1
[2013] FWC 2039 [Note: An appeal pursuant to s.604 (C2013/4129) was
lodged against this decision - refer to Full Bench decision dated 5 July
2013 [[2013] FWCFB 4250] for result of appeal.]
DECISION
Fair Work Act 2009
s.505 - Application to deal with a right of entry dispute
Maritime Union of Australia, The
v
Bechtel Construction (Australia) Pty Ltd
(RE2012/1839)
COMMISSIONER BOOTH BRISBANE, 9 APRIL 2013
Right of Entry dispute at Curtis Island.
[1] This is an application by The Maritime Union of Australia (MUA) to deal with a right
of entry dispute.
[2] The Respondent, Bechtel Construction (Australia) Pty Ltd (Bechtel) is undertaking the
construction of three LNG facilities on Curtis Island for three different clients. Bechtel
provides what it refers to as craft labour to the Queensland Curtis LNG project as a sub-
contractor to Bechtel Australia Proprietary Limited.
[3] On 25 and 26 September 2012 the MUA sought to exercise a right of entry at Curtis
Island. Bechtel refused to allow the MUA entry to the site.
[4] The MUA submits that its officers are entitled to enter premises of Bechtel’s relying
on s.484 of the Fair Work Act 2009 (the Act). This section allows, subject to satisfying
certain requirements, officials who are permit holders to enter premises and exercise certain
powers, including holding discussions, while on those premises. One of these requirements is
that at least one of those persons with whom the permit holder seeks discussions is entitled to
be represented by the permit holder's organisation.
[5] The MUA submits that:
a. it is entitled to represent one or more of Bechtel’s employees at Curtis Island;
b. its officer, Mr Sheehan holds a permit under Part 3-4;
c. Mr Sheehan gave an entry notice to Bechtel’s Mr Prior in accordance with ss.487
and 518.
[6] The MUA seeks the following order:
AUSTRALIA FAIR WORK COMMISSION
https://www.fwc.gov.au/documents/decisionssigned/html/2013FWCFB4250.htm
[2013] FWC 2039
2
That the MUA is entitled to represent the industrial interests of at least one employee
at the premises occupied by the Respondent at Curtis Island and that the Respondent
must allow officers of the MUA holding a permit issued under Division 6 of Part 3-4
of the Fair Work Act to enter the Respondent’s premises at Curtis Island in
accordance with Part 3-4 of the Act.
[7] The MUA, under rule 3.2(a) of its registered rules, is entitled to represent the
industrial interests of:
“any person who intends to follow the occupation of waterside worker”.
[8] Bechtel resisted this application on substantive, procedural and jurisdictional grounds,
namely that:
a. the MUA lacks coverage of Bechtel’s employees at Curtis Island (the coverage
issue);
b. the notice failed adequately to specify the premises to be entered (see s.518(1)(a))
(the specificity issue).
Jurisdiction Issues
Additionally, Bechtel submitted that the Commission cannot make the orders sought
by the MUA on the following grounds:
c. MUA’s application does not deal with a dispute about the operation of Part 3-4
and is therefore outside the FWC’s legislative remit;1 (the dispute issue).
d. it is a dispute about existing rights and is therefore judicial in character; (the
arbitral-judicial issue).
e. the remedy sought is judicial in character (the remedy issue).
[9] The MUA’s application and Bechtel’s objections were dealt with in a hearing of the
matter on 20-22 February 2012. The MUA was represented by Mr Quinn, of Carne Reidy
Herd, Solicitors, and Bechtel was represented by Mr C. Murdoch of Counsel.
Jurisdiction Issues
[10] The MUA made application under s.505 of the Act which provides as follows:
505 FWC may deal with a dispute about the operation of this Part
(1) The FWC may deal with a dispute about the operation of this Part (including a
dispute about whether a request under section 491, 492 or 499 is reasonable).
Note: Sections 491, 492 and 499 deal with requests for permit holders to use
particular rooms or areas, and comply with occupational health and safety
requirements.
[2013] FWC 2039
3
(2) The FWC may deal with the dispute by arbitration, including by making one or
more of the following orders:
(a) an order imposing conditions on an entry permit;
(b) an order suspending an entry permit;
(c) an order revoking an entry permit;
(d) an order about the future issue of entry permits to one or more persons;
(e) any other order it considers appropriate.
Note: The FWC may also deal with a dispute by mediation or conciliation, or
by making a recommendation or expressing an opinion (see subsection
595(2)).
(3) The FWC may deal with the dispute:
(a) on its own initiative; or
(b) on application by any of the following to whom the dispute relates:
(i) a permit holder;
(ii) a permit holder’s organisation;
(iii) an employer;
(iv) an occupier of premises.
(4) In dealing with the dispute, the FWC must take into account fairness between
the parties concerned.
(5) In dealing with the dispute, the FWC must not confer rights on a permit holder
that are additional to, or inconsistent with, rights exercisable in accordance with
Division 2 or 3 of this Part, unless the dispute is about whether a request under
section 491, 492 or 499 is reasonable.
The Dispute issue
[11] Bechtel submits that the dispute is not about the operation of Part 3-4 of the Act.
Rather, it is asserted, the MUA’s sole issue is whether it has an existing right capable of being
exercised under Part 3-4 of the Act. Further, Bechtel submits that the order sought is in
practical effect declaratory and injunctive. That is, the dispute issue, as raised by Bechtel, is a
restatement of the jurisdictional objections referred to above (the arbitral-judicial issue and
the remedy issue).
[12] It is common ground that the MUA made application under Part 3-4 and that Bechtel
resists the right of entry so claimed. The claim and refusal are what is in dispute, and that is
squarely a dispute about the operation of Part 3-4.
[13] That is, MUA’s application being a dispute about the operation of this Part 3-4 is
within the Fair Work Commission’s (the Commission) legislative remit.
[14] Accordingly, the dispute issue will be resolved by reference to the more specific issues
about the remedy sought and whether the dispute resolution is arbitral or judicial in character.
[2013] FWC 2039
4
The Arbitral-judicial issue
[15] I turn first to Bechtel’s objection that the Commission lacks jurisdiction to hear this
dispute because to do so would invoke an impermissible exercise of judicial power.
[16] The Commission is not a court, and under the Australian Constitution cannot exercise,
nor be invested with, judicial power. It is invested instead with power to deal with disputes
between parties in ways described variously in the Act as by mediation, conciliation and
arbitration.2
[17] The High Court has considered the distinction between judicial and arbitral power in
many cases. One of the earliest was Waterside Workers’ Federation of Australia v J.W.
Alexander Limited (Alexander’s case):
“…it was thought necessary that such disputes [ie industrial disputes] should not go
uncontrolled but that the control should be exercised only by means of conciliation
and arbitration. That is essentially different from the judicial power. Both of them rest
for their ultimate validity and efficacy on the legislative power. Both presuppose a
dispute, and a hearing or investigation, and a decision. But the essential difference is
that the judicial power is concerned with the ascertainment, declaration and
enforcement of the rights and liabilities of the parties as they exist, or are deemed to
exist, at the moment the proceedings are instituted; whereas the function of the
arbitral power in relation to industrial disputes is to ascertain and declare, but not
enforce, what in the opinion of the arbitrator ought to be the respective rights and
liabilities of the parties in relation to each other.
An industrial dispute is a claim by one of the disputants that existing relations should
be altered, and by the other that the claim should not be conceded. It is therefore a
claim for new rights. And the duty of the arbitrator is to determine whether the new
rights ought to be conceded in whole or in part. His opinion may take any form the
law provides; it may be called an order, or an award.” 3
[18] The tenor of this passage was cited approvingly in the joint judgement of Dixon C.J.,
McTiernan, Fullagar and Kitto JJ in the seminal Boilermaker’s Case.4
[19] The distinction between judicial and arbitral power is not straightforward, and the
exercise of one may have characteristics in common with the other: “[t]he guiding principle of
rights-determination versus rights-creation has proved to be imprecise and malleable”.5
[20] In Re Ranger Uranium Mines Pty Ltd; ex parte Federated Miscellaneous Workers’
Union of Australia, a case about whether unfair dismissal remedies are judicial or arbitral in
character, it was said:
“18. However, the creation of legal rights and obligations is a function which may be
performed in the exercise of arbitral power. This is so even if the function is
performed in settlement of a dispute relating to past transactions, events and conduct:
Re Cram; Ex parte Newcastle Wallsend Coal Co. Pty. Ltd., at p 409; p 176 of ALR.
…
23… Although findings of fact are a common ingredient in the exercise of judicial
power, such findings may also be an element in the exercise of administrative,
[2013] FWC 2039
5
executive and arbitral powers: see The Queen v. Trade Practices Tribunal; Ex parte
Tasmanian Breweries Pty. Ltd. [1970] HCA 8; (1970) 123 CLR 361, per McTiernan
J., at p 371 and The Queen v. Hegarty; Ex parte City of Salisbury, per Murphy J., at p
631. So too with the formation and expression of value judgments.
…
25. The power of inquiry and determination is a power which properly takes its legal
character from the purpose for which it is undertaken. Thus inquiry into and
determination of matters in issue is a judicial function if its object is the ascertainment
of legal rights and obligations. But if its object is to ascertain what rights and
obligations should exist, it is properly characterized as an arbitral function when
performed by a body charged with the resolution of disputes by arbitration.
…
27. It follows in our opinion that the dispute notified to the Commission is a dispute
capable of resolution by the exercise of arbitral power. The resolution of the dispute
does not involve the assumption of judicial power not possessed by the Commission,
notwithstanding that in the course of the resolution of the dispute the Commission may
undertake similar inquiries and determine similar questions of fact as would be made
and determined in proceedings brought for the enforcement of the Award pursuant to
s.119 of the Act, and notwithstanding that in the course thereof it may form an opinion
as to the legal rights and obligations of the parties.” 6
[21] In some circumstances the characterisation of the power is drawn from the character of
the tribunal exercising it. Entrusted to a body that is not a court, the power might properly be
characterised as non-judicial, but when entrusted appropriately to a court, it will involve the
exercise of judicial power.7 Gaudron J said in Re Dingjan; Ex Parte Wagner (Dingjan):
“… if power to bring a new set of rights and obligations into existence is vested in a
tribunal which is not a court and policy considerations have a part to play in the
tribunal's determination, the power is not judicial. And that is so even if it is necessary
for the tribunal to decide disputed facts or to form an opinion as to existing rights and
obligations as a step in arriving at its ultimate determination.” 8
[22] In Re Cram & Ors; Ex parte NSW Colliery Proprietors' Association Ltd & Ors the
joint judgement in the High Court observed:
“The making of a binding declaration of right is an instance of the exercise of judicial
power. It stands outside the arbitral function. But there is no substance in the
suggestion that an industrial tribunal cannot interpret laws, awards and other legal
instruments. A tribunal could not discharge its arbitral functions if it were unable to
form an opinion on a matter of interpretation. The formation of views and opinions on
matters of interpretation in arbitral proceedings does not in itself amount to a
usurpation of judicial power: Cessnock Collieries, at p.22; The Queen v. The
Commonwealth Industrial Court; Ex parte The Australian Coal and Shale Employees'
Federation [1960] HCA 71; (1960) 103 CLR 171, at p 174; Key Meats, at pp 596-597.
Indeed, a tribunal may find it necessary to form an opinion as to the existing legal
rights of the parties as a step in arriving at the ultimate conclusions on which the
tribunal bases the making of an award intended to regulate the future rights of the
parties: Aberdare Collieries, at p.44. Of course, the formation of such an opinion does
not bind the parties and cannot operate as a binding declaration of rights.” 9
[2013] FWC 2039
6
[23] In addition to the above authorities, the parties referred in written submissions to
Police and Nurses Credit Society Limited re Finance Sector Union of Australia v Police and
Nurses Credit Society Limited10 (Police and Nurses Credit Society), a decision of the Full
Bench of the former Australian Industrial Relations Commission and TWU v Queensland
Properties Investment Pty Ltd.11
[24] The resolution of this present dispute, by arbitration or otherwise as permitted,
requires the Commission to decide on certain facts and on the state of the relevant law. In
particular the Commission must decide whether the MUA has, or does not have, coverage as
it claims, a finding about both fact and the proper construction of the relevant legal
instruments. These are findings of fact and of the state of the law precisely as discussed
above, validly made by an arbitral body in the exercise of its power. The finding of fact may
then give rise to the creation of rights and powers in the MUA, exercisable under the statutory
scheme of Part 3-4.
[25] Further, there is little doubt that this fact finding and determination includes matters of
policy, as stated in Gaudron J’s formulation in Dingjan: the Commission is required to
consider “fairness between the parties” (s.505(4)), and take into account matters such as the
promotion of harmonious workplace relations (s.577) and workplace diversity (s.578), and the
objects of the Act (eg ss.3 and 480).
[26] Rights or remedies under Part 3-4 come into being because of a finding of fact about
coverage. The finding of fact is but a step along the way, albeit a necessary step, in an
arbitration of a dispute about right of entry that determines rights between parties in the future
and it is not therefore judicial in character.
[27] Accordingly, the jurisdictional objection that the determination sought is judicial in
character cannot be sustained.
The Remedy issue
[28] Bechtel’s second jurisdictional point refers to the orders sought, and in essence posits
that they are judicial in character (and therefore impermissible in this tribunal) because they
are “in substance”:
a. a declaration that the MUA has coverage; and
b. an injunction to require Bechtel to allow entry to MUA officers.
[29] It is common ground, and well established, that the Commission has neither
jurisdiction nor power to grant injunctive or declaratory relief, that being a matter, where the
Act allows for such relief, for the relevant Courts.
[30] Bechtel does not, in its written submissions, expand on the basis for its assertion. In
oral submissions, Mr Murdoch said:
“The first is an order that the applicant is entitled to represent the industrial interests
of at least one employee at the premises occupied by the respondent, and the second
matter of substance that is sought to be made the subject of an order is that the
respondent must allow officers of the MUA holding a permit issued et cetera to enter
the respondent's premises at Curtis Island in accordance with part 3-4 of the Act.
[2013] FWC 2039
7
Those two matters in my submission are matters that require and only require for
determination the exercise of judicial power as opposed to arbitral power. I will take
you to some cases in a moment but just dealing with it at first principles, the first part
of it that the MUA is entitled to represent the industrial interests of at least one
employee, that is nothing more and can only be a request for this Commission to grant
declaratory relief on the basis of facts that presently exist, on the basis of a decision
on facts which presently exist that the MUA has an existing legal entitlement.
There is no other way that that can sensibly be described. It is an application for
declaratory relief. It might be contained in an application for section 505, but as a
matter of substance that's what it is. In respect of the second part of it the respondent
must allow officers of the MUA holding a permit to enter, et cetera. That aspect of the
order is solely the seeking of an order in the form of a mandatory injunction and that
is evident from what is sought and it is also evident from the fact that it is contained in
the same order that also seeks the declaration. It doesn't have the hallmarks, it is
precisely what is done in a court, precisely what there would be entitlement, in fact
there is an entitlement for an applicant to seek to do in a court, that is to get a
declaration as to its entitlement and to seek injunctive relief in the event that there has
been a breach of that entitlement. That is all that is sought in that order. There is
nothing in that order that deals with the operation of the relevant part, it is all about
and solely about existing legal rights and the enforcement of existing legal rights.
I accept that in the course of the Commission exercising its arbitral powers it will be
required and often is required to determine legal entitlements, but that occurs as a
step along the way in the course of resolving an arbitration, in the course of deciding
what rights and entitlements should exist in the future. It seems that the primary
argument that the applicant makes in respect of why it says that my client's
proposition in respect of the jurisdictional point is wrong, is that if my client is right
the Commission can never deal with the question of legal entitlements and I think my
friend said it would be caught in some sort of circular exercise. That's quite right,
because if this was a case in which the applicant had sought orders in respect of how
a right of entry might be exercised, if the applicant had sought orders in respect of the
times et cetera that a right of entry might be exercised. If the applicant had sought
orders in respect of whether requirements et cetera that were sought to be imposed in
the future were reasonable.
All of those things could fall to be dealt with by virtue of the arbitral power and of
course the Commission would need to be satisfied that it had jurisdiction to deal with
those matters and it would be satisfied if it had jurisdiction by being satisfied that the
relevant union had a right to enter in the first place, et cetera, but they are steps along
the way. The difficulty here for the applicant is that it hasn't sought to bring a dispute
before this Commission in respect of the operation of the part, it has simply sought to
bring to this Commission its complaint. Not a dispute, its complaint in respect of my
client taking the view that as a matter of law it doesn't have an entitlement to enter the
site.” 12
[31] Mr Murdoch referred to the Police and Nurses Credit Society case in support of this
proposition. In that case, the employer challenged the former Commission’s jurisdiction on
similar grounds. The Full Bench determined the proceedings were arbitral in nature. The
orders made at first instance were not disturbed. Those orders were:
[2013] FWC 2039
8
“The Police and Nurses Credit Society shall permit officers of the Finance Sector
Union, who are Permit Holders, pursuant to s.285A, after giving the required notice
pursuant to s.285D(3), to hold discussions during meal or other breaks in the area
that such breaks are taken with members or persons eligible to be members, who wish
to participate in such discussions.” 13
[32] The employer in that case did not argue that the orders sought were injunctive or
declaratory in character.
[33] The MUA rejects Bechtel’s interpretation of its application. It says it seeks orders that
“would establish the future rights for officers of the MUA seeking entry to premises.”14 It
points the Commission to several earlier decisions concerning just such orders, although in
none of those was the application challenged as seeking a judicial remedy.
[34] The MUA further submits that the orders sought are the product of an arbitral process;
discretionary; and that the jurisdiction to make an order does not depend on the wording of
the orders sought in an application.
[35] The MUA also cited Police and Nurses Credit Society in support of its contentions,
and argues in its written submissions in reply that it:
“is self-evident that the purpose of the MUA’s application to the Commission is to
obtain an arbitral determination because such an application can have no other
purpose.” 15
[36] Mr Quinn said in oral argument:
“... The application doesn't ask for a declaration or an injunction by that name or any
other because it can't. It requests the Commission to exercise its arbitral powers, to
settle an ongoing dispute about entry to the premises on Curtis Island which first
became manifest in September 2012 when Mr Sheehan sought to enter the island to
hold discussions with employees on the island who were entitled to be members of the
MUA. The order if made cannot be in substance or form a declaration or an
injunction because the Commission can't create any rights under the part, under the
Act. The Commission can't create any legal rights, any enforceable rights if any order
that is made by the Commission extends beyond the rights already provided for in part
3(4).
…
A declaration is a retrospective determination, it's a determination, an application of
the law to the state of facts at a particular point of time in the past and involves a
judicial determination of whether there has been a breach or not at that point in time.
There have been no requests in any way as part of this application for the Commission
to make any such decision about breach. An injunction on the other hand is a remedy,
is a prospective remedy. It's again based on - leaving aside interim decisions, it is
based on the determination of the breach of a law at some point in the past and
establishes a remedy to cure that previous identified breach and potentially to prevent
ongoing breaches. Again nothing of the sort has been requested nor can be ordered by
the Commission through this process.” 16
[2013] FWC 2039
9
[37] The orders that the Commission may make in regard to s.505 applications are set out
above at paragraph [10], and may extend to clearly non-judicial outcomes such as
recommendations and opinions.
[38] The order sought in the application asks for two things. The first is a finding of
fact, namely “That the MUA is entitled to represent the industrial interests of at least one
employee at the premises occupied by the Respondent at Curtis Island.”
[39] The second is a statement of the legal consequence that flows from that fact, namely,
right of entry subject to the scheme stated in Part 3-4.
[40] I also note that regardless of the order sought, this Commission may choose to make a
different order, make a recommendation or state an opinion: it is the order made by the
Commission that must not be impermissibly judicial in character.
[41] I have therefore concluded that the Commission has jurisdiction to deal with this
dispute under section 484 and the remedy sought is not judicial in character.
[42] For reasons I have detailed above I conclude that the three jurisdictional objections
raised by Bechtel, being the “dispute”, ‘arbitral-judicial” and “remedy” issues do not prohibit
the Commission from dealing with the application.
[43] I turn now to the substantive application.
The Coverage issue
[44] Section 484 of the Act authorises a permit holder to enter premises for the purposes of
holding discussions when certain requirements are met. The section provides as follows:
484 Entry to hold discussions
A permit holder may enter premises for the purposes of holding discussions
with one or more employees or TCF outworkers:
(a) who perform work on the premises; and
(b) whose industrial interests the permit holder’s organisation is entitled
to represent; and
(c) who wish to participate in those discussions
[45] The MUA asserts that it is entitled to represent the industrial interests of at least one
employee who performs work on Curtis Island, specifically waterside workers who are
engaged for all or some of their time in traditional waterside work at facilities known as the
Condock and the Marine Offloading Facility (MOF).
[46] Bechtel is a major construction, engineering and project management company. It is
not in the business of stevedoring, and the company suggests that any such work is merely
incidental to its construction activity. It asserts that there are no employees at its premises on
Curtis Island that the MUA is entitled to represent.
[2013] FWC 2039
10
[47] The eligibility rule of the MUA provides as follows:
Rule 3.2 (a)... Membership is open to “any person who intends to follow the
occupation of waterside worker”.
[48] If there is at least one employee “who intends to follow the occupation of a waterside
worker”, then the MUA satisfies section 484 and a permit holder may, subject to the statutory
scheme, enter the Bechtel’s premises for the purposes of holding discussions with at least that
one employee.
[49] This eligibility rule is unusually worded. It seems to revolve around the intent of a
worker. The parties spent some considerable time making submissions about whether the
appropriate test of that intention is objective or subjective. No evidence as to the subjective
intention of a particular employee was adduced, and in any case, it is difficult to see how such
evidence would assist the Commission or the parties. There appeared to be common ground
that the test must be objective to make sense, and I proceed on that basis.
Applicant’s submissions on the coverage issue
[50] Mr Quinn sought to identify the principles from the case law which should be applied
in relation to whether MUA has a right to represent the interests of the persons employed at
the premises by reason that at least one of those persons falls within the eligibility rules of the
MUA.
[51] He submits that the significant case authority presents slightly different tests but
argues that they are primarily functional in nature, with some reliance on geographic
proximity.
[52] In support of this functional analysis Mr Quinn referred to the decision in the Full
Court of the Federal Court in Co-operative Bulk Handling Ltd. v. Waterside Workers
Federation of Australia17 (Co-operative Bulk Handling). The test is whether the employees
are engaged in the movement of cargo on and off the wharf:
“Without attempting to give an exhaustive definition in our opinion the term waterside
worker includes persons who are engaged in the loading of cargo, including loose
bulk cargo onto ships and the prior handling, treating and storing of that cargo at or
in the vicinity of the wharf when that handling, treating or storage is to facilitate or is
for the purpose of the ultimate shipping of that cargo.” 18
[53] Mr Quinn submits that:
“.....This matter was only about the export of grains. A corresponding line can be
drawn for unloading work that is the handling, treating and storage of that cargo at or
in the vicinity of a wharf when that handling, treating and storing is to facilitate for
the purpose of the ultimate movement of that cargo, which is movement in this case off
the [wharf].” 19
[54] In his submission, this case establishes the test is about function and purpose. That is,
whether an employee is a waterside worker will be decided by analysing “the function that
[2013] FWC 2039
11
they support”. The Co-operative Bulk Handling case also establishes that waterside work is
not limited to the wharf itself.
[55] Mr Quinn further submitted:
“... So waterside work continues as long as the connection between the cargo coming
in or go off is maintained as cargo. That is not affected necessarily by the passage of
time, it is not affected necessarily by the movement of the cargo within the vicinity of
the wharf. In fact it doesn't lose its character as cargo, and thus working that cargo
being work of a waterside worker until it's been completely and properly discharged
from the vessel to consignees.” 20
[56] Mr Quinn notes that Bechtel operates the entire facility at Curtis Island. The essence
of his argument is that the cargo movement is stevedoring until the cargo is released into
construction activity, even if there are interim movements to lay down and quarantine areas.
[57] Mr Quinn argues that the case law supports the MUA’s argument that employees may
be within the eligibility rule even if they may also be eligible for membership of other unions
and if the employer is not a stevedoring company:
“The fact that similar work may be performed by members of another union or that
the employer may be engaged in activities and in an industry distinct from the
stevedoring industry is not in any sense conclusive.” 21
[58] The MUA additionally referred to two other Full Federal Court decisions in support of
a functional analysis: Electrical Trades Union of Australia v. Waterside Workers Federation
of Australia22 (ETU) and Federated Clerks Union of Australia v Waterside Workers
Federation of Australia.23
[59] This trilogy of cases, Mr Quinn submits, show that the eligibility clause extends
waterside work to tradespeople who were not traditional waterside workers but who work at
the waterside supporting the functions of loading and unloading. Further, persons engaged
substantially full-time on a site supporting loading and unloading by way of service and
maintenance of plant and equipment should be properly seen as engaged in the stevedoring
operation and thus entitled to membership of the MUA, whether or not their employer is a
stevedore.
[60] Mr Quinn drew the Commission’s attention to the wording employed in ETU:
“In our view the words occupation of waterside worker as used in the Federation’s
rules should be construed as encompassing the occupation of any worker whose
predominant working activities are based on or in the vicinity of wharves and
constitute part of the overall stevedoring operations of loading and unloading
ships.”24
[61] He submits this “predominant test” does not make a difference and merely reflects the
function test articulated differently. Importantly, Mr Quinn suggests, the facts in ETU were
about occupations not traditionally considered waterside work when the worker was full-time
on the waterside. The use of the term ‘predominant’ in ETU reflects the facts of that case and
[2013] FWC 2039
12
does not establish a test for the purpose of determining eligibility of employees who work part
of their time waterside, the balance being duties elsewhere.
[62] Mr Quinn also referred to MUA v Gambier Earth Movers Pty Ltd and others25
(Gambier). In that case, timber mill workers undertook additional tasks on wharves,
amounting to no more than 12% of their work. The Commission could not conclude “the
predominant working activities of the Sorisdale employees are based on or in the vicinity of
wharves and constitute part of the overall stevedoring operations of loading and unloading
ships” and the MUA did not therefore cover the employees. He submits that the so-called
predominant test was misapplied and that the case is not good authority for this matter.
[63] Mr Quinn urges instead that Logan v Otis Elevator Company Pty Ltd26 is authority for
determining issues of coverage of employees that undertake multiple types of work. It cites
the decision of Sheldon J in Ware v O'Donnell Griffin (Television Services) Pty Ltd:
“This principle is almost as old as industrial arbitration and it makes a practical
approach to determining the application of awards where duties are of a mixed
character and contain elements which have taken alone would be covered by more
than one award. This is not an appropriate occasion on which to discuss the method
by which this test should be applied except to say that it is not merely a matter of
quantifying the time spent on the various elements of work performed by a
complainant; the quality of the different types of work done is also a relevant
consideration.” 27
[64] And further Mr Quinn submits that in that same case even where someone spends as
little as 25% of their time they may be fulfilling the principal purpose for which they are
employed:
“It may well be that an employee that spends twenty-five per cent of his time fulfilling
the principal purpose for which his is employed qualifies by reason of that
circumstance alone to be classified in the particular calling identified with that
purpose. In this case, the employees in question are wholly occupied as masters or
engineers, either in actual towage operations or in duties incidental to that purpose.
I’m satisfied that these employees are following a calling which falls within the
required definition of seamen. (Underlining added)” 28
[65] Mr Quinn also referred to Brand v APIR Systems Ltd29 (Brand) where the Full Bench
of the Australian Industrial Relations Commission, when reviewing the various tests to be
applied in determining whether an employee is within a particular occupation was content not
to disturb the formulation at first instance which was the ‘principal purpose test’ as set out in
Carpenter v Corona Manufacturing Pty Ltd:
“In our view, in determining whether or not a particular award applies to identified
employment, more is required than a mere quantitative assessment of the time spent in
carrying out various duties. An examination must be made of the nature of the work
and the circumstances in which the employee is employed to do their work with a view
to ascertaining the principle purpose which the employee is employed. (Underlining
added)” 30
[2013] FWC 2039
13
[66] The Full Bench in Brand comprehensively identified, but did not analyse, various tests
and formulations for determining whether the work of an employee is within a particular
occupation. The Full Bench stated:
“an analysis of the authorities referred to in that case shows that industrial courts and
tribunals have at times adopted different formulations of the test to be applied in
determining whether the work of an employee or group of employees is within a
particular occupational classification. One formulation requires that the question
should be decided by reference to them later and substantial employment of the
employee. Another formulation requires that the principle purpose or purposes of the
employment be identified. In some cases the formulations have both been referred to.
In one case a full bench of the commission held that the principle purpose formulation
was a refinement of the major and substantial employment formulation. A full Federal
Court without reference to other authorities, adopted a test of whether the employees
were “engaged substantially” in the duties of the relevant occupation.” (references
omitted)” 31
[67] Having identified the variety of approaches, the Full Bench confined its comments to
the case before it and was content to apply the principle purpose test. It noted that whichever
formulation might be applied, in that case the result would be the same.
Respondent’s submissions on the coverage issue
[68] Bechtel submits that the many decisions on what constitutes the work of a waterside
worker are fact-specific. The characterisation of the rule should be considered in light of the
facts of each particular case.
[69] Bechtel unsurprisingly seeks a different interpretation of the Co-operative Bulk
Handling case from that supported by MUA.
[70] Mr Murdoch pointed to the focus of that case on shipping:
“Without attempting to give an exhaustive definition in our opinion the term waterside
worker includes persons who are engaged in the loading of cargo, including loose
bulk cargo onto ships and the prior handling, treating and storing of that cargo at or
in the vicinity of the wharf when that handling, treating or storage is to facilitate or is
for the purpose of the ultimate shipping of that cargo.” 32
[71] The work in that case reflected the proximity of the grain processing plant to the bulk-
handling wharf in question. Mr Murdoch argued that Co-operative Bulk Handling was not
authority to extend stevedoring operations beyond the wharf to other areas of Curtis Island.
[72] Mr Murdoch submits whatever test is applied, be it the substantive character or
predominant test, the result in this case will be the same, namely that the work is not the
occupation of waterside worker.
[73] Mr Murdoch says there is a two-part test for whether a person follows the occupation
of waterside worker:
1. the predominant working activities are based on or in the vicinity of a wharf; and
[2013] FWC 2039
14
2. the work constitutes part of the overall stevedoring operations of loading and
unloading ships.
[74] That is, it is not sufficient to do some work on the vessel. The predominant working
activity must be part of the overall stevedoring operations.
[75] Mr Murdoch suggested the Commission should follow the decision in Gambier33
discussed above, and which seeks to apply both the predominant test and a substantial
character test.
[76] Mr Murdoch also referred to R v Isaac; Ex parte Transport Workers' Union where
Gibbs CJ says:
“16. A decision of the question whether a particular description fits an industry or
calling involves matters of degree, and the answer may depend on the "substantial
character" of the activities carried on: Reg. v. Moore; Ex parte Federated
Miscellaneous Workers' Union of Australia, at pp 483-485, and cases there cited. That
does not mean that if the enterprise has two purposes, it is necessary to decide which
is predominant. It is quite possible that an industry or calling can accurately be
described in a number of ways, and the fact that it comes within one description does
not mean that it cannot also come within another. For example, in Reg. v. Moore; Ex
parte Federated Miscellaneous Workers' Union of Australia, some of the workers
concerned were engaged in road making, as well as in or in connexion with
metalliferous mining: see per Jacobs J. at pp.478-479. In the same case, Aickin J.
said, at p.483:
"It does not, in my opinion, follow from the fact that it may be said that an
employer is engaged in construction work that he may not also properly be
regarded as engaged in activities in or in connexion with metalliferous
mining."
The fact that the employees engaged to construct and work the mine at the Argyle
Diamond Mine Project are quite clearly engaged in labour in or in connexion with
mining does not necessarily mean that they are not engaged in or in connexion with
"reducing and refining of ores".”34
[77] Mr Murdoch pressed that I should take from these decisions that:
“...it's not the fact that one looks merely at the time that is spent. The question is one
of substantial character or in the words of the ETU case, what is the predominant
work that's being performed.” 35
[78] The substantial character or predominant work in this case, he argues, is not the
occupation of a waterside worker.
Consideration - coverage issue
[79] The case law relevant to this coverage issue is extensive. Both parties rely on a
number of key cases, including Co-operative Bulk Handling and ETU but urge different
conclusions.
[2013] FWC 2039
15
[80] Mr Quinn says Co-operative Bulk Handling requires me to analyse the function that
the employee supports and that waterside work extends beyond the docks to the lay down and
other facilities until the cargo is released for construction use.
[81] Mr Murdoch suggests the focus should be on the shipping aspect, and that waterside
work is limited to offloading and geographically to the wharf.
[82] The ETU case is advanced by the MUA as authority to extend waterside work to
trades and occupations not traditionally considered such, and for the same functional analysis
relating to docking and unloading and the like. Mr Murdoch submitted ETU requires the
Commission to ask: “What is the predominant work that is being performed?”.
[83] Mr Quinn submitted that the application of the predominance test in Gambier was
“entirely incorrect”.36 Mr Murdoch urged the Commission to follow Gambier as good
authority in support of Bechtel’s position.
[84] There is a lack of clear authority for individual commission members in relation to the
test to be applied in situations where the parties do not agree on an approach to be taken. In
those circumstances, Brand provides one useful point of guidance, namely, that sometimes no
matter which formulation is used, the result would be the same.
[85] I am bound to decide the matter as best I can based on the facts before me and
consistently with the authorities.
[86] The MUA initially placed some emphasis on Moxy drivers as waterside workers, but
conceded in argument that they were not:
“We don't advance any submission that Mr Gibson or as we say the Moxy truck
drivers are engaged in waterside work.” 37
[87] In final submissions the MUA submitted that four groups of employees meet the
occupation of waterside worker:
(i) excavator operators at the Condock;
(ii) riggers at the MOF;
(iii) one Mr Costello, a mooring master; and
(iv) employees of the contractor that operates the self-propelled modular
transporters or SPMT vehicles used on the Curtis Island.
[88] Mr Murdoch noted that the MUA did not call any excavator operator or other witness
from the list above. Evidence about excavator operators arose primarily from the evidence of
Bechtel’s witnesses.
[89] There is of course no requirement that an applicant put before the Commission
evidence of the work of the various employees it says it covers. Yet a lack of such evidence
clearly limits the Commission's capacity to understand why the MUA says that certain
employees are within the eligibility rules.
[2013] FWC 2039
16
[90] I conclude for reasons detailed below that the MUA’s eligibility rules cover the
excavator operators at the Condock but I cannot conclude, on the evidence before the
Commission, that any other of the groups listed are eligible.
[91] The approach taken in Brand is followed: for the excavator operators, whether one
applies the substantive employment test or the predominant test, the result will be the same. In
regard to the others neither test is satisfied on the evidence before the Commission.
[92] In regard to the excavator operators, Mr Quinn said:
“The excavator driver on the other hand spends the bulk of his day every day on a
vessel unloading cargo from a vessel. He is engaged in a crew that has been
specifically established to engage in that process of unloading cargo from a vessel. As
I say, the majority of his time is spent in that activity.” 38
[93] In cross-examination Mr Gibson for the employer considered all crew would spend
“maybe 60% of their time on the barge”39 and
“Correspondingly, the priority for your barge crew is to - under your direction - get
that stuff off the barge so that the next one can come in?---Correct.”40
[94] The MUA submits that the excavator operators’ clear principal purpose, the
predominant and substantial activity, is that of a waterside worker, unloading cargo from a
vessel in order for the cargo to be moved to its ultimate destination. Further, the purpose for
which the job is performed, the priority of the job, and the nature of the tasks reveal the job to
be waterside work.
[95] Mr Murdoch says it is artificial to say that an excavator operator working in the
Condock “intends to follow the occupation of waterside worker” for the following reasons:
the employee does not spend every shift working on the barge because of tidal
movements and the like;
there is sometimes little or no excavation work to be performed on the wharf;
that work is only about 60% of time;
when excavator operators are not on the barge, they may perform roadwork or
work on the stockpile and that is clearly not waterside work.
[96] This last point is important because it is the same type of work the excavator operator
would normally perform on any construction site.
[97] Mr Murdoch submits the only connection the excavator operator has to the water is
that aggregate can only be transported to the island by barge because it is an island. The
aggregate must then be offloaded, and that this is not in the entirety of excavator operators’
work.41 He also points out that the island is a construction site. The excavator operators, he
says, are not waterside workers. They are excavator operators on a construction site who
spend some time unloading aggregate from barges. They can just as easily be working the
stockpile or a road.42
[2013] FWC 2039
17
[98] Excavator operators on the Condock are required to offload aggregate. This aggregate
is on a barge which has travelled to the Condock to be unloaded. They spend approximately
60% of their working time on the barges unloading aggregate. It is a priority of their work.
[99] There was evidence before the Commission as well that the work of an excavator
operator is no different whether it is on the land or on a barge. However this is not the point.
The work is unloading aggregate from barges at a wharf. That places the work in the marine
environment.
[100] Indeed, it seems that the employer is mindful of the marine environment.
Advertisements for crane operators that were brought to the Commission’s attention made
reference to experience around the marine environment being viewed in high regard. I place
no weight on this, except to note that it is consistent with the wharf being a workplace in a
marine, i.e. waterside environment.
[101] The issue being tested here is whether the employee is covered under the MUA
eligibility rules, not whether the task is the same if done elsewhere.
[102] Under the ETU test, excavator operators’ predominant working activities are
unloading from the barge in the vicinity of the wharf. They have other tasks that are not
predominant and are not the priority set by their employer. The predominant task, and the
priority, is unloading aggregate. Because it is unloading from a barge docked at a wharf, it is a
stevedoring operation.
[103] As with the Full Bench’s analysis in Brand whether the formulation is the principle
purpose test or the substantive employment formulation, the result is the same: the excavator
operators are following the occupation of waterside worker.
[104] Therefore I have concluded that excavator operators who work on the Condock are
eligible to be members of the MUA.
[105] I turn now to the other classes of employee.
[106] Mr Quinn said that riggers at the MOF were engaged in “intense periods of work by
riggers and operators on the MOF and which may well be at the point of increasing….”
[107] Mr Murdoch submits the workers on the MOF satisfy neither the predominance nor
the substantial character test of a waterside worker. This is because such employees are only
engaged for a short period in respect of rigging activities and the remainder of their time is
spent on normal construction work.
[108] On the question of the mooring master Mr Quinn admitted there was no evidence
before the Commission as to the amount of time in that role but submitted it is more than 25%
and that the clear purpose of his role is mooring master. These mixed functions and the
priority of his position meets the test to satisfy eligibility.
[109] Mr Murdoch submits that the evidence on the mooring master is speculative that there
is no evidence before the Commission to establish the exact function.
[2013] FWC 2039
18
[110] The SPMT operators are, it seems, independent contractors and not employed by
Bechtel. Mr Quinn argues the application extends to those independent contractors. Mr
Murdoch says that the SMPT operators do not form part of the dispute, and that in any case,
very little of their time is spent at the MOF, their job being to remove modules from the wharf
to the construction site.
[111] It has been noted that there was no direct evidence from employees that the MUA
sought to cover. Mr Murdoch submitted that:
“The MUA as the moving party in this dispute are required to establish the
application of clause 3.2(a) of the MUA's rules. The MUA evidence as to what work is
actually performed at the Project and by whom is a mixture of hearsay, assumption
and overstatement. On the other hand, the Bechtel evidence, summarised below,
demonstrates directly that relevant employees to predominantly or substantially follow
the "occupation" of a "waterside worker". The intention required under clause 3.2(a)
does not exist. As a result clause 3.2(a) of the MUA's rules cannot apply.”43
[112] With no direct evidence from such employees it is not possible to conclude on the
material before the Commission the exact nature of this work. There is insufficient evidence
that would allow the Commission to conclude that these employees were eligible to be
members of the MUA.
[113] In contrast, in regard to the excavator operators on the Condock, the Commission was
able to ascertain from the evidence, primarily from Bechtel’s witnesses, a clear understanding
of their work.
[114] I therefore find that the excavator operators at the Condock are eligible to be members
of the MUA, but that in regard to the other employees or classes of employee, riggers at the
MOF, Mr Costello, who is described as a mooring master and employees of the contractor
that operates SPMT vehicles I cannot find that they are eligible to be members of the MUA.
[115] In these cases there was insufficient evidence and the MUA could not establish
coverage on either test.
Conclusion - coverage issue
[116] The MUA is entitled to represent the industrial interests of excavator operators who
work on the Condock at the premises occupied by Bechtel on Curtis Island.
The Specificity issue
[117] The final issue advanced by Bechtel was an objection to the lack of specificity as to
the premise to be entered. Section 518(1)(a) requires the notice to state the premises to be
entered. This issue was not pressed.
[118] Bechtel controls the entirety of Curtis Island, although my conclusions as to coverage
are limited to “excavator operators who work on the Condock”. That provides some
specificity. However no submissions were made as to where on Curtis Island would be
appropriate for both the MUA and Bechtel for the purposes of the entry under Part 3-4. I leave
[2013] FWC 2039
19
it to the parties to determine a mutually suitable venue for the holding of discussions
contemplated by s.484.
The Orders
[119] It follows from the finding that the excavator operators at the Condock are within the
MUA’s eligibility rule that a permit holder of the MUA is entitled to enter the premises for
the purpose of holding discussions with one or more of those excavator operators should they
wish to participate.
[120] Orders to that effect will issue separately.
COMMISSIONER
Appearances:
D Quinn for The Maritime Union of Australia.
C Murdoch of counsel for Bechtel Construction (Australia) Pty Ltd.
Hearing details:
2013.
Brisbane:
February 20, 21 and 22.
Printed by authority of the Commonwealth Government Printer
Price code C, PR535377
1 s.595(1): “The FWC may deal with a dispute only if the FWC is expressly authorised to do so under or in accordance with
another provision of this Act.”
2 the Constitution uses the words “conciliation and arbitration” in s.51(xxxv), although the source of constitutional power is
now far broader: New South Wales v Commonwealth [2006] HCA 52; (2006) 229 CLR 1 and the various referral Acts of
the States.
3 (1918) 25 CLR 434 per Isaacs and Rich JJ at 463.
4 R v Kirby; Ex parte Boilermakers' Society of Australia (1956) 94 CLR 254.
5 Stellios, J.S. (2010) The Federal Judicature: Chapter III of the Constitution: Commentary and cases. Chatswood, N.S.W. :
LexisNexis Butterworths at 207 [4.162] quoted with approval by Hayne J in South Australia v Totani (2010) 242 CLR 1
at 86.
6 (1987) 163 CLR 656 per curiam (Mason CJ, Wilson, Brennan, Deane, Dawson, Toohey and Gaudron JJ).
A
RK
7 0
AUSTRALIA HE
[2013] FWC 2039
20
7 Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 per Gaudron J at 106 and per Gummow J at 136; R v
Heggarty; ex parte City of Salisbury (1981) 147 CLR 617 per Mason J at 628 and per Murphy J at 632; Re Cram; ex
parte Newcastle Wallsend Coal Pty Ltd (1987) 163 CLR 140 per Gaudron J at 159 and 160; Re Ranger Uranium Mines
Pty Ltd; ex parte Federated Miscellaneous Workers’ Union of Australia (1987) 163 CLR 656 per Mason CJ, Wilson,
Brennan, Deane, Dawson, Toohey and Gaudron JJ at 666; Precision Data Holdings Ltd v Wills (1991) 173 CLR 167 per
Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ at 191 and Re Dingjan; ex parte Wagner (1995)
183 CLR 323 at 360 and 361.
8 (1995) 183 CLR 323 at 360-361 (footnotes omitted), Mason CJ, Deane and Toohey JJ relevantly concurring, citing
Precision Data Holdings Ltd v Wills (1991) 173 CLR 167.
9 (1987) 163 CLR 117 per Mason C.J., Brennan, Deane, Dawson and Toohey JJ.
10 PR939977 [2003] AIRC 1340 (Ross VP, Watson SDP and Grainger C).
11 [2011] FWAFB 8207 (Harrison SDP, Richards SDP and Roberts C).
12 Transcript dated 22 February 2013 at PN1781-PN1784.
13 PR939977 [2003] AIRC 1340 (Ross VP, Watson SDP and Grainger C) at [26].
14 MUA’s Outline of Submissions on Jurisdictional Objection of Bechtel’s dated 15 Feb 2013.
15 MUA’s Submissions 15 February 2013 at paragraph 19.
16 Transcript dated 22 February 2013 at PN1667 and PN1669.
17 (l980) 49 FLR 355; 32 ALR 541.
18 (l980) 49 FLR 355 at 372; 32 ALR 541 at 556.
19 Transcript dated 22 February 2013 at PN1721.
20 Transcript dated 22 February 2013 at PN1714.
21 (l980) 49 FLR 355 at 372; 32 ALR 541 at 556 (Co-operative Bulk Handling).
22 (l982) 42 ALR 587.
23 [1983] FCA 79; 4 IR 25.
24 (l982) 42 ALR 587 at 87.
2525 [1995] AIRC 1828 M5128.
26 [1997] IRCA 200 (20 June 1997).
27 [1971] AR (NSW) 18 at page 35.
28 [1971] AR (NSW) 18 at page 36.
29 PR938031
30 PR925731
31 PR938031
32 49 FLR 355 at page 372; 32 ALR 541 at page 556.
33 [1995] AIRC 1828 M5128.
34 [1985] HCA 80; (1985) 159 CLR 323 at page 332.
35 Transcript dated 22 February 2013 at PN1847.
36 Transcript dated 22 February 2013 at PN1737.
37 Transcript dated 22 February 2013 at PN1756.
38 Transcript dated 22 February 2013 at PN1756.
39 Transcript dated 21 February 2013 at PN1442.
40 Transcript dated 21 February 2013 at PN1409.
41 Transcript dated 22 February 2013 at PN1850.
42 Transcript dated 22 February 2013 at PN1850.
43 Bechtel’s submissions dated 8 February 2013 at paragraph 35.
