CATCHWORDS Industrial law - entitlement to membership of Waterside Workers' Federation of Australia - grain stored for shipping - nature of work done by employees - "waterside worker" - "stevedoring industry" - "adjacent to a wharf" - connection with loading of ships Conciliation and Arbitration Act 1904, ss.4, 132, 144. CO-OPERATIVE BULK HANDLING LIMITED v. THE WATERSIDE WORKERS FEDERATION OF AUSTRALIA and THE AUSTRALIAN WORKERS UNION WEST AUSTRALIAN BRANCH INDUSTRIAL UNION ° OF WORKERS No. 3 of 1979 Coram: Toohey J. Perth 19 May 1980 IN THE FEDERAL COURT OF AUSTRALIA ) ) WESTERN AUSTRALIAN DISTRICT REGISTRY ) No.3 of 1979 ) INDUSTRIAL DIVISION ) CO-OPERATIVE BULK HANDLING LIMITED Applicant THE WATERSIDE WORKERS FEDERATION OF AUSTRALIA First Respondent THE AUSTRALIAN WORKERS UNION WEST AUSTRALIAN BRANCH INDUSTRIAL UNION OF WORKERS Second Respondent CORAM: TOOHEY J. _19 May 1980 . REASONS FOR JUDGMENT This is an application under s.144 of the Conciliation and Arbitration Act 1904 for a declaration as to the entitlement of certain persons to become and remain members of The Waterside Workers Federation of Australia ("WWF"), The application was brought by Co-operative Bulk Handling Limited ("CBH"), the employer of the persons concerned. WWF and the Australian Workers Union West Australian Branch, Industrial Union of Workers C"AWU") were joined as respondents. 2. ' When the hearing began I drew attention to | s.144(7) of the Act which requires that when such an application is made, otherwise than by a person whose entitlement is in question, "that person shall be given an opportunity of being heard by the Court". No formal notice of hearing had been given to any of the persons whose entitlement was in question. Counsel for the WWF ' stated that, although not formally representing them, he was protecting their interests through their membership - of that organisation. All were members of the WWF; some belonged also to the AWU. I still expressed some concern as a result of which a notice referring to the hearing and providing machinery for personal representations to the Court was placed on the staff notice board at the two places of employment involved. There was evidence that all the men working at North Fremantle and most of those working at Kwinana had been spoken to by a shop steward during the second day of the hearing and that all had expressed a wish that their interests be represented , by the WWF. No individual contacted my associate and in the result I am satisfied that each was given an opportunity of being heard as required by the subsection. | The applicant (CBH) is a company incorporated under the provisions of the Companies (Co-operative) Act 1943 of Western Australia. It is the licensed receiver in that state for the Australian Wheat Board which in turn is the sole marketing authority for wheat in this country. ' - 1 3. Wheat growers are obliged to deliver grain for marketing to the Board or a licensed receiver; upon delivery to CBH, wheat becomes the property of the Board. CBH is also the licensed received for the Grain Pool of WA, a body concerned with the marketing of barley, oats, linseed, rapeseed and lupins. Pursuant to the Western Australian Bulk Handling Act 1967, CBH is obliged to install, maintain and operate facilities for the reception and handling of grain in bulk and, by reason of the same Act, it has the sole right to receive, handle, transport and deliver wheat and barley received in bulk. Over a period of nearly 50 years CBH has established throughout the state receival points for bulk grain from growers. In addition it operates ship loading terminals ina number of ports. ' Although grain is harvested in Western Australia mainly in the months of November, December and January, the process of moving it from receival points to terminals goes on more or less throughout the year. It may remain at a terminal for periods ranging from 4 to 8 months, depending upon the location of the terminal, the size of the harvest and the demand both locally and overseas. . Wheat and other grains were exported from the port of Fremantle for many years. Although the CBH terminal at North Fremantle still exists, it is no longer used for shipping, its present function being that of 4, storage and to provide for small sales to grain merchants and maitsters. It has not operated as a shipping terminal since 1 June 1979. Before then it had become apparent that much bigger storage facilities would be required and a decision was made to erect the present terminal at Kwinana. The scope offered for building a large facility meant not only that it was no longer necessary to continue shipping from Fremantle but there was no need to construct overflow storage facilities at receival points in the country. The first stage of the Kwinana construction was completed in 1969 with a horizontal silo or shed to receive grain arriving by rail from the country for storage, treatment and movement again by rail to North Fremantle. In 1972 the building of an additional horizontal silo began together with vertical concrete cells and shipping facilities. In 1977 the first shipment of grain took place from Kwinana, The total capacity of that terminal is 912,300,000 tonnes, As an aid to understanding the nature of the work carried out by those employees whose constitutional coverage was in question, I inspected receival points at Meckering and at Avon. As well I was given a detailed viewing of the operation at Kwinana; the terminal at North Fremantle was seen briefly. The claim by the WWF to have constituional coverage of CBH workers at the North Fremantle terminal stemmed from their membership of that organisation at a time wae 5. when grain was exported from that terminal, It was common ground that if the WWF had coverage of those members working at Kwinana, it had coverage also for those at North Fremantle, at least until their membership expired. Conversely if it lacked coverage of those working at Kwinana, none existed in respect of North Fremantle. For those reasons and because most of the employees worked at Kwinana, the main focus of the hearing was on that terminal. At Kwinana grain is discharged from rail trucks by bottom dumping wagons. The grain falls into hoppers and is then transferred along conveyor belts where it is weighed, metal objects removed and pesticide applied before it is taken to its planned storage location, either in the horizontal silos or in the vertical cells. There it may remain for some months, during which time it is subject to regular checks to ensure that there has been no infestation of insects. When the grain is to be shipped, it is removed from storage and carried to the top of the terminal complex where it passes through weighers and cleaning machines before being taken by conveyor belts along a jetty for shipment at the wharf. There the grain is tripped on to another short conveyor on loading gantries which direct the grain into the hold of a waiting ship. The jetty is some 2500 feet long, with a separation of about half a mile between the wharf and terminal buildings. Since the applicant placed some 6. stress upon the distance involved, it may be as well to point out that the jetty was built to such a length to gain depth to enable larger ships to tie up. The background to this application is a history of industrial trouble going back to 1977. It is unnecessary to refer to it in any detail. It is enough to say that work at both terminals has been and presently is governed by an award of TheWestern Australian Industrial Commission to which the AWU and CBH are parties. Currently it is The Grain Handling (Kwinana and North Fremantle Terminals) Award No.31 of 1978. With the exception of workers assigned to operate the main control room, gallery control room, weighers and cockpit, the award contains no wage classification structure although it does have service provisions built into it. On 26 February 1979 about 100 CBH employees at Kwinana and North Fremantle gave notice of intention to resign from the AWU and then applied to join the WWF. Most resignations became effective on 27 May, only a few days before the North Fremantle terminal ceased to be used for shipping. CBH did not recognise the right of the WWF to represent those employees. Industrial action then followed. At the present time all those to whom the application relates, either by name or description, are members of the WWF. Some, it seems, are members of the AWU as well. Some of those named are no longer working at either terminal. Their eligibility nevertheless remains to be considered. The issue between CBH and the AWU on the one hand and the WWF on the other must be seen in perspective. The question is one of constitutional coverage, involving the proper interpretation and construction of the rules of the WWF. The fact that another union may have that constitutional coverage is no answer to the claim by the WWF nor is the existence of award coverage obtained by another union except to the extent that either may throw some light on the meaning of terms used in the constitution of the WWF, for example by reflecting usage in the industry. Section 132 of the Conciliation and Arbitration Act has undergone a number of changes but it provides for registration as an organisation or an association of persons who "are employees in or in connexion with any industry". Industry is defined by s.4 to include - "(a) any business, trade, manufacture, : undertaking, or calling of employers; (b) any calling, service, employment, handicraft or industrial occupation vocation of employees; and ~(c) a branch of any industry and a group of industries" Counsel for CBH submitted that the industry in question here is an employees' rather than an employers' industry. No one challenged the submission and as far as it goes it is probably right. But it leaves many questions unanswered. The first step is to look at the constitution and rules of the WWF. 8. Rule 5 defines member to mean a - "financial member of the Waterside Workers' Federation of Australia engaged in the Stevedoring Industry and/or engaged in any duties as an official of a Branch or the Federation". The same rule defines stevedoring industry and it is necessary to set out that rather lengthy definition. " "Stevedoring Industry" means the operation of loading and discharging ships and includes the actual movements of goods on, to, or from a vessel, wharf, pier, jetty, shed, lighter, or any place in the vicinity of loading and discharging operations for the purpose of putting goods at a point or points within that place, so as to facilitate the ultimate actual loading or discharging and/or ultimate removal from that place, and also includes the stacking or arranging within that place of loading or discharging so as to further that ultimate loading or discharging of cargo in relation to trade or commerce by sea with other countries or amongst the States. For the purposes of these operations any such place may include any shed, wharf, or pier or any place in the vicinity of the spot at which the vessel is to be loaded or discharged or where goods are to be shipped or that have been unshipped or are temporarily deposited or stacked for the purpose of facilitating the ultimate loading or the ultimate adequate discharge of cargo". Rule 6, purporting to control admission to membership, provides that any person "who intends to follow the occupation of a waterside worker" may, subject to meeting certain conditions regarding character and competency, become a member of the WWF, By the same rule, such a person must be at least 18 years of age and not more than 45. By Rule 6(e), that age limit is expressed not to apply in any case where an applicant is 19, a worker already working in the stevedoring industry or in an occupation associated with or ancillary to that industry. Rule 7 provides that any person who for 12 calendar months commencing in January of each year has ceased to follow the occupation of waterside worker in the port where he is a member and where, during that period, there has been work available for which he has failed continuously to offer himself shall at the end of those 12 months cease to be a member of the organisation. The relationship between these provisions was canvassed during the hearing. Assuming that a person meets the technical requirements of Rule 6, the remaining condition of eligibility is that he intends to follow the occupation of a waterside worker. Is that the same as being engaged in the stevedoring industry within Rule 5? If it is'not, and if being engaged in the stevedoring industry is a narrower concept than following the occupation' of a waterside worker, which is to prevail? Authority has resolved this issue in favour of the eligibility provision. " |... the identity of the industry in respect of which the organization is registered is not definitive of the eligibility of persons to be members of the organization in any case where the eligibility clause of the constitution of the organization travels beyond the bounds of the industry in respect of which the organization is registered. So much is decided in Reg. v. Dunlop Rubber Australia Ltd; Ex parte Federated Miscellaneous Workers' Union of Australia (1956) «LR, us, if in the present case the 10. "terms of cl.4 of the constitution of the respondent organization do not fully confine the scope of the clause to the building industry, which is the industry in respect of which the organization is registered, the eligibility of the workers in question to be members of the organization must be decided upon the terms of cl.4 itself. No doubt in the event of there being an ambiguity in that clause it would be proper to resort to the nature of the industry in respect of which the organization is registered as an element in the resolution of that ambiguity." (Rv. Watson; Ex parte Australian Workers' Union (1972) 128 C.L-R. 77 per Barwick C.J. at p.79). It may be that, in the end, there is no substantial difference between the two concepts. Nevertheless, authority directs the inquiry primarily to the occupation of waterside worker. It is an inquiry to be resolved in terms of the common understanding of those words as they are ordinarily applied in the industry. That understanding may be derived from awards, determinations and reports. Rv. Hickman; Ex parte Fox and Clinton (1945) 70 C.L.R. 598 per Dixon J. at p.613. Also it may be possible to give content to a vocational term such as waterside worker by pointing to the activities usually performed by a person answering that description. Mr. N. Docker, the assistant general secretary of the WWF, described in an affidavit filed in these proceedings the sort of work which registered waterside workers are called upon to perform, There was no challenge to the accuracy of that account although issue was taken as to the proper emphasis to be placed upon it. 11. According to Mr. Docker, members of his organisation have traditionally been employed in ports in Australia - "... in the work of receiving goods from rail and/or road transport for subsequent shipment by sea transport ... in the stacking and storage of such goods pending shipment by sea ... in the movement of such goods from the stacks or storage facilities to the ship's side and the subsequent movement of those goods into the ship and their storage aboard the ship. This work has involved the unloading of rail waggons and other road transport ... the operation of diverse forms of mechanical equipment ... (and) shore-based bulk-loading equipment". The affidavit proceeds to describe a variety of specialised functions embraced in these activities including - "... the driving and maintenance of mobile equipment... stacking, sorting and restacking of cargo in wharf sheds and ocean port storage facilities ... the operation of weighbridges; the operation of conveyor belts, fixed and mobile ... the application of insecticides to particular cargoes". Mr. Docker made particular reference to the Port of Newcastle where members of the WWF - "are engaged in the entire process of shipping coal from the receipt of coal in bulk from road and rail wagons, to the trimming of the coal in the holds of the vessels. This process includes the operation of tipplers, the operation of conveyor belts to carry to coal to stacking or storage areas, the operation of reclaiming machines to reclaim the coal from the stacking area and place it on further conveyor belts to convey it to the -ship, and the operation of ship loading equipment". The object of this evidence was to show (and it succeeded in showing) that the occupation of a waterside worker is, in terms of location, not confined to the 12. wharf and that it covers a range of functions connected with the storage and movement of goods destined for shipment. k The WWF then sought to demonstrate, by reference to its current industrial coverage, usage of the term waterside worker. This it did by reference to the Waterside Workers' (Maritime Services Board ~- Cargo and Coal Handling - Newscastle) Award 1978, to an agreement between Mercantile Stevedores (S.A.) and the WWF in regard to the employment of persons at Port Pirie, to the Waterside Workers' (Container Terminals) Award, 1976 and to the Waterside Workers' Award 1977. The relevance of the Newcastle award, which relates to the Carrington Basin, is that the classificiation of cargo plant operator includes - "shiploader operator, crane driver, marshalling operator, reclaimer and stacker attendant, and control room assistant", The industrial agreement governs persons employed at Port Pirie as boom stacker drivers, shiploader operators and front end loader operators. It is expressed to apply to all persons employed in those categories and, south of No.7? berth, to include general maintenance of the conveyor belt system. . The Container Terminals Award lists a number of categories of employees including those driving wharf and stacking cranes, driving mobile mechanical equipment, 13. operating cell guidance systems on board vessels, maintaining and cleaning all types of containers, sweeping cleaning an' keeping tidy space within and around a terminal, terminal depot or depot area and buildings, attending to the securing and releasing of containers on rail trucks, moving rail trucks, packing and unpacking containers, flats or pallets and sorting, stacking, moving or otherwise handling goods or merchandise stowed or to be stowed in containers or on flats or pallets. It was argued on behalf of the WWF that an examination both of the work done by those described as waterside workers and of the categories of work expressed in awards and agreements gave the lie to any suggestion that a waterside worker is confined to working beside the water or to putting goods on a vessel. In my view that argument was made good. Nevertheless, the work ordinarily done by waterside workers and the work for which the WWF has obtained industrial coverage clearly possesses a connection, both geographical and functional, with the loading and unloading of ships. There is no way in which it can be divorced entirely from the operation nor did the WWF contend that it can be. The necessary degree of that connection is another matter. The Waterside Workers' Award cl.5 gives the expression "waterside worker " "the same meaning as in the Conciliation and Arbitration Act, 1904". Section 81 of that Act defines a waterside worker as one working in aewne 14. the loading or unloading of cargo into or from ships and includes a person who is a member or has applied for membership of the WWF who accepts or offers to accept employment for work in a range of activities, including the handling or storage of cargo or other goods at or adjacent to a wharf, the driving or operating of mechanical appliances in connection therewith, and hauling or trucking from ship to shed or shed to ship. The statutory definition excludes persons employed at a port in or in connection with stevedoring operations (and, incidentally, that expression is given a definition to correspond with the work of a waterside worker) - "which consist of the loading or unloading, into or from ships, of loose bulk cargo by means of equipment based on the shore ... " Counsel for the WWF submitted that this exclusion was pragmatic, the implication being that unless excluded the work would be that of a waterside worker. It may equally be argued, I suppose, that the statutory exclusion provides a guide to the ordinary concept of a waterside worker. I do not find that statue particularly helpful in resolving the issue except in so far as the work of a waterside worker is clearly spelt out as the loading or unloading of certain cargoes into or from ships and the handling or storage of that cargo or other goods at or adjacent to a wharf. "Adjacent" is wider than "contiguous"; it includes "1 15. places close to or near. Mayor of Wellington v. Mayor of Lower Hutt (1904) A.C. 773 at pp.775-776, also Geneff v. Shire of Perth (1967) W.A.R. 124 at p.128. It is comparable to the expression "in the vicinity of", used in the definition of stevedoring industry in Rule 6 of the WWF rules. Whether one place is adjacent to or in the vicinity of another depends upon the particular circumstances. In my opinion the storage facilities are adjacent to and they are in the vicinity of the jetty and the wharf. True, there is a distance of nearly half a mile between storage and wharf but that is dictated only by the length of the jetty. Together the three components make up the Kwinana Grain Terminal with nothing really intervening, a road and the shoreline notwithstanding. In Mayor of Wellington v. Mayor of Lower Hutt supra, the Privy Council did not disturb a decision that the city of Wellington and the borough of Lower Hutt were adjacent although separated by more than 6 miles and by 3 other local divisions. This is an appropriate place to deal with two particular submissions made by the applicant. The first was that the duties* of a waterside worker did not extend landwards of the shore line. While the shore line may be a convenient cut-off point for some industrial purposes, it does not dfermine the occupation of a waterside worker or engagement in the stevedoring industry. The range of 16. duties described by Mr. Docker, the scope of work covered by industrial awards and agreements, and comments in decisions such as Associated Steamships Pty. Ltd. v. The Waterside Workers Federation of Australia (1969) 127 CAR 10 are all too strongly against such a limitation. For the same reasons I reject the suggestion that the limits of the port of Fremantle as defined in the Fremantle Port Authority Act 1902 define or help to define the geographical area within which the occupation of waterside worker is carried on. If one accepts the necessary geographical connection between storage facilities, jetty and wharf, it seems to me that the issue of constitutional coverage may be stated this way. Is the work done at Kwinana by the employees in question sufficiently connected with the loading of grain into ships to be described as part of the occupation of waterside worker? There is no doubt that the grain received at Kwinana and, for all practical purposes, that received at Fremantle will be loaded into ships. But is the work of receiving the grain, moving it into, within and out of the terminal and maintaining it by cleaning and applying pesticides truly connected with the loading of ships? Or, in truth, does the necessary connection arise only once the grain has travelled from the storage facilities along the jetty to the wharf or at any rate to the shore line where its journey along the jetty to the wharf begins? 17. Counsel for CBH, in rejecting the notion that the workers at Kwinana are waterside workers or engaged in the stevedoring industry, described them as grain bulk handlers. That may be a reasonably accurate description but one must still ask the object with which or the purpose for which the grain is handled. It may be sufficiently connected with the loading of the grain into ships to warrant the description of the activity as stevedoring and those engaged in it as waterside workers. Much, I think, depends upon the character of the terminal itself. The WWF was at pains to stress that its purpose and its location was the shipping of grain. Counsel referred to the language in which the terminal had been described in CBH and other publications. For instance, in a booklet, prepared by the company, and entitled "Kwinana Grain Terminal", the chairman of directors spoke of - "the largest and most modern grain receival storage and shipping complex in the world ... The Kwinana Grain Terminal enables C.B.H. to meet all the demands of complex export requirements " Another publication referred to the terminal as "an export shipping operation". There are other such references to be found in literature published by or on behalf of CBH. On the other hand the company emphasised the very important role of the terminal in the storage of grain. Mr. Delmenico, its chief superintendent, pointed out nw 18. that if the terminal had been built solely for shipping, storage for 250,000 to 300,000 tonnes would have been sufficient. This would have meant the building of other storage facilities elsewhere. The existing buildings can cope with storage as well as quantities required more immediately for shipping. Not surprisingly, each party placed most stress on those aspects supporting its case. In that grain is destined for shipment, one might say that the terminal's main function is to facilitate the loading of ships. But having regard to its size and the length of time grain may remain, it may be seen as a storage facility. One is not destructive of the other. The purpose for which grain is received and the manner in which and the object with which it is received give it a close connection with the.loading of ships. In my opinion that connection is sufficiently close to warrant a description of the work involved as that of a waterside worker. The fact that grain may remain at the terminal for 5 to 6 months has caused me some concern. But I do not think it is enough to break the connection, especially when the time spent in handling grain while stored is minimal See exhibit 2. . The question is one of constitutional coverage. It is not one of award coverage or of demarcation. Nor is it practicable to embark upon too close an examination of particular duties performed by particular employees 19. at particular times. As already mentioned, the existing award coverage does not make this distinction except in part nor does the employer. Some activities, especially that of pest controllers, are clearly more peripheral than others relating more directly to the movement of grain out of the terminal. But as the general manager of CBH, Mr. Green, pointed out in an affidavit filed in the proceedings: "With the exception of the control room operators and the gardeners all duties are interchangeable. Even control room operators are required to and do attend to other duties when not required for the control room" (para.43). " , The substantial character of the enterprise in which employers and employees are engaged, the receival, storage and loading of grain into ships spells out a sufficient connection with all classes of work the subject of this application. See In Re Moore; Ex parte The Federated Miscellaneous Workers' Union (1979) 53 A.L.J.R. 116 per Aickin J. at p.122. These comments do not apply to the company's employees at the North Fremantle terminal. The constitutional coverage which the WWF has of those employees stems from the time when the terminal was part of a shipping operation. But they remain entitled to membership of .the WWF until such time as Rule 7, with its dual provision of 12 months and failure to accept offered work, operates to bring that membership to an end. In the end it was, I think, common ground that the age requirements of Rule 6 had no application here notwithstanding that some men were over 45. Rule 6(e) 20. excludes those requirements - "in any case where an applicant for membership is a worker already working in the Stevedoring Industry " If my major premise is correct, all who applied for membership of the WWF early in 1979 were already working in the stevedoring industry. zs follows that I refuse the declarations sought in the application. I shall hear counsel, if necessary, as to the precise form my order should take and on any ancillary matters there may be. ig and the 1% re a true copy of the of his Honour I certify that th ages & . Judgment herein