEU, however it was submitted that would require an assessment though, of the purpose of the work when there are only very general assertions made in the supplementary statement of Mr Priem.

[263] The AWU submitted that the primary issue is one of the engine drivers, and whether all of the other classes nominated as various forms of plant operators, can be said to be engine drivers which leads onto the FEDFA rule. 

[264] The AWU submitted in relation to the table at Schedule A to its submissions that even for the crane drivers, or the crane operators and the excavator operators, which are specifically named classes of work in the relevant rule, one would have to make an assessment as to whether that was the sole purpose of the employment.

[265] The AWU submits so far as the other plant operator roles are concerned, with most of them there is no indication as to what the plant is at all.  For example, the AWU referred to Item 17 of Schedule A CW3 Heavy Mobile Plant Operator does not indicate what that is going to be and the Commission doesn't know.  The AWU submits that there is just an assumption because the word ‘plant’ is used, that therefore it falls within the CFMMEU rules.  The AWU submits without the Commission having knowledge of what that person is doing, what type of equipment is being used, coverage is claimed of 22 people for that purpose.

[266] The AWU referred to Item 21 CW3 Plant Operator/Telehandler where again there is no indication as to what that work would involve, and Item 27 CW5 Plant Operator - Mobile Concrete Boom where the AWU submitted it's unclear what the nature of the work would involve, and no explanation has been provided.  The AWU submitted Mr Priem was asked specifically about the Graders referred to at Item 35 and that he answered by reference to his very generalised statement in his adopting legal language in his supplementary statement, saying they want specialist people. The AWU submitted that the specialist skill for a grader that Mr Priem wanted, was someone who was skilled in grading earth in preparation for laying of road surface.  The AWU submitted that is not a person employed to drive an engine simpliciter.  That is a person who is engaged to undertake a particular task in the context of JHQ’s operations to construct a light rail line.  The fact that they utilise a device with an engine for that purpose, is precisely what was said to be, as the bulldozer operator was in Mt Newman, not sufficient to bring it within the generic description of engine driver.

[267] The AWU submitted in the context of the industry rule, the nature of JHQ’s operations and the fact that the person is employed to do a task in that context of flattening the earth in preparation of laying of asphalt for road construction, the skill that is being utilised is not simply driving an engine, which is the approach that Mt Newman, CSBP and Dulux dictate the Commission ought adopt.

[268] In response to the AWU oral submissions regarding the FEDFA Mr Massy said firstly, when there is a question as to whether a person's primary function or primary purpose of employment is driving a particular type of machinery which is said to answer the description in the FEDFA rule, the first thing that has to be undertaken is to assess the role, construe the rule and say is that one of the pieces of machinery which the rule applies.  Mr Massy referred to the cases cited earlier which he says support that the proper construction of the rule is that engine driver encompasses all types of mechanical plant.

[269] Mr Massy submitted that once it is accepted that the rule applies to people who operate mechanical plant, the next step in the path is to apply the principal function test and to say, is the principle function of this person who operates this piece of machinery, to operate the piece of machinery.  Mr Massy submitted that is why Dulux and CSBP have nothing to do with this case because the uncontradicted evidence of Mr Priem is that the sole purpose for which the plant operators are engaged is because of the specialised skill required in operating pieces of plant, and that is the sole purpose for which they are engaged.

[270] Mr Massy also referred to the Classification Structure and Level Descriptions at Appendix B of the Agreement that states that classifications are based on the primary role in which the employee is engaged to perform by the employer, and that is an affirmative answer to the second part of the enquiry. 

[271] Mr Massy submitted that an orthodox approach to the question would be firstly to construe what is meant by engine consistently with the authorities he referred to and then to look at the evidence of Mr Priem and that of the classifications in the Agreement to find that they are engaged for the principal purpose of operating that plant.

[272] The AWU submits that Mr Massy mischaracterised the decision in both Mt Newman and CSPB and the other cases.  The AWU submitted every case that is against Mr Massy was decided on the facts of the particular case, and those in his favour were decided on the basis of universal principle. 

[273] The AWU submitted what Mt Newman and CSPB and Dulux make clear, is the assessment in each case requires one to undertake a consideration of having regard to the work that the employee performs, the context in which it is done, the industry in which work is done, the operations of the employer.  One must assess whether the person is employed to drive an engine, and that is the approach that must be adopted. 

[274] The AWU submitted that nothing in the older cases suggests to the contrary, and they were factually decided in favour of the position in the 50’s that Mr Massy would want, and the cases including the Full Federal Court in recent years, would decide contrary to the position, but on the facts of each case, looking at the nature of the work, the nature of the operation, the nature of the industry, whether the person was employed to drive an engine.

[275] The AWU submitted that Mr Massy sought to categorise Mt Newman as being about whether a drill was an engine.  However the question stated on the first page in the start of the first column at the commencement of the judgment of Burt CJ is whether the workers were employed by Mt Newman Mining company as machine drillers and are eligible for membership of the FEDFA, and in the middle of the second column on that same page Burt CJ says as follows:

“The question for the Commission to decide was whether the workers referred to in the question were “engine drivers” or “stationary motor drivers” within the constitutional rule within the rules of the appellant union.”

[276] Further on the same page Burt CJ said as follows:

“It was conceded that not every worker who, in the doing of the work which he is employed to do, drives an engine is an engine driver within the meaning of the eligibility rule of the appellant union.  There are today many vocations which involve the driving in the sense of the control and operation of engine which no one would ever think fell within that description.  The taxi driver, the bulldozer operator and the airline pilot may serve as the examples.  The question in any particular case is, I think, whether the worker is employed to drive an engine so that he earns his wages by doing that, or whether he is employed to do something else.  And if the answer is that he is employed to do something else then he is not an engine driver merely because he operates a machine and drives the engine of that machine so as to do what he is employed to do.”

[277] The AWU submitted that is the proper approach to be adopted, and not one by way of category, does the work involve a piece of machinery that has an engine, which is the approach that Mr Massy urges upon the Commission.  The question is, what is the person employed to do?  Are they just employed to drive an engine or are they utilising a machine with an engine for some other purpose?

[278] Regarding CSBP the AWU referred to the passage at paragraphs 44 to 46:

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

“The question in any particular case is, I think, whether the worker is employed to drive an engine so that he earns his wages by doing that, or whether he is employed to do something else.  And if the answer is that he is employed to do something else then he is not an engine driver merely because he operates a machine and drives the engine of that machine so as to do what he is employed to do.”

45 Similarly, in Joyce v Christofferson (1990) 26 FCR 261 at 279; 33 IR 390 at 405-406, Gray J observed that “the primary function of an employee must be determined by looking at what he or she does in the context of the employer’s organisation of work”.

46 The Process Technicians employed at CSBP perform duties more sophisticated and extensive than those contemplated by any of the particular occupational descriptions listed in the Eligibility Rule. Moreover, their duties are directed, not to the use of the machinery for the generation or utilisation of power but to use the machinery which used the power for the production of chemical products….”

[279] It was submitted that what the machine being used is being used for, was the relevant question. The AWU also referred to paragraphs 49 of the decision, and paragraphs 50 to 52, where reliance was placed upon the industry rule in construing the specific rules, such that it was plain that it was not concerned with all occupations that operate machinery using power.

[280] The AWU also referred to the decision in Dulux in which the same approach was more recently adopted.  That case concerned a person who for 95 per cent of their working time operated a forklift, but that person was not a forklift driver for the purposes of the law.  The AWU referred to the passage from paragraphs 53 to 56 as follows:

“[53] First, the expression “forklift drivers” must be understood in the context of rule 2(E) as a whole, having regard to the history of its development. As has been clear ever since its initial registration, the FEDFA was established as a “craft union” or, in more contemporary parlance, an occupational union. Each type of employment identified in the FEDFA’s eligibility rule must therefore be understood as descriptive of an occupation. Additionally, as was observed by the High Court in Re Coldham in relation to the first category of employment types in the rule (which includes “forklift drivers”), they are occupations which “have some degree of special skill”. Accordingly, in order to be eligible to be a member of the CFMMEU as a forklift driver, a person’s employment must be able to be characterised as one in which the primary purpose is forklift driving as a skilled occupation.

[54] Second, the circumstances in which the FEDFA gained coverage of “forklift drivers” sheds some light on what it means to be a forklift driver in the occupational sense. Both the FEDFA in advancing its case for the alteration and the Industrial Registrar in conditionally granting it drew a direct comparison between forklift driving and the special skill of crane operation. Crane operators, both then and now, typically operate in a “stand alone” role in which the operation of a crane constitutes the raison d’etre for their employment. We consider therefore that a person must be a forklift operator in an analogous sense in order to fall within rule 2(E)(a).

[55] Third, the decisions in Mt Newman and CSBP make it clear the employment in question must be assessed in the context of the purpose for which the employer has employed the employee and the employer’s organisation of work. To paraphrase what Burt CJ said in Mt Newman, the question here is whether Mr Lambert was employed to drive a forklift so that he earns wages by doing that, or whether he is employed to do something else, and Mr Lambert will not be a “forklift driver” within the meaning of rule 2(E)(a) merely because he drives a forklift in order to do what he is employed to do. The additional observation made by Burt CJ that the description of the employee’s vocation will more often than not reflect the purpose to be achieved by the employee’s work must be given weight in this respect.

[56] Fourth, the Full Court in CSBP considered it legitimate to have regard to the FEDFA’s industry rule to eschew a construction to the eligibility rule which is so extremely wide or indefinite as to be unlikely ever to have been intended. In this case, the approach advanced by the CFMMEU would give it eligibility in respect of virtually any employee who operates a forklift to a significant degree in their employment, and give it entry to a wide range of industries, particularly storage and warehousing, beyond contemplation when the FEDFA obtained approval for the alteration to its eligibility rule in 1949 (noting that the Industrial Registrar identified the purpose of the rule change as to “bring within its sphere employees of the desired classes where they are found in industrial areas at present occupied by the applicant”, underlining added). The relevant part of the CFMMEU’s industry rule (rule 3(F)) strongly confirms the relevant occupational focus of the rule in so far as it refers to a “calling, service, employment, occupation, or avocation” of persons “employed …as drivers of …any…forklift…” (underlining added). This places emphasis on the purpose of the employment.”

[281] The AWU submits that it is clear the employment in question must be assessed in the context of the purpose for which the employer has employed the employee and the employee's organisation of work.  The AWU submitted that Mr Massy sought to make a case that because the rule is an occupational craft rule and not an industry-based rule, the Commission could ignore what the employee is doing.  The AWU submits this is not the correct approach, and it is necessary to look at what role the employee plays in the organisation for the purposes of undertaking a fundamental assessment as to whether the person is employed to drive an engine simpliciter and nothing else.

[282] Mr Massy advised the Commission near the conclusion of the hearing that the Full Bench decision in Dulux is the subject of a reserved application for constitutional writs. On 10 June 2022 Mr Massy’s instructing solicitors brought to the attention of chambers the decision of the Full Federal Court in Construction, Forestry, Maritime, Mining and Energy Union v DuluxGroup (Australia) Pty Ltd [2022] FCAFC 101. The Full Court dismissed the application for constitutional writs. The Full Court in its decision endorsed the approach of the Full Bench of the Commission in Dulux observing that the employment identified in the rule must be construed as a descriptor of an occupation at paragraph 42 of the decision, and in the context of the purpose of employment and the employers organisation at paragraph 45 of its decision.

[283] Whilst in submissions the AWU did not concede the 2 CW5 – Crane Operators; the 16 CW5 - Skid Steer Excavators; the 46 CW6 – Plant Operator Excavators not exceeding 3 cubic metres; or the 2 CW7 – Plant Operator Excavators from 3 cubic metres; they did not in Schedule A to their 6 May written submissions describe them as being in contest. Given that crane drivers and excavator drivers are specifically identified as occupations falling within the FEDFA, I am prepared for the purpose of the exercise of going through the numbers to identify those roles as eligible to test whether there is any prospect of the Applicant achieving a majority. The AWU did not contest the 6 Trade Qualified Tradespersons (Carpenter) so I will include that number with the engine drivers. I am conscious of the most recent Full Court decision endorsing the approach that the role must be an occupation in the context of the purpose of the employment and the employers organisation of work, and that is the basis that the AWU has not conceded the crane operators and excavator roles, even though they are specifically mentioned in the rule.

[284] However, for the purpose of a mathematical exercise if it is assumed that the CFMMEU gets to 72 I will explore where that leads. The other roles that it has been argued fall within the occupation of engine driver are described as follows:

•  22 CW3 – Heavy Mobile Plant Operator (0-5T)

•  1 CW3 – Hiab Operator

•  22 CW3 – Road Roller Plant Operator under 12T

•  6 CW3 – Plant Operator/Telehandler (up to 4.5 T)

•  4 CW4 – Road Roller Plant Operator 12T and over

•  2 CW5 – Plant Operator – Mobile Concrete Pump Boom

•  5 CW5 – Plant Operator up to but not exceeding 48kw (65bhp)

•  37 CW5 – Plant Operator not exceeding 40T

•  3 CW6 – Heavy Mobile Plant Operator (>20-60T)

•  1 CW6 – Plant Operator Loader – Front End and Overhead from 48kw up to but not exceeding 370kw including 960, 966, 980

•  1 CW7 – Graders 140,143,14,16 with GPS

•  1 CW7 – Heavy Mobile Plant Operator (>60-100T)

•  1 CW8 – Heavy Mobile Plant Operator (>100T)

[285] None of the occupations in the dot points above are expressly named in the FEDFA rule. The first difficulty to arise is the question of whether driving the machines that are intended to be used by employees that are to be employed in the broad classification’s descriptions by reference to various types of plant intended to be caught by the classifications, is engine driving. Whilst certain types of plant are better described than the generic ‘plant operator’, for example road roller, or grader, there has been no specific evidence about the particular plant other than the broad descriptors set out above.

[286] The evidence is also not precise about the nature of what some of the plant is going to be to doing to assist in determining whether it is likely that operating that plant will be driving an engine within the meaning of the rule. I am inclined to the view that without more evidence on the issue it remains unclear particularly regarding the broad titles such as plant operator, or heavy mobile plant operator.

[287] Even assuming that operating all of the plant could fall within the rule if the driving of the plant was the principal purpose of the driver’s role, it is still necessary to determine whether the person who will operate the plant will be engaged by the Applicant for the principal purpose of ‘engine driving’ as their occupation in the context of the employers organisation of work.

[288] I have taken into account Mr Priem’s evidence in his second statement when he referred to the list of classifications in his first statement and said that the jobs listed in the table are the “substantive job activities (and principal purpose) that employees employed by JHQ in those roles will be employed to perform and for which they will earn their wages”. He said this was because the plant operation work is complex and hazardous, and therefore JHQ is only engaging those roles as specialist/dedicated roles.

[289] I allowed the statement in against the objection of the AWU, but I have formed the view that the evidence is of limited assistance in determining the matters of fact in dispute about the contested plant operator roles in order to apply the precedents referred to in submissions to the contested facts. The brief and general evidence was filed without notice the day before the hearing and is to a large extent using legal expressions to state the Applicants case as its evidence.

[290] The Applicant and the Unions supporting the application have filed no other evidence or documentation with any level of specificity about the primary purpose of the contested roles that will be employed at the classifications described in the dot points. For example, there were no draft position descriptions, or evidence from witnesses about the specific nature of the intended roles on a day-by-day basis in the wider context of the project overall.

[291] This has occurred in the context of the Dulux Full Bench decision of this Commission issued well prior to the filing of this application where the Full Bench upheld a first instance decision that an employee who was operating a forklift (a machine expressly mentioned in the FEDFA rule) for 95% of his time did not fall within the occupational rule because his principal purpose was not to drive the forklift. This is at the nub of the objection the AWU is making here with regard to the 106 positions set out above, in that part of the AWU challenge is that the driving of the plant will not be the occupation, or principal purpose of those workers in the context of the employers organisation of work.

[292] There was also some evidence from Mr Priem which tended to undermine somewhat his evidence that plant operator roles would be specialist/dedicated roles. In the course of being cross examined about how the 365 FTE number will not in result in a higher number of employees given his evidence about the size of concrete gangs compared to his FTE projections, Mr Priem gave evidence to the effect that the overall number of employees on the project can be kept to a lower number than even the projected FTE numbers by directing employees as the need arises to work across different activities.

[293] The Applicant in closing submissions referred to this evidence, submitting that in construction you don't just have people working on a particular point for a particular point in time, and then they stop and they wait around until something else happens, and then they go to some other site.  The Applicant submitted that Mr Priem’s evidence was they keep them busy and move them around.  They're doing concreting work here and then concreting work under another class of work, and then concreting work under somewhere else, and the plant operator's doing the same thing.  The Applicant said there is X number of plant operator's hours required for this activity, but that plant operator is then going over to another activity to do more work over there.

[294] This evidence tends if anything more to support the position that the workforces primary focus is that of being engaged in the activity of employer, and less in being engaged in a dedicated occupation. Whilst the evidence was by no means conclusive, given the paucity of evidence it did not assist the Applicant’s case.

[295] The Applicant’s, the CFMMEU and CEPU lawyers were on notice at an early stage of the proceedings that the AWU was intending to challenge the Agreement on the basis that it could not satisfy the requirements of section 187(5)(a). They would have been aware of the heavily contested history about the FEDFA rule, and the nature of evidence that has been put before the Commission in other proceedings where the rule has been contested.

[296] Whilst it is acknowledged that this is an application for approval of a greenfields agreement and the Applicant does not have an existing workforce to draw on to gather evidence, they must have been aware that generalised evidence as provided by Mr Priem may not be capable of being sufficient in allow the Commission to reach the requisite level of satisfaction concerning the contested issues regarding the FEDFA rule. This is even more the case when it is not in dispute that a reasonable proportion of the intended workforce does fall outside the eligibility of any of the unions claiming to be a party to the Agreement, and resolution of the engine driver issue could be determinative. The language in section 187(5)(a) does not state that the relevant employee organisations ‘may’ be entitled to represent, it states that the FWC ‘must’ be satisfied, that the relevant unions ‘are’ entitled to represent.

[297] Relying on eligibility under a contested occupational rule in the context of a greenfields agreement application that does not clearly cover the field carries risk, particularly given the additional challenge of gathering evidence regarding a business that has not yet commenced. For the reasons set out including the lack of probative evidence about the specific nature of the plant and the specific nature of the roles of the drivers of that plant, and how the work will be performed in the wider context of the employers organisation of work, I am not satisfied that the CFMMEU is entitled to represent the industrial interests of the 106 contested roles set out in the dot points above. Given the paucity of the evidence, there would still remain a question over the eligibility of the 72 however a view regarding those roles given my conclusion regarding the 106 is not determinative.

Attendants

[298] Mr Massy submitted that the second part of the FEDFA rule includes attendants, where it says cleaners, trimmers, and any other workers assisting about the work, incidental to any engine.  Mr Massy submitted that they are not just attending the engine but assisting in and about the work, incidental to any engine.  Mr Massy submitted for the purpose of the rule, it is permitted to go to Rule 3(F) the industry rule, to assist where there is ambiguity.

[299] Mr Massy submitted that Rule 3F includes “…attendance to any engine, winch, crane, mobile crane, forklift, tow motor, pile driver, excavator, pump, boiler, generator or motor used in or in connection with the generation, production, distribution, or utilisation of power, and persons assisting in or about any work incidental thereto..” .

[300] Mr Massy submitted that a dogman or a rigger is an attendant to a crane within that rule when 3(F) is considered, and the spotters are also “any persons assisting in or about work incidental thereto” the engine being a mobile plant.

[301] The AWU submitted in response to the submission of Mr Massy regarding the CW2 Heavy Plant Spotter at Item 14, and Ticketed Dogman or Ticketed Rigger at Item 22 being attendants on an engine, that submission could not be accepted.  The AWU submitted Mr Massy’s submission relies upon the findings in the Coal Lumper's case that those persons who were attending to the coal lumping devices themselves were attendants. 

[302] The AWU submitted that the spotters and the dogmen are not attending to the engine in any sense and cannot sensibly be described as attendants on machines.  Further the AWU submits that there is no description provided beyond a title as to the work that's involved, but spotters are ensuring the safety of the operation of the crane, that is that it doesn't cause danger to individuals by lowering and raising materials.  The AWU submitted that is not an attendant upon a machine. The AWU submitted there is reference to dogman and riggers, separately in building construction in the immediately following subrule which perhaps provides some indication as to whether it was contemplated that employees of that type would fall within the attendants, which is relied upon.

[303] Again, there is no specific evidence on the day to day role that will be filled by the spotters and dogman on this project, however I agree with the AWU submission that in the ordinary course spotters and dogman are not engaged as attendants within the meaning of the FEDFA rule, in that they would not ordinarily be engaged as attendants assisting in and about the work incidental to any engine. Dogman are generally engaged in slinging to move and lift loads, spotters direct machinery and equipment for the primary purpose of safety.

The Terrazzo Rule

[304] In response to the AWU position that the CFMMEU cannot represent workers who are preparing and erecting concrete the CFMMEU also relies on rule 2(A)(A)(1)(i) and specially the terrazzo rule which reads as follows:

“Also those engaged in the preparation and/or erection of Terrazzo or similar compositions,”

[305] The CFMMEU relies on a 1998 decision of the Full Court of the Federal Court in Rescrete v Jones 28  which considered the question of whether persons who worked at a plant which made precast wares, boxed culverts and bridge planks, were involved in the preparation and/or erection of a similar composition to terrazzo and found that Recrete had failed to demonstrate that terrazzo and the products manufactured by Rescrete were not similar.

[306] The CFMMEU also relied on a decision in Enco Precast Pty Ltd v CFMMEU & Ors 29 at both first instance in the Queensland Industrial Relations Commission and in the Industrial Court, and on an appeal to the Queensland Court of Appeal.

[307] In response to the AWU criticism that there is insufficient evidence concerning what work the workers would be performing, the CFMMEU submits that Mr Priem addressed that and said that they will be employed in the role and to perform those duties.  In response to the AWU position that such workers are performing the role in the service of the employer's business of building a light rail project, Mr Massy submits that confuses the employer's industry with the employees' occupation. The CFMMEU submit the occupation is laying concrete for the building of stations at a light rail facility. 

[308] The CFMMEU submit that contrary to the AWU position that the decisions in Rescrete and Enco are not dependent on the industry of the employer and the test is as set out in the Full Federal Court decision in Federated Tobacco Workers Union of Australia v Amalgamated Metal Workers Union and Anor 30 at page 275 as follows:

“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.”

[309] The CFMMEU again referred to the evidence of Mr Priem that the proposed jobs listed in the table in his first statement are the substantive job activities (and principal purpose) that the employees employed by JHQ in those roles will be employed to perform.

[310] The AWU submitted in relation to rule AA(3)(i) and reliance upon persons engaged in the preparation and erection of terrazzo or similar compositions to support coverage of concrete float hands, concrete gangs, form work labourers and concrete finishers, that does not make a decisive difference on the 50 percent majority.

[311] The AWU noted what it described as the limitations of what was said by the Full Federal Court in Rescrete.  The AWU submitted that Rescrete produced architectural and structural precast concrete and standard products and what was described as hollow core wall and floor panels.  It was all work undertaken at a production facility and the only onsite work was that of a supervisor contracts coordinator.

[312] The AWU submitted that page 279 of the decision describes the products that were made by Rescrete were a mixture of sand, cement, water and aggregate and that terrazzo was a mixture of water and sand, cement and stone particles and for that reason, the compositions were similar.  At the bottom of page 280 a dictionary definitions of the word preparation are set out and underneath those definitions the decision said as follows:

“It is to be recalled that it appeared to be common ground that terrazzo is a mixture of elements that are created at the site where it is to remain as part of the building or structure or created as a panel which is installed into a building or structure. It is consistent with the ordinary meaning of “preparation” for it to be treated as a reference to the process of mixing the constituent elements of terrazzo to create the material which either remained on site or was taken to a site and installed or, to use the language of the rule, “erected”.

[313] The AWU submitted that there are two aspects to it that were covered by preparation or erection.  One was preparing the product itself, that is mixing the constituent elements of the terrazzo or similar composition.  The AWU submits in this case it is not said that the workers will be doing that.

[314] Secondly, in Rescrete they could erect it, which would occur in circumstances in which the product was made off-site, transported and then erected as made.  The AWU submitted again, there is no suggestion that that is being done here.  The AWU submitted that what is being done is concreting as the evidence went to the subject at all.  In those circumstances, that rule has no application to either of the classes that are relied upon in that respect.

[315] Mr Massy submitted that the AWU had said the product had to be prepared off-site and that is not the case. Mr Massy said the ‘erection’ part of the rule refers to the composition being erected at the building site.  He said terrazzo is traditionally a flooring and it would be laid at the site in its plastic form and it would set and then it would be acid washed or polished to reveal the finish.  He said that's precisely what the concrete workers here would be doing, setting the concrete aside, and that is the erection of a similar composition to terrazzo.

[316] The same issue of a lack of evidence arises in relation to the terrazzo rule as it did in relation to the engine driver issue. There is no specific evidence to assist the Commission concerning the day-to-day role of the relevant concrete workers claimed under the terrazzo rule and is not possible to be satisfied that the CFMMEU are entitled to represent those employees who will be covered.

Eligibility under building rule

[317] Mr Massy made a brief submission to the effect that certain classes of worker may be eligible for membership of the CFMMEU on the basis that they are performing work on a building with reference to the stations on the project. Mr Massy referred to a High Court of Australia decision in The Queen v Marks (1981) 147 CLR 471. This submission faces the same difficulty in that there is insufficient evidence to properly deal with the submission although stepping back from the submission, the project is itself clearly a civil construction and light rail project on the Applicant’s evidence.

Conclusion on majority

[318] For the purposes of section 187(5) the Commission is required to reach a state of satisfaction concerning the requirement. This requires an evaluative assessment to be made on the material before the Commission. This does require a predictive element. As far as the contest as to the correct approach in determining majority I am content to adopt the approach in Besix Watpac given the outcome of the appeal in that matter has not provided any further guidance and a different approach would make difference to the outcome in this matter. The approach in Besix Watpac is that the Commission must have regard to the evidence as to the class of employees that are to be employed.

[319] Given my conclusion that the CEPU was not a party to the Agreement, I have not taken into account the 68 FTE attributed to the CEPU in the evidence. If I notionally attribute 72 FTE to the CFMMEU on the current evidence there is no evidence to add to that number on the basis of AMWU coverage. A total of 72 of the 365 FTE equals 19.7 percent coverage based on the FTE numbers. On the basis of the evidence, including these FTE numbers and my earlier stated concerns regarding the reliability of the FTE numbers, I am not satisfied that the relevant employee organisations that will be covered by the Agreement are (taken as a group) entitled to represent the industrial interests of a majority of the employees who will be covered by the Agreement, in relation to the work to be performed under the Agreement. On that basis, the application is dismissed.

[320] I note that if I am wrong in my earlier conclusion that the CEPU are not a party to the Agreement, and the CEPU FTE number is included, it arrives at a number of 140FTE which is still well below the majority of the Applicant’s projected FTE number of 365 which is 183.

[321] It is also notable in the absence of the CEPU numbers, even if all of the 106FTE contested plant operator roles were added to the CFMMEU’s 72FTE that to would still fall short of a majority.

GROUND 3: PUBLIC INTEREST

[322] Given my conclusions above it is strictly unnecessary to deal with the public interest objection, however for completeness I would not have found the objection a basis not to be satisfied that it was in the public interest to approve the Agreement. The AWU submitted that the Agreement has not been negotiated at the enterprise level and was based on a template developed as part of the Queensland Government’s Best Practice Industry Conditions for Transport Civil Construction Projects (BPIC).

[323] Section 187(5)(b) provides that the Commission must be satisfied that it is in the public interest to approve the Agreement. Statutory Declarations filed by JHQ and the Unions, the Statement of Trent Smith dated 13 April 2022, and the oral evidence of Mr Smith including those negotiations that had occurred, satisfy me that the concerns raised by the AWU are not made out.

COMMISSIONER

Appearances:

Mr Matthew Follett of Counsel, instructed by Mr Paul Gianatti and Ms Sapphire Parsons of KHQ Lawyers for the Applicant.

Mr Charles Massy of Counsel, instructed by Mr Luke Tiley of Hall Payne Lawyers for the CEPU and CFMMEU.

Mr Mark Gibian of Counsel instructed by Mr Stephen Crawford of the AWU.

Hearing details:

2022
Brisbane
18 May

Printed by authority of the Commonwealth Government Printer

<PR742707>

 1   Exhibit 1.

 2   Exhibit 2.

 3   Exhibit 4.

 4   Exhibit 3.

 5   See Australian Workers’ Union v Leighton Contractors Pty Ltd [2013] FCAFC 4, [82] – [95].

 6   CEPU and AMWU v Sustaining Works Pty Ltd [2015] FWCFB 4422, [28]-[32]; CFMMEU v Griffiths Cranes Pty Ltd [2019] FWCFB 1717, [40]-[56]; Australian Nursing and Midwifery Federation v Uniting Church in Australia Property Trust (Q) [2020] FWCFB 848, [125]-[129]; and CFMMEU v Mechanical Maintenance Solutions Pty Ltd [2020] FWCFB 1918, [33].

 7   (1989) 86 ALR 119, 157-8.

 8   (2013) 209 FCR 191.

 9   Ibid [34] and [98].

 10   [2019] FWCFB 1717.

 11   Ibid at [43].

 12   Transcript at PN236.

 13   Transcript at PN432.

 14   Transcript at PN491.

 15   Re Besix Watpac and CFMEU Minor Civil Construction Union Collective Agreement 2021 – 2025 [2022] FWCA 267, [40]-[41].

 16   [2022] FWCA 267.

 17   Transcript at PN992.

 18   (1984) 56 ALR 149.

 19   [1958] AR (NSW) 689.

 20   (1991) 38 IR 265.

 21   (1977) 57 WAIG 794.

 22   (2012) 212 IR 206.

 23   [2021] FWCFB 6020.

 24   (1990) WAIG 1653.

 25   (2005) WAIRC 03085.

 26   [2020] QIRC 188.

 27   (1988) 29 IR 263.

 28   (1998) 86 IR 269.

 29   [2021] ICQ 15.

 30   (1988) 29 IR 263 at 275.