The Fair Work Commission has dismissed the Construction, Forestry, Maritime, Mining and Energy Union’s (CFMMEU) claim that it is entitled to represent the industrial interests of control room operators at Port Botany.
In seeking a majority support determination (MSD) for five Elgas control room operators, the CFMMEU’s Maritime Division argued technology advancements at the port facility meant the relevant employees are considered ‘waterside workers’ within the meaning of its eligibility rules.
This case is an example of the CFMMEU asserting coverage over employees who historically have not been considered eligible for membership under its eligibility rules.
“Waterside worker” definition changed by technology, argues CFMMEU
The CFMMEU made an application for an MSD to cover five control room operators employed by Elgas at its underground storage cavern in Port Botany. The employer gave evidence that the key role of the control room operators is to control the flow of LPG, with a large portion of their work involving the monitoring the loading of trucks at the facility.
The CFMMEU asserted coverage over the employees by referring to its eligibility rules which entitles it to represent the industrial interests of waterside workers.
The union submitted that the principles in relation to the interpretation of union rules are ‘well-settled’ and that the substance of the duties the employees undertake is determinative of their eligibility. It claimed the “essential attributes of a waterside worker have consistently been in relation to particular functions and activities being the loading and unloading of cargo, stores, supplies or fuel into or from ships.”
The CFMMEU further submitted that the meaning of waterside workers has changed over time with technology advancements having modified the methods of unloading and loading vessels at ports.
In arguing that technology advances have changed the meaning of waterside workers, the union stated, “the technology means that the relevant employees are remotely operating loading and unloading equipment beyond the vicinity of the wharf, are still characterised as working in the vicinity of the wharf and still identified as waterside workers.”
One of the control room operators gave evidence in support of the union’s coverage claim stating that part of his role involved working as a loadmaster, which requires liaising with the ships arriving at the berth, boarding the ships, connecting the plant to the vessel, and completing paperwork.
The CFMMEU claimed its evidence demonstrated that the work undertaken by the relevant employees confirmed their roles are fundamental to the unloading of cargo from vessels. It also argued that Elgas’ business involved the import and export of massive supplies of LPG and that it directly operates stevedoring processes.
Union ‘mischaracterising’ nature of work, says employer
Elgas’ general manager gave evidence which highlighted that the cavern where the relevant employees are employed is predominantly used as a truck loading facility with more than 900 trucks loaded per month compared to ships arriving at the berth only six or seven times a year.
He further submitted that approximately 90 percent of the work on the berth is conducted by an independent contractor that supplies its own personnel to load and unload LPG.
In response to the union’s submissions, the general manager considered the CFMMEU had mischaracterised the nature and purpose of the cavern and the role of the relevant employees within the facility. He submitted that the predominant purpose of the relevant employees is that of a plant operator given the predominant purpose of the cavern is to store and distribute LPG via road transport.
Elgas noted that while two of the five employees were trained to perform work at the berth, one of whom gave evidence in the proceedings, in practice, it was rare for them to do so. The general manager pointed out the employee who gave evidence had spent just 2 percent of his total working time at the berth and the other trained employee had spent zero hours since January 2019.
Elgas also highlighted that since the cavern was established in 1999, the CFMMEU had not sought ‘right of entry’ and that a strong inference can be made that the union had not until recently considered the employees to be waterside workers.
Relevant employees “not waterside workers” – FWC
After considering the evidence put forward by the parties, Deputy President Lyndall Dean found that the relevant employees are not waterside workers and are therefore ineligible to be members of the union.
She agreed with the submissions made by Elgas that “the function of loading and unloading vessels lies at the heart of the occupation of a waterside worker” and the evidence supported a finding that the primary purpose of the role is that of a plant operator.
While the DP placed more weight on the evidence provided by Elgas, she accepted that the employee who gave evidence was “capable of performing the loadmaster role” and did so “more regularly some years ago”.
The relevant consideration for the DP is the work currently being performed and not the work the employee may be capable of performing or that was performed more regularly in the past.
With only one of the two trained employees having performed work at the berth approximately 2 percent of the working time since January 2019, “on any objective view, this is an incidental component of the role,” the DP said.
Regarding the CFMMEU’s claim that the advances in technology has changed the meaning of the waterside worker, DP Dean agreed with the employer’s submissions that “while the cavern may be located within proximity to the waterfront, location is not, in and of itself, determinative of coverage.”
The DP concluded that the relevant employees are not waterside workers within the meaning of the eligibility rule and the CFMMEU is unable to represent their industrial interests.
The application was dismissed.
Implications for employers
This decision confirms that the FWC will look at the dominant purpose of employment in deciding whether employees are eligible to be members of a particular union and whether that union is entitled to represent their industrial interests.
In this case the CFMMEU made a number of assertions as to Elgas’ primary business, the work performed by the relevant employees and the vicinity of the cavern to the wharf in an attempt to establish that the control room operators are in ‘waterside workers’ for the purpose of its eligibility rules.
Interestingly, the union applied the role of automation to assert that new technology employed in the industry entitles them to coverage of employees who historically have not been recognised as eligible for union membership.
AMMA is aware of a number of unions, particularly the CFMMEU, that have recently sought to participate in enterprise bargaining at operations where they historically have not been involved.
Resources and energy employers are reminded that a union cannot be a bargaining representative of an employee unless it is entitled to represent the industrial interests of the employees in relation to the work that will be performed under the agreement.
To discuss the implications of this decision or for advice regarding union coverage claims please contact your local AMMA office.