Application by Construction, Forestry, Maritime, Mining and Energy Union [2021] FWC 3786 | Case summary

[2]Application by Construction, Forestry, Maritime, Mining and Energy Union [2021] FWC 3786 | Case summary | Zoe

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[1] The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) has applied to the Fair Work Commission (the Commission) for a bargaining order. The application has been brought under s.229 of the Fair Work Act 2009 (the FW Act). The application relates to bargaining being conducted by DuluxGroup (Australia) Pty Ltd (Dulux) for a proposed enterprise agreement to cover employees at the Rocklea Site at which Dulux operates a paint manufacturing facility and distribution centre.

[2] The proposed agreement is to replace the Dulux Rocklea Enterprise Agreement 2016 (2016 Agreement) which applies to employees at the Rocklea Site. Dulux and the United Workers Union (UWU) are also covered by the 2016 Agreement. The 2016 Agreement reached its nominal expiry date on 3 March 2020 and bargaining for the proposed agreement commenced on 18 November 2019. The 2016 Agreement covers employees in a range of classification levels undertaking tasks associated with the manufacturing and distribution of paint. Dulux generically refers to these employees as Production Operators and Warehouse Operators.

[3] In summary, the CFMMEU has enrolled some employees covered by the 2016 Agreement as members and contends that it is entitled to represent the industrial interests of those members in negotiations for the proposed agreement. The CFMMEU seeks orders requiring that Dulux:

Recognise and bargain with the CFMMEU in accordance with s. 228(1)(f) of the FW Act; and

Attend and participate in meetings with the CFMMEU at reasonable times in accordance with s. 228(1)(a) of the FW Act.

[4] Dulux contends that the CFMMEU is not entitled to represent the industrial interests of Warehouse Operators or Production Operators at the Rocklea Site and that on this basis, the CFMMEU does not have standing to make an application for a bargaining order under s.229 of the Act. The parties agreed that the question of the CFMMEU's standing to make the application would be dealt with as a preliminary matter.

[5] The matter was heard over several days in March 2021. The CFMMEU and Dulux sought and were granted permission to be represented by lawyers. Permission was granted pursuant to s.596(2)(a) of the Act on the basis that I was satisfied that the matter involves significant complexity involving, as it does, construction of union rules and the operation of the bargaining framework within the Act. No issue of fairness arises as between the parties. The CFMMEU was represented by Ms L Saunders of Counsel, instructed by the CFMMEU's Senior National Legal Officer, Ms L Weber. Dulux was represented by Mr T Spence of Counsel instructed by Ms W Fauvel and Mr C Scott of Herbert Smith Freehills.

[6] Other bargaining representatives, including the UWU, were notified of the application and the hearing and were provided with all documentation. The UWU and other bargaining representatives did not seek to be heard or otherwise participate in the hearing of this matter.

[7] A number of procedural issues arose between the parties prior to the hearing. The first such issue was whether the CFMMEU or Dulux would file its material first. The CFMMEU maintained that as the Applicant, it should file first and have an opportunity to respond to material filed by Dulux. Dulux contended that it should file its material first on the basis that it was objecting to the CFMMEU's application. Ultimately the parties agreed that they would file their material at the same time and that each would respond to the other at the same time. Directions providing for this were issued. Dulux also sought that the Commission conduct a site visit. When the parties were unable to agree on the timing of the visit and other related matters, I declined this request.

[8] At the hearing the following persons gave evidence on behalf of the CFMMEU:

• Mr Wayne Lambert, Warehouse Operator and CFMMEU delegate;[1]

• Mr Arturo Menon, Southern Co-Ordinator of the Queensland/Northern Territory Divisional Branch of the CFMMEU;[2] and

• Ms Lucy Weber, Senior National Legal Officer of the CFMMEU.[3]

[9] Evidence for Dulux was given by Mr Peter Holden, Site Manager of the Rocklea Site.[4]

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[10] An issue arose during the hearing about the scope of the issues for determination. Dulux contended that the Commission should determine whether the CFMMEU has the right to represent the industrial interests of Production and Warehouse Operators at the Rocklea Site. In this regard, Dulux pointed to the fact that the application for bargaining orders filed by the CFMMEU asserted coverage of both Warehouse and Production Operators, and that it would be more efficient for the Commission to determine coverage generally.

[11] The CFMMEU sought to confine the proceedings before the Commission so that the issue for determination is whether it has the right to represent the industrial interests of one member, Mr Wayne Lambert, who is employed as Warehouse Operator.

[12] The CFMMEU contended that the task before the Commission does not involve a roving inquiry in relation to the coverage of the Union or its density on site. Instead, the CFMMEU's application raises a discrete question as to whether it is a bargaining representative within the meaning of s. 176(2)(b) of the FW Act. This threshold is satisfied if there is a single employee who is a valid member of the CFMMEU - that is, an employee who has as a matter of fact joined - and is, as a matter of interpretation, within the scope of the CFMMEU's coverage rule.[5]

[13] The CFMMEU also contended that it has advanced one such employee, Mr Lambert, and all that the case requires is a consideration of whether he is employed as a forklift driver within the meaning of the CFMMEU's rules. If the answer is yes, then the CFMMEU has standing to bring this application and Dulux's obligation under s. 228 are enlivened.

[14] Further, the CFMMEU contends that if Dulux has other questions it wants determined - notably the coverage of production operators - about which the CFMMEU makes no concession or contention, it must commence proceedings of its own. Dulux cannot hijack the CFMMEU's application to agitate these other questions and the CFMMEU cannot be compelled to answer a case that it has not put before the Commission.

[15] I accept the submissions of the CFMMEU in relation to the matters for determination. The CFMMEU is the applicant for a bargaining order under s. 229 of the FW Act. While the Respondent has raised an objection based on the standing of the Union to make the application, it is the CFMMEU which must establish that it has standing. As a Full Bench of the Commission observed in Piyush Jain v Infosys Limited T/A Infosys Technologies Limited:

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[16] In the present case, the CFMMEU does not have standing to make an application for a bargaining order unless it is a bargaining representative for the proposed agreement: see s.229(1). In relation to a proposed enterprise agreement that is not a greenfields agreement, an employee organisation is a bargaining representative of an employee who will be covered by the agreement if the employee is a member of the organisation: see s.176(b)(ii). However, an employee organisation cannot be a bargaining representative of the employee member unless the organisation is entitled to represent the industrial interests of the employee in relation to work that will be performed under the agreement: see s.176(3). Accordingly, it is the CFMMEU which will fail if these matters are not established and the Union bears the onus to make its case.

[17] It is also apparent from the Form F32 Application for a bargaining order filed by the CFMMEU and the correspondence between the Union and Dulux that preceded it, that the claimed coverage and the basis upon which it was asserted, centred on forklift drivers. The CFMMEU asserts that Mr Lambert is principally employed as a forklift driver. As a result, no unfairness to Dulux arises from the narrowing of the CFMMEU's case. Further, where the CFMMEU has not claimed coverage on any other basis and has called no evidence other than that of Mr Lambert, it would not be appropriate for the Commission to determine a broader question.

[18] There were also a range of objections made about evidence in the proceedings. In relation to paragraph 6 of Mr Lambert's third statement, the Respondent contended that the work allocation documents referred to and annexed are the property of Dulux and that the CFMMEU as the Applicant had not sought the production of those documents through appropriate means. Mr Lambert stated in response that he had sought permission from the supervisor from whom he obtained the documents and informed the supervisor that he intended them to be used in these proceedings. Those documents relate to allocation of work by Mr Lambert's supervisor and were received into evidence as there was no basis for excluding them.

[19] The CFMMEU, in response to objections to some of the matters in Mr Lambert's witness statements also accepted that it would not press certain parts of those witness statements.

[20] More significant issues arose with Mr Holden's evidence about the proportion of time spent by Mr Lambert on various tasks. Mr Holden's evidence on this subject was set out in spreadsheets attached to his witness statement. Those spreadsheets were prepared by other persons. It became apparent during cross-examination that there were other documents, referred to as pivot tables, which underpinned calculations of the percentage of time Mr Lambert spent operating Materials Handling Equipment (MHE). Mr Holden was permitted to give additional oral evidence-in-chief in an attempt to rectify the issues with these calculations.

[21] Ms Saunders for the CFMMEU contended that the additional evidence of Mr Holden did not adequately address the way in which the calculations about use of MHE had been undertaken and called for the documents referred to by Mr Holden in his evidence. Dulux through its legal representative asserted that the documents setting out the underpinning calculations are subject to legal professional privilege and declined to provide them. Ms Saunders submitted that without the underpinning data contained in the documents subject of the call, the calculations provided by Mr Holden were meaningless and that this was unfair to the CFMMEU as it could not test his evidence.

[22] After some debate, during which I expressed the provisional view that the assertions made by the CFMMEU about the calculations set out in Mr Holden's were correct and that Mr Holden's evidence was meaningless without that information, Dulux withdrew paragraphs in Mr Holden's written statements referring to the calculations and accepted that his oral evidence attempting to resolve these issues would not be considered.[7] As a result the raw data set out in Mr Holden's witness statements remains in evidence and the parties were at liberty to perform their own calculations about what it shows and to place those before the Commission. The parties did undertake their own calculations.

[23] Dulux, in its written closing submissions (which were prepared before Mr Holden was cross-examined), asserted that the CFMMEU could have called the persons who provided the data to Mr Holden to deal with its objections. I do not accept that submission. The CFMMEU is not required to call a witness to assist in the resolution of issues with the evidence called by Dulux. The resolution of any such issues is a matter for Dulux. In circumstances where Mr Holden did not perform the calculations about which he gave evidence and Dulux did not lead evidence about the basis of the calculations which was capable of being properly tested in cross-examination, it would have caused significant unfairness to the CFMMEU for the Commission to have accepted the calculations about the percentage of time spent by Mr Holden operating MHE. Dulux opted to resolve the issue by withdrawing parts of Mr Holden's witness statements and accepted that oral evidence in chief given by him in relation to those parts of his statements would not be received by the Commission. Dulux's complaint about the CFMMEU not calling evidence in relation to this matter cannot be maintained in those circumstances.

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[49] In short compass the effect of the High Court decision in Re Coldham was that for the purposes of considering the first part of the FEDFA's Eligibility Rule, the reference to crane drivers (and by extension other enumerated drivers) in the term "all classes of engine drivers, firemen, crane drivers, mobile crane drivers, forklift drivers..." was not limited by other occupations listed in the Eligibility Rule or by the Union's Industry Rule. In particular the Eligibility Rule was not limited to persons employed "in connexion with the generation, production, distribution or utilisation of power".

[50] The operation of rule 2(E)(a) of the CFMMEU's Eligibility Rule has more recently been considered by the Full Court of the Federal Court in Construction, Forestry, Mining and Energy Union v CSBP Limited[23] (CSBP). It is instructive to consider this case in some detail. The facts as set out by the Full Court were that CSBP manufactured and produced chemicals and employed Process Technicians to undertake this work. Process Technicians classified at various levels operated plant and were encouraged by CSBP to have a turbine and boiler ticket. Each plant that operated a boiler or turbine was required to have the holder of such a ticket present while in operation. CSBP sought a declaration from the Court that the CFMEU (as the CFMMEU was then known) was not entitled to represent the industrial interests of persons employed by CPSBP as Process Technicians.

[51] McKerracher J at first instance, held that Process Technicians did not fall within the ambit of the CFMEU's eligibility rule and that the Union was not entitled to represent the industrial interests of those employees.[24] A significant factor in the decision at first instance was the evidence of CSBP's witnesses about the complex nature of the training activities and responsibilities of Process Technicians. It is also evident that the CFMEU witnesses asserted that the engine driving activities were an integral part of the process of producing chemicals and that the production process was work in connection with or incidental to the engines, boilers and machinery found in CSBP's plant. The CFMEU further asserted that while some skill was required to carry out the work of process technicians, those employees were not "highly skilled." McKerracher J concluded, contrary to the CFMMEU's submissions, that:

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[53] Before the Full Court, CSBP contended that the primary role of Process Technicians was to make chemicals and to monitor, manage and optimise the production of the various chemical products made in each business unit. CSBP also contended that the manufacture of chemicals was not "incidental to" any engine, boiler or machinery connected with the production or utilisation of power. In this regard, CSBP submitted that while the turbines, generators and boilers at the plant generate and use power, the primary purpose of a process technician is not to assist in and about work which appertains to engines, boilers or machinery connected with the production or utilisation of power.

[54] CSBP also submitted before the Full Court that the words "any engine, boiler or machinery connected with the production or utilisation of power" should not be construed in isolation but read harmoniously with the CFMEU's Industry Rule. Further, CSBP submitted that "utilisation" is concerned not simply with the use of power but with the facilitation of the use of power and that the words "connected with the production or utilisation of power" refer to power generation or utilisation as an industrial activity rather than to the use of any and all machines that use power. Accordingly, rule 2(E)(a) of the Eligibility Rule is concerned with employees whose principal purpose of employment work of a subordinate or subsidiary nature in relation to engines, boilers and machinery and that while Process Technicians may perform some work in relation to turbines, generators and boilers, that is not the principal purpose of their employment.

[55] The CFMEU argued before the Full Court that if an engine, boiler or machinery produces or uses power, the Eligibility Rule will be satisfied if the relevant employees are attendants assisting in and about work incidental to any engine, boiler or machinery and that the "incidental" work at CSBP's plant was the production of chemicals. The CFMEU also argued that the primary purpose test is only applicable where some of the relevant duties fall outside the broad meaning of the words in the relevant eligibility rule.

[56] The CFMEU pointed to the construction of its eligibility rule determined by the High Court in Re Coldham and argued that the primary judge erred by:

failing to have regard to the term "utilsation of power" and in construing the eligibility rule by finding that that the engines, boilers and machinery were not "c_onnected with the production of power_" notwithstanding that they actually produce power;

limiting the Eligibility Rule by reference to the Industry Rule when the Eligibility Rule was not ambiguous; and

not giving the words "incidental to" their ordinary meaning so that the Eligibility Rule covers activities which are apt to actually happen in connection with the engines, boilers and machinery.

[57] The CFMEU also argued before the Full Court that "the work" referred to in the Eligibility Rule is the work of the enterprise being conducted by the employer and that "incidental to" should be understood as meaning "naturally appertaining to" rather than "subordinate" or "subsidiary to" that work. Further, the CFMEU argued that the primary purpose test of employment was not appropriate and that in times of technological change, it is to be expected that general words will be used to give wide coverage even though some specific callings are already included in the rule.

[58] The Full Court began its consideration by making two general observations. The first being:

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[86] During an inspection of the Rocklea site, assisted by a work health and safety inspector, Mr Menon observed that the site was "chock-a-block"[47] with forklifts. That included LLOPs. Mr Menon did not measure the height of the LLOPs or view anyone else measuring the height. However, Mr Menon maintained that the requirement to hold a licence "doesn't stop a forklift being a forklift".[48]

[87] Mr Holden agrees that there are three types of MHEs used at the Rocklea Site; reach trucks, LLOPs and gas counterbalance forklifts. Operation of the reach trucks and counterbalance forklifts requires a forklift licence. Mr Holden's evidence in his second witness statement is that only two of the pieces of MHE are forklifts and that the LLOP is not a forklift. Mr Holden has reviewed the relevant WH&S Regulations and maintains that the LLOP is not a forklift truck because it has been modified so that it cannot be raised 900mms or more above the ground.[49] The LLOP is also not an order picking forklift truck because the operator controls do not rise with the lifting media. Therefore, a warehouse operator does not need a licence to operate the LLOP.

[88] Mr Holden maintains that the LLOP is not used to pick stock off pallet racks; warehouse operators manually perform this task while standing on the warehouse floor. The purpose of the LLOP is to act as a pallet mover. The lifting mechanism of the LLOP is simply to allow the manual picking and stacking of product at an ergonomic height. Mr Holden also said that the LLOP used at the Rocklea site is not similar to a reach truck and does not require the operator to wear a safety harness while operating it. The lifting mechanism of the LLOP is not itself used to pick product, rather it assists to move product to an ergonomic height.

[89] Mr Holden was shown photographs of each type of MHE in cross-examination. In relation to the counterbalance forklift, Mr Holden accepted that this is a forklift[50] and agreed that the counterbalance forklift has an engine,[51] is driven by warehouse operators,[52] and the controls do not move up and down.[53] The tines of the forklift, controlled by the warehouse operators, do move up and down and from left to right.[54] The forklifts are used to move pallets of Dulux product around the warehouse.[55] Mr Holden accepted that ordinarily, the counterbalance forklift would be moved or driven around the warehouse with the load at as low a level possible, although it can be operated while the load is at both a low and high level.[56] A licence is required to operate a counterbalance forklift.[57]

[90] Next, Mr Holden was taken to the reach truck. After some pressing, Mr Holden accepted that a reach truck can be classified as a forklift.[58] Reach trucks have an engine,[59] the controls themselves don't move up and down,[60] and the operator uses the controls to move the tines up and down and left to right.[61] The reach truck is used to move pallets of Dulux products around the warehouse.[62] A warehouse operator uses foot controls to drive the reach truck.[63] A licence is required to operate a reach truck.[64]

[91] Finally, Mr Holden was taken to the LLOP. Mr Holden accepted that the LLOP has an engine/electric motor used to generate power.[65] The controls do not go up and down.[66] The warehouse operators use controls to move the tines up and down but unlike the reach truck and counterbalance forklifts the tines cannot move side to side.[67] The LLOP is driven using hand controls.[68] When driving the LLOP, the tines are generally kept at the lowest level possible.[69] Mr Holden accepted that the LLOP has been modified by Dulux to keep the tines at less than 900 millimetres and that[70] unmodified, the tines of the LLOP can be raised above 900 millimetres.[71]

[92] Mr Holden also accepted that his view that the LLOP is not a forklift is based on the fact that a license is not required to operate the LLOP and that should Dulux wish to do so, it could remove the modification.[72] Mr Holden conceded that if the modification was removed warehouse operators would require a licence to operate the LLOP,[73] and, in this circumstance, the LLOP would be a forklift for the purposes of the legislation.[74] Mr Holden also accepted that if the regulations were changed such that the 900mm restriction became, for example, a 700mm restriction, the LLOP would then be a forklift[75] and that this change would not require "any change to the fundamental nature of the" LLOP itself.[76]

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[93] Mr Lambert's evidence about the work he performs can be summarised as follows. Mr Lambert has around 30 years' experience in the warehousing industry. Based on that experience, Mr Lambert's view is that the job of a Warehouse Operator at the Dulux Rocklea Site could just as easily be described as "Forklift Driver". Mr Lambert has seen this kind of job advertised as a Forklift Driver in other warehouses.

[94] Mr Lambert is a member and delegate of the CFMMEU. Mr Lambert was previously a member and delegate of the UWU. Including Mr Lambert there are 36 Warehouse Operators employed at the Rocklea site. There are also Team Leaders, Leading Hands, Stock Returners and labour hire employees. Mr Lambert accepts that Leading Hands and Stock Returners are employed as Warehouse Operators but considers that Team Leaders are not employed as Warehouse Operators.[77]

[95] Work is divided into a day shift and an afternoon shift. Afternoon shift is between 2pm and 10:30pm. Mr Lambert has almost continuously worked the day shift. A day shift is technically between 5:45am and 2:36pm but most workers start work at 5.00am and finish at 1:56pm. Mr Lambert's evidence is that supervisors allocate work according to the following categories: Office, Replenishment, Powders Interstate, Parchem, Front and Put Away, Transport/Returns, Export, Picking and Damaged Stock. To support his evidence about the types of work performed by Warehouse Operators and how that work is allocated, Mr Lambert tendered daily worksheets prepared by Team Leaders at the Rocklea site. Mr Lambert annexed to his evidence a number of these daily worksheets.[78] They appear to cover the period 13 July 2020 to 5 February 2021. Mr Lambert states that the worksheets are prepared each day by the Team Leader and are usually prepared in the afternoon for the following day's work.

[96] According to Mr Lambert, the daily worksheets are "common knowledge" and read out each day. The documents are kept in a folder on the desk of the main office. In obtaining the documents for use in these proceedings, Mr Lambert states that asked for permission from the acting Team Leader who was working on the day he obtained them.[79] Mr Lambert disclosed to the acting team leader that the purpose of his obtaining the worksheets was to use them in the present proceedings.[80] Mr Lambert photocopied the documents.[81]

[97] Mr Lambert accepted that he acquired the documents on or around 6 February 2021,[82] prior to completing his second statement in these proceedings.[83] Mr Lambert accepts that these worksheets do not show the amount of time actually spent driving a counterbalance forklift,[84] reach truck,[85] or LLOP[86] on the respective days.[87]

[98] Mr Lambert said that in any week, Warehouse Operators may perform any of the groups of specified in the work sheets. Tasks are assigned each morning at a tool-box meeting. Mr Lambert states that the order picking work is typically assigned to labour hire workers. Dulux employees spend the majority of their time operating the Truck and Reach Truck Forklifts and are generally not required to do order picking for more than one day a week.

[99] Mr Lambert strongly disagrees that picking work forms the majority of work undertaken by Warehouse Operators for two reasons. Firstly, Mr Lambert states that in day-to-day usage on site, a reference to "picking" is a reference to picking of stock using the LLOP only. This work involves fulfilling orders in accordance with information about quantities of stock required. This information is given by way of the RF gun. LLOPs are used for this work. This work is often assigned to labour hire employees.

[100] According to Mr Lambert, Dulux's evidence seems to refer to "picking" in a broader sense to include stock picking where reach forklifts are used. This is not consistent with practice. On average, Mr Lambert is assigned to "picking" using the LLOP once a week. For the period of 1 December 2020 to 22 January 2021, Mr Lambert worked 22 days. On 6 of those days Mr Lambert completed picking using an LLOP. Mr Lambert accepted that, because of an error in his statement about being on an RDO on November 18, he was assigned to picking using an LLOP on 7 out of the 22 working days rather than 6.[88] Mr Lambert also states that Warehouse Operators may "occasionally" be assigned the task of order picking.

[101] Mr Lambert's evidence about the types of work performed by Warehouse Operators was set out in three witness statements and can be summarised as follows. Mr Lambert states that each morning two B-double semi-trailers are waiting at the gates at 5:00am ready to be unloaded by warehouse staff. Mr Lambert said:

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[102] Mr Lambert states that these trucks are unloaded by Warehouse Operators using Truck Forklifts. The materials are then moved to areas designated for inbound freight, also by Warehouse Operators. The material is moved using Truck Forklifts. This work is called "out the front" work. A majority of deliveries are picked up and dropped off by trucks during the day shift.

[103] Warehouse Operators move material from the inbound areas using Reach Truck Forklifts. The goods are moved to the appropriate location within the warehouse where they are placed on pallet racks. The Reach Truck Forklifts allow the material to be raised up to eight meters in the air. This work is described as "put-away". Each person may perform out the front work and put-away work on any given day. Warehouse Operators may also replenish stock to ensure sufficient supply for order pickers to fulfil orders received from inventory control. This work is called "replenishment" and is performed using the Reach Truck Forklifts.

[104] Once the orders are picked and stock collected, it is transported to the outbound area for dispatch. Stock going to interstate Dulux sites and trade centres is moved to a specific area near the manufacturing plant. Once there, Warehouse Operators, who Mr Lambert calls "forklift drivers", load the goods onto trucks using a reach forklift. The operators usually undertake this work all day when it is assigned to them. Generally, two or three Warehouse Operators are assigned to this work on any given day. This work is described "interstate" work.

[105] In his second witness statement Mr Lambert gave detailed evidence in relation to "interstate" work described in the worksheets as "Powders/Interstate" although the work no longer includes powders. Mr Lambert described the interstate work and said that he uses an RF gun to select the interstate queue and then selects an order. The RF gun directs Mr Lambert to a series of locations in the warehouse to collect stock to make up the order. Once the order is collected Mr Lambert takes it to a staging area where it is assembled onto a pallet which is wrapped by a machine. While this is occurring Mr Lambert finalises the order in the RF gun and produces a label for the stock to affix to the pallet. The order is then posted in the RF gun and a delivery docket is generated in the office. Mr Lambert undertakes this task during the day unless "parchem" orders come through which then take priority. That work involves products for construction products such as cement, building fixtures and hardware which Dulux supplies to construction companies. For the entire day that he undertakes interstate and parchem work, Mr Lambert operates a forklift. If he completes parchem and interstate work on that day, Mr Lambert may do some replenishment or bin to bin work.

[106] In relation to replenishment work, Mr Lambert said that he logs on to the RF gun and puts himself into a queue which contains a list of jobs based on priority. Mr Lambert works through that list and undertakes replenishment until he receives a replenishment request from an order picker to replenish stock. These requests are made when an order picker attends a location in the warehouse to retrieve stock for an order and there is insufficient stock available. On receiving a replenishment request, Mr Lambert manually types what needs to be replenished into the RF gun which identifies a location for the stock. Mr Lambert then retrieves the stock by taking it down using his forklift and then delivering it to the required location identified by the order picker and then completes the job transaction in the RF gun. When this has been completed, Mr Lambert returns to the automatic queue in the RF gun. Mr Lambert said that apart from meal breaks, he is operating a forklift for the duration of the days that he is assigned to this task.[90]

[107] Mr Lambert also disputes the Mr Holden's evidence concerning "export" work. Mr Lambert does not agree that export work is a part of order picking work. Warehouse Operators assigned to export work use a Reach Forklift to perform the work and are assigned to the work for the entirety of the day.

[108] Mr Lambert states that all tasks require the use of a Truck Forklift, High Reach Truck Forklift or LLOP. These machines are used for the vast majority of the day. There are days when Mr Lambert would not use a reach truck or a counterbalance forklift.[91] Warehouse Operators briefly cease the operation of a forklift to take lunch and attend meetings and when performing the following tasks:

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[111] Mr Lambert annexed to his first statement handwritten notes made over a number of working days. Mr Lambert accepted that they were not his notes[97] and said that any reference to him making those notes was a mistake.[98] Mr Lambert's explanation was that he asked a few other workers to make notes about what work they were performing because he knew that Dulux's position was that Warehouse Operators were not forklift drivers. Mr Lambert gave those other employees a notebook of the same type as he used to make notes and did not notice that he had attached the notes of another worker to his witness statement. Mr Lambert accepted that he was not with the person who made the notes at the time they were made.[99] Mr Lambert did not receive the notes each day but probably after all the entries were completed[100] and does not know when the notes were taken.[101]

[112] At the hearing Mr Lambert produced his own notes which were called for by Dulux and provided by Mr Lambert.[102] Mr Lambert was not cross-examined in relation to those notes and they were tendered into evidence.[103] The notes cover 19, 20, 23, 24 and 25 November 2020 and indicate that on those dates, Mr Lambert spent much of his working shift on the reach truck or the high reach truck.

[113] Mr Lambert also tendered a job advertisement placed by a recruitment company for its client "a global leader in the manufacture of paint products" seeking the services of two forklift operators for work at Rocklea. The advertisement states that the successful candidate will have a forklift ticket and two years of experience operating a forklift and experience in working at a manufacturing facility as a process worker.[104]

[114] Generally, Mr Lambert disagrees with the evidence of Mr Holden. Mr Lambert considers that the evidence of Mr Holden overstates the amount of time Warehouse Operators spend order picking. In Mr Lambert's view, this overstatement arises for several reasons but primarily because the view is based on the premise that an LLOP is not a forklift.

[115] It is also Mr Lambert's view that the SAP data from RF guns relied upon by Dulux in forming its view is unreliable. According to Mr Lambert, RF guns are not used by Warehouse Operators when performing some tasks, for example, office work. As a further example, 4 or 5 Warehouse Operators will ordinarily perform "out the front" work and while undertaking this work only one of those 4 or 5 Warehouse Operators uses an RF gun to receive goods. The remaining Warehouse Operators load and unload the trucks using a gas counterbalance forklift.

[116] Further, Mr Lambert states that the SAP data includes data from labour hire employees. Mr Lambert's evidence is that generally labour hire workers are "o_nly ever assigned to the task of order picking_". In his third statement, Mr Lambert states that he does not understand the data relied upon by Mr Holden in his second statement (dealt with below) and replies to Mr Holden's evidence as follows:

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[117] In cross-examination, Mr Lambert accepted that the description of his work given by Mr Holden is an accurate reflection of the work he actually performed on those days[106] but maintained that forklifts are essential part of his work and daily tasks.[107] Mr Lambert also accepted in cross-examination that, based on the machine usage data, he was not in fact on an RDO on the 18th of November but was at work.[108] Further, Mr Lambert conceded that in his evidence he has not provided the amount of time he actually spends on a reach truck or a counter balance forklift.[109]

[118] Mr Lambert agreed that prior to using any of the relevant MHE or the RF gun he must sign on[110] using an individual login and password.[111] Mr Lambert would never (and has never) used another person's login information.[112] Mr Lambert also agreed that a machine will log the driver off after 5 minutes of inactivity.[113] Mr Lambert accepts that if he is picking orders, getting on and off the LLOP or other machine, as long as the time spent off the machine is less than 5 minutes the machine will record a continuous log in.[114] This means that the login times shown in the relevant data does not necessarily represent continuous operation of the vehicle.

[119] Mr Menon's evidence indicates that he became involved in recruiting members at the Rocklea Site in late October 2020, when was approached by two employees of Dulux. In his discussions, Mr Menon asked about the organisation of work at the Rocklea Site and the work performed by employees. Mr Menon said that it was clear that the work was typical of many manufacturing facilities that also included a warehousing and distribution operation. The employees explained to Mr Menon that materials are received by truck and then distributed throughout the site by forklift. The materials are then picked and moved to an outbound area of the site, which is done by forklift. The goods are then loaded onto trucks for dispatch, which also is done by forklift. It was confirmed to Mr Menon that for many employees at the Rocklea site, their primary duty was to operate forklifts.

[120] Mr Menon accepted that prior to his discussion with employees in October 2020, he had not observed Mr Lambert perform any work.[115] In subsequent inspections Mr Menon cannot recall observing Mr Lambert operate a forklift.[116] In reaching the view that Mr Lambert was eligible for membership of the CFMMEU, Mr Menon accepted that he relied upon what he has been told by Mr Lambert.[117] Sixty-two Dulux employees joined the CFMMEU in late October. Mr Menon has not spoken to, or observed, all of them in relation to the work they perform.[118]

[121] Prior to accepting the Dulux employees as members, Mr Menon says that he looked at the CFMMEU's Rules.[119] Mr Menon was taken to Mr Lambert's CFMMEU membership card. The card refers to "MIXED INDUSTRIES/PLANT OP". The reference to "mixed industries" refers to non-construction sectors of CFMMEU membership.[120] "Plant op" stands for plant operator and refers to a member that drives machinery or plant, typically a forklift.[121] Mr Menon was not able to point to where in the relevant rule it provided for coverage of plant operators. However, Mr Menon stated that the pieces of machinery in Rule (2)(E) are "plant" and maintained that a forklift is a piece of plant.[122]

[122] Mr Holden is the Site Manager for the Rocklea Site having worked for Dulux since 1990 and has been the Site Manager at Rocklea for approximately 12 years. The Site Manager is responsible for the day-to-day management of the site. Deliveries to the Site vary from day to day. Mr Holden does not agree that each day two B-double semi-trailers deliver stock to the Rocklea Site.

[123] Mr Holden said that contrary to Mr Lambert's evidence, there are 40 Warehouse Operators employed at the Rocklea Site. 24 operators work the day shift and 16 work the afternoon shift. On average there are 8 labour hire casual workers each day. All employees, including team leaders, leading hands and stock returners, are employed as Warehouse Operators. Each undertakes the tasks of a Warehouse Operator, including picking tasks.

[124] The operations at the Rocklea Site run based on what Mr Holden calls a "multi-skilled generalist classification and task system".[123] Between the two facilities employees are engaged as either Warehouse Operators or Production Operators. The two facilities that make up the Rocklea site are broken into different work areas, with each work area consisting of different "multi-skilled tasks". In the warehouse, Mr Holden says there are three tasks/areas with all employees rotating through the three areas on a daily basis.

[125] Mr Holden states that the purpose of the Warehouse Operator position is to fulfil customer orders for product produced in the manufacturing facility at Rocklea and other manufacturing facilities across the country.[124] In fulfilling this purpose employees utilise various skills including information technology skills and materials handling skills.

[126] Customer orders for Dulux products are called a sales orders. Each sales order is entered in a system referred to as SAP. When entered into the SAP system each sales order is converted into a delivery order. A delivery order may contain multiple sales orders. Each delivery order is broken up into one or more transfer orders. The transfer order includes the individual tasks that are given to a Warehouse Operator.

[127] On commencing a shift, a warehouse operator uses a radio frequency (RF) gun to receive tasks within the transfer orders. The RF gun gives information on the tasks required and allows the warehouse operator to record when the task is complete. Each warehouse operator has an individual username for use with the RF guns. Labour hire workers share common usernames for the RF guns.

[128] Tasks are sorted into headings and subheadings within the RF gun system. Tasks are also sorted into queues set up to ensure that tasks are completed in sequence ready for despatch when trucks arrive to collect the orders. Warehouse operators generally work from a queue. The RF gun will deliver instructions to the Warehouse Operator from the queue. A summary screen will be shown of how to undertake the task and guides the warehouse operator through the transfer order in sequence. Warehouse Operators may deviate from the sequence to ensure that the picked pallet is safe and stable.

[129] Mr Holden describes the various tasks of warehouse operators as:

[210]

[139] Each piece of MHE at the Rocklea site uses IVM systems to track times a warehouse operator spends operating the equipment. There are two systems: I-Site on the gas counterbalance and reach truck forklifts and Shockwatch on the diesel counterbalance forklifts.

[140] The I-Site system can report on the utilisation of the equipment by comparing the operating hours (which match the shift duration) against the total time the machine is in run mode. Utilisation is expressed as a percentage of time the machine is in use. Warehouse operators have an access code to use MHE. The code is linked to the employee's swipe card. The swipe card is used to access the equipment after having completed the pre-start checklist. The time between swiping on and swiping off, or the machine timing out after 5 minutes, is measured by I-Site as utilisation time. While a Warehouse Operator is swiped onto a piece of MHE that Operator is the only person allowed to drive that piece of equipment[140] and is responsible for it until he or she logs out again.[141]

[141] Mr Holden requested the Production and Engineering Manager of the Rocklea site to prepare reports from I-Site. Mr Holden produced to the Commission an "Activity Report" and "Machine Report" for the months of December 2020 and January 2021.[142] The Activity Report shows every individual use of a machine by an operator over a certain period of time. The Machine Report shows the utilisation time of each machine as a percentage of the overall operating hours at the Rocklea site.

[142] There are four diesel counterbalance forklifts in use at the Rocklea site. The use of this equipment is recorded through Shockwatch which does not have the same recording capacity as I-Site. Data is collected regarding these machines by Toyota Material Handling Australia when it services the MHEs. Those records for two of the four diesel counterbalance forklifts are annexed to Mr Holden's evidence in these proceedings.[143] Mr Holden accepted under cross-examination that Mr Lambert has a forklift licence and is required to operate all three pieces of manual handling equipment.

[143] In his supplementary witness statement[144] Mr Holden responded to the evidence of Mr Lambert in relation to the job advertisement placed by a labour hire company for a role at Dulux's Rocklea Site. Mr Holden said that he was not previously aware of the advertisement but maintains that it does not describe the work of warehouse operators at the Rocklea site. Mr Holden also said that he was not responsible for advertisements placed by labour hire companies and that Dulux did not direct them in this regard. Further, Mr Holden said that labour hire employees at the Rocklea Site perform a discrete set of tasks and do not perform the full range of tasks performed by Dulux's Warehouse Operators. Mr Holden maintained that he has never required that persons engaged by the labour hire contractor to perform work at the Rocklea Site have a forklift licence.[145] Labour hire employees engaged by the agency are characterised by the agency as "process workers" and not "forklift operators".

[144] Mr Holden tendered a job advertisement placed by Dulux for an open Warehouse Operator position in support of his assertions about labour hire employees. Under cross-examination Mr Holden changed his evidence and stated that this advertisement was for operations team members in manufacturing and distribution.[146] Mr Holden was also shown a document that appears to be a job advertisement for an "Operations Team Member" with the DuluxGroup header[147]. The two advertisements appear to have the same job number. The second advertisement includes a tag of "Forklift Operator". Mr Holden was surprised that this was the case[148] and said that he was not involved in the production of this job advertisement, as it was dealt with by the Dulux recruitment centre in conjunction with the production manager and warehouse lead.[149]

[145] In cross-examination, Mr Holden accepted that Dulux's position concerning the ability of the CFMMEU to represent the industrial interests of Warehouse Operators was based on three propositions; the LLOP is not a forklift,[150] warehouse operators don't use forklifts to a substantial degree,[151] and primary purpose of their position is to pick customer orders to allow Dulux to sell paint.[152] Mr Holden accepted that he is not familiar with the history of the CFMMEU's rules or what was classified as a forklift in 1947.[153]

[213]

[149] Importantly, as the phrase originated, it did not relate to licensing requirements and the rule should not be interpreted so narrowly. While the FEDFA was an occupational union it was not a trade-based occupational union. There is not a "trade" of forklift driver. The traditional concept of a forklift driver was, to some extent, tied to industry considerations. However, since the High Court decision in Re Coldham[155] there has been a shift to the concept of a forklift driver operating the piece of equipment without a tie to the industry in which it is operated, as was the case with the FEDFA rule originally.

[150] The evidence establishes that all three pieces of MHE used at the Dulux site generate power in the sense used in the FEDFA rule. Each has tines that lift, operated by controls. Each is capable of being driven. Each piece of MHE looks like a forklift and each is sold as a forklift. In its unaltered state, the LLOP could operate in a manner that attracts forklift licencing requirements. Even though the LLOPs are modified, that modification can be undone. The licencing requirements do not change the inherent nature of the LLOPs as a forklift.

[151] The application of the principal purpose test is not an abstract one. The test looks to the task that the employee is engaged to perform, in reality. Limiting the inquiry to simply the purpose of filling orders and delivering paint to customers is too narrow. In private enterprise it might be said that the purpose of all positions is the generating of profit. In the CFMMEU's submission the focus is on what the employee actually does and what tasks are they required to perform.

[152] The CFMMEU submits that Mr Lambert's evidence describes his work. In short, Mr Lambert moves paint around using one of three pieces of materials handling equipment. The focus of the Respondent on what work Mr Lambert did on particular days and the precise time he did that work is not to the point. The issue for determination is, based on the evidence, what Mr Lambert actually does and is engaged to do.

[153] According to the CFMMEU, the evidence establishes that Mr Lambert, almost uniformly, is allocated tasks using a run sheet that is not particularly sophisticated, and spends his days driving manual handling equipment to move paint. Mr Lambert cannot complete his range of tasks without operating a forklift. It is identical to work Mr Lambert has had in the past where he was employed as a forklift driver. Mr Menon's evidence, and the evidence of the Chandler McLeod and Dulux job advertisements is consistent with this.

[154] In the period December 2019 to January 2021, on the CFMMEU's analysis of the data, using the key time, supplied by Dulux, Mr Lambert is in control of a forklift 95.4% of his working time. If "picking" data, operating the LLOP, is excluded, that total reduced to 66.3% of the time. Regardless of how it is viewed, the time spent by Mr Lambert operating manual handling equipment is overwhelming. In relation to this data, it was submitted that key time for the materials handling equipment should be considered rather than operating time. This is because if the forklift is idle or parked for more than 5 minutes, it logs the operator out automatically. Accordingly, where the forklift is not logged out, Mr Lambert must have been doing something with the forklift so as to continue to be logged in. When this is considered, the time that Mr Lambert spends operating the forklift is overwhelming.

[155] The CFMMEU accepts that Mr Lambert is employed to pick orders but submits that most forklift drivers are employed to do something - and are not just employed to drive forklifts around. The important factor is that Mr Lambert cannot pick orders without operating a forklift. In support of this submission, the CFMMEU points to the fact that no task that Mr Lambert does, with the possible exception of bin to bin, can be substantially performed without using a forklift. Dulux's contention that the primary function is preparing and co-ordinating the delivery or return of customer orders, overstates Mr Lambert's role in accepting tasks from the RF gun and completing them. According to the CFMMEU's submission, that function is performed by an organisational layer above Mr Lambert. Secondly, how Mr Lambert achieves that purpose is by the use of a forklift.

[156] In conclusion the CFMMEU referred to the Decision of Commissioner Booth in CFMEU v Rapid Metal Developments Pty Ltd (Rapid Metal).[156] In that case, Commissioner Booth considered Re Coldham and the first instance Decision of McKerracher J in CSBP v CFMEU.[157] The Commissioner noted the analysis of McKerracher J to the effect that in Re Coldham the High Court had held that the CFMEU eligibility rule was not ambiguous with respect to the expression "crane driver" and the court was not required to consider the ambit of the second part of the rule dealing with the production or utilization of power. In Rapid Metal, the Commissioner went on to find that the employees in dispute fell within the eligibility rule of the CFMMEU on the basis that:

The substance of their role was predominantly to move goods using a forklift;

Relevant employees operated forklifts for the majority of the day;

Forklift driving was the substantive and predominant function of employees;

Forklift was the preferred way for product to be moved; and

• For some of the product a forklift was the only way to move it safely and efficiently.[158]

[157] The CFMMEU submits that the facts in the present case are not relevantly distinguishable from those in Rapid Metal and that the outcome should be the same.

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[158] In written closing submissions Dulux maintained that the CFMMEU had advanced its case at the outset by claiming the right to represent manufacturing and warehouse employees. Mr Menon's evidence was that the CFMMEU had signed up a number of Dulux employees and sought to represent those employees. Dulux also submitted that the CFMMEU has not provided any evidence regarding the work performed by any other employee of the Respondent, including any Production Operator who the union claims to be a member. As such, the union has failed to "demonstrate that its status is not merely asserted but open to demonstration as a fact" regarding those members in respect of which it has adduced no evidence.[159]

[159] Citing the Full Court decision in CPBS, Dulux submitted that a person who operates a forklift as an incidental function of their employment as something else, is not a forklift driver withing the meaning of the CFMMEU's eligibility rule and that this is determined according to the primary purpose test. This test is not undertaken by simply quantifying the amount of time spent on various elements of work performed and the equality of the relevant work is also a relevant consideration. Dulux submitted that "driving" is as defined by Commissioner Hartigan Enco Precast Pty Ltd v CFMMEU (Enco)[160] and involves "the exercise of control by the operator to put the crane in motion to travel along the tracks at varying speeds and stopping the crane can be described as driving the crane within the meaning of the relevant authorities".[161] Dulux accepted that the Eligibility Rule will cover Mr Lambert if he is engaged for the primary or principal purpose of controlling the movement of the operation of a forklift.

[160] Dulux submits that the primary or principal purpose of the employment of Warehouse Operators at its Rocklea Site is to work in the warehouse to fill customer orders and coordinate their delivery and return. While this may involve use of a forklift, Warehouse Operators are not engaged primarily to perform that particular skill or task but are instead engaged to perform tasks using a range of skills, for the purpose of preparing customer orders and coordinating their delivery or return.

[161] Dulux also submitted that the purpose of an LLOP is to act as a means of moving pallets containing completed or in progress customer orders. Reference was made to Mr Lambert's evidence that Warehouse Operators do pick stock off pallets and shelving and stack it manually on pallets which are transported by the LLOP and that the LLOP can also be used to pick up a whole pallet.[162] Reference was also made to Mr Lambert's concession under cross-examination that picking stock off shelves and placing it on a pallet is a manual task and that when he reverses the LLOP to a pallet he is required to physically add or remove product from the pallet.[163] Mr Lambert also accepted that while undertaking these tasks he got off and on to the LLOP and that he would have remained logged on if the manual aspect of the work took more than five minutes.

[162] After traversing the evidence of Mr Holden, and noting that Mr Menon had not examined the LLOP, Dulux submitted that it is not a forklift within the Eligibility Rule of the CFMMEU and that if a Warehouse Operator was operating the LLOP for the entirety of their employment (which is not the case) that employee would still not be a forklift driver within the meaning of the CFMMEU's Eligibility Rule. In this regard, reference was made to Mr Holden's evidence of the definition of a "forklift truck" in the Workplace Health and Safety Regulations 2011 which excludes the LLOP. Reference was also made to the Decision of Commissioner Frawley in 3M v Federated Rubber and Allied Workers Union (3M v FRAWU)[164] in which it was decided that the introduction of LLOP did not result in employees who had previously used hand trucks, from exercising higher skill levels and being entitled to be reclassified. It was submitted that the LLOPs used at the Rocklea site fulfil the same function as those considered in 3M v FRAWU and on the basis that they do not require a higher level of skill than a hand truck or non-powered lifting equipment and are not forklifts.

[163] In relation to the hand-written notes and the worksheets tendered by Mr Lambert, Dulux submits that these documents are not probative regarding the tasks Mr Lambert performs or the time spent on MHE. Dulux also submitted that Mr Holden's evidence that changes in allocation of tasks may be made at any given point in a shift should also be considered. Further, Dulux submitted that Mr Menon's evidence was not relevant as he had not directly observed Mr Lambert or other CFMMEU members working at Dulux and was basing his views on what he had been told by Mr Lambert. Reference was also made to Mr Holden's evidence that from 1 September to 31 December 2021, Mr Lambert spent 35% of his total working hours on Office tasks, 65% of his total working time on RF gun tasks and that of the 65% of time spent on RF gun tasks, 71% involved picking, 5% involved put-away, 1% involved bin to bin and 23% involved replenishment.

[164] In relation to Mr Lambert's driver data, Dulux provided further calculations set out in tables in its final submissions, based on data appended to Mr Holden's second witness statement. The calculations in table 1 are for 19, 20, 25 and 25 November 2020. The first table shows that on those dates, Mr Lambert spent 21.85% of his working time operating a reach truck. Table two concerns the period from 1-17 December 2020 and shows that Mr Holden spent 18.57% of his time on the reach truck and counterbalance forklift. From 11 January to 22 January 2021, Mr Lambert spent 24.32% of his time operating the reach truck and counterbalance forklift. Dulux also states that the percentages show that Mr Lambert has not operated a reach truck or counterbalance forklift for more than 38% of a 7.6 hour working day which is submitted to further support its submission that Mr Lambert is not a forklift driver under the CFMMEU's eligibility rule.

[165] In relation to key time, Dulux submits that this is not an accurate measure of the time that Mr Lambert is operating MHE because key time is not driving time. Dulux submits that the CFMMEU has failed to prove, on the balance of probabilities, that Mr Lambert, or any Warehouse Operator, is employed for the principal or primary purpose to be forklift drivers within the CFMMEU's Eligibility Rule. Dulux also submitted that the CFMMEU could have addressed its objections to the data provided by Dulux by making an application for James White (Dulux Group Distribution Manager) and/or Mark Hansen (Production and Engineering Manager at the Rocklea Site) to attend the Commission to give evidence.

[166] While conceding that the operation of a forklift is integral to the operations of the warehouse at the Rocklea Site, this does not mean that it is a major and substantial part of the employment of Warehouse Operators.[165] Even if Warehouse Operators spent the majority of their time operating forklifts, this would not change the primary/principal function of their employment or the employer's primary/principal purpose in directing them to undertake tasks. In this regard, reference was made to the comments of Isaac DP in Transport Workers' Union of Australia and Cliffs Robe River Iron Associates and others[166] who found that underground mine workers who spent as much as 40% of their time driving trucks, were not truck drivers on the basis that the employer's purpose in sending them underground was to "move" ore out of the ground, which required them to dislodge the ore. It was the dislodging of ore or the mining operation that was their primary task.

[167] Similarly, Dulux contends that the primary purpose of the Company in directing the Warehouse Operators to work in the warehouse, is to fill customer orders and co-ordinate their delivery or return. Whilst that may often involve moving items using a forklift, Warehouse Operators are not engaged primarily to perform that particular skill or task. Warehouse Operators are instead engaged to perform a range of tasks using a range of skills for the purpose of preparing customer orders and co-ordinating their return requiring:

Competent written and verbal communication skills;

Understanding of and competency in utilising computer management systems;

Understanding and implementation of workplace health and safety management systems;

Competent logistics and management skills; and

Strong physical conditioning.

[168] In conclusion, Dulux submitted that it has provided cogent and empirical data supporting its evidence on the characterisation of the work and to the extent relevant, the minimal amount of time spent driving a forklift. Dulux also submitted that the evidenced called by the CFMMEU does not establish its claim that Warehouse Operators at Dulux are eligible for membership of the CFMMEU.

[169] In oral submissions, Dulux conceded that for the purposes of the present proceedings, the CFMMEU only needs to establish an entitlement to represent the industrial interests of Mr Lambert.[167] The primary purpose test is a holistic assessment of the employee's role in the context of the business in which the employer operates. This holistic assessment includes a consideration of the tasks undertaken, time spent performing those tasks, the totality of the employee's role, and the context of the employer's business. Dulux accepts that the time taken to perform tasks is relevant, but not determinative of the primary purpose test.

[170] A person who operates a forklift as an incidental function of their employment is not a forklift driver within the meaning of the FEDFA rule. Forklift driver, where it appears in the rule, is used in its current industrial usage. In that context it is relevant that warehouse operators are not required to hold a licence to operate the LLOP. An LLOP is not a forklift for the purposes of the rule. Dulux cited CFMEU v CSBP Ltd[168] and the cases cited by the Court and asserted that in the present matter, Mr Lambert's operation of a forklift is incidental or ancillary to his job as an order picker. He is not employed to drive a forklift in the sense that his employment is not for the primary purpose of putting forklifts into motion.

[215]

[171] I have earlier considered the case law relating to the construction of union rules and in particular, rule 2(E)(a) of the CFMMEU's rules. The following observations can be made about these cases. The decision of the High Court in Re Coldham concerned the question of whether the former FEDFA could generate an industrial dispute with respect to crane driving in the civil construction industry. In finding that the FEDFA could generate such a dispute, the High Court held that the scope of the Union's activity in respect of the group of employees now described in rule 2(E)(a) of the CFMMEU's Eligibility Rule as "all classes of engine drivers, firemen, crane drivers, mobile crane drivers, forklift drivers, tow motor drivers, excavator drivers, pump attendants, pile drivers..." is not limited by other classes of employees in other parts of the rule or to employees who engaged in the generation, production, distribution or utilisation of power either in the power generation industry or power undertakings or divisions or departments which generate power within undertakings performing wider industrial functions, as described in the industry rule.

[172] The High Court did not have recourse to the FEDFA's industry rule on the basis that it considered there was no ambiguity in the part of the rule concerning what it described as "enumerated drivers". This is unsurprising given that the drivers being considered were crane drivers and the issue for determination concerned the civil construction industry. To state the obvious, a crane is a specific piece of equipment used for a particular purpose. It was not necessary in that case to apply the principal or primary purpose test given that there was no question that the cranes were driven by persons principally or primarily employed as crane drivers.

[173] In contrast, in CSBP, the Full Court of the Federal Court was considering the part of the CFMMEU's Eligibility Rule dealing with significantly wider and generic descriptors - engines,

[217]

[174] When forklift driving was included in the FEDFA Eligibility Rule, and at the time Re Coldham was decided, awards typically provided for narrow classification descriptions based on tasks required to be performed by employees rather than broader skill-based classifications.

[175] As previously noted Re Coldham concerned whether the former FEDFA could cover crane drivers in the civil construction industry. It is difficult to conceive of what tasks a mobile crane driver in the civil construction industry undertakes other than driving a crane for the purpose of moving items which are too heavy to be handled manually or which it is safer to move using a crane, from one part of a workplace to another. Similarly, it is unlikely that when forklift driving was introduced into the FEDFA Eligibility Rule in 1947, that drivers of traverser cranes (which forklifts partly replaced) were principally employed to do anything other than move items around factories or other heavy industrial establishments for the use of other employees such as production workers.

[176] As indicated in the exclusions in its rules the FEDFA did not cover transport or waterside workers and it also did not cover persons principally or primarily employed as storepersons or production workers. While the issue of other unions which may have coverage of particular work is not determinative of the proper construction of the CFMMEU's rules in the present case, the occupational focus of rule (2)(E) of the CFMMEU's rules means that eligibility does not extend, and has never extended, to persons who are not principally or primarily employed to drive the equipment enumerated in the first part of the rule.

[177] Re Coldham is not authority for the proposition that the FEDFA (and now the CFMMEU) is entitled to represent the industrial interests of an employee simply because in the course of employment, an employee drives the equipment set out in that part of the rule. The occupational basis of the rule means that eligibility is based on the primary or principal purpose of employment.

[178] The occupation which is the subject of the present case is forklift driver. Forklifts are designed to move goods and materials from one location to another. The occupation of forklift driver describes a person principally or primarily employed to drive a forklift. It is a narrow occupation notwithstanding the breadth of industries in which persons principally or primarily engaged to undertake this job are employed.

[179] Union rules are not construed by taking a narrow or static approach based on circumstances as they existed when the rule was established. This means that for the purposes of eligibility under union rules, changes to the equipment used to carry out an occupation will not necessarily result in a change to the principal purpose for which an employee in that occupation was employed. Accordingly, a person principally engaged as a forklift driver, will not cease to be within the eligibility rule of the CFMMEU if the forklift is replaced by a different lifting device, which for all intents and purposes is a forklift, and is used by that person to undertake the same tasks.

[180] Further, where the occupation of forklift driving - or driving other equipment covered by the first part of rule 2(E)(a) - extends into an industry in which it was not originally found, a person principally or primarily engaged as a driver of such equipment is within the eligibility rule of the CFMMEU, subject to the specific exclusions in the rule, on the basis that the rule is occupational.

[181] However, the principle that union rules are not construed in a narrow or static manner, does not extend the operation of an occupationally based rule which covers persons principally employed as drivers of specified equipment, to persons who drive such equipment for the purpose doing something else which they are principally or primarily employed to do. That principle does not require that union eligibility with respect persons principally employed in narrow occupational based roles, is extended to persons principally employed to undertake broader skill-based roles, simply because a task which was the principal task undertaken by a person in the narrower role, is now undertaken as one of a number of tasks, by a person in a broader role.

[182] An employee principally or primarily employed to undertake a broad range of warehousing tasks for the purpose of fulfilling customer orders - such as locating specified items in a warehouse, picking those specified items from a range of locations, combining them into an order, packing those items, transporting the items to a location, loading them on a particular vehicle, unloading incoming stock and replenishing stock to enable the work of fulfilling customer orders to be undertaken by others - is not principally engaged to operate a forklift. This is so, notwithstanding that the work is primarily undertaken using a forklift and cannot be done without the use of a forklift. In such circumstances, the forklift is simply the device the employee uses to move around the warehouse, pick up and put down items in specified combinations or locations, hold items that have been selected to make up an order while other items are selected, move those items to locations where they may be packaged or wrapped and load them onto transport.

[183] It may be the case that a warehousing operation is divided so that some employees are principally employed to pick and pack orders using a forklift as an aid, while other employees are principally engaged to drive a forklift to transport orders that have been picked and packed by others, or to load orders picked and packed by others or to unload vehicles and transport goods to a central area to be dealt with by warehouse employees. In these circumstances some of the persons driving forklifts may be found to be principally employed in this role.

[184] The approach to deciding what a person is principally or primarily employed to do, requires a holistic examination of the major, substantial or principal aspect of the work performed including what the person is employed to do, the tasks undertaken, the amount of time spent undertaking particular tasks, the circumstances of the employment and the manner in which work is organised by the employer.[169] While the time spent undertaking tasks is a relevant consideration, it is not determinative of an employee's primary or principal purpose, and the test does not involve the application of a mathematical formulation. The primary or principal purpose for which a person is employed must be determined by looking at what the person does in the context of the employer's organisation of work.

[185] Applying this approach in the present case, if Mr Lambert is found to be principally employed as a forklift driver within rule (2)(E) of the CFMMEU Rules, he will not be so employed simply because he spends a significant amount, or most of his working time, driving a forklift. The question is whether Mr Lambert is employed to drive a forklift or whether he is employed to do something else. If Mr Lambert is employed to do something else, he is not a forklift driver because he drives a forklift to do what he is employed to do. Further, the primary purpose for which Mr Lambert is employed must be determined by looking at what he does in the context of Dulux's organisation of work.

[218]

[186] In determining whether the primary or principal purpose of Mr Lambert's employment is as a forklift driver, it is relevant to consider the time he spends in a working day driving a forklift. Despite the submissions for Dulux citing numerous cases in support of the proposition that the time spent undertaking a particular task is not determinative of the principal purpose of employment, a considerable part of the case was focused on this question. It is convenient to deal with this matter first.

[187] In order to determine the time spent by Mr Lambert driving a forklift, it is first necessary to determine whether the LLOP is a forklift for the purposes of rule (2)(E) of the CFMMEU's rules. In my view the LLOP is a forklift for the purposes of that rule the following reasons. To accept the argument advanced by Dulux that the LLOP is not a forklift for this purpose, would be contrary to well established principles in relation to the construction of union rules.

[188] It is well established that union rules are to be construed in a liberal manner. The use of an expression in the context of the eligibility clause of a union's rules is intended to have a wide meaning and should be interpreted and applied in accordance with its ordinary and popular denotation rather than a narrow or formal construction.[170] The relevant part of rule (2)(E) is preceded by the phrase "without limiting the generality of the foregoing and without being limited by thereby the following are eligible to be members of the Union. The Rule goes on to include "An unlimited number of all classes" of enumerated drivers including forklift drivers. These are words of inclusion and breadth rather than confining classes of drivers by virtue of regulatory requirements such as licencing.

[189] The LLOP is described by its manufacturer Toyota as a forklift. The fact that it is modified so that the tines cannot be lifted above a certain height, does not alter the fact that the LLOP is a forklift. The only effect for the modification is that a driver of an LLOP does not require a forklift licence under current Queensland regulation. Further, the removal of the limiting block on the mechanism of the forklift would mean that a licence is required to operate the LLOP without any further change to the machine. Conversely, if current regulations were amended so that a licence was required to operate a LLOP in circumstances where the tines could be raised to 700 mm rather than 900 mm, the LLOPs by employees at Dulux would be forklifts for the purposes of the regulation without any change to their specifications.

[190] The fact that a licence is required to operate plant or equipment is a regulatory or technical matter and does not change the nature of the plant or equipment. To find otherwise would result in a situation where the rights of unions to represent employees could be arbitrarily impacted by changes to licencing or other regulation without any change to the nature of the work that relevant employees are principally engaged to undertake. Industrial usage and understanding of the term forklift includes a load shifting device, which is by design a forklift, notwithstanding that it has been modified with respect to the height that tines can be raised to.

[191] Similar circumstances were considered by Commissioner Martin of the West Australian Industrial Relations Commission in Hamersley Iron Pty Ltd and Others[171] (a case cited by Dulux in support of another aspect of its submission) who said in relation to coverage of employees driving vehicles with cranes mounted upon them:

[222]

[192] If the holding of a licence does not change the nature of a piece of equipment described in the rules of a Union, neither does the fact that a licence is not required. In addition to the observation of Commissioner Martin in relation to the weight to be placed on whether the use of a device is usual and regular, another relevant consideration is whether a device is being used by an employee for the same purpose as a device listed in a union's eligibility rule and is a device which meets the description of a device in the eligibility rule. This question is also to be answered by giving an expression in a union's eligibility rule a wide meaning and applying the expression in accordance with its ordinary and popular denotation, rather than with some narrow or formal construction. In short, my view is that the LLOP is being used as a forklift regardless of the height to which it can lift items. Accordingly, on this basis, the LLOP is a forklift for the purposes of the CFMMEU's eligibility rule.

[193] Finally, to find that the LLOP is not a forklift would also be inconsistent with the well-established principle that the meaning of terms used in eligibility rules is not static and that the search for meaning should not be confined to the point at which a term was introduced. When coverage of forklift drivers and mobile crane drivers was introduced into the eligibility rule of the FEDFA, the context (as evidenced by the 1947 Decision of the Industrial Registrar) was that those lifting devices were replacing traverser cranes as a means of moving items in industrial settings. The Registrar observed it was common to the mobile crane and forklift that "the unit generates its propelling power and power which it utilizes, for the purpose of raising, lowering and transporting goods" and that their use was an increasing feature of industry. The focus was to enable the FEDFA to represent the industrial interests of a group or class of employees driving such equipment and the issue of whether a licence was required was not determinative of the operation of the rule.

[194] The Decision of Commissioner Whelan (as she then was) in Textile, Clothing and Footwear Union of Australia and Bruck Textiles Pty Limited,[173] does not assist the argument advanced by Dulux about the LLOP requiring lower skill levels than those required to operate a forklift, based on licensing requirements. That case concerned a hand operated pallet truck being replaced with a LLOP in circumstances where neither piece of equipment required a licence. It is not unusual for an industrial instrument, to provide for employees operating load shifting devices which require a licence to be classified at a higher level than employees operating devices which do not require a licence. Such an issue is not relevant to the eligibility of the CFMMEU to cover such employees pursuant to rule (2)(E).

[195] Accordingly, the time spent by Mr Lambert operating the LLOP is a relevant consideration in the overall determination of whether he is principally engaged as a forklift driver within the meaning of the CFMMEU Eligibility Rule.

[196] I also accept that the proper measure of time spent by Mr Lambert on operating forklifts (including the LLOP) is "key to key". The evidence establishes that this measure reflects the time that Mr Lambert logs on to a machine until the time he logs off and that if he does not operate the machine after a period of five minutes, he will automatically be logged off. While Mr Lambert is logged on to a forklift, he is responsible for its operation, regardless of whether he is physically driving it at the relevant time. While logged on to the forklift, and at times where he is off the forklift performing other duties, Mr Lambert is responsible for parking it in a position where it does not create a hazard. Indeed, it is arguable that if Mr Lambert is logged off the forklift automatically because he is undertaking picking or other tasks, he remains responsible for the forklift unless and until another operator logs on to it and assumes control. In my view, the contention that a person who is principally engaged to perform the work of a forklift driver, is only so engaged while actually driving the forklift, is contrary to the realities of workplaces in which forklifts are operated.

[197] A person who is principally engaged to drive a forklift does not cease to be responsible for the forklift or to be in control of the forklift, during periods where the forklift is parked while items are loaded or unloaded. The decision of Commissioner Hartigan in Enco[174] is not authority for the proposition that a driver of a piece of equipment for the purposes of coming within rule (2)(E) of the CFMMEU's rules is only "driving" while the equipment is in motion. In that case, Commissioner Hartigan was considering whether the CFMMEU was entitled to represent certain employees in relation to right of entry concerning a workplace health and safety matter. One of the arguments advanced against the CFMMEU was that employees in the workplace in question were "operating" gantry cranes rather than "driving" them in circumstances where they were using a remote control to perform lifting as well as to execute the travel of the crane along tracks. It was therefore contended that employees "operating" gantry cranes were not crane drivers within rule (2)(E) of the CFMMEU's eligibility rule

[198] The Commissioner's conclusion that the operator is in control of the crane when "inter alia" it is moving along the tracks, is not a finding that the only time an employee is driving the equipment is when it is moving. Neither is that conclusion determinative of whether an employee is principally employed as a driver of a piece of equipment. Arguably, Commissioner Hartigan's decision reinforces that control of a piece of equipment is synonymous with driving it. In the present case, an employee who is logged in to a forklift, is in control of the forklift notwithstanding that some of the tasks being performed by employee are carried out from a position where the employee is not seated or on the forklift at the relevant time.

[199] Accordingly, I accept the calculations advanced by the CFMMEU to the effect that Mr Lambert is in control of a forklift for 95.4% of his working time. I also note that if my conclusion in relation to the LLOP is wrong, that Mr Lambert is in control of a forklift for 66.3% of his total working time. It follows that for the major and substantial portion of his working day, Mr Lambert is driving a forklift. This is a relevant consideration in determining whether Mr Lambert is employed as a forklift driver. As previously noted, this weighs in favour of a finding that Mr Lambert is principally employed as a forklift driver but is not determinative.

[223]

[200] The manner in which industrial instruments which prescribe classifications and terms and conditions of employment for employees is relevant to determining the principal or primary purpose for which they are employed. The 2016 Agreement applies to employees employed in or in connection with inter alia handling or storage of materials or products used in connection with decorative or technical surface coatings or coverings and associated products and covered by the classifications in the Agreement.

[201] The classification structure in the 2016 Agreement is broad and skills-based and includes skills relevant to both Production and Warehouse Operators. Employees progress through the structure based on the demonstration of competency at each level. The Trainee to Grade 1.6 level includes order picking, loading trucks, unloading trucks and FS/RM replenishment. The "skill" of forklift driving is included at all levels of the classification structure and there is no specific level or classification of forklift driver. Mr Lambert is classified at level 1.6 of the classification structure.

[202] The classification structure in the Agreement is consistent with the classification structure in the Manufacturing and Associated Industries and Occupations Award 2020 (the Manufacturing Award), which covers employees of Dulux and would apply to them but for the operation of the 2016 Agreement. The Manufacturing Award does not contain a specific classification for a forklift driver but rather includes this work as an indicative task in various classification levels.

[203] The 2016 Agreement and the Manufacturing Award which would otherwise apply, do not provide for a classification of forklift driver but rather incorporate this skill at multiple classification levels. This indicates that Dulux has organised its operations so that employees are not employed in narrow task-based roles, but rather are employed in broad skills-based roles and can be deployed flexibly throughout its operations. In the context of the warehouse where Mr Lambert is employed, the 2016 Agreement reflects Mr Holden's evidence that Warehouse Operators are employed to fulfil customer orders and to co-ordinate their delivery and return. The classification structure in the 2016 Agreement also indicates that in his employment as a warehouse Operator, Mr Lambert is not principally employed as a forklift driver.

[227]

[209] In examining the primary or principal purpose of work performed by an employee the question is one of fact to be determined by reference to the duties actually attaching to the position, rather than its title.[175] By extension, a position description or a classification definition in an enterprise agreement will not be determinative of this question in circumstances where the actual duties performed by an employee are not accurately described in those documents.

[210] The CFMMEU submits that Dulux is overstating the complexity of Mr Lambert's role and that essentially, he is operating a forklift to move paint around a warehouse in accordance with instructions provided by the RF gun. Mr Lambert's evidence was focused on the time he spent driving forklifts rather than other tasks he undertook while driving or in connection with driving forklifts. Mr Lambert was not pressed during cross-examination about what tasks he performed while driving forklifts or in connection with driving forklifts. Mr Lambert maintained that all tasks require the use of a forklift or LLOP and that the tasks that he undertakes using this equipment are secondary to the to the primary duty of warehouse operators which is to operate a forklift.

[211] Generally, the evidence of Mr Holden about Mr Lambert's duties was somewhat deficient. Other than listing the various tasks Mr Lambert undertakes, there was little in the way of detail about training and the amount of time that is required for a Warehouse Operator to be competent in the various systems and processes that Dulux operates with respect to materials handling. As previously noted, despite citing numerous cases in support of the proposition that the time spent driving a forklift was not determinative, a significant amount of Mr Holden's evidence was devoted to this matter and as the case developed that evidence had little probative value. It would have assisted the case conducted by Dulux if more detailed evidence had been given about what other tasks Mr Lambert was undertaking while he was logged or keyed into a forklift or LLOP. I also note Mr Holden's concession under cross-examination that primarily Mr Lambert does move paint using a forklift.

[212] Notwithstanding the deficiencies in Mr Holden's evidence and Mr Lambert's insistence that the use of the forklift is secondary to other tasks he undertakes, I am satisfied on the basis of the evidence of both Mr Lambert and Mr Holden, that the actual duties performed by Mr Lambert do not bring him within rule (2)(E) of the CFMMEU rules and that Mr Lambert is not principally or primarily employed as a forklift driver.

[213] The evidence establishes that Warehouse Operators operate flexibly to undertake a range of tasks involving the receiving and dispatch of products. Regardless of how the tasks are allocated, I am satisfied that during his normal work Mr Lambert is required at some point to perform all tasks associated with the duties of Warehouse Operators, including at least some of the tasks classed as "office". Even if Mr Lambert's evidence that picking tasks are usually allocated to labour hire employees is accepted, Mr Lambert acknowledged that Warehouse Operators may be required to perform any of the tasks described in his evidence and that he does so as required, notwithstanding that he spends more time undertaking some tasks than others. Further, Mr Lambert performs what he accepts is picking one day each week. I am also satisfied that despite the fact that Mr Lambert spends a significant majority of time each day driving forklifts, this is incidental to his work as a Warehouse Operator.

[214] None of the tasks undertaken by Mr Lambert can properly be described as simply using a forklift to move paint. Regardless of whether he is guided by an RF gun or some other device or system for managing materials, Mr Lambert is required to drive the forklift to various specified areas in the warehouse as directed by the instructions he obtains by using the RF gun to place paint and other products in specified locations, or to move paint and other products from specified locations, which change depending on the task being undertaken. None of the tasks described by Mr Lambert involve him being principally or primarily engaged as a forklift driver to move paint or other products to a location so that Warehouse Operators can then store those items. Rather, the movement and the storage or despatch of the items are integrated.

[215] Mr Lambert classifies the task of "picking" as work undertaken using the LLOP when stock is picked off shelves in the warehouse and placed on a pallet or where an entire pallet is picked. Mr Lambert and other Warehouse Operators designate this work as picking because the term LLOP (which is the materials handling equipment used to undertake this task) is an abbreviation for Low Level Order Picker. Mr Lambert asserts that this work is generally assigned to labour hire employees rather than Dulux employees. Work which Mr Lambert categorises as "out the front work", "interstate work" and "export work" is categorised by Mr Holden as "picking".

[216] The terms used by Mr Lambert and Mr Holden to describe these tasks are consistent with their respective views about whether the tasks performed by Warehouse Operators generally, and Mr Lambert in particular, result in the principal or primary purpose of the employment of Warehouse Operators being to drive a forklift or whether the primary purpose of that job is to fulfil customer orders for paint and other products manufactured by Dulux at Rocklea and its other manufacturing facilities. In my view, regardless of whether the range of tasks performed by Mr Lambert are described as "picking" or by some other term, and regardless of the fact that different types of forklift are used to undertake those tasks, the tasks involve more than forklift driving and Mr Lambert's employment to undertake those tasks does not result in him being principally or primarily employed as a forklift driver.

[217] On Mr Lambert's evidence, the work that he describes as "out the front work" entails multiple tasks associated with unloading a significant amount of freight from trucks and moving it to areas in the workplace designated for inbound freight. This is done by using Truck forklifts. Mr Holden termed this work "loading" and said that the Warehouse Operators undertaking this work are required to check that the paperwork matches the delivery. This evidence was not disputed by Mr Lambert. In my view, even if only one operator performing this work uses the RF gun it does not follow that operators who are not using the RF gun are principally employed as forklift drivers when the role of Warehouse Operators and all the tasks performed by them is considered holistically.

[218] The warehouse Operators move the product that has been unloaded to the put away area and book a location in the warehouse for the product. Mr Lambert said that this work which is also called "putaway" involves moving goods to an appropriate location within the warehouse and placing the goods on pallet racks. Mr Holden confirmed that the location for this stock is nominated by the RF gun. Mr Lambert also gave evidence about tasks associated with "putaway" which requires the use of the RF gun to scan barcodes to identify where stock is to be stored in the warehouse and initiating a stock inquiry with inventory control if the designated space is already occupied. While the pallet holding the relevant stock is transported on a forklift or LLOP, these tasks do not principally or primarily involve forklift driving despite the fact that they cannot be undertaken without the use of a forklift.

[219] The interstate work described by Mr Lambert involves him undertaking a significant number of tasks necessary to locate stock in the warehouse to fill orders, move that stock to a staging location, wrap and label the stock and recording his actions in the Company's materials handling system. While it is necessary to drive a forklift in order to undertake the work, and the work could not be undertaken without the forklift, the forklift is incidental to the work and is simply a device by which the work is carried out. Similarly, on Mr Lambert's evidence, the forklift is incidental to replenishment work and is simply the device used to carry out the work. Replenishment work is focused on replenishing stock either from a queue on the RF gun or at the request of order pickers. The task does not principally involve forklift driving. It is also the case that without the direction provided by the RF gun in relation to locating various items in a very large warehouse, there would be no purpose to driving the forklift

[220] When all of the tasks Warehouse Operators are required to undertake are considered holistically and in the context of the warehouse environment in which they are undertaken, Mr Lambert's assertion that these tasks are secondary to the operation of the forklift, cannot be sustained. I do not accept that Dulux has overstated the skills involved in the work of Warehouse Operators. Mr Lambert's evidence clearly establishes that Warehouse Operators have skills that are additional to forklift driving and that they are required to use those skills to undertake the Warehouse Operator role.

[221] The reality is that Mr Lambert is principally employed to undertake the role of a Warehouse Operator, and in that role, one of the tasks he is required to undertake is forklift driving. The time spent by Mr Lambert driving forklifts is a matter to which I have had regard in determining the principal or primary purpose of Mr Lambert's employment. In all of the circumstances the fact that he spends a significant amount of time operating forklifts, does not result in Mr Lambert being principally or primarily employed as a forklift driver.

[222] I do not accept that the facts in the present case are analogous with those CFMMEU v Rapid Metals Developments (Australia) Pty Ltd or that the outcome in both cases should be the same_._ That case involved employees who were moving large plant and equipment in the employer's yard for the purpose of locating it in various positions. It appears that the plant and equipment in question had been hired to other companies. There was very little evidence of the relevant employees undertaking other work and they were generally referred to by the employer as forklift drivers. There was no enterprise agreement classifying the employees on any other basis.

Application by Construction, Forestry, Maritime, Mining and Energy Union [2021] FWC 3786 (2 July 2021)

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Judgment (274 paragraphs)

Application by Construction, Forestry, Maritime, Mining and Energy Union [2021] FWC 3786 (2 July 2021)

Legislation Cited (3)

Cases Cited (5)