AMMA Workplace Relations Advisor Duan Thakhoda (pictured) summarises an important Fair Work Commission decision, in which a Full Bench rejected the CFMMEU’s argument that control room operators at an LPG storage facility fell within the definition of “waterside worker”.

Background

This 29 July 2021 decision concerns an appeal by the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) of a decision of Deputy President Lyndall Dean in April 2021.

That April decision concerned a majority support determination made by the CFMMEU in respect to five employees of Elgas who performed the role of “Operations Controller” at the company’s Port Botany LPG storage facility, known as the “Cavern”.

Deputy President Dean had decided that the CFMMEU could not act as a bargaining representative for the Operations Controller employees, as they could not be considered a “waterside worker” within the CFMMEU’s eligibility rule.

“The evidence in my view supports a finding that the primary or predominant purpose of the role is not that of waterside work, rather it is that of a plant operator/controller,” DP Dean found in her April decision.

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

The CFMMEU was permitted to appeal the decision by a Fair Work Commission Full Bench (FWCFB) comprising Vice President Hatcher, Deputy President Clancy and Deputy President Colman.

Legal principles and meaning of “waterside worker”

As part of its appeal, the CFMMEU submitted that DP Dean had failed to correctly apply the meaning of a “waterside worker” in accordance with decisions of the Federal Court.

These decisions were referred to by the FWCFB as the “trilogy of decisions” and include Cooperative Bulk Handling Ltd v Waterside Workers’ Federation of Australia [1980] FCA 141; Electrical Trades Union of Australia v Waterside Workers’ Federation of Australia [1982] FCA 36; and Federated Clerks Union of Australia v Waterside Workers Union of Australia [1983] FCA 79.

The FWCFB considered the trilogy of decisions, and distilled the following findings in relation to the definition of a “waterside worker”:

  1. A waterside worker must be someone who works on a ship at or in the vicinity of a wharf;
  2. A waterside worker does not need to physically load or unload a ship, but their predominant duties must facilitate or serve the purpose of the loading or unloading ships, or be part of the overall stevedoring operations of loading and unloading ships; and
  3. If the employer is not a stevedoring business, its employees may be considered waterside workers if they are substantially employed full-time on the site of the loading and unloading of ships and perform duties which directly relate to stevedoring.

In addition, the CFMMEU submitted that DP Dean erred by focusing on the duties required to be performed by the relevant employees and how they fitted within the business overall, instead of an “industry eligibility test”.

Further, the DP too narrowly focused on current work duties instead of considering the functions that comprise the settled meaning of the occupation, the CFMMEU argued.

Full Bench rejects CFMMEU argument

The FWCFB dismissed the appeal, rejecting the CFMMEU’s grounds that DP Dean had erred and agreeing with her reasons for determining Elgas’s employees were not waterside workers.

Those reasons included:

  • While they work in close proximity to a wharf, they do not work on a wharf;
  • Elgas’s primary business function in the Cavern is to store gas for its subsequent distribution by road;
  • Elgas conducts stevedoring to a limited extent by arranging for the loading of LPG from ships to the Cavern, however this is done in a subordinate way to its primary business function. Further, these stevedoring functions have been mostly outsourced to a contractor;
  • Finally, Operations Controllers are not substantially employed full time to perform stevedoring (or stevedoring related) duties. In fact, most Operations Controllers employees had not been trained to perform stevedoring duties, and one who had spent less than 2% of his working time performing such duties.

“We therefore consider that the Deputy President was correct in concluding that the Operations Controllers were not eligible to be members of the CFMMEU, that the CFMMEU could consequently not act as their bargaining representative under the FW Act and, accordingly, that the CFMMEU’s application was incompetent,” the FWCFB said.

Implications for employers

This decision provides welcome clarity to employers, especially where they perform work in close proximity to a waterfront and are unsure about which unions may act as bargaining representatives for their employees.

The FWCFB emphasised that their decision did not preclude the employees from making a majority support determination in their own right, or to be presented by other unions whose rules provide for their coverage.

At a broader industry level, AMMA considers this a welcome decision for clarifying that traditional tests of union coverage and employee eligibility will still apply in areas where work is being transformed by technology.

Applying this same reasoning, for example, would see employees operating and maintaining autonomous mining equipment from a CBD control room as distinct from those performing similar functions at site, for the purposes of union coverage rules.

To discuss this case and/or for advice and support on majority support determinations, enterprise bargaining or Fair Work Commission representation, contact a specialist workplace relations advisory near you.