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austlii:cth/FWCA/2026/447
General information, not legal advice.
FWCA
2026-02-20
Original judgment source is linked above.
[2026] FWCA 447 [Note: An appeal pursuant to s.604 (C2026/3597) was lodged against this decision.]
s.185 - Enterprise agreement
CEMENT AUSTRALIA CLYDE TERMINAL OPERATORS ENTERPRISE AGREEMENT 2025
Application for approval of the Cement Australia Clyde Terminal Operators Enterprise Agreement 2025.
[1] Cement Australia Pty Limited (Cement Australia / the employer) has applied under section 185 of the Fair Work Act 2009 (the Act) for approval of an enterprise agreement known as the Cement Australia Clyde Terminal Operators Enterprise Agreement 2025 (the Agreement). The Agreement is a single enterprise agreement.
[2] The Form F16 application lodged by the employer identifies the Construction, Forestry and Maritime Employees Union (CFMEU) as a bargaining representative for employees. The CFMEU filed a Form F18 declaration stating that it supported the approval of Agreement and that the Agreement passed the 'better off overall test' or 'BOOT'. That declaration also stated that the CFMEU wished to be covered by the Agreement.
[3] Shortly after the Agreement was lodged with the Commission for approval, the Australian Workers' Union (AWU) sought copies of various documents lodged with the application. Those documents were provided and the AWU subsequently filed a written submission seeking to be heard under section 590 of the Act. I was satisfied, having regard to that submission, the AWU ought to be given permission to be heard in the form of written material, which the AWU did so by written submissions. The AWU objected to the approval of the Agreement. The gravamen of its objection was twofold:
First, the AWU says that the CFMEU has no constitutional coverage under its rules to be a bargaining representative and therefore cannot be covered by the Agreement; and
Second, following from the first issue, it says that the Agreement cannot have been 'genuinely agreed' to by the employees who voted for its approval under section 188(2) of the Act.
[4] The CFMEU was given the opportunity to reply to those submissions, which it did. That response included written submissions and a witness statement from Robert Gorcan. Mr Gorcan is a Terminal Operator with the employer, and is one of the four employees who voted to approve the Agreement.
[5] The AWU, by reply email, took issue with the CFMEU's submissions and evidence. While the AWU purports to challenge the factual material led by the CFMEU, it does not say what is factually incorrect or what the correct facts are. In those circumstances, I was not persuaded it was necessary or appropriate to further exercise power under section 590 of the Act to hear from the AWU further. In that respect, I broadly accept the witness statement of Mr Gorcan. The employer filed no material in response to the AWU's specific assertions (although I note two brief statements were filed on a tangential issue), presumably on the basis that any disputation as to the CFMEU's rules was a matter best for the CFMEU to address.
[6] The employer's business includes a bulk materials rail terminal at Clyde, NSW. At that location, Cement Australia receives bulk dry cement by rail, stores cement and other products, packages cement, and distributes dry cement to customers, including concrete batching plants.
[7] The Agreement is expressed to cover employees engaged in the Clyde Terminal who undertake terminal operations including rail unloading, product blending and other associated terminal operational duties. There are currently four such employees.
[8] The Agreement is a 'roll over' enterprise agreement, in that there was a predecessor enterprise agreement applying to the relevant employees and the employer. At least since 2014, there has been an enterprise agreement with Cement Australia covering its terminal operators at the Clyde Terminal and for whom the CFMEU was noted as a bargaining representative.[1]
[9] Mr Gorcan has been employed for approximately 10 - 11 years with Cement Australia at the Clyde Terminal and, I infer, the cement operations at the Clyde Terminal site have been in place for much longer. When Mr Gorcan first started with Cement Australia, his duties involved general labouring. He was progressively familiarised with the terminal system and moved to full operational responsibility as a Terminal Operator. Mr Gorcan's observation is that it takes at least two years to obtain a competent understanding of the terminal systems and new starters are not permitted to operate or interact with critical components.
[10] Mr Gorcan says that, as a Terminal Operator, he is responsible for operating a machine that consists of an interlinked weight feeder system and cement pump to transfer dry cement from storage silos to other locations at the Clyde site. The storage silos can hold approximately 10,000 tonnes of material. Following the receipt of bulk dry cement by rail into the silos, the system operates as follows:
Dry cement moves from the silos into the weight feeder system;
The cement is weighed in the weight feeder system and, occasionally, blended with another product; and
After weighing, the cement enters a cement pump, which delivers the cement to the product packaging plant.
[11] The above process is initiated through a controller system, described by Mr Gorcan as a Programmable Logic Controller system or 'PLC' system. Mr Gorcan says the system is largely automated. On a day-to-day basis, a Terminal Operator's duties are focussed on operating the weight feeder and cement pump, including operating various exhaust fans and different types of pneumatic equipment to operate certain gates. A core part of his duties also involves monitoring the weight feeder system and cement pump to ensure they are operating correctly. The role includes ongoing visual and physical inspection of components of the integrated machine. This includes manual operation of components such as knife gates and air slides. Additionally, the role includes addressing blockages, cleaning, greasing and maintaining flow paths of the cement pump, which are variously performed on a daily basis. Terminal Operators can perform minor repairs. They are also trained to, and do, perform isolations to stop product flow when necessary in accordance with site policies and procedures for safety. More complex issues would be escalated to a group engineer.
[12] The operation of the PLC system, weight feeder system and cement pump occupies the majority of a Terminal Operator's day. Other duties include unloading cement products from the train, the coordination of truck loading operations, management of product transfers, paperwork, order processing and coordination with tradespeople who might be called in to attend to faults in the terminal. Train unloading itself involves pumping activity, as the rail wagons are connected to an air hose to enable the unloading of the product under air pressure from the trains to the silos.
[13] The tasks described by Mr Gorcan are applicable to the other three Terminal Operators. Their work spans a period beginning at midnight, when the first shift commences for two of the operators. A third operator begins at 3am and the fourth at 9am. The timing is designed to ensure that downstream concrete plants are supplied with a continuous supply of dry cement during their working periods.
[14] A position description was in evidence. That document described the relevant employees' position as a Terminal Operator. Under the 'General Role Details', the 'Reason For Role' is to "Operate and maintain terminal operations to receive, store and dispatch products to CA customers within a safe operating environment, whilst adhering to SHEQ and Legislative requirements."
[15] Broadly consistent with Mr Gorcan's evidence, the position description states that the Terminal Operator is required to work with a range of other staff. The 'Key Tasks' listed in the position description are as follows:
"• Ensure availability of storage, loading & unloading facilities for products through the terminal & achieve zero at fault stock outs
[16] The enterprise agreement refers to the employees covered by it as those employees "engaged in the Clyde Terminal who undertakes terminal operations including rail unloading, product blending and other associated terminal operational duties". There is no further enumeration of tasks or elaboration of duties in the Agreement.
[17] I am satisfied as a factual matter that more than one of the relevant employees is a member of the CFMEU. The employer gave evidence that its understanding was the employees were long-term members of the CFMEU.
Are the employees eligible to be members of the CFMEU?
[18] The CFMEU states that the relevant employees are "pump attendants" within the meaning of clause 2(E) of its rules. Rule 2(E) states (emphasis added):
"Without limiting the generality of the foregoing and without being limited thereby the following are eligible to be members of the Union:-
(a) An unlimited number of all classes of engine drivers, firemen, crane drivers, mobile crane drivers, forklift drivers, tow motor drivers, excavator drivers, pump attendants, pile drivers, motor drivers or attendants, greasers, cleaners, trimmers and any other workers assisting in and about the work incidental to any engine, boiler or machinery connected with the production or utilisation of power on land or any harbour or river, and boiler attendants attending boilers not generating steam for power purposes and such persons as have been elected or appointed as paid officers of the Union or a branch of the Union or whilst financial members of the Union are elected as representatives of any working-class organisation to which the Union or a branch thereof is affiliated, or as a working-class member of Parliament.
Provided that mobile crane drivers, operators of fork lifts and/or tow motors engaged on the waterfront upon such work being that of a waterside worker or engaged in the transport of goods by road, or motor truck drivers wherever employed, shall not be eligible for membership."
[19] Rule 2(E) is also sometimes referred to as the 'FEDFA rule', on account of its genesis being with a rule of the Federated Engine Drivers' and Firemen's Association of Australasia. In 1992, the FEDFA rule became part of the CFMEU rules as a result of an amalgamation.
[20] The FEDFA rule was considered by the High Court in Re Coldham & ors; Ex parte The Australian Workers' Union [1984] HCA 62; (1984) 59 ALJR 95; (1984) 56 ALR 149 (Re Coldham). The court stated that the eligible membership of the FEDFA rule consists of three groups:
"(1) all classes of enumerated drivers, firemen and pump attendants;
(2) attendants, greasers, cleaners, trimmers, and any other workers who answer the general description contained in the second part of the clause; and
(3) boiler attendants who answer the description contained in the third part of the clause."
[21] The CFMEU submits that the Terminal Operators employed with the employer are responsible for operating machinery that is a "weight feeder system with a cement pump" to transfer dry cement from silos located at the terminal to other areas of the site. It says Terminal Operators employed with the employer therefore perform the role of pump attendants within the meaning of rule 2(E)(a).
[22] The CFMEU further says that:
the operation of a weight feeder system and cement pump by the Terminal Operators is the major and substantial part of their employment which places them within the eligibility of rule 2(E)(a).
The primary function of the employment of Terminal Operators is to operate, monitor and supervise the interlinked weight feeder system with cement pump to ensure the transfer of dry cement from the terminal to downstream operations.
The performance of a minority of other tasks that may fall outside of this rule, does not disentitle them to membership.
[23] The CFMEU submits, correctly in my view, that there is a long line of authorities to the effect that union eligibility rules should be read broadly. I adopt as a correct statement of the law the following principles stated by the Full Court of the Federal Court of Australia in Construction, Forestry, Maritime, Mining and Energy Union v DuluxGroup (Australia) Pty Ltd and anor (2022) 293 FCR 1; [2022] FCAFC 101 (DuluxGroup) at [27], namely (citations omitted):
such rules are to be construed objectively, not narrowly nor technically, but rather liberally;
the identity of the industry in respect of which the organisation is registered is not definitive of eligibility where the eligibility clause travels beyond the bounds of the industry in respect of which the organisation is registered, but where there is some ambiguity in the eligibility rule, recourse may be had to the industry rule to resolve the ambiguity; and
in determining whether an employee is engaged in a particular calling or occupation, the relevant task involves a qualitative assessment of the primary purpose of the position. Put another way, the proper approach requires an assessment of the principal purpose or primary function for which the employee was employed.
[24] I am satisfied that the concrete pumps operated by the employer at the terminal are "pumps" within the meaning of the FEDFA rule where that word appears in the occupational classification "pump attendant". The issue is whether the Terminal Operators are "pump attendants", by reference to their principal purpose or primary function.
[25] In Re Coldham, the court noted that of the "classes of enumerated drivers, firemen and pump attendants" in the first limb of the FEDFA rule, all the employees described in this group, with the "possible exception" of pump attendants have some degree of special skill. I do not understand the court's observations were intended to exclude skilled operators from the ambit of that rule as it applies to pump attendants.
[26] Nonetheless, the degree and breadth of skill that an employee has might bear upon the question of whether that employee is, properly considered, performing the role of a pump attendant as his or her principal purpose. In the case before me, the Terminal Operators are highly skilled and experienced. The skills and experience required for the role are not simply directed at the pump, but to operations more broadly. The position description requires a minimum of 3 years experience in "process or plant manufacturing". Experience within bulk transport loading and unloading is "desirable". Desirable (not essential) qualifications include Mechanical trades, Forklift Licence, Working at Heights, and a Certificate 2 in Manufacturing and Minerals Products. I do not consider that the depth and nature of the qualifications and experience required or desirable is supportive of an overall conclusion that the principal purpose of the role is pump attendant, although it is not decisive.
[27] The concrete pump is clearly a critical element of the terminal operations where the relevant employees work. With that said, there are a number of other elements that are equally critical that do not involve, on any sensible view, activities that could be described as the work of a pump attendant. Those activities include (other than on the concrete pump itself) minor plant and equipment maintenance, rail unloading operations, minimisation of product contamination, silo operations, stock monitoring, compliance with safety procedures, site safety plans, and weighing operations. The silo operations and weighing operations appear to be at least as critical to the integrated process as the concrete pump.
[28] The DuluxGroup case is informative. In that matter, Dulux operated a large paint manufacturing facility and a warehouse near Brisbane, which included a distribution facility. Within the distribution facility, Warehouse Operators fulfilled customer orders for product produced by Dulux at its manufacturing facility at the site and from its other sites. The CFMMEU (as the CFMEU now is) sought to represent a Warehouse Operator during bargaining. As in the case before me, the Warehouse Operator must have been eligible for membership of the CFMMEU. The CFMMEU relied on the "forklift drivers" occupation in the FEDFA rule. The facts in the matter included the time spent by the employee in control of a forklift was at least 60 percent (and as high as 90 percent, depending upon whether a different piece of carrying equipment was treated as a forklift).[2]
[29] Notwithstanding the extensive time spent by the Warehouse Operators in control of a forklift, the member of the Commission at first instance,[3] a Full Bench of the Commission on appeal,[4] and the Full Court in DuluxGroup each concluded that the principal purpose of the employee's role was not a forklift driver. As the Full Court summarised, notwithstanding that the employee operated a forklift to undertake those work activities for a substantial amount of work time, this did not mean he was a forklift driver as that term was used in the rule.[5] Rather, the Full Court concluded that the employee's purpose (and his role within Dulux) was to work as a Warehouse Operator, including "picking", using the RF Gun, and using the LLOP and manual handling techniques. According to the court, the purpose of the employee's role was "the performance of all tasks in connexion with the receiving, storing, picking and despatching of goods in the Dulux business (and, if required, to work flexibly in the paint manufacturing facility). The driving or other use of forklifts is best seen as a function directed to the end of fulfilling the purpose of Mr Lambert's job, which is to carry out his assigned tasks necessary for the operation of the warehouse." [6]
[30] While DuluxGroup dealt with coverage of a putative forklift driver, and not a pump attendant, the parallels between that matter and the Cement Australia application lead me to a similar conclusion that the Terminal Operators represented by the CFMEU are not pump attendants. In the matter before me, the employees job description is Terminal Operator and that is an accurate representation of the principal purpose of their role. The role involves the operation of an integrated operation from bulk rail, silo, weighing, pumping, and distribution. The role involves a significant degree of skill and training across the operations as a whole, and includes coordination of truck loading operations, management of product transfers, paperwork, order processing and coordination with tradespeople who might be called in to attend to faults in the terminal. The description of the classification in the enterprise agreement accurately reflects employees engaged in the Clyde Terminal who undertake terminal operations including rail unloading, product blending and other associated terminal operational duties.
[31] To conclude that the principal purpose of the Terminal Operators is "pump attendant" does not reflect the reality of the integrated operations, any more than it would be to describe that purpose as a "silo attendant" or "weighing attendant", each of which are critical elements to the terminal operations.
[32] In the circumstances, I consider it unnecessary to resort to the industry rule to resolve ambiguity. It follows that the CFMEU is not entitled to represent the industrial interests of the Terminal Operators at the Clyde Terminal.
[33] The AWU asserts that "by virtue" of the CFMEU being ineligible to be a bargaining representative, the Commission cannot be satisfied that the employees "genuinely agreed to the 2025 EA under s.188 (2) of the Act."
[34] Section 188(1) of the Act provides that the Commission must take into account the statement of principles made under section 188B in determining whether it is satisfied that the Agreement was genuinely agreed to by the four employees covered by the Agreement.
[35] Section 188(2) - the provision relied upon by the AWU - states that the Commission "cannot" be satisfied there is genuine agreement unless satisfied that the employees who voted for the Agreement have a sufficient interest in the terms of the Agreement and are sufficiently representative having regard to the employees the Agreement is expressed to cover. The Agreement is only expressed to cover Terminal Operators and they are the only employees who voted upon it. I am satisfied that the four employees who voted have a direct interest in the Agreement and there is no basis for me to conclude that section 188(2) is engaged.
[36] The AWU's submission appears to cast a wider net, however. It also states in its written submissions:
"11. Relevant to the commission's assessment of whether there has been genuine agreement is whether the employees who voted for the agreement had an informed and genuine understanding of what they are approving.
12. As both the employer and the CFMEU incorrectly represented to employees that the CFMEU was a bargaining representative, it cannot be held that the employees had an informed understanding of the agreement.
13. The CFMEU was not equipped to adequately and appropriately act as a bargaining representative on behalf of covered employees. It is noted in response to at least two questions in the Form F17B that the "union organiser" was provided with an opportunity to attend bargaining meetings and discuss wage offers with affected employees." (original emphasis, citations omitted)
[37] Having regard to the material contained in the application and filed in relation to it, I am satisfied that each of the requirements of sections186, 187, 188, 193 and 193A as are relevant to this application for approval have been met. The Agreement does not cover all of the employees of the employer. However, taking into account the factors in sections 186(3) and (3A), I am satisfied that the group of employees was fairly chosen.
[38] Notwithstanding the erroneous presence of the CFMEU, the material accompanying the employer's Form F17B declaration amply demonstrates that the employees had an informed understanding of what they were being asked to vote upon. I also note that the Agreement is a 'roll over' and the employees would have at least 1 or 2 years' experience in the role. In Mr Gorcan's case, he had over 10 years' experience. I take further comfort in that conclusion from the fact of the employee's genuinely informed understanding of the Agreement that Mr Gorcan prepared a witness statement in support of its approval. My chambers has also received correspondence from another Terminal Operator covered by the Agreement who has asked (with some evident frustration) why the Agreement had yet to be approved.
[39] The mere fact that the CFMEU was involved in negotiations in circumstances where, as I have concluded, it had no industrial coverage to do so does not of itself invalidate or infect the employees' genuine agreement. I acknowledge different conclusions might be arrived at in different circumstances, but this is not that case. I also note that the Agreement itself does not provide for significant involvement of the CFMEU. The delegates' rights clause adopts the relevant clause from the Modern Award by incorporation. Clause 16(a) provides for delegate training leave by reference to employees who are nominated by the CFMEU for that purpose. The fact that the CFMEU is not covered by the Agreement does cause some uncertainty as to the practical scope or operation of that clause, but that is not a matter I need resolve. It is sufficient to note that the operation of clause 16(a) is not a matter that, on any fair assessment of the material before me, impacts on the employees' genuine agreement.
[40] The Agreement was approved on 20 February 2026 and, in accordance with s.54 of the Act, will operate from 27 February 2026. The nominal expiry date of the Agreement is 30 June 2028. For the reasons given above, the CFMEU is not noted as a bargaining representative covered by the Agreement for the purposes of section 201(2) of the Act.
[2] DuluxGroup at [20] (which further describes the factual background in that matter).
[3] Application by Construction, Forestry, Maritime, Mining and Energy Union [2021] FWC 3786.
[4] Construction, Forestry, Maritime, Mining and Energy Union v DuluxGroup (Aust) Pty Ltd (2021) 312 IR 217; [2021] FWCFB 6020
[6] DuluxGroup at [44] (original emphasis).
Printed by authority of the Commonwealth Government Printer
(1984) 59 ALJR 95
(1984) 56 ALR 149
(2022) 293 FCR 1
(2021) 312 IR 217