Note: An appeal pursuant to s.604 (C2012/3503) was lodged against this decision.
[2012] FWA 2790 |
|
DECISION |
Fair Work Act 2009
s.437 - Application for a protected action ballot order
Construction, Forestry, Mining and Energy Union
v
Rapid Metals Developments (Australia) Pty Ltd
(B2012/62)
COMMISSIONER BOOTH |
BRISBANE, 2 APRIL 2012 |
Proposed protected action ballot by employees employed by Rapid Metals Developments (Australia) Pty Ltd in Queensland.
[1] A protected action ballot order has been sought by the Construction, Forestry, Mining and Energy Union (CFMEU or the Union) in relation to its members employed by the Respondent, Rapid Metal Developments Pty Ltd (RMD or the employer).
[2] The Fair Work Act 2009 (the Act) provides for the making of such orders in the following terms:
“443 When FWA must make a protected action ballot order
(1) FWA must make a protected action ballot order in relation to a proposed enterprise agreement if:
(a) an application has been made under section 437; and
(b) FWA is satisfied that each applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted.
(2) FWA must not make a protected action ballot order in relation to a proposed enterprise agreement except in the circumstances referred to in subsection (1).”
[3] This is the fourth application for a protected action ballot by the Union in relation to RMD. The first two applications were discontinued by the Union, and in the third I found there was a technical defect that was fatal to the application itself. The defect was remedied in this application.
[4] Section 443(1) (a) requires an application to made under section 437. Section 437 (1) provides for who may apply for a protected action ballot, namely, a bargaining representative of an employee who will be covered by the agreement.
[5] There is an unusual history of the relationship of the CMEU and RMD over the past months. In this and the third application, each party is relying on material adduced by the other side to show that the earlier arguments support their position in the later matters.
[6] This has led to an unusual contest. Whose material is reliable in what context? Which party argues best in the earlier and later matters?
[7] FWA, however, is not concerned so much with these contests as it is with the facts and the law, and it is the facts and law that will determine this matter. There are two threshold questions before this tribunal:
(a) Is the application validly made by the employee organisation who was bargaining with the employer?
and;
(b) Is that employee organisation entitled to represent the industrial interest of employees in relation to work that will be performed under the agreement?
[8] If the answer is yes to both questions, then the Applicant will need to establish if it has satisfactorily met the requirements in section 443 such that a protected action ballot order should issue.
The bargaining party
[9] I remain of the view that the bargaining party for the purposes of this and the third application is the federal CFMEU. There is no doubt now that the federal CFMEU is the Applicant in this fourth incarnation of this matter. There is thus an alignment between the Applicant and, based on my findings on the third application, the bargaining party. This stands in contrast with the circumstances in JJ Richards relied on by the Respondent.
[10] RMD submits I should reconsider my earlier finding about the true bargaining representative. It does so on two bases. The first is detailed in the supplementary affidavit of Mr Box that the CFMEU had not previously or historically engaged with RMD. Mr Box’s assertions were uncontested. However, they do not demonstrate the CFMEU was not the bargaining party for the period relevant to this application, merely that they may not necessarily have been involved at earlier points in time.
[11] Also Mr Box deposes that the CFMEU name is shorthand for the CFMEUQ. However based on the totality of evidence before the Tribunal, including the minutes, I remain of the view that it shows that the entity bargaining with RMD was the CFMEU and not the CFMEUQ.
[12] The second basis is contained in the Respondent’s supplementary submissions. The bulk of those submissions go to the second question of whether the employees fall within the eligibility rules of the CFMEU. That I address later.
[13] In terms of whether the bargaining party was the CFMEU or the CFMEUQ, the Respondent’s supplementary submissions restate the earlier submissions. For the reasons 1 I gave in dismissing application B2011/312, the party engaged in bargaining with RMD was the CFMEU.
[14] Accordingly I confirm my earlier finding that for the purposes of section 443 the CFMEU is the bargaining party and it is now beyond doubt that the CFMEU is the Applicant in this matter.
Coverage
[15] I turn therefore to the next question: is the CFMEU entitled to represent the industrial interests of RMD’s employees?
[16] Ms Milner asserts the union does not, because the employees are properly characterised as yards persons. The CFMEU asserts in this application it has coverage because the employees are in fact engine drivers in the class of forklift drivers or entitled to represent them on other grounds.
Section 176(3) provides:
“an employee organisation cannot be a bargaining representative of an employee unless the organisation is entitled to represent the industrial interests of the employee in relation to work that will be performed under the agreement.”
[17] The Respondent is correct in its assertion that the CFMEU can only be the bargaining representative if RMD’s employees are eligible to be CFMEU members.
[18] The Respondent’s supplementary submissions conveniently summarise and restate the earlier position that either the employees are yard persons (and asserts that they are therefore eligible to be covered by the National Union of Workers) or there is ambiguity about their role, resolvable by reference to the industry that RMD is engaged in. Central to this argument is that RMD is not in the construction industry, but the business of sale and hire of scaffolding, formwork and other materials and equipment to the construction and other industries.
[19] The CFMEU submits that it is a bargaining representative and is entitled to represent the employees of RMD and that the protected action ballot should issue. It argues this on four eligibility rules:
(a) the employees are forklift drivers;
(b) alternatively, the employees are engaged in work in connection with or incidental to the erection, repair, renovation, maintenance, ornamentation, alteration, removal, or demolition of any building;
(c) alternatively, the employees are engaged in work incidental to the work of concrete finishers, scaffolders, concrete gang workers, concrete formwork strippers, builders labourers and/or labourers doing concrete work incidental to the construction of buildings;
(d) alternatively, the employees are employed ... in connection with the industry..occupations…callings…vocations…industrial pursuits of …carpenters or joiners.
[20] If RMD’s employees are accurately described, as a matter of fact, by one of these four alternatives, they are eligible for membership of the CFMEU.
[21] As noted, RMD disputes that the CFMEU is entitled to represent the industrial interests of its employees.
[22] I turn first to the CFMEU’s primary eligibility consideration in this application, namely that RMD’s employees are forklift drivers.
[23] Rule 2(E)(a) provides that the following persons are eligible to members of the union:
“Without limiting the generality of the foregoing and without being limited thereby the Union shall consist of:- An unlimited number of classes of ... forklift drivers ...”
Approach to construction of eligibility rules
[24] The context in which disputes about eligibility arises has been recently described in DHL Supply Chain (Australia) Pty Ltd T/A DHL Supply Chain.2
[25] While the DHL matter involved approval of an enterprise agreement, it developed via contested coverage issue which required interpretation of the eligibility rule of a registered organisation. It is the same in this matter where a protected action ballot requires such interpretation and application.
[26] It was noted in DHL that contested eligibility of registered organisations, in particular employee organisations has been the subject of much litigation. Similarly in this matter the parties had referred to the leading authorities regarding the correct interpretation and application of the rules.
[27] DHL clearly articulates the challenges of interpreting rules of registered organisation in the 21st century, and it is worth quoting the relevant passage:
“Fourthly, the nature of work like most aspects of modern society has been significantly impacted by rapid technological change occurring at an almost exponential rate. The traditional notions of industry, occupation, industrial pursuits and callings have been and continue to be, modified by the way in which the methods of production, distribution and commercial business activity changes. Consequently many of the characteristics of the way in which work is performed and the circumstances surrounding the performance of employment need to be recognised as dynamic rather than static.”3
[28] Not unsurprisingly, the parties in this case propose different approaches as to the correct interpretation and application of the rules, each citing superior court authority to support their argument.
[29] The CFMEU relies on the approach taken by the High Court in Re Coldham; Ex Parte Australian Workers Union. 4 This case is among the many judicial pronouncements on the particular clause that is the subject of this part of the application. It was argued in Re Coldham by the Australian Workers’ Union that the FEDFA’s 5 eligibility rules did not cover mobile crane drivers except in the civil construction industry. That is, to be eligible under the rule, employees must be both mobile crane drivers and employed in the civil construction industry. The High Court held that, as the eligibility clause was unambiguous on the facts of the matter, it was unnecessary to look to the industry clause for the purpose of resolving any ambiguity.
[30] The CFMEU submits that on the principle from Re Coldham, it is irrelevant what particular industry the class of engine drivers (which includes forklift drivers) are in. The fact that they are a class of engine driver being a forklift driver is sufficient to bring them within the eligibility rules of the CFMEU whether RMD is in the construction industry or some other industry altogether, and it does not fall to this Tribunal to inquire about the industry.
[31] The Respondent submits that the approach taken in the full bench in Australian Theatrical and Amusement Employees Association v Professional Radio and Electronics Institute of Australasia and another6 was to be preferred. It requires a two-step process. The first step is an assessment as to whether the relevant employment is within the scope of an eligibility rule; and the second step involves an application of the eligibility rule, to be construed by reference to the circumstances of the particular employee or employment for the purpose of determining whether the employment falls within the scope of the rule. The Respondent says this means that just because an employee drives a forklift does not mean that are covered by the rules of the CFMEU.
[32] Rather to determine whether someone who drives a forklift may be covered by the CFMEU rules requires an analysis of the duties of the worker as a whole and the primary function or functions of the role. If the duties of the worker as a whole or the primary function or functions is as a store person or store worker or yard worker then they are not covered by the CFMEU rules. Although not stated by the employer, it is implicit in its submissions that if the employees’ duties are those of a forklift driver, then they are indeed eligible for CFMEU membership.
[33] The employer also relied on the Federal Court decision in CSBP Ltd v Construction Forestry Mining and Energy Union7 to show that on the facts of this case the duties of the employees is not to drive forklifts. Rather, it argues, a forklift is merely a tool used by the employees to achieve their primary purpose which is to prepare sold or hired goods for collection by customers or to receive returned product and return a product to storage to be sold or hired again.
[34] Further Ms Milner argued that the case is authority for an analysis that looks to the primary purpose of what the employees are doing in order to determine what the calling is. She argued their primary purpose is not to drive a forklift because if all they did was drive a forklift they would not be able to do the job.
[35] Further the task of interpretation is not a quantitative one based on the time spent performing certain duties.8 It is rather to address the question of what is the primary function or functions of the role performed by the employee.9
[36] In the CSBP case His Honour considered both approaches. He was assessing the job of process technicians. The employer argued that the test was the primary purpose test where their task was a sophisticated exercise in the production of chemicals. In order to perform their duties, employees had recourse to certain items of equipment including pumps and boilers.
[37] McKerracher J said this in relation to the alternate constructions proposed by the parties:
“...
10. If, contrary to my view, the preferable approach to the question of construction is the approach advanced by CFMEU, then it seems clear that there is a more than adequate evidentiary basis to support that approach.
11. CSBP contends that the appropriate test is the ‘primary purpose’ test. In other words, are the Process Technicians primarily engaged in a sophisticated exercise in the production of chemicals in the course of which (like many other people), they have access to the items of equipment highlighted by CFMEU or, alternatively, were they ‘simply’, for example, pump or boiler attendants or any other worker assisting in and about the work incidental to any engine?
12. For CFMEU, it is strongly submitted that such an approach to construction of the Eligibility Rule is impermissible. It is argued that it is necessary to adopt a liberal, broad and beneficial approach to the construction of the words appearing in the Rules. Any approach which involves reading down a rule ought not be accepted...”
[38] His Honour held for the employer and rejected the Union’s construction of the rule.
[39] Also in the CSBP case, His Honour deals with the decision in re Coldham and states:
“178. While it is clear that conditions of eligibility may validly extend beyond the industry in respect of which an organisation is registered, an ambiguity in the eligibility clause may be resolved by reference to the industry clause: R v McKenzie; Ex Parte Actors and Announcers Equity [1982] HCA 6; (1982) 148 CLR 573 (at 576-577). Although in re Coldham the High Court held (at 150) that the corresponding FEDFA rule was not ambiguous so that resorting to the organisation’s industry rule was unnecessary in the context of considering whether the position of mobile crane drivers was covered by part one of the rule. There was no ambiguity, at least in that case, about the expression ‘crane driver’. In those circumstances it was unnecessary and the court was not asked to consider the ambit of part two of the rule.”
[40] While differences can be found between the two approaches described above, it is only necessary to consider these approaches if there is an ambiguity. Re Coldham was a case about the proper construction of the FEDFA rule, and it is clear, binding authority about how the eligibility rule in this case is to be read.
[41] It is worthwhile quoting the relevant part of re Coldham in full.
“4. The issue in this Court is whether the Commission was correct in the interpretation which it placed on the FEDFA'S eligibility clause. So far as it is material, the clause provides:
“... all classes of engine drivers, firemen, crane drivers, mobile crane drivers, fork lift drivers, tow motor drivers, excavator drivers, pump attendants, pile drivers, motor drivers or attendants, greasers, cleaners, trimmers, and any other workers assisting or about the work incidental to any engine, boiler or machinery connected with the production or utilization of power on land or any harbour or river, and boiler attendants attending boilers not generating steam for power purposes ...”
The AWU's submission is that the description which follows the words "any other workers" applies also to all the specific categories of workers which precede these words. The submission pays insufficient attention to the structure of the clause which naturally falls into three parts. The first part consists of "all classes of" the specific categories, including "mobile crane drivers" down to and including "motor drivers". With the exception of "firemen" and "pump attendants" the categories in the first group comprise drivers of various kinds. And all the employees described in this group, with the possible exception of "pump attendants" have some degree of special skill. The second part of the clause commences with the disjunctive "or" and includes "attendants, greasers, cleaners, trimmers, and any other workers assisting in or about the work incidental to any engine, boiler or machinery connected with the production or utilization of power". We note in passing that it is unnecessary for the purposes of the present case to decide whether the words "on land or any harbour or river" qualify the first part of the clause. The third part of the clause includes "boiler attendants not generating steam for power purposes.
5. Once the structure of the clause is understood it becomes evident that the eligible membership of the FEDFA consists of three groups:
(1) all classes of enumerated drivers, firemen and pump attendants;
(2) attendants, greasers, cleaners, trimmers, and any other workers who answer the general description contained in the second part of the clause; and
(3) boiler attendants who answer the description contained in the third part of the clause.
It is not possible to treat the limiting description governing the second group of eligible members as having application to the first group, without doing violence to the structure and the language of the clause.
6. In the result, we do not regard the eligibility clause as ambiguous and, accordingly, there is no occasion to look to the industry clause for the purpose of resolving an ambiguity.”
[42] There is no dispute that forklift drivers are a ‘class of enumerated drivers’ and can be distinguished from the clauses that limit eligibility. In other words, if the employees are forklift drivers, on the authority of re Coldham, (and CBSP, and indeed under the 2-step process described in the Australian Theatrical and Amusement Employees case) then the CFMEU has coverage.
[43] The High Court examined the clause and has found it is not ambiguous. It therefore falls to this Tribunal to decide whether, as a matter of fact, the relevant RMD employees are, or are not, forklift drivers.
The evidence
[44] The evidence consists of supplementary affidavits filed in this matter, affidavits filed in the hearing for the protected action ballot dated 1 March 2012; the evidence and the affidavit material provided in an earlier protected action ballots. Included in the supplementary submissions is a table prepared by Ms Milner comparing evidence offered by the applicant in different proceedings by Messers Steers, Clarke and Howland. That table shows the shift in emphasis between the proceedings from construction related activity to forklift driving. I agree that the earlier proceedings were focussed on carpentry and like activities and this and the third application have focussed on forklift driving. The focus of evidence between the various applications are a direct result of the change in nature of the applications and arguments advanced in support of them. Mr O’Brien conceded before me on 1 March 2012 that the CFMEU had initially proceeded on the basis of the CFMEUQ rules and that was not correct and that this application proceeds on the basis of the CFMEU rules.
[45] I have also considered oral evidence in the proceedings, including under cross-examination. The parties did not resile from the evidence given in earlier proceedings with both advocates noting that the tribunal may inform itself in such a manner as it considers appropriate.
[46] The evidence (in this application) on behalf of the CFMEU consisted of six affidavits from employees at RMD and one affidavit from Mr Kong. The affidavits of employees at RMD all indicated are that they used a forklift for a substantial part of their work. Mr Howland for example described it as ‘a key part of what I do in the yard is to drive and operate a forklift’; Mr Steers states ‘as part of my employment I hold a forklift ticket. The majority of the work that I perform involved the picking, packing, stacking, loading, unloading and sorting of materials. Most of this involves the use of a forklift.’
[47] The evidence provided by Mr Box on behalf of the Respondent in the hearing in December 2011 similarly described the work of employees at RMD both in his affidavit and under cross-examination and confirmed that he thought an average yard person’s work was about between 60-70% of the day sitting in a forklift, loading and unloading trucks. Mr Box described in detail the role of the relevant employees as to pick orders, duties he described as being done with a forklift.10
[48] During his evidence on a number of occasions he described the yard person as forklift operators.
[49] While such a phrase may be a shorthand way of saying ‘yard person who uses a forklift to do their work’ it is not unreasonable to assume that the use of that term at least shows that in the mind of Mr Box that while employed as yard persons the employees at RMD work as “forklift operators”.
[50] He also gave evidence about the central role of the forklift to the duties of the job:
“It's certainly the most efficient means of moving our equipment. You can see in the background there [referring to a photograph] some of the equipment looks fairly sizeable and it is fairly heavy, so we prefer to obviously have our employees use a forklift rather than do things manually wherever possible and so that's why we use forklifts as extensively as we can.”11
[51] Also under cross-examination when speaking about Mr Cory Clarke, Mr Box gave the following evidence:
“I believe he was employed as a labourer initially and we facilitated him gaining a forklift ticket over the time he has been with us. He is what we would term a forklift labourer, in our terminology, and he is fully engaged in the work that he’s carried on”
[52] It is therefore uncontested evidence from the Respondent that at least a majority of the time of the employees is spent doing their work as a forklift operator.
[53] There is also agreement that they pick, pack, sort and stack product. Ms Milner says they could do so in fact without a forklift even though they do use this most of the time. There is also agreement that the employees prepare materials and undertake work in relation to formwork and other construction supplies sold or hired by the employer.
[54] Mr O'Brien for the Union agrees that the employees ‘move things about’ - that is their primary purpose and they need a forklift to do that. In fact, he says, that is what a forklift does.
[55] He submits that RMD’s argument is analogous to saying people who are employed to drive a bulldozer are not actually bulldozer drivers but rather they move dirt and the fact that they use a bulldozer to do so is incidental to their role.
Discussion
[56] If employees of RMD are forklift drivers, on the authority of re Coldham this is conclusive of their eligibility to join the CFMEU.
[57] The employees of RMD drive a forklift for the majority of their working day. As is evident from Mr Box’s evidence where ever possible employees are encouraged to use forklift rather than do things manually. This appears to be for reasons of both efficiency and safety.
[58] I do not agree with the submission that the employees can do their work without a forklift. Nor do I agree that to be a forklift driver means the employees would only drive forklifts. There is little doubt that the employees have duties other than to drive forklifts, including, for example, cleaning and maintenance of return items. However a mixture of duties is not inconsistent with the employees being forklift drivers. Indeed, this is the essence of the argument advanced for RMD in terms that merely driving a forklift does not of itself make the employees forklift drivers. Similarly, the mere fact that they have duties other than driving a forklift does not mean they are not forklift drivers.
[59] I have also carefully considered the apparent evidentiary inconsistencies advanced on behalf of RMD. As mentioned earlier, I consider these differences to be an artefact of the divergent nature of the applications, and that the CFMEU, as conceded by Mr O’Brien, commenced the earlier proceedings in an erroneous way. While the focus of the way the role of the employees changes, the substance of the role, as described by all those who gave evidence in whichever manifestation of this matter, remains a mixture of tasks, but predominantly it is to move goods using a forklift.
[60] On the evidence before the Tribunal, employees at RMD operate forklifts for the majority of the day. It is both a substantive and predominant function of the employee. It is the way product is moved around the factory. It is the preferred way for product to be moved. No doubt for some of the product, the only reasonable way to move product safely and efficiently is by forklift.
[61] For these reasons and based on the activities of employees of RMD in the context of their employment I have concluded that the employees of RMD are, as a matter of fact, forklift operators and therefore fall within the applicant’s eligibility rule.
[62] Having reached that conclusion it is unnecessary to consider the alternative eligibility grounds raised by the CFMEU.
[63] As I have concluded that the employees of RMD fall within the CFMEU’s eligibility rules, then the CFMEU is a bargaining representative for the purposes of sections s176(1) and (3).
[64] Section 437 requires that the Tribunal make a protected action ballot order when certain content and related requirements are satisfied and the applicant is genuinely trying to reach agreement.
[65] I have already found in Construction, Forestry, Mining and Energy Union v Rapid Metals Developments (Australia) P/L [2012] 2499 that the Applicant has been genuinely trying to reach agreement with the employer. By email of 26 March 2012 Mr Kong has indicated he is available to meet the employer for a further bargaining meeting.
[66] In accordance with the requirement in s.437(3) the application specifies the groups of employees who are to be balloted and the questions to be put to the employees including the nature of the proposed industrial action. The questions to be put are certain and identify the nature of the industrial action.
[67] Pursuant to s.440 the applicant gave a copy of the application to the employer within 24 hours.
[68] The application has specified an alternative ballot agent, Mr Richard Kidd. In accordance with the directions issued by the Tribunal the CFMEU provided details of Mr Kidd’s qualifications and experience. Mr Kidd has extensive experience as a senior electoral officer and as a private ballot agent. He is a fit and proper person to conduct the ballot. Directions have been made for the conduct of the ballot under section 450.
[69] As all the procedural requirements have been met and the applicant has been and is genuinely trying to reach agreement I must make a protected action ballot order as sought by the CFMEU.
COMMISSIONER
1 Construction, Forestry, Mining and Energy Union v Rapid Metals Developments (Australia) P/L [2012] FWA 2499
2 [2011] FWA 6863 paragraphs 23-29
3 ibid at paragraph 27
4 [1984] HCA 62
5 This is now Rule 2 (E) (a) of the CFMEU Rules
6 Print H5676
7 [20 11] FCA 917
8 Layton v North Goonyella Coalmines Pty Ltd [2007] AIRCFB 713 at para 26
9 Joyce v Christoffersen 26 FCR 261
10 December hearing, at PN117
11 December hearing, at PN118
Printed by authority of the Commonwealth Government Printer
<Price code C, PR521932>