DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

Construction, Forestry, Maritime, Mining and Energy Union

(C2021/4056)

Appeal against decision [2021] FWC 3786 of Deputy President Asbury at Brisbane on 2 July 2021 in matter number B2020/834.

Introduction and background

[1] The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) has filed an appeal under s 604 of the Fair Work Act 2009 (FW Act), for which permission is required, against a decision made by Deputy President Asbury on 2 July 2021 1 (decision). In the decision, the Deputy President determined that the CFMMEU did not have standing to make an application for a bargaining order under s 229 of the FW Act in relation to a proposed enterprise agreement between DuluxGroup (Australia) Pty Ltd (Dulux) and employees at its Rocklea site in Queensland. The Deputy President reached this conclusion on the basis that the CFMMEU was not entitled under its rules to represent the industrial interests of a particular Warehouse Operator employed by Dulux, Mr Wayne Lambert, for whom the CFMMEU purported to be acting as bargaining representative and upon whom it relied to demonstrate its capacity to bring its application. The CFMMEU contends in its appeal that the Deputy President’s conclusion in this respect was wrong.

[2] Under s 229 of the FW Act, only a “bargaining representative for a proposed enterprise agreement” may apply to the Commission for a bargaining order in relation to the agreement. In relation to proposed enterprise agreements that are not greenfields agreements, s 176(3) provides that an employee organisation cannot be a bargaining representative unless the organisation is “entitled to represent the industrial interests of the employee in relation to work that will be performed under the agreement.” There is no dispute that, in order to be entitled to represent the industrial interests of an employee, an organisation must have the capacity to enrol the employee as a member in accordance with its rules.

[3] The Dulux Rocklea Enterprise Agreement 2016 2 (2016 Agreement) currently covers and applies to employees at the Rocklea site. Clause 1.3.1 of the 2016 Agreement provides that it shall have application to:

…employees employed in or in connection with the manufacture, processing, treatment, handling, distribution, maintenance (but not retailing) or storage of materials or products used in or in connection with decorative or technical surface coatings or coverings and associated products and covered by the Agreement's classifications.

[4] Clause 1.3.2 provides that the 2016 Agreement will cover employees in the classifications listed in clauses 4.1 and 4.2, United Voice (now the United Workers Union) and Dulux. Clauses 4.1 and 4.2 provide for the classifications of Trainee, Grades 1.3, 1.6, 1.7, 2, 2.1 and 3, and Leading Hand and Team Leader. There are also trade classifications of fitter and electrician. Clause 4.1.2 provides:

4.1.2 Trainee to Grade 1.6 shall be comprised of the following skill areas:

•  Filling, labelling and can store;

•  Order picking;

•  Collect order centre and machine tinting;

•  Unloading trucks and FS/RM replenishment;

•  Loading trucks;

•  Paint making and pot wash thinner manufacturers

[5] Clause 4.1.7 provides: “All levels include the skill of Forklift Driving”. The 2016 Agreement reached its nominal expiry date on 3 March 2020.

[6] The CFMMEU filed its application for a bargaining order on 16 December 2020. In the application, it was contended that Dulux had agreed to bargain or initiated bargaining for a new agreement in October 2019 and that, in early November 2020, the CFMMEU had informed Dulux that it had enrolled as members a number of employees at the Rocklea site and sought recognition as their bargaining representative for the purpose of the negotiations. Dulux challenged the CFMMEU to identify which part of its eligibility rule allowed it to enrol such persons and, in response, the CFMMEU indicated that it relied upon that part of its rule 2(E)(a) which referred to “forklift drivers”. The application further contended that Dulux’s position in response was that there were no forklift drivers at the site and that all workers were classified as either Production Operators or Warehouse Operators, and that Dulux continued to decline to recognise the CFMMEU as a bargaining representative or to arrange any bargaining meetings with the CFMMEU. On this basis, the CFMMEU contended that Dulux had not met its good faith bargaining obligations in s 228 of the FW Act to attend and participate in meetings at reasonable times (s 228(1)(a)) and to recognise and bargain with other bargaining representatives for the agreement (s 228(1)(f)). The CFMMEU sought orders requiring Dulux to recognise and bargain with the CFMMEU in accordance with s 228(1)(f) and to attend and participate in meetings with the CFMMEU at reasonable times in accordance with s 228(1)(a).

[7] Dulux contended, in response to the application, that the CFMMEU had no standing to make the application because it could not represent the industrial interests of Warehouse Operators or Production Operators at the Rocklea site and hence could not be a bargaining representative in accordance with s 176(3). This contention was dealt with as a preliminary matter and, at the urging of the CFMMEU and over the opposition of Dulux, was determined solely by reference to Mr Lambert who, as earlier stated, is employed by Dulux as a Warehouse Operator.

The CFMMEU’s eligibility rule

[8] As earlier stated, the CFMMEU relied upon rule 2(E)(a) of its rules to establish its capacity to represent the industrial interests of Mr Lambert. Rule 2(E)(a) provides:

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

(a) An unlimited number of all classes of engine drivers, firemen, crane drivers, mobile crane drivers, forklift drivers, tow motor drivers, excavation drivers, pump attendants, pile drivers, motor drivers or attendants, greasers, cleaners, trimmers and any other workers assisting in and about the work incidental to any engine, boiler or machinery connected with the production or utilisation of power on land or any harbour or river, and boiler attendants attending boilers not generating steam for power purposes and such persons as have been elected or appointed as paid officers of the Union or a branch of the Union or whilst financial members of the Union are elected representatives of any working-class organisation to which the Union or a branch thereof is affiliated, or as a working-class member of Parliament.

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

[9] The CFMMEU rules also contain an industry rule (Rule 3, Description of Industry). Relevant to rule 2(E)(a) above, rule 3(F) provides:

(F) The group of industries comprised with in the calling, service, employment, occupation, or avocation of persons employed on land or any harbour, lake or river, as drivers of or attendants to any engine, winch, crane, mobile crane, fork lift, 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.

[10] In the decision, the Deputy President set out an extensive analysis of the history of the development and interpretation of rule 2(E)(a) which is not the subject of any challenge in this appeal. We do not intend to repeat this analysis in full, but it is necessary to emphasise the salient points and to supplement the analysis in some respects.

[11] As the Deputy President first identified in her analysis, 3 the coverage afforded by rule 2(E)(a) is the result of the amalgamation of the organisation currently named the CFMMEU with the Federated Engine Drivers and Firemen’s Association of Australasia (FEDFA) in 1992. The FEDFA first obtained federal registration on 2 March 1908. Its registration was subsequently determined by the High Court to be invalid because it was a craft union and not an industry union,4 and its registration was subsequently prospectively validated as a result of the Commonwealth Conciliation and Arbitration Act 1911 (Cth).5

[12] In FEDFA v Broken Hill Proprietary Company Limited & Tasmania Gold Mine Limited, 6 the Court of Conciliation and Arbitration (Higgins J) made a first award for members of the FEDFA. Higgins J described the FEDFA in the following terms:

“The claimant in each case is the same craft union—an organization of engine-drivers, firemen, &c.—an association of men who can give or refuse motive power for the working of many industries, an association which has consistently discountenanced the method of “strike,” seeking the remedy for grievances in Wages Boards and in arbitration.” 7

[13] Higgins J went on to describe the FEDFA’s members to whom the award would apply as “engines-drivers and firemen [who] supply the motive power for factories, for locomotives, for raising and lowering men in mines, for ventilation of mines, for pumping, for undertakings of many kinds”, 8 and said the award was “the first award that I have had to make for a mere craft – for men of a specific craft whose services are required in mines, in factories, in undertakings of very diverse character.”9 Higgins J also explained the rationale for making an award applicable to a craft as follows:

“I fully recognise that in many cases it must be more convenient for employers to have one award covering all the employees in their undertaking, especially when matters relating to hours of labour are in contest; and it certainly would simplify the task of this Court. But from the point of view of the craftsmen, there are overwhelming reasons for a separate award for this craft—reasons to which I have referred in my judgment of 12th May 1911. The interests of the few men of a particular qualification are liable to be swamped by the interests of the many in any given undertaking; the terror of losing one’s position tends often to prevent an employee pressing claims when face to face with his own employer (as in the case of the Wages Board for tramways in Brisbane); the contrasts drawn between the engine-drivers’ conditions under (for instance) a brick trade award or determination and the conditions of an engine-driver doing precisely the same kind of work under a soap and soda award or determination, for less pay and longer hours, produce dissatisfaction and industrial unrest.” 10

[14] The addition of “forklift drivers” to the FEDFA’s eligibility rule had its origins in 1947 when the Industrial Registrar granted, subject to a proviso, certain alterations to the eligibility and industry rules of the FEDFA. The change sought to the eligibility rule, with words to be added in bold, was:

“The Association shall consist of an unlimited number of all classes of engine drivers, firemen, crane drivers, mobile crane drivers, operators of fork lifts and/or tow motors, dynamo attendants, motor drivers or attendants, greasers, cleaners, trimmers, and any workers assisting in and 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 and such persons as have been elected as paid officers of the Association or whilst financial members of the Association are elected as representatives of any working class organization to which the Association or a Branch of the Association is affiliated or as a working class member of Parliament.”

[15] The proposed change to the industry rule was:

“The group of industries comprised within the calling service employment occupation or avocation of persons employed on land or any harbour lake or river as drivers of or attendants to any engine, winch, crane, mobile crane, fork lift, tow motor, pile driver, excavator, pump, boiler, generator, dynamo or motor used in or in connection with the generation production distribution or utilization of power and persons assisting in or about any work incidental thereto.”

[16] The FEDFA’s application to alter its eligibility rule was objected to by the Waterside Workers Federation of Australia (WWF) and the Transport Workers Union of Australia (TWU).

[17] In his decision concerning the rule changes sought, 11 the Industrial Registrar summarised the arguments advanced before him. The Registrar recorded that the following arguments were advanced by the FEDFA:

•  The application is one for the clarification of its present constitution rather than for an enlargement in that mobile cranes, fork lifts and tow motors are basically engines or cranes already comprised in the applicant’s constitution.

•  From the circumstance that the applicant is a “craft” organization its members are to be found in all industries wherein the generation or utilisation of power is an ordinary incident; employment of its members on the units now in question accordingly would not be any innovation.

•  In heavy industry the use of traverser cranes manned by members of the applicant is a necessary incident under present industrial practice. The increasing use of mobile cranes and fork lifts (and to a lesser degree tow motors) has a tendency to reduce the need for, or work done by, traverser cranes, but the functions to be discharged remain unaltered as should the personnel necessary for the performance of that work.

•  In all the circumstances there is no reason why the applicant should be deprived of its opportunity to admit as members these employees whose employment basically comprises the generation by a unit of power which is utilized by means of the unit itself.

[18] In respect of the TWU’s objection, the Registrar’s summary of the case advanced by the TWU included the proposition that “[m]embers engaged in the transport industry load and unload vehicles and stack carted goods and the work of fork lifts is closely allied to this work of loading unloading and stacking”.

[19] In his consideration of the FEDFA’s proposed rules alterations, the Registrar characterised the FEDFA as follows:

“The applicant is a registered Association organised on craft lines, that is to say an association combining within its ranks employees who habitually follow a given occupation and employees who follow associated activities (e.g. ‘engine drivers’ and ‘firemen’) and employees following callings comparable to the given occupation. The craft is that of employees concerned principally with the generation of power and the direct utilization of power.”

[20] The Registrar went on to say, in respect of the new occupational categories sought to be added to the rules: “It is common to the mobile crane and the fork lift that the unit generates its own propelling power and power which it utilizes for the purpose of raising, lowering and transporting goods… The mobile crane and the fork lift are units the user of which appears to be an increasing feature of industry. In a great many instances they are quite adapted to perform the functions for which fixed or traverser cranes hitherto have been used”. In relation to the TWU’s objection, the Registrar said:

“This objector is concerned mainly with the transport by road of goods (and to a lesser extent) of passengers; as incidental to that goods transport, members of the Union load and unload vehicles and at times break down stacks of goods for loading or stack unloaded goods. The objection, as to fork lifts, would appear to be directed mainly to this work upon stacks of goods… It appears to me that the spheres of this objector and the applicant respectively are fairly well recognized even if not easy of exact definition. The business of the road transport of goods is the province of the objector not of the applicant. The objector has no place in establishments where the business is the production of power or the utilization of power generated there or elsewhere. These limits have been fairly well observed by the parties and so far as my knowledge goes disputes in this connection have been very rare. But the callings which the applicant now seeks to include may, I am inclined to think, open avenues for disagreement not present under the registrations as now current.”

[21] The Registrar concluded that “the applicant has established a right to bring within its sphere employees of the desired classes where they are found in industrial areas at present occupied by the applicant.” The Registrar’s decision was to approve the proposed alteration to the FEDFA’s industry rule, and also to approve the proposed alteration to the eligibility rule subject to the addition of the following proviso:

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

[22] On 8 June 1949, the FEDFA was deregistered by order of the Court of Conciliation and Arbitration by reason of its failure to discipline members who had repudiated the award applying to them. 12 It applied for re-registration on 11 October 1949, and its application was granted by the Industrial Registrar on 8 November 1950.13 The eligibility rule of the FEDFA upon re-registration was in the following form:

“The Association shall consist of an unlimited number of all classes of engine drivers, firemen, crane drivers, mobile crane drivers, fork lift drivers, tow motor drivers, excavator drivers, pump attendants, pile drivers, dynamo attendants, motor drivers or attendants, greasers, cleaners, trimmers, and any other workers assisting in and about the work incidental to any engine, boiler or machinery connected with the production or utilization of power on land or any harbour or river, and boiler attendants attending boilers not generating steam for power purposes, and such persons as have been elected as paid offices of the Association or a Branch of the Association or whilst financial members of the Association are elected as representatives of any working-class organization to which the Association or a Branch, thereof is affiliated, or as a working-class member of Parliament.

Provided that mobile crane drivers, operators of fork lifts and/or tow motors engaged on the waterfront upon work being that of a waterside worker or engaged in the transport of goods by road shall not be eligible for membership.” 14

[23] Curiously, the industry rule for the re-registered FEDFA excluded the words that had been added in the alteration approved in 1947, 15 but this appears subsequently to have been rectified.

[24] There was an additional alteration to the eligibility rule approved by the Industrial Registrar on 6 August 1951 16 which removed “dynamo attendants” from the rule and extended the exclusionary proviso to include “motor truck drivers wherever employed”.

[25] In her decision, the Deputy President referred to three decisions relevant to the construction and/or application of the FEDFA’s eligibility rule. The first was the High Court decision in Re Coldham and Others, Ex parte Australian Workers’ Union 17 (Re Coldham), in which it was determined that the “classes of enumerated drivers, firemen and pump attendants” in the initial part of the rule (which, relevantly, included fork lift drivers) were not subject to the limiting words “connected with the production or utilization of power”, which applied only to “attendants, greasers, cleaners, trimmers, and any other workers assisting in and about the work incidental to any engine, boiler or machinery”. The High Court also said that this initial group “with the possible exception of ‘pump attendants’ have some degree of special skill”. The decision affirmed the outcome of a decision of a Full Bench of the Australian Conciliation and Arbitration Commission.18

[26] The second decision was that of the Western Australian Industrial Appeals Court in Federated Engine Drivers and Firemen’s Union WA v Mt Newman Mining Co Pty Ltd 19 (Mt Newman). The decision concerned an appeal against a decision of the Western Australian Industrial Commission in Court Session concerning whether workers employed as “machine drillmen” by the Mt Newman Mining Company Pty Ltd were eligible to be members of the Federated Engine Drivers and Firemen’s Union of Workers of Western Australia (WA FEDFA) or the Australian Workers’ Union, West Australian Branch (both WA-registered entities). Relevantly, the question was whether the workers were “engine drivers” or “stationary motor drivers” for the purpose of the WA FEDFA’s eligibility rule. The Court dismissed the appeal as incompetent because it did not concern a question of law, but in doing so made some observations about the task of determining whether a particular class of workers fell within the WA FEDFA’s eligibility rule. Chief Justice Burt said:

“It was conceded that not every worker, who in doing 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 an engine which no-one would ever think fell within that description. The taxi driver, the bulldozer operator and the airline pilot may serve as 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. In such a case the description of his vocation will more often than not reflect the purpose to be achieved by his work. No doubt this distinction will when applied to certain facts produce what one might call borderline cases. The decision upon such cases will be a decision of fact and not of law. And it was so in this case. In this case the Commission held that the workers described in the question were employed to drill holes in the ground. They were drillers. The fact that the machine which they use is powered by an engine which is part of it and which is operated in the course of the use of the machine enables one accurately enough to describe them vocationally as ‘machine drillers’. It does not follow that to decide that such workers are not ‘engine drivers’ or ‘stationary motor drivers’ is a decision which is erroneous in law. I do not think that it is. It is a finding of fact.”

[27] Similarly, Wickham J said:

“…It is to be observed that what the worker may be described as doing does not determine the matter. The subsidiary question is the capacity in which he is employed or usually employed. The worker literally in this case could be said to be doing three things, driving an engine, operating a machine and drilling holes, or he could be said to be doing one thing, namely drilling holes with an engine-driven machine, or another thing, driving a machine which drilled holes.

The capacity or calling of such a worker is a question of fact and the Commission correctly approached that question when it said that ‘The duties of the workers involved should be viewed as a whole’ and it then correctly proceeded to view the matter as [a] whole by giving attention to various facets…”

[28] The third decision was that of the Federal Court Full Court in Construction, Forestry, Mining and Energy Union v CSBP Limited 20 (CSBP). The decision concerned an appeal from a decision of a single member of the Court (McKerracher J) to grant CSBP’s application for a declaration that the CFMEU was not entitled to represent the industrial interests of persons employed by CSBP as Process Technicians at its chemical plant in Kwinana, Western Australia. The CFMEU claimed that it was entitled to represent the industrial interests of such Process Technicians under rule 2(E)(a) of its rules, and relied upon the following part of the rule: “any other workers assisting in and about the work incidental to any engine, boiler or machinery connected with the production or utilisation of power on land …, and boiler attendants attending boilers not generating steam for power purposes ...”. The Full Court dismissed the appeal. It made a number of relevant observations about the construction of the rule. First, the rule had to be considered as a whole so that its parts may shed light on each other.21 Second, the eligibility rule conferred an entitlement to membership “by reference to the occupations of employed persons, not by reference to the industry or enterprise of the employer”.22 Third, the occupational focus of the eligibility rule meant that the primary purpose of employment test was appropriate.23 The Full Court said that, in applying the primary purpose test, “one does not focus upon one aspect of an employee’s work in isolation from the totality of his or her duties”, and referred to Burt CJ’s judgment, quoted above, in Mt Newman in this respect as well as the observation of Gray J in Joyce v Christofferson24 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”. The Full Court also took into account the industry rule in assessing the scope of the eligibility rule in the following way:

“[48] It may be accepted that the eligibility rules of a trade union must be broadly construed; and that the scope of a membership clause should not be read narrowly or read down by reference to the membership clauses of other industrial organizations.

[49] That having been said, one should not accede to attempts to promote exorbitant claims which, if allowed, would render otiose the efforts of those who laboured long and hard to produce explicit statements intended to mark out the scope of a union’s coverage of occupations in the workplace.

[50] In this regard, the context afforded by the Industry Rule, r 3(F), limits the scope of the Eligibility Rule so that it does not include those employees engaged in the generation or use of power only as an aspect of their role in an integrated process directed to the production of some other product. The Industry Rule refers to ‘drivers of or attendants to any ... 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’ (emphasis added). This provision indicates that the Eligibility Clause is not concerned with the occupations of all workers who operate machinery which uses power, but with those occupations who assist in the operation of machinery which is used in connection with the utilisation of power.

. . .

[52] In our respectful opinion, it is legitimate to have regard to the Industry Rule for the purpose of resolving doubt as to the proper construction of the Eligibility Rule. It is also legitimate to eschew a construction which is so ‘extremely wide or indefinite as to be unlikely to have been intended’. Each of these propositions is supported by the decision of the High Court in R v Gough; ex parte The Municipal Officers’ Association Australia [1975] HCA 30; (1975) 133 CLR 59.”

The facts

[29] Findings as to the facts pertaining to Mr Lambert’s employment are set out at length in the decision, and the CFMMEU’s notice of appeal did not contend that there was any error of fact in the decision. Accordingly, it is sufficient to summarise the Deputy President’s findings of fact although, in relation to some matters, we will supplement the summary by reference to the evidence admitted at first instance.

[30] The Rocklea site at which Mr Lambert is employed has a paint manufacturing facility, staffed by Production Operators, and a warehouse facility (also known as the Distribution Centre), staffed by Warehouse Operators. In the warehouse, there are a number of tasks that Warehouse Operators perform:

• Loading and unloading of trucks (also known as “Out the front” or “Front” work because it is performed outside the warehouse);

• Picking orders from the warehouse and placing them on a pallet;

• Put-away of stock that has been unloaded from a truck;

• Replenishment of stock by moving them from higher levels to lower levels;

• Bin to bin manual replenishment of stock; and

• Office paperwork completion, dealing with customer queries, checking stock to ensure it aligns with the order, allocating locations in the warehouse for the stock, and updating computer management systems.

[31] Warehouse Operators use a number of pieces of equipment to perform their work. There are three different items of materials handling equipment (MHE) used to perform the work: high reach forklifts, which can lift up to about 7 metres high (reach forklifts), counterbalance forklifts (truck forklifts) and low level order pickers (LLOPs). In the proceedings before the Deputy President, there was some debate about whether LLOPs are “forklifts”. The versions used at the Rocklea warehouse have been modified so that they cannot be raised more than 900mm above the ground and, as a result, a forklift licence is not required to operate them (unlike the reach forklifts and the truck forklifts). The LLOP is not used to pick stock off pallet racks in the warehouse; rather, the picking is performed manually by Warehouse Operators standing on the warehouse floor and stacked on the LLOP, and the LLOP is used to move the product picked through the warehouse, with the lifting mechanism only for the purpose of allowing product to be picked and stacked at an ergonomic height. The Deputy President ultimately determined that the LLOPs are “forklifts” within the terminology of rule 2(E)(a), although in our view they would be better characterised as items of picking equipment with a limited forklift functionality.

[32] The truck forklifts are used to load and unload delivery trucks and to move pallets. The picking function is for the most part carried out using LLOPs, although a reach forklift may be needed in some circumstances (for “interstate” work). The replenishment, put-away and bin to bin functions are performed using the reach forklifts. A LLOP or reach forklift may be used for office functions.

[33] Warehouse operators also use a radio frequency gun (RF Gun). Each Warehouse Operator employed by Dulux has a unique username and secure password to log into Dulux’s “SAP System”, which is a data system used to process and track customer orders. The RF Gun is used to transmit instructions to Warehouse Operators as to which tasks are to be undertaken and how they are to be undertaken, and guides them through the transfer order in sequence. As activities are completed, the Warehouse Operator scans this into the SAP System using the RF Gun. Most Warehouse Operators are required to use the RF Gun during the entirety of a shift.

[34] Dulux placed in evidence the position description for Warehouse Operators used at the Rocklea site. The document refers to the position by the title “Warehouse Storeman and Paint Manufacturing”. Under the heading “Job Description”, the document states:

“Able to perform all tasks from receiving, storing, picking and dispatching of Goods associated within the DuluxGroup of business’, and flexibility to work in Paint Manufacturing when required.

• Receipt and inbound goods from DG factories, warehouses and suppliers

• Putaway of product into warehouse racking systems at 8m high

• Replenishment of stock

• Picking and packing of customer orders in a condition that meets statutory regulations and requirements

• Dispatching of customers’ orders onto various transport units, meeting Statutory Regulations and Chain of Responsibility requirements

• Participation in safety programs, and execution of all tasks in a safe manner.

• Work collaboratively with different site teams, management, vendors/contractors.

• Work to the Values and Behaviours of DuluxGroup

• Deliver performance expectations while performing all tasks in a safe manner

• Operation of Low Level Order pickers and Counterbalance and Reach forklifts, and a range of warehouse machinery

• Perform tasks using company supplied PPE where required

• Hazardous Materials and Dangerous Goods are handled and stored onsite and needs to be manage appropriately.

• Competent use of technologies supplied to perform all tasks (e.g. RF devices).”

[35] Under the heading “Work Environment”, the document states:

“• Site consists of a Paint Manufacturing Plant and a Warehouse Distribution Centre. DG has Protocols, Values and Behaviours, and Work Procedures that all staff must comply to.

• The work is physically demanding requiring manual tasks in handling a range of products, frequently lifting material up to 15 kilos, and often over 16kgs. Frequently posture positions of standing, walking, bending, reaching, twisting, gripping, neck, arm and trunk movements.

• Operator [sic] are required to stand/walk on concrete surfaces and or sit on counterbalance/Reach forklifts

• MHE of Reach Trucks, Counterbalance forklifts and Low Level Order pickers are utilising for moving palletise stock in racking up to 8 meters, and various configurations of trucks and vans requiring licensed operators.

• Dangerous Goods Site where work practices adhere to regulatory requirements and best practice.”

[36] The job description also described the fitness requirements for the position, including that “Good mobility, strength and agility are required for physical work of manual handling, and the operation of MHE which requires twist and turning for visibility and precision placement of stock”.

[37] Mr Lambert is classified at Level 1.6 under the 2016 Agreement. There was evidence about the proportion of his working time which he spent on various duties. Data is collected as to the amount of time each item of MHE is used, and the data applicable to Mr Lambert for the period December 2019 to January 2021 was placed in evidence. The interpretation of this data was the subject of some dispute. The finding made by the Deputy President was that based on “key to key” time - that is, from the time Mr Lambert is logged on to the MHE to the time he logs off - he spends 95.4% of his working time in control of a forklift, or 66.3% if the LLOP is excluded from the calculation. That does not mean, however, that he is “driving” MHE during this whole period. For example, it may include periods when an LLOP is parked while Mr Lambert is picking stock manually from the shelves, although the MHE automatically logs off if it is not operated after a period of five minutes. The alternative analysis advanced by Dulux, based on operating time rather than “key to key” time, was that Mr Lambert generally spent less than 30% of his working time actually operating any item of MHE, and less than 25% operating truck forklifts or reach forklifts.

[38] There was also evidence about the proportion of time Mr Lambert spends performing the different categories of duties set out in paragraph [30] above. Dulux’s evidence and analysis were that, over the last four months of 2020, Mr Lambert spent 35% of his time on Office tasks and 65% on tasks using the RF Gun (of which 71% involved Picking). However, Mr Lambert’s evidence was that this statistic was not accurate, including because when “out the front” work is performed only one of the 4-5 Warehouse Operators performing the work will need to use a RF Gun (and thus the others will not be recorded as performing RF Gun tasks). Mr Lambert’s evidence dealt with the nature and extent of Loading and Unloading or “out the front” work, which was summarised by the Deputy President as follows:

“[101] Mr Lambert’s evidence about the types of work performed by Warehouse Operators was set out in three witness statements and can be summarised as follows. Mr Lambert states that each morning two B-double semi-trailers are waiting at the gates at 5:00am ready to be unloaded by warehouse staff. Mr Lambert said:

‘In short, Warehouse Operators use forklifts to move product throughout the day. A procession of trucks arrive and depart from the site throughout the day from 5am onward for the purposes of delivering materials and dispatching stock. To get a sense of how much stock is typically loaded onto trucks by forklifts for the purposes of dispatch, 158,000 litres of paint was dispatched from the site on 3 December 2020.’

[102] Mr Lambert states that these trucks are unloaded by Warehouse Operators using Truck Forklifts. The materials are then moved to areas designated for inbound freight, also by Warehouse Operators. The material is moved using Truck Forklifts. This work is called ‘out the front’ work. A majority of deliveries are picked up and dropped off by trucks during the day shift.”

[39] Mr Lambert’s evidence was also that, in recent times, he had been performing “out the front” work for at least one full day per week.

The decision

[40] In her consideration of the issue before her, the Deputy President commenced with an analysis of rule 2(E)(a) of the CFMMEU’s rules as relevant to employees who operate forklifts. The Deputy President concluded that:

• Re Coldham is not authority for the proposition that the FEDFA (and now the CFMMEU) is entitled to represent the industrial interests of an employee simply because in the course of employment, an employee drives the equipment set out in that part of the rule. 25

• The occupational basis of the rule means that eligibility is based on the primary or principal purpose of employment. 26

• The occupation of forklift driver describes a person principally or primarily employed to drive a forklift. It is a narrow occupation notwithstanding the breadth of industries in which persons principally or primarily engaged to undertake this job are employed. 27

• Where the occupation of forklift driving – or driving other equipment covered by the first part of rule 2(E)(a) – extends into an industry in which it was not originally found, a person principally or primarily engaged as a driver of such equipment is within the eligibility rule of the CFMMEU, subject to the specific exclusions in the rule, on the basis that the rule is occupational. 28

• The principle that union rules are not construed in a narrow or static manner does not extend the operation of an occupationally based rule which covers persons principally employed as drivers of specified equipment, to persons who drive such equipment for the purpose of doing something else which they are principally or primarily employed to do. 29

• An employee principally or primarily employed to undertake a broad range of warehousing tasks for the purpose of fulfilling customer orders – such as locating specified items in a warehouse, picking those specified items from a range of locations, combining them into an order, packing those items, transporting the items to a location, loading them on a particular vehicle, unloading incoming stock and replenishing stock to enable the work of fulfilling customer orders to be undertaken by others – is not principally engaged to operate a forklift. 30

• The approach to deciding what a person is principally or primarily employed to do, requires a holistic examination of the major, substantial or principal aspect of the work performed including what the person is employed to do, the tasks undertaken, the amount of time spent undertaking particular tasks, the circumstances of the employment and the manner in which work is organised by the employer. 31

• While the time spent undertaking tasks is a relevant consideration, it is not determinative of an employee’s primary or principal purpose, and the test does not involve the application of a mathematical formulation. 32

• The primary or principal purpose for which a person is employed must be determined by looking at what the person does in the context of the employer’s organisation of work. 33

• The question is whether Mr Lambert is employed to drive a forklift or whether he is employed to do something else. If Mr Lambert is employed to do something else, he is not a forklift driver because he drives a forklift to do what he is employed to do. 34

[41] After setting out her findings as to the matters of contested facts (which we have summarised earlier), the Deputy President stated her conclusion that Mr Lambert was not principally or primarily employed as a forklift driver such as to bring him within rule 2(E)(a) of the CFMMEU’s rules and reasons for this conclusion. The Deputy President reasoned, in summary, that:

• The evidence establishes that Warehouse Operators operate flexibly to undertake a range of tasks involving the receiving and dispatch of products, and Mr Lambert is required at some point to perform all the tasks associated with the duties of Warehouse Operators, including Office tasks and Picking. 35

• Despite the fact that Mr Lambert spends a significant majority of time each day driving forklifts, this is incidental to his work as a Warehouse Operator. 36

• None of the tasks undertaken by Mr Lambert can properly be described as simply using a forklift to move paint. Regardless of whether he is guided by an RF Gun or some other device or system for managing materials, Mr Lambert is required to drive the forklift to various specified areas in the warehouse as directed by the instructions he obtains by using the RF Gun to place paint and other products in specified locations, or to move paint and other products from specified locations, which change depending on the task being undertaken. 37

• Regardless of whether the range of tasks performed by Mr Lambert is described as “picking” or by some other term, and regardless of the fact that different types of forklift are used to undertake those tasks, the tasks involve more than forklift driving and Mr Lambert’s employment to undertake those tasks does not result in him being principally or primarily employed as a forklift driver. 38

• On Mr Lambert’s evidence, the work that he describes as “out the front work” entails multiple tasks associated with unloading a significant amount of freight from trucks and moving it to areas in the workplace designated for inbound freight. He did not dispute that Warehouse Operators undertaking this work are required to check that the paperwork matches the delivery. 39

• “Putaway” work involves moving goods to an appropriate location within the warehouse and placing the goods on pallet racks. Mr Lambert’s evidence was that the work requires the use of the RF Gun to scan barcodes to identify where stock is to be stored in the warehouse and initiating a stock inquiry with inventory control if the designated space is already occupied. 40

• The interstate work described by Mr Lambert involves him undertaking a significant number of tasks necessary to locate stock in the warehouse to fill orders, move that stock to a staging location, wrap and label the stock and recording his actions in the Company’s materials handling system. 41

• Replenishment work is focused on replenishing stock either from a queue on the RF Gun or at the request of order pickers. The task does not principally involve forklift driving. It is also the case that without the direction provided by the RF Gun in relation to locating various items in a very large warehouse, there would be no purpose to driving the forklift. 42

• When all of the tasks Warehouse Operators are required to undertake are considered holistically and in the context of the warehouse environment in which they are undertaken, Mr Lambert’s assertion that these tasks are secondary to the operation of the forklift cannot be sustained. Mr Lambert’s evidence clearly establishes that Warehouse Operators have skills that are additional to forklift driving and that they are required to use those skills to undertake the Warehouse Operator role. 43

• Mr Lambert is principally employed to undertake the role of a Warehouse Operator, and in that role, one of the tasks he is required to undertake is forklift driving. The time spent by Mr Lambert driving forklifts is a matter that is relevant in determining the principal or primary purpose of Mr Lambert’s employment. In all of the circumstances the fact that he spends a significant amount of time operating forklifts, does not result in Mr Lambert being principally or primarily employed as a forklift driver. 44

Appeal grounds and submissions

[42] The CFMMEU’s notice of appeal contained a single ground of appeal which was, in substance, that the Deputy President erred in misapplying the principal purpose test to the facts as found and in misconstruing the true meaning and scope of the CFMMEU’s rules. In support of this ground, the CFMMEU submitted, firstly, that rule 2(E)(a) should be given a purposive interpretation consistent with the underlying principle that a liberal approach to the construction of eligibility rules should be preferred. This meant, it was submitted, that the question of whether a person falls within the category of being a “forklift driver” was one of substance, not form, and the Commission should be concerned with what the relevant persons actually do, not how they are described by their employer. While it may be appropriate to examine the primary or principal purpose of the employment of the employee, it was submitted that it was ultimately a question of applying the words of the rules of the union to the circumstances of the particular case.

[43] The CFMMEU accepted that the primary or principal purpose test requires consideration of the totality of the employee’s actual duties, in the context of the employer’s organisation of work, to ascertain the principal function of the employment, that consideration is not limited to time spent on particular tasks, and that both quality and quantity are relevant. It submitted however that the central question remains: what is the employee actually employed to do and how does the employee do it. In this respect, the CFMMEU referred to the various tasks which the evidence demonstrated that Mr Lambert was required to perform and submitted that every substantive task fundamentally required the use of a forklift of one kind or another to lift and move product, resulting in him being in active control of a forklift for 95.4% of his working time. That fact alone, the CFMMEU submitted, made inescapable the conclusion that Mr Lambert fell within the occupational category of being a “forklift driver”. Other tasks Mr Lambert performed, such as the use of the RF Gun to guide where he drives the forklift, or printing labels for pallets, are ancillary or incidental tasks. The circumstances described, it was submitted, are functionally identical to those considered by a single member of the Commission in CFMEU v Rapid Metal Developments (Australia) Pty Ltd 45 (Rapid Metal) in which employees referred to as “yard workers” were determined to fall within rule 2(E)(a) notwithstanding that they performed a mixture of duties and spent some time off the forklift.

[44] The CFMMEU submitted that the apparent distinction made by the Deputy President between a person who uses a forklift to move goods so that others can store or despatch them, who is a forklift driver, and a person who uses a forklift to move, store and despatch goods, who is not, involves an unsustainably artificial construction and involves twofold error. The first is that the approach relies on distinguishing between a purpose of operating a forklift and a purpose of locating, moving and storing goods, which overlooks that lifting and moving goods is the very function of a forklift as a device. It is thus, it was submitted, a mistake to concentrate on the ultimate purpose of the activity rather than the purpose and function of the employee in the overall operation, and the purpose of Mr Lambert’s employment was to operate a forklift to move and store goods. The second is that, while the Warehouse Operators perform a range of tasks other than purely driving, these other tasks are ancillary to, and facilitate, the primary purpose of using a forklift to transport paint for various reasons. For example, it was submitted, the use of the RF Gun is not a stand-alone activity, but is the mechanism by which Mr Lambert is instructed to perform his duties as a forklift driver. The same error is apparent in respect of the Deputy President’s analysis of “out the front”, Putaway and Interstate work.

[45] It was submitted that the two options posited by the Deputy President represent the same thing, in that forklift driving is a means to an end, not an end in and of itself. The focus on the ultimate goal of the enterprise distracts from the critical question of what the employee is employed to do. The CFMMEU submitted that, correctly understood, Mr Lambert’s job involves, at its core, transporting goods using a forklift. That he does so in different ways, using different forklifts, for different purposes, and performs a range of ancillary and administrative tasks to complement and facilitate this work, does not change the principal purpose of his work, being that he is in both the ordinary sense and the sense contemplated by rule 2(E)(a), a forklift driver. The CFMMEU sought, on this basis, that permission to appeal be granted, the appeal upheld, the decision quashed, and that the CFMMEU’s application for bargaining orders be remitted to a single member for determination.

[46] Dulux submitted that the Deputy President’s finding that Mr Lambert’s substantive occupation was that of Warehouse Operator, not forklift driver, was both open on the evidence and the correct finding. It submitted that:

• the authorities make clear that the proportion of time spent in particular duties is not determinative;

• the primary function of a person’s employment is not determined by how the employee “sees” the relative importance of his or her functions;

• the tools, equipment and machinery which aid or facilitate the performance of an occupation do not characterise the occupation;

• the occupation of “storeman” (store person), now labelled “warehouse person” or “warehouse operator”, is old and well-recognised, with its fundamentals remaining the reception of goods into storage, the safe and secure storage of the goods, the retrieval of those goods, and the packaging or preparation of the goods for dispatch;

• in earlier times warehouse personnel used hand trolleys or barrows in their tasks of assembling orders, with the current trend being towards automated storage and consignment systems, while at the Rocklea site, a forklift and the RF Gun are used by warehouse personnel to assemble orders;

• Mr Lambert’s operation of the forklifts is merely use of equipment incidental to the primary purpose of performing warehouse duties to fill customer orders and coordinate their delivery and return, and the forklifts have no reason for existence other than to be used as a tool in that process;

• the CFMMEU’s contention that the purpose of Mr Lambert’s employment was to operate a forklift to move and store goods is not supported by the evidence before the Commission, including the position description;

• the CFMMEU’s concession that Mr Lambert performs a range of tasks other than purely driving strongly supports the conclusion that Mr Lambert is employed to do something else, namely, to be a Warehouse Operator;

• whilst the evidence shows that Mr Lambert was in control of forklifts for 95.4% of his working time, it is clear that for a significant period of this time Mr Lambert was not actively operating forklifts but rather undertaking a range of other tasks essential to his role as a Warehouse Operator; and

• the performance of these tasks, which take up the majority of Mr Lambert’s working time, helps facilitate the filling of customer orders and coordination of their delivery and return and are not essential to the task of forklift driving.

[47] Dulux submitted that there was no public interest in granting permission to appeal, since the decision does not raise issues of importance and general application nor depart from well-established principles applicable to the interpretation of union eligibility rules and the primary purpose test. There was no diversity of decisions at first instance requiring appellate guidance, and the case is about the eligibility of only one employee (as a result of a forensic decision made by the CFMMEU). Dulux otherwise sought that the appeal be dismissed.

[48] After the hearing of the appeal, by email correspondence dated 12 October 2021 we drew the parties’ attention to the proviso appearing at the end of rule 2(E)(a) of the CFMMEU’s rules which relevantly provides “Provided that … operators of fork lifts … engaged in the transport of goods by road … shall not be eligible for membership”, and invited the parties to file written submissions as to the applicability or relevance of this part of rule 2(E)(a), if any, to the work performed by Mr Lambert “out the front” loading and/or unloading trucks with the use of a counterbalance forklift.

[49] In response thereto, the CFMMEU submitted that the purpose and drafting of the proviso necessarily directs attention to the employer’s activities and the industry in which it operates, and that incidental connection to road transport, such as any manufacturer who takes deliveries by truck, is not sufficient to bring the employer within that industry. The CFMMEU also submitted that the proviso is limited to those persons directly engaged in the transport of goods by road, and did not include persons engaged in connection with the industry of transporting goods by road. The proviso, it was submitted, was not crafted to deal with an industry like manufacturing, and the origins of the proviso make clear that it was not intended to exclude the CFMMEU from representing employees within its occupational coverage in other industries merely because those industries involve some interaction with or utilisation of road transport. In this case, it was submitted, Dulux has not suggested that it operates at all, or even incidentally, in the road transport industry, or that Mr Lambert would be caught by the proviso, and there is no evidence upon which such a conclusion could be reached. Had the issue been raised at first instance, this would have affected the evidentiary case run by the CFMMEU, and it would cause potential unfairness to the CFMMEU for the application of the proviso to be determined for the first time on appeal. In any event, there is no basis upon which it could be concluded that Mr Lambert is employed as a forklift driver engaged in the transport of goods by road, and the work “out the front” is not a task that Mr Lambert appears to be regularly assigned and, when he does so, it is as part of Dulux’s paint manufacturing operation.

[50] Dulux submitted that, in determining if Mr Lambert is principally employed as a forklift driver, we should exclude from our consideration all the “out the front” work performed by Mr Lambert loading and/or unloading trucks because, when performing such work, Mr Lambert is engaged in the transport of goods by road and the exclusion in the exception to rule 2(E)(a) is enlivened. It was submitted that the exclusion operates by reference to the function of the loading and unloading of road transport vehicles by forklift and not the industry of the employer, and referred to the decision in CFMMEU v Qube Logistics (SB) Pty Ltd (Qube Logistics) in support of that proposition. 46 The work of Mr Lambert in using a counterbalance forklift involves him loading product onto trucks to be transported by road and unloading product from trucks which have been delivered to Dulux by road, and such activities involve engagement in the transport of goods by road. That Dulux is not in the road transport industry is, it was submitted, irrelevant.

Consideration

Permission to appeal

[51] We consider that the appeal raises issues of sufficient importance to justify the grant of permission to appeal. Although, in strict terms, the decision under appeal is concerned only with whether the CFMMEU is entitled to represent the industrial interests of Mr Lambert, its practical effect is clearly to determine that the CFMMEU is not entitled to act as a bargaining representative for any employee at Dulux’s Rocklea site since Mr Lambert was presumably selected by the CFMMEU as its best case, or at least as a representative case. Further, we consider that the decision has broader implications for the capacity of the CFMMEU to cover warehouse employees generally.

Merits of the appeal

[52] The propositions stated in the decision under appeal concerning the proper construction and application of the expression “forklift drivers” in rule 2(E)(a), which we have summarised in paragraph [40] above, were not as we perceive it the subject of challenge in the appeal. In any event, having regard to the historical development of the rule and its judicial consideration in the three decisions to which we have earlier referred, we consider those propositions to be correct. A number of points in that connection may be emphasised.

[53] First, the expression “forklift drivers” must be understood in the context of rule 2(E)(a) 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 specialised 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 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.

[56] Fourth, the Full Court in CSBP considered it legitimate to have regard to the FEDFA’s industry rule to eschew a construction of 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 into 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 insofar as it refers to a “calling, service, employment, occupation, or avocation” of persons “employed … as drivers of … any … fork lift…” (underlining added). This places emphasis on the purpose of the employment.

[57] There is an additional matter of construction which was not addressed in the decision below. As was stated by the Full Court in CSBP, rule 2(E)(a) has to be considered as a whole so that its parts may shed light on each other. In applying the primary purpose test to a person’s employment in order to determine whether they undertake any of the occupations listed in the rule, it is necessary to take into account the exclusionary proviso at the end of the rule. Relevantly, the exclusion applies to operators of forklifts “engaged in the transport of goods by road”. As explained in the 1947 decision of the Industrial Registrar, these words were intended to exclude the loading and unloading of vehicles in respect of goods transported by road, and “break[ing] down stacks of goods for loading or stack[ing] unloaded goods”. We reject the CFMMEU’s submission that the exclusion operates by reference to the industry of the employer. 47 On its ordinary meaning, the exclusion operates by reference to the work activity of the employee, and it makes no reference to the employer or the employer’s industry. The CFMMEU relied upon the reference to the “business of the road transport of goods” contained in the passage from the Industrial Registrar’s 1947 decision set out in paragraph [20] above but, read in the context of the paragraph as a whole, it is reasonably clear that “business” was used by the Registrar to refer to the activities of employees within the coverage of the TWU.48 We agree with and adopt the analysis of the proviso stated by the Commission (Gostencnik DP) in Qube Logistics as follows:

“[32] … the phrase ‘transport of goods by road’ in the proviso is a broad one… Being ‘engaged in’ the transport of goods by road seems to me to involve no more than actively participating in or undertaking duties directly connected with the carrying out of the transport of goods by road.” (footnotes omitted)

[58] In the Qube Logistics case, it was found that the employer of the employees in question operated in the road transport industry, but it was not this consideration which caused the conclusion to be reached that the employees fell within the scope of the proviso:

“[33] …The Operators are engaged in the transport of goods by road in that they are directly engaged in tasks or duties that are essential to, and part of, the transport of those goods. The Operators perform work by using or operating the relevant vehicles to load or unload trucks and to reposition containers for the purposes of the containers being loaded or unloaded onto and from trucks and to be transported by road.

[34] It is uncontroversial that Qube undertakes a road transport and distribution business. The function of the Operators who operate reach stackers and container forklifts are to unload, consolidate and load containers on and off trucks and trains, which undertaking is for the purposes of, and as part of, the goods transported by road for Qube’s clients. Without the function being carried out by the Operators, the physical transport of goods by road cannot happen. This analysis focuses on the work performed by the Operators and whether that work has the result that the Operators are ‘engaged in the transport of good by road’. It does not rely for its efficacy on a consideration of the industry in which Qube operates its business…” (underlining added)

[59] Having regard to the occupational focus of the relevant part of the proviso to rule 2(E)(a), it follows that in order for an employee to come within rule 2(E)(a) as a “forklift driver”, the principal purpose of their employment must be the occupation of forklift driver other than loading and unloading trucks by forklift so that goods may be transported by road. That is a matter of importance in this case since, on his own evidence, Mr Lambert spent a significant portion of his working time “out the front” loading and unloading vehicles with a truck forklift.

[60] As earlier explained, Dulux’s facility at Rocklea is divided into two parts: the paint manufacturing facility and the warehouse facility. For the purpose of the operation of the warehouse facility, Dulux has established the position of Warehouse Operator. The position description of Warehouse Operator is, we consider, the best starting point for a consideration of Mr Lambert’s employment since it identifies the overall purpose of the position within the context of Dulux’s overall business operation. It is important to note that there is no suggestion that the job description is colourable since it clearly was prepared independently of the current dispute about CFMMEU coverage.

[61] We have earlier set out the main parts of the job description. It is clear that the purpose of the role is the performance of all tasks in connection with the “receiving, storing, picking and dispatching of Goods” in the Dulux business. Additionally, although this received little attention in the submissions, the position also involves a requirement to work flexibly in the paint manufacturing facility when required. The position is not labelled as that of a forklift driver, nor is forklift driving identified as the purpose of the position. The position description sets out the key functions/responsibilities by which the purpose of the role it to be achieved, and just one of these is the operation of LLOPs, truck forklifts and reach forklifts as well as “a range of warehouse machinery”. A separate function/responsibility is the “[c]ompetent use of technologies supplied to perform all tasks”, and the RF Gun is specified in this respect. It is also important to note that the “Work Environment” section of the position description emphasises the need to engage in manual tasks including lifting of heavy objects. It may be concluded from the position description, therefore, that Warehouse Operators such as Mr Lambert are not employed by Dulux for the purpose of engaging in the occupation of forklift driving. Rather, the operation of forklifts is one of a number of functions required to be carried out in order to fulfil the purpose of the role, which is to carry out all the tasks necessary for the operation of the warehouse.

[62] This position is confirmed by the 2016 Agreement. There is no classification of “forklift driver” or similar in the agreement. Mr Lambert is engaged in a classification which (in clause 4.1.2) encompasses skill areas in both the paint manufacturing and warehouse facilities. Clause 4.1.7 separately refers to forklift driving as a “skill” required of employees at all classification levels (that is, regardless of the employee’s function in the business). It is therefore apparent that the 2016 Agreement does not contemplate persons being employed as forklift drivers.

[63] Notwithstanding that it accepted that the amount of time spent performing a particular function was not determinative of the principal purpose of the employment, the CFMMEU submitted that the Deputy President’s finding that Mr Lambert spent 95.4% of his working time in control of forklifts (including LLOPs) made the conclusion that he was a forklift driver “inescapable”. We disagree. The statistic actually says little about the significance of the actual operation of forklifts in the context of Mr Lambert’s employment as a whole. For example, it appears from the findings made by the Deputy President that Mr Lambert spends almost a third of his working time performing picking work using a LLOP. As earlier stated, no forklift license is required to operate the LLOPs. The importance of this is not that this renders the LLOP something which is incapable of being characterised as a forklift, but rather that no special skill is required to operate the LLOP. Even then, the restricted forklift functionality of the LLOP is of little significance. The actual picking work is performed manually with the aid of the RF Gun. The Warehouse Operator, as we understand the evidence, uses the RF Gun to identify the items of goods required to be picked and their location, and physically removes the items from the shelves while standing on the warehouse floor and places them on a pallet that has been placed on the tines of the LLOP. The restricted lifting function is only used to raise the pallet to an ergonomic height for the purpose of the placement of the picked items. The LLOP is only “driven” to move it from one picking location to the next as directed by the RF Gun. There is no dispute that Mr Lambert remains in control of and responsible for the LLOP during the entire period during which picking is carried out, but that is a long way from saying that the operation of the LLOP is the primary purpose of his employment in this period. The function he is performing is picking, and this is carried out by a combination of the use of the RF Gun, the LLOP and manual handling techniques. Depending upon the weight of the goods being picked, work of this nature may in other warehousing contexts be performed using a manual pallet jack rather than any powered MHE.

[64] The Deputy President similarly analyses, at paragraphs [217]-[219] of the decision, the other tasks carried out by Mr Lambert and demonstrates, in a manner with which we agree, that the function of forklift driving is but one aspect of the performance of these tasks. It is unnecessary to repeat the Deputy President’s reasoning in this respect, but we would add two matters:

(1) As we have earlier set out, the evidence was that Mr Lambert spends less than 25% of his working time actually operating (as distinct from being logged on to) truck forklifts or reach forklifts. The distinction is, we consider important since while “key to key” time, as the Deputy President found, measures the time during which the Warehouse Operator has control of and responsibility for a forklift, the operating time measures when the employee is actually exercising the skills required for safe forklift operation.

(2) The CFMMEU cannot rely upon the use of the truck forklift by Mr Lambert to perform work “out the front” loading and unloading trucks to demonstrate that the primary purpose of Mr Lambert’s employment falls within rule 2(E)(a), since this work is excluded from the scope of the rule as earlier explained. Mr Lambert said that he performed this work at least one day per week.

[65] Accordingly, we conclude, as the Deputy President did, that Mr Lambert’s employment is best characterised in a substantive as well as nominal sense as that of Warehouse Operator, and is not encompassed by rule 2(E)(a) of the CFMMEU’s rules.

[66] Our conclusion in this respect is consistent with industrial history. As Dulux submitted, the industrial arbitration system in Australia has long recognised the existence of a distinct occupation historically known as that of “storeman and packer” and now commonly referred to as “storeperson” or “warehouse worker” or something similar. The first award specifically applicable to storemen and packers in the federal system was made by the Court of Conciliation and Arbitration (Dethbridge J) in 1927, 49 and in clause 1 defined a “storeman and/or packer” as follows:

“For the purposes of this award ‘Storeman and/or packer’ means an employee who (being a member of the claimant organization) in a store or in any place where goods are handled for the purpose of being received into, stored in or despatched from a store is engaged in so receiving, storing or despatching them or in any place is engaged in packing them and in such receiving, storing, despatching, or packing is required to use a degree of skill, judgment, or responsibility similar to that which has been usually required from a storeman or packer but does not include:—

(a) An employee who in the course of a manufacturing or packing business merely encloses goods in the uniform container or containers in which such goods are ordinarily sold by the manufacturer or packer ; or

(b) a foreman or other person in charge in such store or place who does not ordinarily work manually therein as a storeman or packer.” 50

[67] That definition is broadly consistent with the job description of a “Warehouse Operator” used at the Rocklea site.

[68] Forklifts came into widespread industrial use in Australia in the 1940s, and the industrial arbitration system soon recognised that storemen and packers might be required to use forklifts in the course of their duties without thereby changing their occupational identity. In the Storemen and Packers (General Stores) Award made in 1952, 51 a new classification with a higher rate of pay was established for those storemen and packers who operated a forklift. The new classification was expressed in these terms: “An employee operating a power driven fork lift or similar mobile power driven stacking machine or device in the course of his duties as a storeman and/or packer” (underlining added).52

[69] The current position in modern awards remains broadly the same. The Storage Services and Wholesale Award 2020 contains various classifications of “Storeworker” which, at Grade 2, includes the licensed operation of all appropriate MHE as one of a number of identified indicative tasks (Schedule A, A.2.2(e)(i)). Similarly, the Manufacturing and Associated Industries and Occupations Award 2020, which covers “handling, sorting, packing, despatching, distribution and transport” in connection with the manufacturing industries covered by the award, includes forklift operation as one of a large number of indicative duties for classification levels C12 and C11. Neither award contains any classification for “forklift driver” as such.

[70] Accordingly, the characterisation of Mr Lambert’s employment as that of a Warehouse Operator rather than a forklift driver fits within the long-established industrial norm.

[71] The CFMMEU’s submissions attempt to identify error in the decision on the basis of what is stated by the Deputy President in [183] of the decision:

“[183] It may be the case that a warehousing operation is divided so that some employees are principally employed to pick and pack orders using a forklift as an aid, while other employees are principally engaged to drive a forklift to transport orders that have been picked and packed by others, or to load orders picked and packed by others or to unload vehicles and transport goods to a central area to be dealt with by warehouse employees. In these circumstances some of the persons driving forklifts may be found to be principally employed in this role”

[72] In our view, the above was merely an attempt by the Deputy President to illustrate a circumstance in which an employee operating a forklift might fall within the scope of rule 2(E)(a) and was not central to her reasoning as to why Mr Lambert did not fall within the rule. In any event, because the decision concerned the capacity of the Commission to entertain the CFMMEU’s application and was thus jurisdictional in nature, the correctness standard applies to the appeal. We are satisfied, for the reasons stated, that the Deputy President’s conclusion that Mr Lambert’s employment was that of a Warehouse Operator and was not covered by rule 2(E)(a) was correct, and therefore it is not necessary for us to give consideration to every step of her reasoning process.

[73] Finally, the CFMMEU relied upon the Rapid Metal decision. 53 That decision, made by a single member, turned on its own facts and is not determinative of the current matter or binding upon us. Further, we note that at paragraph [47] of the decision, the evidence was that the work of the employees in question “was about between 60-70% of the day sitting in a forklift, loading and unloading trucks”. No consideration was given in the decision, in relation to this evidence, to the exclusionary proviso in rule 2(E)(a).

[74] For the above reasons, we consider that the appeal should be dismissed.

Conclusion

[75] We order as follows:

(1) Permission to appeal is granted.

(2) The appeal is dismissed.

VICE PRESIDENT

Appearances:

M Gibian SC with L Saunders of counsel for the appellant.

J Murdoch QC with T Spence of counsel for the respondent.

Hearing details:

2021.

Sydney and Melbourne (via video-link):

20 August.

Printed by authority of the Commonwealth Government Printer

<PR734717>

 1   [2021] FWC 3786

 2   AE418481

 3   [2021] FWC 3786 at [32]

 4   Federated Engine-Drivers and Firemen’s Association of Australasia v Broken Hill Proprietary Co Ltd [1911] HCA 31, 12 CLR 398

 5   See Federated Engine-Drivers and Firemen’s Association of Australasia v Broken Hill Proprietary Co Ltd [1913] HCA 71, 16 CLR 245

 6   [1913] Cth ArbRp 32, 7 CAR 132

 7   Ibid at 136

 8   Ibid at 146

 9   Ibid at 150

 10   Ibid

 11   Unreported, 18 February 1947

 12   Metal Trades Employers Association v Federated Engine-Drivers and Firemen’s Association of Australasia [1949] CthArbRp 259, 64 CAR 288

 13   Federated Engine Drivers and Firemen's Association of Australasia [1950] CthArbRp 544, 68 CAR 1070

 14   Ibid at 1076

 15   Ibid at 1075-6

 16   Federated Engine Drivers and Firemen's Association of Australasia [1951] CthArbRp 496, 72 CAR 859

 17   [1984] HCA 62, 59 ALJR 95, 56 ALR 149

 18   Federated Engine Drivers' and Firemens Association of Australasia and Master Builders' Association of Western Australia & Ors; The Federated Engine Drivers' and Firemens Association of Australasia and Quest Mining and Exploration Limited & Ors [1983] CthArbRp 552, 291 CAR 530

 19   (1977) 57 WAIG 794

 20   [2012] FCAFC 48, 212 IR 206

 21   Ibid at [39]

 22   Ibid at [41]

 23   Ibid at [44]

 24   (1990) 26 FCR 261

 25   [2021] FWC 3786 at [177]

 26   Ibid

 27   Ibid at [178]

 28   Ibid at [180]

 29   Ibid at [181]

 30   Ibid at [182]

 31   Ibid at [184]

 32   Ibid

 33   Ibid

 34   Ibid at [185]

 35   Ibid at [213]

 36   Ibid

 37   Ibid at [214]

 38   Ibid at [216]

 39   Ibid at [217]

 40   Ibid at [218]

 41   Ibid at [219]

 42   Ibid

 43   Ibid at [220]

 44   Ibid at [221]

 45   [2012] FWA 2790

 46   [2021] FWC 929

 47   The rejection of this submission means that the CFMMEU’s complaint that it might have run a different evidentiary case if the application of the proviso had been raised at first instance falls away.

 48   The TWU’s eligibility rule has at all times since the TWU’s registration in 1928 included the industry/occupation/calling/ (a)vocation/industrial pursuit of “…loading and unloading on to and/or from any vehicle…”.

 49   Federated Storemen and Packers Union of Australia and Cadbury Fry Pascall Limited & Ors [1927] CthArbRp 59, 25 CAR 236

 50   Ibid at 244-245

 51   Federated Storemen and Packers Union of Australia and G Adams Pty Ltd & Ors [1952] CthArbRp 320, 74 CAR 633

 52   Ibid at 638

 53   [2012] FWA 2790