DECISION

Fair Work Act 2009
s.236—Majority support determination

Construction, Forestry, Maritime, Mining and Energy Union
v
Elgas Limited
(B2020/339)

Application for a majority support determination.

[1] The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU or Union) has made an application for a majority support determination (MSD) pursuant to s.236 of the Fair Work Act 2009 with respect to certain employees of Elgas Limited (Elgas) at their Port Botany operations.

[2] Only a bargaining representative of an employee who will be covered by a proposed enterprise agreement may make an application for a majority support determination. The union cannot be a bargaining representative of an employee unless it is entitled to represent the industrial interests of the employees in relation to the work that will be performed under the agreement. 1

[3] The issue that arises for determination in this application is whether the employees in question are eligible to be members of the CFMMEU.

[4] The CFMMEU is an employee organisation for the purposes of the Act and is entitled to represent the interests of:

“... Any person who intends to follow the occupation of a waterside worker ...” (the Union’s eligibility rule) 2

[5] The Union says that its members who are employed by Elgas at the Elgas Cavern at Port Botany as Operations Controllers (the relevant employees) fit within the eligibility rule and it is entitled to represent the industrial interests of the relevant employees in relation to work that will be performed under the proposed agreement.

[6] The Elgas Cavern is a large underground liquefied petroleum gas (LPG) storage facility that is a 24-hour day operation. It is one of two major gas storage facilities operated by Elgas, the second major facility being located at the Dandenong Bulk Terminal in Victoria.

[7] The relevant provisions relating to a majority support determination are set out in sections 236 and 237 of the Act.

“236 Majority support determinations

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

(2) The application must specify:

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

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

237 When the FWC must make a majority support determination

Majority support determination

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

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

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

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

(2) The FWC must be satisfied that:

(a) a majority of the employees:

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

(ii) who will be covered by the agreement;

want to bargain; and

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

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

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

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

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

Operation of determination

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

[8] For the reasons set out below, I find that the Union cannot be a bargaining representative of the relevant employees because it is not entitled to represent their industrial interests in relation to the work that they will perform under the proposed agreement.

The case for the CFMMEU

[9] Mr Shane Reside, CFMMEU Organiser, gave evidence in the proceeding and filed two statements. He said he was employed by the Union in July 2018.

[10] In his first statement his evidence went to Elgas’s operations, and what he contended were the duties of the relevant employees, those being all aspects of operating a propane plant including loading and unloading gas to and from ships, all operational aspects of implementing safety procedures, the preparation of the facility for any major maintenance to be performed and monitoring of LPG gas facilities.

[11] In his second statement, Mr Reside responded in detail to the evidence of Mr Charng Jing Chee, the General Manager – Midstream at Elgas. The matters put by Mr Reside in his statements were based on communication with the relevant employees and from his own knowledge of the facilities and working arrangements at Port Botany.

[12] Mr Aarin Moon, union official, gave evidence in the proceedings. He said he is responsible for representing members of the Union engaged by various employers at Melbourne Port, and said that the Union is currently acting as a bargaining agent for control room employees in relation to the negotiation of new enterprise agreements with their employers.

[13] Mr James Webb, relevant employee, also gave evidence in the proceedings. His statement was filed in reply and not in accordance with the directions. He said that his role is to run the plants. This involves operating the plants to import propane off ships to be stored in the Cavern, and operating the plants to export propane out of the Cavern to be put onto ships or road tankers or by pipeline to another nearby facility. He said that one of the elements of his role is to be Loadmaster, and that throughout his employment this had been a requirement of his role. He gave evidence that there is one Loadmaster per shift during unloading and loading, and the role involves liaising with the ships that arrive at the berth, boarding the vessel, connecting the plant to the vessel’s manifold, and completing all relevant paperwork. This normally requires between 1.5 and 3 hours with the ship during loading or unloading process.

[14] In cross examination, Mr Web agreed that a fair summary of the purpose of the role, as set out in the relevant position description, was:

“The main function of the cabin operations controller position is the 24/7 monitoring and control of all plant and equipment for the safe, uninterrupted and efficient receipt storage and distribution of LPG in accordance with the facilities 20 operating standards”.

[15] The Union submitted that the principles in relation to the interpretation of union rules are well-settled, both as to general principle and as to their application to the meaning of ‘waterside worker’ at issue in these proceedings.

[16] The starting point, it submitted, is that the words in the eligibility rules of a union must be construed broadly and liberally, and that in connection with eligibility rules, an employer’s industry or an employee’s occupation can be described in a number of ways, so that merely because it falls within one description does not mean it cannot also fall within another.

[17] What is determinative of the characterisation of eligibility rules as to whether they cover a particular group of employees is the substance of the duties the employees undertake, not the classification or job title bestowed on the position.

[18] The Union submitted that although eligibility rules are not limited by the scope of unions industry rule, the eligibility rule will prevail in relation to any inconsistency between the two and industry rules can assist interpretation of ambiguity in relation to an eligibility rule.

[19] The Union noted that the ‘description of industry’ under its registered rules is relevantly ‘registered in or in connection with the shipping industry’. The eligibility rule set out earlier is an occupational rule, that is, its application is determined by the work undertaken by the employee and not by the industry of the employer.

[20] The Union submitted that the eligibility rule has been conclusively determined by the Federal Court in three cases which not only have established interpretation of that rule which has been consistently applied for the last 40 years, but the first of which is also on all fours with the facts in this matter. These cases are Co-Operative Bulk Handling v Waterside Workers Federation of Australia (1980) 49 FLR 355 (CBH Case), Federated Clerks Union of Australia v Waterside Workers Federation of Australia (1983) 4 IR 25 (Clerks Case), and ETU v Waterside Workers Federation of Australia (No 2) (1982 – 83) 59 FLR 78 (ETU Case).

[21] It contended that the meaning of waterside worker arising from those cases is not a matter of controversy:

“From the time of the original registration of the Federation the essential attributes of a waterside worker have consistently been seen in terms of his relationship to particular functions or activities. Those functions are activities are loading and unloading cargo, stores, supplies or fuel into or from ships …

It is also clear that it has long and consistently being recognised that the function of loading and unloading ships is not restricted to the physical transportation of goods aboard or ashore”. 3

[22] The Union also submitted that a functional assessment resulted in the meaning of waterside worker changing over time, as technology has changed the methods of unloading and loading:

“If there is, as clearly appears inevitable, a continuing change in the manner in which work is done [there is] no reason why the new forms of work should not come within words used in conditions of eligibility rule if those words are capable of bearing the appropriate current meaning.

… including where the particular kind of operation which these employers either carry on now will carry on in the future was not and could not have been in contemplation when the rules of any union concerns were registered”. 4

[23] The Union submitted it was well established that the occupation of waterside worker goes well beyond the task of physically moving cargo on and off the vessel and instead includes:

a. carrying out tasks at and in the vicinity of the wharf, including the handling of cargo beyond the wharf area,

b. workers engaged in skilled occupations ancillary to loading and unloading activities that is undertaken at or in the vicinity of the wharf,

c. workers engaged in administrative and clerical tasks associated with the management of material equipment and personnel before, during and after the unloading materials from vessels,

d. workers who fall within the above categories irrespective of whether they are engaged by employers who are not otherwise involved in the transport, shipping or stevedoring industry.

[24] It contended that the fundamental definition consistently applied so as to encompass employees performing the variety of roles captured in the assessments above is that:

“Without attempting to give an exhaustive definition, in our opinion the term waterside worker in r.6(a) of the rules of the Federation includes persons who are engaged in the loading of cargo, including loose bulk cargo, into ships and the prior handling, treatment and storage of that cargo at in the vicinity of the wharf when that handling, treatment and storing is to facilitate what is for the purpose of the ultimate shipping of that cargo.” 5

[25] The test to be applied to ascertain the meaning of ‘the occupation of a waterside worker’, the Union submitted, require the identification of:

a. the work the employees undertake;

b. the location at which the employees undertake their work; and

c. the purpose of the employees work.

[26] The Union submitted the evidence filed by it demonstrated that the work undertaken by the relevant employees confirmed they are skilled technicians whose role is fundamental to, and fundamentally concerned with the unloading of cargo from vessels. It contended that they directly control the unloading of gas from vessels into the temporary storage facility at the Elgas worksite adjacent to the wharf and the waterline. They monitor and control the handling of the gas as it leaves the vessel, the treatment of the gas as it travels along the pipeline on the wharf and under onto the roadway, the movements of the gas into the storage area (i.e. the Cavern) underneath Elgas’s worksite, and its movement away from the waterfront by road, pipeline or by sea.

[27] The Union contended that the role is not functionally distinct or separated from the loading and unloading process in a way that could provide any basis for concluding that they are not directly and intimately engaged in the unloading and loading of cargo from and to ships.

[28] The Union also contended that the relevant employees had been trained and are required to undertake every role from the initial connection of the ship to shore through every stage in the unloading of the cargo off the vessel to its place of storage in the Cavern for its later distribution.

[29] As well as the fundamental role in each and every vessel loading and unloading process, the Union contended that the relevant employees are also required to be involved in between loading and unloading processes in the maintenance of all the equipment involved in that process and the removal of cargo from its temporary storage in the vicinity of the wharf to the Cavern. It argued that while the materials file by Elgas sought to underplay those responsibilities, it did not include any evidence which contradicted the central role of the relevant employees in the unloading and loading process.

[30] In terms of the work being performed in the vicinity of the wharf, the Union contended there were ‘striking parallels’ between this matter and the circumstances arising in the CBH Case. Those parallels demonstrated that the meaning of ‘vicinity’ is a measure of proximity which may be a combination of function and physical distance.

[31] By way of comparison to the CBH Case, the Union noted that the loading process was similar, and that employees at CBH were engaged in various duties in connection with grain loading including ‘control room operators’ in the terminal building all of whom were determined to be waterside workers because of their connection with the loading process, from arrival of the cargo by rail through to it being deposited onto the vessel. In other words, ‘the occupation of waterside worker is, in terms of location, not confined to the wharf and it covers a range of functions connected with the storage and movement of goods destined for shipment’. 6

[32] In the case of the relevant employees, the Union contended that they are directly connected to the wharf and the loading process by the technology, and they are responsible for the transfer the cargo to and from the vessel. Additionally, their worksite is physically located around 100 meters from the Bulk Liquids Berth 1 (BLB1) and their building on that worksite is around 350 meters from the BLB1.

[33] The Union submitted the obvious function of a control room operator in multiple types of cargo operations has been considered to fall within the notion of waterside worker for decades. The technology means that control employees are remotely operating loading and unloading equipment that may be at distances far greater than what ‘in the vicinity of the wharf’ may have meant years ago when loading and unloading was almost entirely manual. It contended that employees controlling loading and unloading equipment over a kilometre from the wharf separated by roadways and other obstacles are still characterised as working in the vicinity of the wharf and still identified as waterside workers entitling them to be members of the Union because of their direct involvement in the loading and unloading process.

[34] In this case, the Union argued, ‘in the vicinity of the wharf’ also has to be assessed not just in terms of physical proximity and functional proximity, but also in light of organisational proximity, that is:

a. the treatment of the wharf area and the premises on which the control room is situated being treated for regulatory and safety purposes by Elgas and relevant regulators as a single worksite,

b. the designation by Elgas itself that the purpose of the facility is to be the bulk shipping and import of gas,

c. the permanent sitting of Elgas’s loading and unloading plant on the wharf, for its exclusive use, which is directly linked to the Elgas site on which the control room is situated from which the operation of that plant is controlled by the relevant employees, and

d. the maintenance and housekeeping work to be done by the relevant employees in and around the wharf and in connection with the movement of the cargo from the wharf to its temporary storage in the Cavern.

[35] In terms of the purpose of the relevant employees work, the Union noted that Elgas itself identified the purpose of the Cavern facility to be ‘a major LPG import facility’ which has ‘incorporated in the facility our own dedicated docking facility to load and unload LP gas Ocean tankers …’ and with ‘shipping in bulk’ identified as one of its two scheduled activities for regulatory purposes.

[36] It contended that it is inescapable that the work performed by the relevant employees is central to that purpose and correspondingly the purpose of the work is to facilitate the process of loading and unloading vessels. In this regard they:

a. directly control the entire loading and unloading process to and from vessel to temporary storage, and the subsequent movement of the cargo to its point of distribution away from that temporary storage,

b. are required to be “carrying out operational duties associated with shipping transfers, including Loadmaster duties at the Bulk Liquids Berth,

c. must operate the facility in line with the Safety Management System, the Environment Protection Licence and the MHF Safety case and thus including in relation to shipping in bulk,

d. are trained to perform safety rules in relation to the operation of the wharf and to perform maintenance on the wharf plant and the plant that transports the cargo on and off the wharf and on and off the vessels,

e. are required to hold Maritime Security Identification Cards to enable them to work on and around the wharf area.

[37] In response to the submissions made by Elgas, the Union made the following submissions:

a. The industry of the employer is not relevant to the interpretation of the Union’s membership rule if the membership is an occupational rule, and the designation of ‘waterside worker’ is not dependent upon the employer being in the stevedoring industry.

b. The meaning of ‘waterside worker’ is not limited to persons who stand ‘at the berth’ but applies to employees engaged in loading and unloading and storage process in the vicinity of the wharf.

c. Elgas does not identify the correct test for identifying whether a person is ‘waterside worker’.

d. The relevant employees are not ‘tradesmen who merely come to the waterfront to carry out particular repairs or servicing’. Rather they are skilled employees whose sole purpose is to use sophisticated technology to unload and load cargo from vessels.

4. They do not come to the wharf to perform particular services and go away again to continue their business elsewhere, nor are they engaged in an independent profession to provide services to a wharf.

[38] The Union contended the relevant employees are engaged by an employer involved in ‘shipping in bulk’ whose business is the import and export by vessel of massive supplies of LPG and to permanently and directly operate stevedoring processes to obtain its primary product. They work only at and in the vicinity of the wharf and only for the purpose of unloading and loading cargo to and from vessels and moving up cargo to its point of distribution away from the waterfront.

[39] Correspondingly, it concluded, it was inescapable that the relevant employees are waterside workers and that the Union is entitled to represent their industrial interests and entitled to apply for and to be granted by the Commission a majority support determination.

The case for Elgas

[40] Mr Chee gave evidence on behalf of Elgas. His role as General Manager - Midstream includes managing Elgas’s terminals, the Cavern Facility and the Dandenong Bulk Terminal in Victoria. He also manages haulage distributions which includes all heavy vehicles utilised to pick up LPG from supply points and distribute it either to Elga’s own depots or directly to customers. He also has responsibility for the purchasing and selling of LPG.

[41] Mr Chee’s evidence is that Elgas is an LPG storage, distribution and marketing company.

[42] Mr Chee described the Cavern as a key storage and distribution facility which is located at Port Botany. The site consists of an underground Cavern which allows for the storage of LPG in four interlinked tunnels and has a capacity of approximately 65,000 tonnes.

[43] The Cavern operates 24 hours a day seven days a week. Road tankers load LPG in three loading bays and distribute it throughout New South Wales and beyond. A dedicated pipeline transfers product to a neighbouring facility owned by Qenos. LPG is imported into the underground storage from Very Large Gas Carriers (VLGC) berthed at a neighbouring multi-user facility which is owned by NSWPorts. LPG is also exported to small pressure ships dock at the berth.

[44] The facility is a Major Hazard Facility and as such has extensive protection measures in place through a distributed control system which monitors the entire Cavern.

[45] The Cavern is set inland from the shore and was originally built solely for the purpose of loading LPG gas trucks. It has three loading gantries, a control room and office facilities located near the truck loading area. The three gantries are used to load LPG onto trucks.

[46] The Cavern is located near a berth which is owned by NSWPorts. There is a partially underground pipeline which runs from the berth to the Cavern. The berth is sometimes used by Elgas to export or import LPG to or from ships docked at the berth. The berth is also used by other companies such as Origin Energy, Vopak, Quantem and Qenos. Vopak, which is located next to Elgas, is the main user of the berth, and is a terminal company that owns storage tanks that are leased to other oil and gas companies.

[47] When Elgas uses the berth, it pays a berth usage fee to NSWPorts.

[48] Mr Chee said that the Cavern is predominantly used as a truck loading facility and the berth is used infrequently as the importation of LPG from VLGC ships occurs only around six or seven times per year. The export of LPG to small ships is also infrequent and may vary from 0 to 7 ships per month, compared to more than 900 trucks being loaded per month.

[49] Mr Chee gave evidence that contractors are engaged to perform berthing services. He said that when a ship arrives at the berth, the importing and exporting of LPG is mainly conducted by an independent contractor, Zeus Oil and Gas Pty Limited (Zeus), who supplies their own personnel to attend to the loading and unloading of LPG at the berth.

[50] A Zeus employee stationed at the berth carries a two-way radio to communicate with a relevant employee stationed in the control room. The Zeus employee confirms the shipment is connected and is ready to be loaded or unloaded, the relevant employee then operates a control panel in the control room to open and close the valves from the panel to receive the shipment and to control the flow of LPG through the pipes.

[51] Approximately 90% of the work on the berth is completed by Zeus. On limited occasions, the supervisor of the control room who is employed by Elgas (ie the Operations Coordinator) would go to the berth to perform this function.

[52] In relation to the work performed by the relevant employees, Mr Chee gave evidence that there are five relevant employees and one Operations Coordinator who work in the control room at the Cavern. The five relevant employees report to the Operations Coordinator. The Operations Coordinator reports to another Elgas employee who reports to Mr Chee.

[53] The key role of the relevant employees is to control the flow of LPG and run the control panels from the control room. A large portion of their work involves monitoring the truck loading aspects of the facility which is done from the Cavern’s control room.

[54] From the control room, the relevant employees can monitor and control the whole operation through the use of the control panel board. If an alarm is raised their role is to investigate and make adjustments to the valves to control the flow of LPG. This is done from within the Cavern.

[55] The relevant employees also monitor regulatory issues in line with Elgas’ policies. They are also required to perform maintenance and monitoring checklists which include such duties as checking the gas detectors. Relevant employees who are ‘on shift’ are required to be in the control room for the duration of the shift. There may be an extra ‘Day Operator’ who is not on shift and may leave the control room to attend to other duties such as walking around the facility to check on piping, equipment and general housekeeping.

[56] Whenever a ship arrives and LPG is imported from or exported onto the ship, this task is mainly handled by Zeus on the berth side while the relevant employee sits in the control room and monitors and controls the flow of the LPG to or from the ship as the case may be. They also monitor and respond to any alarms such as pressure alarms in relation to the flow of LPG.

[57] Mr Chee said if there are extra Day Operators who are not on shift and are available they may be asked to attend the berth. However this does not occur very often. He said that of the five relevant employees only two are currently trained to perform work at the berth and that the limited number of relevant employees who are available to operate the control room means that there is little or no capacity for the two trained relevant employees to attend the berth.

[58] Mr Chee gave evidence that occasionally, the Operations Coordinator attends the berth to carry out his duties if required, as he does not have a panel operating role. But again, given the low frequency of ships docking at the berth, these duties take up only a small proportion of his role.

[59] Mr Chee gave evidence that almost all of the work performed by the relevant employees has little direct connection to the berth or ships, is not carried out on the berth or ships and there is no loading or unloading of ships by Elgas. He also said that Elgas has no direct connection to ships in its core business.

[60] Finally, Mr Chee gave evidence that he had made enquiries with a number of managers who had been working at the Cavern prior to him joining Elgas and they had informed him that the Union had never sought any ‘right of entry’ to the Cavern.

[61] In his witness statement in reply, Mr Chee said that having reviewed the witness statements filed by the Union, he considered that the Union had mischaracterised the nature and purpose of the Cavern and the nature and purpose of the role of the relevant employees within the facility. He said that the predominant purpose of the Cavern is not for shipping LPG but rather storing LPG for distribution, predominantly via trucks. To this end, he said, the role of the relevant employees is to monitor the LPG storage level within the Cavern and to manage the flow and distribution of LPG throughout the facility, regardless of where the LPG flows.

[62] He confirmed the evidence of Mr Webb that ‘the role of the Operations Controller is to run the plants’.

[63] Mr Chee provided a detailed response to the second witness statement of Mr Reside.

[64] In terms of the evidence given by Mr Webb, Mr Chee said that Mr Webb is one of the two relevant employees trained to operate as Loadmaster on the berth when there is shipping activity. However in recent years the need for the relevant employees to attend the berth has become very infrequent. He said that since January 2019, being a period of more than one year and nine months, Mr Webb had spent around 2% of his total working hours at the berth and the only other trained relevant employee had spent zero hours at the berth over this time period.

[65] Mr Chee said the only operations team member who is now required to be trained to work on the loading arm is the Operations Coordinator as he acts as Loadmaster when needed and is supported by employees from Zeus.

[66] Mr Chee also gave evidence that he had reviewed Mr Webb’s employment contract dated 1999 which expressly provided that his employment was subject to the LP Gas Industry Award 1985, which he understood to have been superseded by the Road Transport and Distribution Award 2020.

[67] Mr Chee also gave evidence that he did not agree with Mr Webb’s assertion that the involvement of the relevant employees as part of the truck loading process is ‘minimal’, because the relevant employees are responsible for 100% of truck loading.

[68] In summary:

a. loading and unloading of the vessel is the role of the Loadmaster and Zeus employees;

b. only two of the five relevant employees are trained to act as Loadmaster;

c. of the two that are trained only one of them has actually attended the berth over the past one year and nine months which accounted for less than 2% of his working time and the second trained relevant employee has not performed the task at all over that time;

d. the two trained relevant employees will only be requested to act as Loadmaster as a backup when the Operations Coordinator and Zeus employees are unavailable.

[69] In its submissions, Elgas noted that there are a number of decisions of the Courts and the Fair Work Commission which have considered the definition of ‘waterside worker’ for the purposes of the eligibility rule. It highlighted a recent decision in MUA v Toll Mermaid Logistics Broome Pty Ltd  7 (Toll Decision) in which the Commission held that the employees in question were not waterside workers.

[70] Elgas submitted that in applying the same considerations to the relevant employees and based on the industry in which they work, the location at which the work is performed and the duties they perform, the relevant employees do not fall within the ordinary and plain meaning of a ‘waterside worker’.

[71] Elgas noted that in the Union’s application, it sought to describe the industry that Elgas operates as ‘Bulk Liquids Berth Hydrocarbon Port Loading and Unloading Operations’. Elgas submitted that it was not in the business of stevedoring nor did it have any substantive direct or indirect contact with the stevedoring industry.

[72] It contended Elgas is Australia’s largest marketer of LPG to homes and businesses, and is in the business of storing, selling and distributing LPG to customers and businesses across Australia. To this end it has storage and distribution facilities across Australia including the Cavern.

[73] In terms of the location and nature of the work performed by the relevant employees, Elgas submitted relevant employees primarily work from a control room located away from the berth which is where they monitor and control the flow of LPG. On occasions, the Operations Coordinator attends the berth to perform work but these duties only take up a small proportion of his working hours.

[74] Of the two relevant employees who are trained to work at the berth, it is in practice rare for them to do so. Their work is performed almost exclusively in the control room at the Cavern. Elgas submitted that even if the two trained relevant employees perform duties at the berth on rare occasions, this does not make them a waterside worker, and ultimately the occupation of the relevant employees is that of the plant operator having regard to the industry in which Elgas operates, the location of their work and the predominant duties they perform on a day-to-day basis.

[75] Elgas also submitted that since the establishment of the Cavern in 1999 the Union has not sought ‘right of entry’ into the Cavern and accordingly it submitted that a strong inference can therefore be made that the Union has not until recent times considered the relevant employees to be waterside workers.

[76] In its submissions in reply, Elgas noted the unusual wording of the union’s eligibility rule, suggesting that the Commission should be cautious about ‘broadly and liberally’ applying its terms. Read literally, the eligibility rule is expressed in terms that depend upon the intention of the prospective member, rather than being based upon the work actually being performed. The example used was that a bank clerk who intends to become a waterside worker is clearly ineligible for membership, but a wide reading of the clause would see the workers intent is the sole determinant of eligibility. Accordingly, the test must be whether employees are working as waterside workers rather than whether they intend to do so.

[77] Elgas emphasised that the work at the Cavern involves monitoring the storage of LPG, the flow of gas in and out of the storage facility, and the loading and distribution of gas onto trucks is central to the operations of the site.

[78] Elgas highlighted that the evidence before the Commission suggests that the work involved in connecting a vessel to the gas pipeline to facilitate the flow of gas is largely conducted by Zeus and from time to time the Operations Coordinator. The relevant employees who are the subject of this application generally have little if any involvement in the process beyond opening and closing valves from the control room to control the flow of LPG, and in any event only two of the five relevant employees have had training to perform work at the berth if required.

[79] Elgas submitted that the predominant purpose of the relevant employees’ role is that of a plant operator given that the predominant purpose of the Cavern is to store and distribute LPG via road transport and the role involves monitoring and control of LPG throughout the entire facility. Accordingly, their work lacks the requisite character to fall within the concept of ‘waterside worker’.

[80] In reference to the three cases relied upon by the Union, Elgas noted that in relation to the ETU Case, it was the view of the Full Court that the function of loading and unloading ships lies at the heart of the occupation of a waterside worker. It contended that the finding is not however, that the mere inclusion of such work as an incidental duty of an employee is enough to make the person a waterside worker - of particular significance in this regard is the clear and deliberate use of the term ‘predominant’.

[81] In terms of the argument around ‘proximity’ to the waterfront, Elgas contended that advances in technology emphasise the significance of looking at the duties actually being performed by the employees rather than a physical location. This is particularly relevant because a control room may be operated conceivably a significant distance away from the waterfront. Likewise, simply because an employer has waterfront postcode does not mean that its employees are waterside workers.

[82] Elgas contended that even if the view is taken that there are parts of the duties of the relevant employees which are of waterside worker nature, that is not enough to constitute eligibility. It contended that the test propounded in the ETU Case and the Clerks Case emphasise that the waterside work must be the ‘predominant purpose’ of the employment. To be a waterside worker, the employees predominant activities must constitute part of the overall stevedoring operations of loading and unloading ships.

[83] Elgas submitted that the predominant purpose test is a well-established principle in industrial law. The nature of the position for the purposes of industrial regulation is not determined by reference to ancillary duties but instead by the predominant purpose of the position. It contended for the Union to succeed in this application, the Commission would need to find that the predominant or principal purpose of the relevant employees’ role is for the loading and unloading ships, and the evidence is simply not available to support such a conclusion.

[84] Finally, Elgas noted that the relevant employees are already the subject of industrial coverage under the Road Transport and Distribution Award 2020, and submitted that they clearly fall within the coverage of this Award.

Consideration

[85] Having considered all the evidence and submissions made by the parties, I find that the relevant employees are not waterside workers.

[86] The evidence in my view supports a finding that the primary or predominant purpose of the role is not that of waterside work, rather it is that of a plant operator/controller. I agree with submissions made by Elgas that the function of loading and unloading vessels lies at the heart of the occupation of a waterside worker. The evidence here is that work involving the loading and unloading of vessels (ie the Loadmaster role) is primarily undertaken by Zeus or the Operations Coordinator. Only two of the relevant employees are trained to perform this role, and in the one year and nine months prior to the hearing only one of the employees had performed the role approximately 2% of his working time. On any objective view, this is an incidental component of the role.

[87] While the Cavern may be located within proximity of the waterfront, location is not, in and of itself, determinative of coverage. I agree with the submissions made by Elgas that a control room, with advances in technology that have occurred in recent years, may conceivably be operated significant distance away from the waterfront.

[88] In terms of the work performed by the relevant employees, I place more weight on the evidence provided by Elgas. I accept the evidence of Mr Chee as to the nature of the busines and the work currently required to be performed by the relevant employees. Clearly, Mr Chee is in a position to provide a reliable account of the duties required to be performed by the relevant employees and how they fit within the business overall. In particular, I accept Mr Chee’s evidence that the only operations team member who is now required to be trained to work on the loading arm is the Operations Coordinator as he acts as Loadmaster when needed.

[89] Mr Reside is not an employee of Elgas and freely admitted that much of his knowledge came from communications with relevant employees. Of more relevance is the evidence of Mr Webb.

[90] There is no doubt that Mr Webb is capable of performing the Loadmaster role and does perform this role on occasion. It is clear from his evidence that he performed this role more regularly some years ago. However, the relevant consideration is the work currently required to be performed by the relevant employees, and not the work that employee may be capable of performing or work that was performed more regularly in the past.

[91] Because I have found the union is not entitled to represent the relevant employees it is unnecessary to consider the other aspects of section 237.

[92] As outlined earlier, only a bargaining representative of an employee who will be covered by a proposed enterprise agreement may make an application for a majority support determination. The Union cannot be a bargaining representative of an employee unless it is entitled to represent the industrial interests of the employees in relation to the work that will be performed under the proposed agreement. Given my finding that the relevant employees are not waterside workers within the meaning of the eligibility rule, the Union is unable to represent their industrial interests. Accordingly, the application is dismissed.

DEPUTY PRESIDENT

Appearances:

D Quinn of Holding Redlich for Construction, Forestry, Maritime, Mining and Energy Union.
R Millar of Counsel for Elgas Limited.

Hearing details:

2020.
By video:
October 20,
November 19.

Printed by authority of the Commonwealth Government Printer

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 1   Sections 236 and 176 of Fair Work Act 2009.

 2   Rule 2(S) Part W of the Union’s Rules.

 3   ETU v Waterside Workers Federation of Australia (No 2) (1982-83) 59 FLR 78.

 4   Co-operative Bulk Handling v Waterside Workers Federation of Australia (1980) 49 FLR 355 at 364 and 368.

 5   Ibid at 372.

 6   Ibid at 369-370.

 7   [2015] FWC 5845.