4s IN THE FEDERAL COURT OF AUSTRALIA INDUSTRIAL DIVISION V No.35 of 1978 VICTORIA DISTRICT REGISTRY BETWEEN: PAUL JOHN BURGESS Informant and JOHN CONNELL-MOTT, HAY AND ANDERSON PTY.LTD Defendant ae AN OM 7 CATCHWORDS Industrial law - dismissal of an employee : facts and circumstances of being a member of an organisation; entitled to benefit of award - no ease for defendant to answer - eligibility for membership of an organisation : Rule 6 of Australian Workers Union - meaning of "all kinds of general labour" - whether employee engagea "in or in connection with ... railway construction work ... land surveying" - whether defendant bound by Australian Workers Union Construction & Maintenance Award 1975. "Conciliation and Arbitration Act 1904, as amended, ss.5(1),(4); 61. IN THE FEDERAL COURT OF AUSTRALIA INDUSTRIAL DIVISION V No. 35 of 1978 .e VICTORIA DISTRICT REGISTRY BETWEEN; PAUL JOHN BURGESS Informant and JOHN CONNELL-MOTT, HAY AND ANDERSON PTY.LTD Defendant ORDER JUDGE MAKING ORDER: . Northrop J. DATE OF ORDER: a 23 March, 1979 WHERE MADE: "O MELBOURNE ORDER: ' Information dismissed. 7s IN THE FEDERAL COURT OF AUSTRALIA > " INDUSTRIAL DIVISION V No. 35 of 1978 VICTORIA DISTRICT REGISTRY BETWEEN: PAUL JOHN BURGESS , . Informant . and JOHN CONNELL-MOTT, HAY AND ANDERSON PTY.LTD.Defendant NORTHROP J. REASONS FOR JUDGMENT 23 March, 1979, On 28 November 1977 Paul John Burgess, the informant, entered into a contract of employment with John Connell-Mott, Hay and Anderson Pty. Ltd., the defendant, a company incorporated in the State of Victoria. The terms of the contract of employment were contained ina letter dated 28 November 1977 from the defendant to the informant. On 16 October 1978, in accordance with the terms of the contract of employment, the defendant dismissed the informant from its employment. On 23 November 1978 the informant instituted these proceedings under s.5 Conciliation and Arbitration Act 1904, as amended, the Act. The hearing of the information commenced on 5 February 1979 and at the close of the informant's case, Counsel for the defendant submitted that there was no case for the defendant to answer and that the information should be dismissed. After hearing submissions from Counsel for the defendant and Counsel for the informant the Court reserved its decision. The relevant provisions of s.5 of the Act are as follows:- - "5:(1) An employer shall not dismiss an employee... , by reason of the circumstances that the emplcyee - (a) is ... a member of an organisation ..., ote or, . 7 (b) is entitled to the benefit of ... an 2. award; or ... . (d) being a member of an organisation which is seeking better industrial conditions, is dissatisfied with his conditions; or ... (£) being ... a member of an organisation, has done, or proposes to do, an act or thing which is lawful for the purpose of furthering or protecting the industrial interests of the organisation or its members, being an act or thing done within the limits of the authority expressly conferred on him by the organisation in accordance with the rules of the organisation ... . (4) In any proceedings for an offence against this section, if all the relevant facts and circumstances, other than the reason ... . set out in the charge as being the reason ... of an action alleged in the charge, are proved, it lies upon the person charged to prove that that action was not actuated by that reason ..." . The informant claims that the defendant dismissed him by reason of one or other of the circumstances set out in s.5(1) (a),(b),(d) or (£) of the Act. Counsel for the defendant submitted that the informant had failed to prove all the facts and circumstances constituting the offence under s.5 of the Act, other than the reason set out in the charge, and accordingly sub-section 4 did not apply to require the defendant to prove that the action was not actuated by that reason. I accept the submission that for the present purposes the question of the: reason for dismissal by the defendant is not relevant. It follows that for the purpose of deciding the matter reserved for judgment, there is no need to Make reference to any of the evidence already given on behalf of the informant relating to the reason for dismissal by the defendant. The issue to be determined is whether the informant has proved all the facts and circumstances constituting the offence, other than the reason for the defendant's act in dismissing the informant. _In order to prove one or other of the circumstances set out in s.5(1) (a),(a) or (f£) of the Act, the informant must prove that at the relevant time he was a member of an organisatioi The informant had purported to join the Australian Workers' Union, the A.W.U., which is an organisation within the meaning ~ a 3. 3. of the Act, The A.W.U. had issued a membership ticket to the informant. Counsel for the defendant submitted that the informant was not eligible to become a member of the A.W.U. and therefore could not, in law, be a member of the A.W.U. It follows, so it was submitted,that the informant, therefore, failed to prove that he was a member of an organisation. It is trite law that an organisation, as party principal, has no power to create an industrial dispute within the meaning of the Act on behalf of persons not eligible for membership of that organisation and has no power to stand in their place or to represent them in an industrial dispute. The fact that an organisation has purported to enrol as members persons who are not eligible to become members, does not confer on that organisation the power to represent those persons. In my opinion, to come within s.5(1)(a),(d) and (f) of the Act, the informant must prove that he is eligible to become a member of the A.W.U. In other words the informant must prove that he comes within a class of employees specified in the eligibility for membership rule of the A.W.U. When an issue of this kind is raised, the Court is not bound by the production of a membership ticket nor is it bound by a certificate issued pursuant to s.155 of the Act, The Court is required to consider whether a person is eligible to become a member . of the organisation of which he claims to be a member. On three separate occasions in recent years the High Court has had to consider the eligibility for membership rule of the A.W.U., see-R. v, Aird . Ex Parte Australian Workers' Union (1973) 129 C.L.R.654, re: Federated Liguor and Allied Industries Employees' Union of Australia; Ex Parte Australian Workers' Union (1976) 51 A.L.J.R. 266 and R. v. Moore Ex Parte The Federated Miscellaneous Workers' Union of Australia (1979) 53 A.L.J.R. 116. The eligibility for membership rule of the A.W.U. is contained in Rule 6 of the Rules of that organisation, It is headed "Full Membership" and comprises a long list of miscellaneous industries and callings. Counsel for the informant submitted that the informant came within one or other of three of the listed industries or callings. Insofar as is material, Rule 6 is as follows: 4. "FULL MEMBERSHIP 6. Subject to these Rules, every bona fide worker, male or female, engaged in manual or mental labour in or in connection with any of the following industries or callings, namely;... employees engaged in or in connection with ... railway construction work, ... all persons engaged in ... land surveying ... and all kinds of general labour ... shall be entitled to become and remain members of the Union ..." Since this is a decision on a submission of no case to answer, whenever there is, on the evidence, more than one finding open, I make the finding which is the most favourable to the informant's case, : : The Melbourne Underground Rail Loop Act 1972 constitutes the Melbourne Underground Rail Loop Authority, ' MURLA, as a body corporate authorised to make and construct specified underground rail tracks in accordance with the powers contained in the Act, the Project. The defendant - carries on the business of a consulting engineer. It does not carry on the business of a construction engineer. By an agreement in writing dated 25 July 1974, as varied by a supplemental agreement dated 31 October 1974, the defendant was one of a number of consulting engineers appointed by MURLA to be the principal consulting engineers for the Project which together with all proper works and conveniences in connection therewith, is hereinafter called the Loop, upon the terms and conditions set out in the agreements. The service to be provided by the consultants, including the defendant, were many and varied. Broadly speaking, they comprised the performance and discharge fior MURLA of the professional consulting engineering and architectural services and other associated functions duties and responsibilities which the consulting engineers may be required by MURLA to furnish perform and discharge for the purpose of or in connection with the Project. Under the agreements the defendant was not required to do any construction work, that work being carried out by contractors engaged by MURLA. The contractors are persons bound under a contract with MURLA to execute works, including the supply of materials or plant, 'to be constructed or carried out as part of or otherwise in connection with the construction and completion of the Loop. tn 5. As a consultant the defendant was responsible for and carried out the supervision direction administration and co-ordination of the contracts made by MURLA for the execution of the works and of all construction engineering and related work carried out or to be performed by contractors engaged by MURLA. The defendant, being one of a number of consulting engineers appointed by MURLA, as and when requested by MURLA, was responsible for and carried out the supervision, direction, administration and co-ordination of the contracts let or made by MURLA for the execution of works and of all construction engineering and related work carried out or performed by contractors under such contracts. In addition the defendant was required to give certificates to enable-the contractors to claim payment from MURLA. The informant was born on il October 1959. At the end of the year 1976 he left secondary school having obtained the Leaving Certificate with passes in English, Physics, Mathematics 1 and Mathematics 2 and Graphics. In the year 1977 he attended Oakleigh Technical School as a full time student in the first year of a course leading to the Certificate of Technology in surveying. In November 1977 he applied successfully for a position with the defendant. The terms of his appointment as set out in the letter dated 28 November 1977 were as follows: "SITE APPOINTMENT - SURVEY CHAINMAN _MURL PROJECT - Following your application for a position with this company and subsequent discussion with Mr. A.G. Hordern, I have pleasure in confirming your Staff appointment. Conditions of employment are as follows:- 1. A basic salary of $6,300 per annum based on a 40 hour week, Normal working hours being . 8.30 a.m, to 5 p.m., however, this may vary \ slightly between contract sites. Your first ' + galary review will be in July, 1978. 2. - Overtime is worked as required and will be paid at time and a half with double time after four hours on Saturday and for Sundays and Public Holidays, Above a certain salary all overtime is paid at time and a half. It may be necessary to work on a roster basis with a five day week including a Saturday or ' Sunday in which case penalty rates will be paid for these days. 6. 3. Salary . payment is made fortnightly and it will be necessary for you to advise our accounts section of your bank and account number upon commencement to enable your Salary to be deposited accordingly. 4. Irregular hours are probable and an allowance of $5.00 per day will be paid if commencing work before 5.00 a.m. or after 5.00 p.m. 5. Annual leave will be four weeks. Normally the intervening days between Christmas and New Year are to be taken as part of annual leave. 7. Two weeks notice of termination of employment is required by either party, except in the case of misconduct. 8. A chest x-ray may be required and will be arranged by this company shortly after your commencement. The vosition offered is expected to be for the duration of.the Project and we expect there will be reasonable opportunities for continuity of employment. I understand you will be commencing employment on November 28, 1977 at which time would you please report to Mr. Biil Hordern at our Flagstaff Site Office, 462 Little Lonsdale Street, Melbourne. We look forward to the opportunity of welcoming you to our staff and we are confident that an association will be to our mutual benefit." The defendant engaged the informant as a survey chainman, The informant was told that he was to commence work as a chainman and in six to twelve months time if the defendant was satisfied with his work and if there was a vacancy for a survey assistant, he would be promoted to that position. He was told that the defendant did not employ people as survey assistants straight out of school, but initially they were engaged as chainmen and if they proved Satisfactory and there was a position of survey assistant open, they were promoted to that position. Chainmen were allowed time off work without deduction of salary to attend studies. A chainman worked in the field with a surveyor or survey assistant. He assisted the surveyor in carrying and setting up instruments, in taking measurements and on occasions 'operated the instruments. He had to be able to manipulate 7. . 7. or read plans. He was under the control of the surveyor and virtually used all the instruments a surveyor used. He participated in computing the results of the neoasurements taken which were then checked against the plans and contract drawings to ascertain whether the Project was progressing within permissible tolerances. The results of the computations, including graphs, were reported to the superiors of the defendant, being the professional engineers who decided what action, if any had to be taken. : In the course of his employment, the informant spent some time as a member of a survey team in precise levelling or monitoring. This was a process by which surface measurements above the tunnels of the Loop were taken to ensure surface movements did not exceed permissible tolerances. The work involved the setting up and maintenance of survey equipment and the plotting of results, after computation, on a graph, For some time the informant assisted a survey team locating the site of underground services near the Eye & Ear Hospital, Melbourne, in connection with plans for the construction of a tunnel. This work had no connection with the MURLA Project or the Loop, Later the informant worked in a tunnel on the Loop. He acted as an assistant to professional employees of the defendant, He collected concrete sample reports on concrete used by the construction contractors, He assisted in taking measurements to check that the tunnel was being constructed according to the specifications and filed the measurements so taken. At one time he was responsible for Measuring the quantity of water flow in the tunnel resulting from seepage, He maintained a file of readings so taken over a period of time for the information of his superiors. At another time he assisted in fixing metal plates to tunnel walls at precise intervals to be utilised by the construction contractors in determining the centre of the railway tracks to be laid by them. During the period of his employment, the informant was given time off work on Friday afternoons, four hours,to pursue his studies at tertiary level, In addition he attended classes on Monday evenings outside working hours, The A.W.U. is a party to the Australian Workers!' Union Construction and Maintenance Award 1975 as varied, the Award, being an award of the Australian Conciliation and ~ ae 8. a Pee 8. Arbitration Commission. Insofar as the Award is binding upon employers, see s.61 of the Act, it binds them in respect of all their employees, whether members of the A.W.U. or not, in work done or in connection with specified types of industries or callings. It is not necessary to make a finding whether the informant comes within any of the classifications contained in the Award. From time to time an Appendix has been inserted in the Award extending its application to various construction projects in Victoria. One of the construction projects included _in the Appendix is the MULRA Project. During the calendar year 1978 the relevant provisions of the Appendix were as follows: " APPENDIX 1 _ VARIOUS CONSTRUCTION PROJECTS - VICTORIA I - APPLICATION This Appendix shall apply to: (a) The Australian Workers' Union and the members thereof (to any of whom the word "employee", when hereinafter used, applies); (b) The Victorian Employers' Federation and the members thereof; (c) Codelfa Constructions Pty. Ltd., Construction of Metropolitan Tunnels and John Holland Construction Pty. Ltd., in respect of the 'employment of such employers of all employees whether members of the Australian Workers' Union or not in work done in or in connection with, and on the sites of, the Melbourne Underground Rail Loop Project and the ancillary works authorised to be constructed by the Melbourne Underground Rail Loop Act 1970 (as amended) of the Parliament of Victoria; eoree Provided that save as to any matters dealt with in this appendix, the provisions of this Award shall apply." Each of the employers mentioned in (c) above is a contractor engaged by MURLA under a contract to execute works to be constructed or carried out as part of or otherwise in connection with the construction and completion of the Loop. The Victorian Employers' Federation is an organisation within the meaning of the Act. The defendant is not, and at the time it dismissed the informant, was not, a member of the Victorian .Employers' Federation. : I turn to consider whether the informant comes within the class of persons described by the phrase "all kinds of general labour" contained in Rule 6 of the Rules _ ; ; 9. we . : . eree os tne rs ee ew we - ee ret eh a neo . we m kg : woe . 7 9. of the A.W.U. These words describe a calling or occupation of an employee. The words were "used at the end of the conditions of eligibility in their earliest form, apparently to comprehend labourers not employed in the industries therein specifically mentioned", see R. v. Aird ex parte Australian Workers' Union, supra, per Gibbs J. at p.666. In that case the High Court held that employees engaged to do labouring work in connection with the production of ready-mixed concrete at batching plants, not on a building or construction site, were not eligible to be members of the A.W.U. Gibbs J. at p-668 said: "The prosecutor also suggested that the words "all kinds of general labour' might include work in or in connexion with the manufacture of ready-mixed concrete. I do not doubt that persons engaged in making ready-mixed concrete May properly be described as labourers. However, - the phrase 'all kinds of general labour' does not mean all kinds of labour; if it bore that meaning it would have been unnecessary to list at length the other industries and callings that are mentioned ee in the conditions of eligibility. The word 'general' { : does not expand, but restricts, the meaning of | ..."labour', It would not be desirable to attempt any } : . exhaustive definition of the words 'general labour'; in the present case it is enough to say, speaking broadly, that the word 'general' in that phrase is used in the sense of 'not specialized'. An employee whose work is separately classified on the basis of some special skill or experience necessary to perform it is not engaged in general labour. Even if it be the fact (as to which it is unnecessary to express an opinion) that the three classes of employees engaged in the making of ready-mixed concrete do not all require special skills of a very high order, it is apparent that they are engaged in occupations which are to some extent specialized .and therefore would not properly be described as engaged in general labour." In the present case, in no seuse can it be said that the informant was engaged in general labour as interpreted by the High Court. He was a trainee surveyor pursuing a course part time at tertiary level and was engaged to do work involving to some extent special skills. In my opinion the informant does not come within the class of persons described by the phrase "all kinds of general labour". The other two classes of persons which Counsel for the informant submitted were appropriate to include the informant so as to entitle him to become a member of the A.W.U. can be considered together. These classes are "employees engaged in or in connection with ... railway construction work... ell 10. emapeewarereepprweumenree ew kw me ecw ne wll te le eg became umumenue neue e ee ce me 10.. persons engaged in land surveying". The two industries here specified refer to the industry of the employer, see re: Federated Liguor aid Allied Industries Employees Union of Australia; ex parte the Australian Workers Union, supra, when in respect of the relevant provisions of Rule 6 of the Rules of the A.W.U., the Chief Justice said at p.268 : "Tt is well settled that an eligibility clause expressed in the terms of the eligibility clause of the applicant should be construed as relating 'to the industry of the employer; that is to say, that persons to be eligible to be members of the organisation must be employed in an industry carried on by their employer which satisfies one or more of the descriptions of the eligibility clause: see e.g. R. v. Hibble; ex parte Broken Hill Pty. Co. Ltd. (1921) 29 C.L.R. 290, at p.297. -In relation to the present circumstances that means that, to be eligibile for membership of the applicant, the employees of the respondent companies must be employed by the respondent companies in or in connexion with the industry of metalliferous mining. Whether or not they are so employed is a guestion of fact: see e.g. R. v. Hibble (supra) loc,cit." ~ The issue' to be decided is whether the defendant, ; in carrying on its business as a Consulting Engineer, is engaged in the industry of railway construction work or the industry of land surveying when it is carrying out its obligations under its agreements with MULRA. Truly, the contractors engaged by MURLA to execute works to be constructed or carried out as part of the Project are engaged in the industry of railway construction work, but the question to be decided is whether the informant, as an employee of the defendant, was employed in or in connection with the industry of railway construction work or land surveying. The principles to be applied are stated in re: Federated Liquor and Allied Industries Employees' Union of Australia;ex parte the Australian Workers Union, supra. In that case, the High Court held that employees of companies carrying on catering and cleaning businesses and which had. contracts with certain iron ore mining companies operating in the north west of Western Australia to supply and perform catering and cleaning for and in respect of the buildings of and housing accommodation provided by the mining companies for and in respect of the employees of the mining companies and their dependants were not employed in or in connection with the industry of metalliferous mining within Rule 6 of the Rules of the A.W.U. and therefore were not eligible to become members of ll. ll... : 7 the A.W.U. Ina Judgment with which the other members of the High Court agreed, the Chief Justice said at p.268-269: "The business of the respondent companies was quite distinct and separate from that of the mining companies engaged in metalliferous mining. True it is that the respondent companies served the mining companies and provided them with commodities and services the provision of which was desirable if not indeed necessary for the maintenance of the workforce to carry on the mining operations. But that does not mean that in contracting to provide and in providing these commodities and services the respondent companies entered into the business of the mining companies so as themselves to be carrying on metalliferous mining; nor were their employees employed in connexion with that industry. Their businesses remained distinct. Though serving the mining industry, the respondent companies did not carry on metalliferous mining or a - business or industry in connexion with metalliferous mining. Although employees of the mining companies who provided food or services of the kind furnished by the respondent companies might have been held to be working in the industry of.metalliferous mining, such work done by an independent contractor has a different nature or quality. It cannot be said to be done as an integral part of the metalliferous mining operation. Sir Owen Dixon in R. v. Central Reference Board; Ex parte Thiess (Repairs) Pty. Ltd. (1948), 77 C.L.R. 123 at p.141, thought that the separateness of the establishments in point of control, organisation, Place, interest, personnel and equipment might furnish a relevant discrimen in deciding the question of fact. Sir John Latham in the same case, at p.135, thought that the substantial character of the industrial enterprise in which the employer and employee were 'concerned was decisive of the question whether the employee was engaged in an industry of given description. Here the substantial character of the industrial enterprise in which the respondent companies are engaged is that of catering and of providing cleaning, etc. services. That they should at a particular place perform such work exclusively for mining companies and under contract with them does not require or permit the conclusion that in doing so the respondent companies carry on an activity in or in connexion -with metalliferous mining or that their employees are employed in or in connexion with such an industry. None of the reasons put forward by the applicant for a contrary conclusion, whether taken separately or ". cumulatively, warrant such a conclusion." The application of these principles is illustrated in Rs vy; Moore, ex parte, The Federated Miscellaneous Workers' - Union of Australia, supra. In that case a number of companies ete pene 12. nee et ye Mer ieee pt ere ep eet co tice 12, were engaged in the industry of metalliferous mining. The mining companies appointed "Project Consulting Engineers" to design and supervise the construction of the verious works proposed in relation to the establishment of uranium mines, the actual work of construction being undertaken by either the project consulting engineers or independent contractors engaged and employed by the project consulting engineers. The prosecutor submitted that employees of the project consulting engineers in respect of the relevant work of construction in relation to the mines were not. employed in or in connection with the industry of metalliferous mining within the meaning of Rule 6 of the Rules of the A.W.U. It was submitted that those employers were engaged in or in connection with the construction industry and therefore were not eligible to become members of the A.W.U. With respect to these employees of the project consulting engineers the crucial words under consideration were "now employed or hereafter to be employed by you in all construction work in - or in connection with or incidental to the uranium mining and processing industry". The High Court rejected those submission. At pp.118-119 Jacobs J, said; "The respondent companies other than Ranger, Queensland Mines, Pancontinental and Noranda are described in the evidence as project consulting engineers. One or others of these respondents have been appointed by Ranger, Queensland Mines or Pancontinental, As yet Noranda has not appointed a project consulting engineer. Construction work at the proposed mine sites will be undertaken primarily by independent contractors employed by the project consulting engineers respectively appointed by the named mining companies. In the case of Pancontinental the evidence establishes that the project consulting engineer will construct the uranium mines and associated facilities by acting as manager and agent for the mining company in.the letting of contracts for and on behalf of the mining company and by itself directly employing labour. (it does not appear that the procedure to be adopted 'in the case of the other mining companies is likely to be substantially different, though it is not certain that a relationship of principal and agent will exist between the mining companies and the respective project consulting engineers. In these circumstances, it is submitted, it has not been established that any of the respondent companies is, or is likely to be, engaged in construction work in or in connexion with or incidental to the uranium mining and processing industry; in the case of the four mining companies because they will not themselves be carrying out 13. 13. the construction work, and in the case of the project consulting engineers because the construction work proposed to be done by them is not work in or in connexion with the industry of metalliferous mining or any industry of which the A.W.U. has coverage under its eligibility rule. It is further submitted that the presence in the log of cl.5 shows in the circumstances that the basic purpose of the demand was to compel the respondent companies to employ contractors whose employees would be employed on the conditions set out in the present demands. It is abundantly clear that the four mining companies each wish to have constructed a mine or mines with -all ancillary works. It is equally clear that the other companies propose to engage in the work of constructing the mines and all their ancillary works. ' Nothing could be more closely related to metalliferous _ mining than constructing or having constructed a 'metalliferous mine and its ancillary works. It ic an integral part of the mining operation. See per Barwick C.J. in Re Federated Liguor and Allied Industries Employees' Union of Australia; Ex parte Australian Workers' Union (1976), 51 A.L.J.R. 266, at p.268. The facts in the lastmentioned case were quite different. Catering and cleaning services were far removed from any concept of metalliferous mining which was the relevant industry in that case. The decision does not assist the present applicant. The argument of the applicant has the extraordinary result that the metalliferous mines and their ancillary works would be constructed without anybody engaged in that construction being engaged on work in or in connexion with metalliferous mining. It seems to me that the proposition has only to be stated in order that it may be seen how untenable the argument is. Construction work cannot be looked at apart from what is being constructed. The connexion is so close as to be inseparable. The mine owner is engaged in or in connexion with the industry of metalliferous mining when it has its metalliferous mining installations and associated works constructed. The constructor is engaged in work in connexion with metalliferous mining when it constructs the mining installations and associated works." In the same case Aickin J. said at p.121: "The principal argument which was pressed was that the demand was made on employers who had no present intention of employing persons covered by the eligibility clause, because the only prospective employers (the project engineers) were not engaged in the mining industry, but in the construction industry. It is desirable to deal with this argument in relation to the project engineers, merely noting that Pancontinental is plainly engaged in the mining industry and in its case no problem of 'coverage' could arise. It 14. 14, 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 question is whether the activity of the project engineers is 'in or in connection with metalliferous mining'." His Honour then referred to re: Federated Liguor and Allied Industries Employees' Union of Australia ex parte Australian Workers Union, supra, and set out the passage from the judgment of Barwick C.J. pp. 268-269, already referred to and continued at p.122. "I have quoted that passage in full because -it appears to me to determine the present matter. By way of contrast, the activities of the project ~ engineers in the present case cannot, in my " opinion, be said to be 'quite distinct and separate from that of the mining companies engaged in metalliferous mining'. Here what they are doing is itself part of the business of metalliferous mining, and at the very least it is 'in connexion with' that industry. It is, I think, equally clear that there is no 'separateness of establish- ments' in the sense referred to in the passage quoted because on the facts here in question the 'establishment' of each project engineer is in "truth that of the mining company for the purpose of carrying out the latter company's mining operations during both the construction and the mining stages. Applying the other test quoted, the substantial character of the industrial enterprise in which the project engineers and their employees will be engaged will be in the metalliferous mining industry, notwithstanding that all, or some, of it may properly be called construction work." Before applying these principles to the facts of the present case; reference should bé made to R. v. Watson, ex parte Australian Workers Union (1972) 128 C.L.R. 77. In that case, the eligibility for membership rule of the Australian Builders' Labourers' Federation, an organisation 'within the meaning of the Act, was under consideration. The Court held that persons employed to do work in connection with the production of ready-mixed concrete at batching plants, not on a building site, were not eligible to become members of the Federation on the basis that they did not come within the eligibility for membership rule cf the Federation. The 15. 15, Rule listed a number of industries and callings and stated that persons employed as builders! labourers on or about any building or contracting job or any labourer engaged in the construction of buildings "or doing concrete work, tar paving or asphalt work, or mortar or concrete mixing in connection with or incidental to the foregoing operations." Menzies J. at pp.84-85 said that the words quoted should be regarded as words of extension and continued:- "Thus, labourers usually employed in concrete mixing for paving the surrounds of a building would fall within the words, as well as those usually engaged in concrete mixing for the purpose of making the floors of the building. I am disposed to think that some workers at a concrete batching plant are for some time engaged in mixing concrete in what could be described as in connexion with, or incidental to, building operations. At least part of the wet mix concrete which, at such plants, is run into transit mixers for carriage to the job, has been mixed for use in building operations. The case for the federation cannot, I think, be put higher than that, with this addition; namely, 'that concrete for this use forms the bulk of the concrete sc mixed. The question is whether this is sufficient to constitute the .workers at the concrete batching plants 'builders' - Jabourers'. I think not. First, those who are employed at the batching - plants are not employed by builders or their sub-contractors in building operations. Secondly, such employees., to the extent to which they do mix concrete, do so for a variety of purposes, e.g. to make roads, subways, runways, hard-standing, wharves, buiidings, bridges, slabs and other such concrete objects. The occupation of such workers is not, I think, to be defined by the use to be made of some part of the concrete which they mix. Nor can it be thought that their employment changes in character according to the use to be made of their product. Their employment is the same whether they are making concrete for the floor of a city building or for a railway tunnel. Such employees .are not concrete mixing in connexion with, or incidental to, the operations described in the ; rules, It is common ground that the words 'the ';. foregoing operations' in the rule would not cover . general construction work or the making of concrete articles. Accordingly, it seems to me that the words of limitation which follow the words 'concrete mixing' in r.4, support the conclusion that the employees concerned are outside the eligibility clause of the rule, even if the work which they do could otherwise be regarded as the work of builders' labourers. Concrete mixers, etc., employed by ~ . 16. a 16. See builders whether on-site or off-site are not within the scope of this judgment. Accordingly, in my opinion, the employees of the respondent employers in concrete batching operations as described are not builders' labourers, and they are not eligible for membership of the federation." 'In my opinion the informant was not employed in or in connection with the industry of railway construction work. The activities of the defendant are quite distinct and separate from those of the contractors engaged by MURLA to execute the works in connection with the construction and completion of the Loop. The facts of the present case are markedly different from those applying in R. v. Moore ex parte The Federated Miscallaneous Workers' Union of Australia, supra. The defendant did not appoint or engage those contractors, The obligations imposed upon the defendant by the agreement with MURLA are necessary to enable MURLA to perform the duties imposed upon it by the Melbourne Underground Rail Loop Act 1972, to make and construct the Loop but this does not mean that in performing those duties the defendant was engaged in the industry of railway construction work or rather that its employees were employed in or in connection with that industry. It cannot be said that whenever an employer supplies goods or services to MURLA to enable MURLA to perform its statutory duties, the employees of the employer so supplying the goods or services are employed in or in connection with the industry of railway construction work. The employees of MURLA and of the contractors engaged by it to execute the work in connection with the construction and completion of the Loop may well be employed in or in connection with railway construction work. That fact is supported by the naming of the contractors as persons bound by the Award. The contractors engaged by MURLA to execute the work are named in Appendix 1 as persons bound by the Award, The defendant is not so named. In passing, it is noted that MURLA is not so named but in considering the issue before the Court, the Court is not bound by what appears in the Award in Geciding whether the defendant is engaged in the industry of railway construction work, The substantial character of the industrial enterprise in which the informant and the defendant were engaged was that of providing to MURLA : 17. 17. supervision and advice of a professional nature with respect to railway construction work being undertaken by . other contractors with MURLA. The services as so provided were of a professional nature or quality and did not constitute railway construction work. The word "work" used in that phrase must be given some meaning and indicates that the phrase should be read as being limited and applving to that part of the industry of railway ~ construction being in or in connection with the physical work of railway construction. The defendant is not engaged in that type of industry. For similar reasons I am of the opinion thet the phrase "land surveying" has no application. It is true that employees of the defendant do some land surveying work but this is merely incidental to the business being conducted by the defendant. It is part of a process by which the defendant is able to perform the obligations imposed upon it by the term of its agreements with MULRA. The defendant does not carry on the business of land surveyor. Here the substantial character of the industrial enterprise in which the defendant engages is that of a consulting engineer. It cannot be said that the informant is employed in or in connection with the industry of land surveying. For these reasons I find that the informant was not entitled to become a member of the A.W.U. and at the time the defendant dismissed him, he was not a member of the A.W.U. It follows that the informant has failed to prove a fact or circumstance set out in s.5(1)(a),(d) and (f) of the Act namely that at the time of his dismissal he was a member of an organisation. In these circumstances it is not necessary to consider other submissions made by Counsel for the defendant that the informant had not proved other facts and circumstances set out in those paragraphs. I turn now to consider whether the informant has failed to prove the facts or circumstances set out in s.5(1)(b) of the Act. In order to be entitled to the benefit of an award, the informant must prove that his employer is bound by an award as defined in s.4(1) of the Act. Section 61 of the Act specifies the persons who are bound by an award, see R. v. Clarkson ex parte, Victorian Employers! - : 18. 18. Federation (1973) 131 C.L.R. 100 per Menzies J. at p.106-107. There was only one award before the Court. The defendant is not named in that award as a person bound by the award, There is no evidence to suggest that the defendant comes within s.61(a),(b),(c),(d) or (e) of the Act. The defendant is not, and at the time it dismissed the informant, was not, a member of the Victorian Employers' Federation. There is no evidence to suggest that the defendant was a ' member of any other organisation bound by the Award and therefore the defendant does not come within s.61(f) of the Act. It follows that the informant has failed to prove the fact or circumstance set out in s.5(1)(b) of the Act, namely, that at the time of his dismissal he was entitled to the benefit of an award. ; . In these circumstances I find sec.5(4) of the Act does not operate and that the defendant has no case to answer. Accordingly, the information is dismissed. I certify that this and the Pertti eye aavy or t preceding pales a-e a true covy of the Reasons for Judgmeut herein of his noneur Mr: Justice Wort ' Po a. vu fol LF i ct ° :