[95] Had it been the case that the Applicant or its parent company owned the railways and the railway leases, it would have been simpler for the CFMMEU and Mr Smyth to make their case on the basis of what was held in Hickman by analogy. As this is not the case, I am therefore left in a position where I must consider the situation before us as a question of fact. I do place some weight, however, in the distinction between Hickman and the present case as advanced by the CFMMEU and Mr Smyth, on the basis that the BMA Rail business unit is not a general rail business as was the case in Hickman.[51] Whilst it may service other mines, on the evidence before the Commission, it is presently only capable of transporting coal.

[96] The High Court's decision in R v Central Reference Board; Ex parte Theiss (Repairs) Pty Ltd[52] is also one which the parties invited the Commission to consider. This case is relevant insofar as it relates to a reasonably similar corporate structure to the present circumstances - but also noticeably distinct, as I will come to later.

[97] Thiess Brothers Pty Ltd operated a coal mine where it used earthmoving machinery. This machinery was repaired by employees of Thiess Brothers Pty Ltd if the repair work was minor. If major work was required to be done on the machinery it was conducted by a related company, Theiss Repairs Pty Ltd. The question asked was whether Theiss Repairs Pty Ltd was in connection with the coal mining industry so as to enliven the jurisdiction of the (coal) Central Reference Board to make an order for reinstatement in an unfair dismissal matter.

[98] In the judgment, Latham CJ said the following:

"The fact that the operations of one enterprise are carried on in proximity to another enterprise cannot in itself show that the enterprises are part of the same industry. The two companies, Thiess Bros. and Thiess Repairs. are separate juristic persons. But it needs no argument to show that nevertheless they may both be engaged in the same industry. On the other hand, a single employer may conduct two or more separate enterprises in two or more distinct industries," per R. v. Drake-Brockman; Ex parte National Oil Pty Ltd.[53]

[99] This reasoning is advanced in similar terms in this application by the Applicant with respect to the business unit BMA Rail and its relationship to CQS.[54]

[100] Latham CJ continued:

"The two Thiess companies have four directors and a manager in common, but this fact has no relevance to the question here to be determined, the answer to which depends upon the character of the industry carried on by the Repairs company and its place in the general industrial set-up. Is it in substance an engineering enterprise or a coal-mining enterprise? The answer to this question does not depend upon whether the two companies are regarded as separate persons or as only one person. The two companies are, it is true, "closely associated" in general control, management, and a common dependence upon the continuance of work at the open cut. But the fact that enterprise A is "closely associated" with enterprise B does not in itself establish either that enterprise A is engaged in the same industry as B or that enterprise B is engaged in the same industry as A.

Many industries supply goods to or provide services for other industries. A motor garage may be almost exclusively engaged in repairing trucks for a transport company, and it may do such work under a contract under which it is entitled to obtain and bound to do all the transport company's work. But it would not follow that the motor garage was in the transport industry. Similarly, an engineering workshop which does all the repairs for a coal mine and a gold mine and a shipping company would not, according to the ordinary use of language, be said to be engaged in the coal-mining industry, the gold-mining industry and the shipping industry. There would be as much reason for saying that it was engaged in any one of them as for saying that it was engaged in any other of them. There are obvious difficulties in saying that it is at one and the same time in each of these industries and in the engineering industry as well. Thus the fact that an enterprise provides a service for a particular industry cannot be held to identify that enterprise with that industry so as to make it a part of the industry.

In my opinion the question to be asked is - What is the substantial character of the industrial enterprise in which the employer and employee are concerned? In the present case the employer is Thiess (Repairs) Pty. Ltd. That employer is not engaged in coal-mining, but is an engineering company carrying on general work. It is not under the control of the mine owner, or even of the contracting party (Thiess Bros. Pty. Ltd.), which actually conducts the mining operations. But the more important fact is that its operations are separate from and different in kind from the operations carried on at the open cut. It supplies certain needs of the coal-mining industry in the same way as do many other industrial enterprises. But these facts do not show that all such suppliers of goods or services to that industry are themselves engaged in that industry. In my opinion the evidence in this case shows that Thiess (Repairs) Pty. Ltd. did not employ Belmar in the coal-mining industry. As already stated, the Central Reference Board can make an order only in relation to certain matters in or in connection with that industry, and therefore the Board had no jurisdiction to make the order for the reinstatement of Belmar.[55]

[101] His Honour established in this judgment what in later cases became known in Australian industrial jurisprudence as the 'substantial character test'. This test will be canvassed in more depth later where I consider the modern construction of the eligibility rules.

[102] At this point, however, it is appropriate to outline my concerns with the submissions of the Applicant and the RTBU with reference to Theiss Repairs.

[103] The issue for the Applicant is, in my view, how it has structured itself as a corporate entity. Had the 'business unit' BMA Rail been the Applicant in its own right - that is had its own corporate entity as opposed to being a part of CQS - it would have been much easier for the Applicant to rely on Theiss as supporting its submission. The substantial character of the BMA Rail 'discrete business unit' could have been considered transport work, as the substantial character of Theiss (Repairs) Pty Ltd was considered to be engineering work. However, the Applicant and the employer in this proceeding is CQS. There is no distinction as there was in Theiss. If the application of the 'substantial character test' must be on the Applicant as a whole entity, then this is a difficulty for the Applicant to overcome.

[104] The conclusion reached by His Honour in Theiss (in applying the substantial character test) was arrived at because the employer (Theiss (Repairs) Pty Ltd) was not engaged in the coal mining industry. It cannot be said in this case that CQS as an industrial enterprise is not engaged in the coal mining industry, or at least the coal industry. In fact, the major business activity of the Applicant is in the coal industry. It employs hundreds of employees in this business activity. The BMA Rail 'discrete business unit' employs just over 50 employees. It is difficult therefore to say that the substantial character of CQS is not in connection with the coal industry, even though the 'discrete business unit', known as BMA Rail, may be. In applying the substantial character test I have also been guided by its modern construction.

[105] The decision of the Full Bench of the AIRC in CFMEU v Dyno Nobel Asia Pacific Limited[56] provides a useful summary of the High Court authorities to date in respect of the application of the substantial character test.

[106] Relevantly, two members of the Full Bench of the former Commission observed in Dyno Nobel that has been:

"... a certain tension between the way in which the question of characterisation in relation to an industry rule was addressed in some judgments in the later cases."[57]

[107] Notwithstanding, this observation, Lawler VP and Hamberger SDP summarised the prevailing industrial jurisprudence in this way (at [51]):

"An eligibility rule, or part of an eligibility rule, that simply refers to persons employed or engaged "in or in connection with" a specified industry or industries is properly characterised a conventional industry rule and the discremen of eligibility under such a rule is the industry of the employer, that is, whether the trade or business of the employer is in or in connection with the specified industry or industries.

Whether or not the trade or business of an employer is in or in connection with a particular industry is a question of fact.

The answer to that question of fact is determined by the "substantial character" of the trade or business of the employer and all of its employees and requires a consideration of the business of the employer as a whole.

The business of an employer can be "in or in connection with" more than one industry. This outcome can arise in different ways:

(i) The business of the single employer is a single integrated enterprise but nevertheless operates substantially in or in connection with two or more industries simultaneously. This may be because:

• There is an overlap between industries and the business operates in the area of overlap (in such a case the same business can be described in different ways placing the business in either industry so that it has a "substantial character" that places it in each industry); and/or

• The nature of the single integrated business is such that the business itself overlaps two or more distinct industries in such a way that it has a "substantial character" within each of those industries.

(ii) The overall business of the single employer is properly seen as being constituted by two or more distinct businesses or enterprises each of which has a different "substantial character".

The mere supply of goods or services to a business in a particular industry is not, of itself, sufficient to render the business of the supplier one that is "in connection with" the industry of the business supplied, even if those goods are essential to the operation of that business.

Where a conventional industry rule applies in relation to a distinct business or enterprise of an employer, all of the employees in that business or enterprise are eligible for membership of the union."[58]

[108] Both Mr Murdoch and Mr Massey made reference to these quoted words, each highlighting aspects of the decision that supported their respective points of view. There is, like Hibble and Hickman, merit to both parties' submissions with respect to Dymo Nobel.

[109] The Full Bench in Dymo Nobel makes it clear that:

"the business of an employer can be "in or in connection" with more than one industry ..."[59]

[110] As the Full Bench makes clear supra, this can arise where "the business of the single employer is a single integrated enterprise but nevertheless operates substantially in or in connection with two or more industries simultaneously", because there "is an overlap between industries and the business operates in the area of overlap", and, or, because the" the nature of the single integrated business is such that the business itself overlaps two or more distinct industries".

[111] Obviously such a proposition supports the CFMMEU and Mr Smyth's position. That is because, if viewed broadly, the overall business of the Applicant is substantially in connection to both the coal and transport industries.

[112] Conversely, it is also the case that:

"The mere supply of goods or services to a business in a particular industry is not, of itself, sufficient to render the business of the supplier one that is "in connection with" the industry of the business supplied, even if those goods are essential to the operation of that business."[60]

[113] The issue here, however, is the legal personality of CQS. Whilst the 'discrete business unit' of BMA Rail may be merely supplying the service of transport to the coal mining function of the broader CQS business, it cannot be said to be a transport service to the CQS coal mining operations, in a way an unrelated entity such as Aurizon may be able to. The BMA Rail 'business unit' is still part of CQS. CQS is the employer of the employees who are to be covered by the Agreement. This, in my view, is a difficult proposition for the Applicant to divorce itself from, especially when it is observed that the work of BMA Rail employees is predominately to service mines which the parent of CQS owns and operates. And, unlike a general transport operation, the work of the train drivers under this agreement is exclusively to transport coal.

[114] In Dymo Nobel, that case concerned whether the predominate purpose of the single integrated business which manufactured and supplied explosives was in or in connection with the coal industry due to a small number of employees in that business engaging in coal mining operations; in the present circumstances, the scenario is reversed.

[115] In the present circumstances, the 'business unit' of BMA Rail within CQS now has 52 employees[61] who are engaged as train drivers. These train drivers predominately transport coal from mines owned by the parent company of CQS. At a broader level, a significantly higher number of employees in CQS are engaged in the coal industry than there are train drivers in the BMA 'discrete business unit'. The predominate purpose of CQS's operations is coal mining. The substantial character of the CQS enterprise is in the coal industry.

[116] I turn now to the later decision of the Full Bench of the former Commission in Harnischfeger of Australia v CFMEU[62] which specifically considers the proper construction of rule 2D, in that the Full Bench observed that (commencing at [85]):

"Rule 2D is an industry rule and the discrimen of eligibility under such a rule is the industry of the employer. Hence the question here is whether the trade or business of Harnischfeger is "in or in connection with the coal and shale industries". This is a question of fact and the answer is determined by the substantial character of the activities in which the employer is engaged.

The substantial character of a business may be in or in connection with more than one industry. In such circumstances it is not necessary to decide which is predominant. Nor is it necessary for each group of activities that have a "substantial character" to operate as distinct businesses or enterprises within the employer's overall operation. To the extent that Dyno Nobel may be said to stand for such a proposition, and we do not think it does, we respectfully disagree. In our view a proper reading of the authorities does not support such a proposition.

The final general observation we wish to make relates to the words "or in connection with" in Rule 2D. As we have already noted, these are words of expansion and allow a finding of eligibility even if the employees in question are not "in" the relevant industry. As Wilson J (with whom Deane and Dawson JJ agreed) said in the Argyle Diamond case:

The cases establish that one may be employed in connexion with the mining industry notwithstanding that one is merely developing the infrastructure which will be necessary to support the actual mining when it commences and notwithstanding that one is engaged, not in the process of extracting the ore from the mine, but in its subsequent treatment. A sufficient connexion may therefore be found in an occupation which takes place either before or after the actual work which itself identifies the industry in question."[63]

[117] In summary, therefore, one must look at the substantial character of the activities of which the employer in is engaged in.

[118] The Applicant and the RTBU referred the Commission to the authority, R v Moore; Ex Parte Federated Miscellaneous Worker's Union of Australia[64] (otherwise known as the Poon brothers case) that observed that provision of services, such as cleaning or laundry should not be characterised as part of the coal industry. With reference to this authority Mr Howell for the RTBU submitted that:

"...the circumstances of this case (being the present case) are [in the RTBU's submission] much more akin to, although certainly not identical to, the facts presented and considered by the court in R v Hickman and R v Moore and Ors; Ex parte AWU [1905] ArgusLawRp 130; [1976] 11 ALR 449, otherwise known as the Poon brothers' case.

That was the decision, your Honour, which examined whether persons employed by a business contracted to a mine operator that had provided laundering and catering services to the mine and to the local business community which the mine had built - this is one of the places over in WA where the mine built the town - the question there was whether or [not] the AWU, who had notified a dispute, had coverage to enrol and represent workers in the catering business, laundry and cleaning services. The court ultimately concluded that by reference to the array of tests discussed in the earlier High Court decision in Thiess that the nature of the businesses was such that they had a substantial character that did not enable it to be said they fit within the characterisation of a business in or in connection with (indistinct) mining industry which was at issue there.

Here as there BMA Rail has its own substantial identity as the provider of a rail service. Just because the provider of a rail service happens to carry a particular product does not bear upon either the nature of the business - the provision of a rail service - or the nature of the work performed by those employees who are employed by that business; i.e. the driving of a train. I made the point earlier so I won't' labour it now but I don't suddenly become engaged in the pink elephant business or industry just because I am driving a train that happens to be carrying pink elephants. I am not in any way, shape or form engaged with that product. I am employed in a business that operates a rail service and I perform work as a train driver. I'm not operating in connection with the business of coal - the industry of coal and shale."[65]

[119] In response to this point, the CFMMEU and Mr Smyth sought to distinguish this matter on the following basis:

"Each of those [seemingly referring to the Poon brothers' case] had similar facts where there was an attempt to suggest that the contractors working at the camp or in the township providing services such as cleaning and laundry were in or in connection with metalliferous mining. On each occasion the court found that there was no connection and an important factor in that was that the services provided was they related to the mining activity, they in no way touched upon the activity. Here, the very activity involves hauling of the coal which has been extracted to a place where the consumer can collect it. It is, to use the language from the Full Bench in Harnischfeger, essential to the activities being undertaken at the mine because if it is not hauled to the port the consumers can't get it and the exercise is for nought ..."[66]

[120] There is no doubt that transport is a service, akin to laundry or cleaning. However, unlike laundry or cleaning, as the CFMMEU and Mr Smyth assert, transport does touch upon the coal mining operation in a way that these other services do not. The transport of coal to customers, consistent with how I have understood Hibble, is not incidental to the operation; but is part of the coal mining process.

[121] The question therefore about the work performed is one of degree.

[122] I have already observed that in the case of Hickman that coal was carried by lorry. The Applicant in this application also provided evidence that its coal would be required to be carried by lorry if there was no rail infrastructure.[67] If coal is to be exported overseas, then it will need to be transported by a vessel of some kind. This would encompass the maritime industry. Transport is therefore probably a part of any coal mining operation, or indeed any mining operation. The question, however, is whether its activities are substantially connected to the operation (Harnischfeger) consistent with the examination of the industrial enterprise of the employer and the employee (Dyno Nobel).

[123] The concern expressed in the RTBU's submission is that should the Commission find that the transport of coal is in connection with the coal industry, then it is almost concluded that the transport industry cannot be its own unique industry, but part of each industry that it is engaged in. This submission has some merit in my view. However, this is not something that I need to decide in this application.

[124] The more relevant consideration, in my view, is the substantial character of CQS, the Applicant.

[125] The Applicant and the RTBU in both their written and oral submissions attempt to portray the discrete business unit, BMA Rail, of CQS, as an entity which engages train drivers in the transport industry, which incidentally hauls coal. This, it was submitted, is broadly a service to the coal industry.

[126] The employees of BMA Rail are engaged exclusively in the transporting of coal, unlike the lorry drivers in Hickman who were engaged in predominately the transporting of coal. Notwithstanding, this was a distinction that the Applicant and the RTBU submitted could be made - that is, the work performed under the agreement is discrete and the employees who are to be covered under the Agreement only drive the trains which transport the coal.

[127] On this point, consistent with Harnischfeger, just because there is a 'discrete business established, it does not or did not necessarily preclude these same activities from being part of the 'substantial character' of the Applicant.[68]

[128] Further, having regard to the reasoning of Lawler VP and Hamberger SDP (in joint reasons) and Lewin C (in separate reasons) in Dymo Nobel, that submission should be met with caution.

[129] Lawler VP and Hamberger SDP said (at [62]):

"It is clear from this, and from paragraphs [366] to [370] of her decision, that her Honour was concerned to characterise the 'industry' of Dyno Nobel. However, it is equally clear from those paragraphs that her Honour approached the task of characterisation on the basis that if work performed by a group of employees of Dyno Nobel was work that could be characterised as being in or in connection with the coal industry then the coal industry is an industry that Dyno Nobel operates in or in connection with within the meaning of Rule 2D. So much is apparent from the use of the word "therefore" in paragraph [359]. Moreover, it is apparent from the last sentence of paragraph [359] that her Honour did not regard herself as required to characterise the industry or industries in which Dyno Nobel operated by reference, amongst other things, to a consideration of the overall business of Dyno Nobel. For the reasons we have given, focussing only on the work performed a small number of Dyno Nobel's employees and failing to have regard to the totality of the business of Dyno Nobel led her Honour to ask herself the wrong question in determining the "substantial character" of the business of Dyno Nobel. This amounts to a jurisdictional error.

The approach adopted by her Honour substantially undermines the distinction between conventional industry rules and vocational rules. This distinction has a long history and has, for many years, informed the drawing of union rules and the resolution of demarcation disputes. If, as her Honour appears to have accepted, the fact that work performed by a small number of employees is work in a particular industry necessarily brings the business or enterprise of the employer within that industry, no matter how small the number and no matter what the character of the overall business of the employer, then the discrimen referred to in Hibble and Poon Bros is substantially shorn of its content as a means of distinguishing conventional industry rules from vocational rules.[69]

[130] Further, Lewin C said (at [83]):

"In my view, the earlier discussion by my colleagues of the various decisions of the High Court makes it clear that the industry of the employer cannot be established simply by considering and determining the nature of the tasks, duties and responsibilities, the work, of the employer's employees. To approach the matter in this manner would, I think, be a jurisdictional error. The nature of that error would be for the decision maker to ask the wrong question. That is to say "what is the work of the employees"?"[70]

[131] Lewin C, consistent with the Lawler VP and Hamberger SDP joint decision (at [84] and [85]), continued:

"What is required by the relevant authorities is for the decision maker to consider the nature of the employer's business, including, importantly, the work performed by the employees in the enterprise(s) undertaken by the employer. In my view, my colleagues correctly emphasise the following passage from the decision of Chief Justice Latham in R v Central Reference Board; Ex parte Thiess (Repairs) Pty Ltd

"In my opinion the question to be asked is - What is the substantial character of the industrial enterprise in which the employer and employee are concerned? In the present case the employer is Thiess (Repairs) Pty. Ltd. That employer is not engaged in coalmining, but is an engineering company carrying on general work. It is not under the control of the mine owner, or even of the contracting party (Thiess Bros. Pty. Ltd.), which actually conducts the mining operations. But the more important fact is that its operations are separate from and different in kind from the operations carried on at the open cut. I_t supplies certain needs of the coal-mining industry in the same way as do many other industrial enterprises. But these facts do not show that all such suppliers of goods or services to that industry are themselves engaged in that industry. In my opinion the evidence in this case shows that Thiess (Repairs) Pty. Ltd. did not employ Belmar in the coal-mining industry. As already stated, the Central Reference Board can make an order only in relation to certain matters in or in connection with that industry, and therefore the Board had no jurisdiction to make the order for the reinstatement of Belmar." (my emphasis added)_

In my respectful view, the Chief Justice there makes clear that it is the combination of the work of the employees and the entrepreneurial activity of the employer that is to be considered for the purpose of characterising the industry or industries of the employer. Moreover, to determine the nature of the enterprise(s) and the business of the employer exclusively by reference to the work performed by some of the employees of the employer and to determine the industry of the employer without wider consideration is to apply an inappropriate test, in my view. I consider that while in a difficult case like this the concept of a "holistic" test might lack precision of meaning it does capture the necessity for a field of view in the determination of the industry of the employer which is wider than simply the work of the employees the subject of the alleged dispute. On the other hand, I am likewise inclined to the view that measuring the volition of the employer in relation to the structure of its corporate legal personality for the conduct of its business is not determinative of the industry or industries in which it is engaged."[71]

[132] In applying these principles, this passage from Lewin C above is helping in the characterisation of where a single business entity owns two or more business operations which are distinct from one another. That is, for instance, where a company may own a coal mine and engages in coal mining operations and with the same entity also owns an unrelated business. The mere fact of the corporate legal personality owning a coal mining operation and something unrelated, such as a transport company, does not determinately make that unrelated business part of the coal mining industry. However, in my view, it may nevertheless be instructive in determining the substantial character of the industry with which a company is in.

[133] Conversely, should a company which may be in connection with the coal mining industry call itself something else, such as for example, BMA Rail Ltd (a transport company), its legal personality cannot exclude itself from being a part of the coal mining industry by nature of its legal personality. It is instructive that BMA Rail Ltd, which is a transport company, may not be part of the coal industry, even though it only delivers coal. However, this was not a hypothetical I needed to consider in this case, given the Applicant was CQS, and not some other entity.

[134] The introduction of Modern Awards on 1 January 2010 replaced some 1,500 decades old Federal and State awards with 122 industry and/or occupational based awards. The result of this process was a significant departure from previous practice where unions and indeed, employer associations, were named as "a party" to a particular industry and/or occupational awards. Resulting from this is that the Modern Awards no longer prescribe which unions cover or ought to cover certain industries or occupations. With the lesser role given to Modern Awards in the construction of union eligibility rules I am of the view that greater attention is now required on the principles I have set out in these reasons. Therefore, whilst I have note submission of the Applicant with respect to how the relevant Modern Awards may provide "guidance" with regard to union eligibility specifically the Black Coal Mining Industry Award 2010 and the Rail Industry Award 2010, this submission has not been determinative.[72]

[135] With respect to the Applicant's submission that this case is analogous to the decision in LCR Mining Group Pty Ltd v CFMEU,[73] I accept the CFMMEU and Mr Smyth's submissions on how to apply this authority. Whilst both cases are about transport servicing the mining industry, I am of the view that the circumstances are sufficiently distinguishable. I do not accept the submission that Spencer C made any error in her decision in LCR Mining. I agree with the CFMMEU and Mr Smyth that in this case I did not have to determine whether the Applicant is in the "black coal mining industry". Further, I accept the proposition that the facts are sufficiently different to the present circumstances, rendering that decision of no great utility to me in the present application.[74]

[136] Through examining the reasoning in Dyno Nobel, I have found the reasoning of Lawler VP and Hamberger SDP in that decision, as well as Lewin C's interpretation of Theiss, highly instructive. I have been assisted following the Full Bench's reasoning in Harnischfeger. Ultimately, I have arrived at a conclusion - consistent with Mr Massey submissions - that the Applicant's (that is CQS's) substantial character is that of an industrial enterprise in, or in connection with, the coal industry, and therefore the CFMMEU and Mr Smyth may be bargaining representatives, pursuant to the combined operation of subsection 176(1) of the Act, and rule 2D of the registered rules of the CFMMEU.

[137] On the basis that the transport of coal may be capable of being part of the coal industry (consistent with Hibble); that the train drivers that are to be covered under this agreement do not haul anything else other than coal (in contrast to Hickman); that there is no distinct corporate identity of BMA Rail (c.f. Theiss Repairs); I have arrived at the conclusion that the substantial character of the single integrated business of the Applicant in this proceeding places its rail business unit in connection with the coal industry.

[138] Had CQS re-designed its corporate structure (as in Theiss), had the train drivers carried other commodities other than coal (as in Hickman); and had the substantial character of CQS been something other than in the coal industry, I could have been persuaded to arrive at the contrary conclusion.

[139] If I am wrong that the CFMMEU and/or Mr Smyth did have standing to be bargaining representatives under subsection 176(1) of the Act (because of the satisfaction of the substantial character test), I am minded to nonetheless exercise my discretion under s. 590 of the Act to hear from them anyway because of the issues raised in their two page submission that I requested of them prior to the hearing.

[140] Subject to the availability of the parties, I intend to list a directions conference in the next ten days regarding issues relevant to the approval or otherwise of the Agreement.

Mr C Murdoch QC (with Mr A Smith), of counsel for Central Queensland Services Pty Ltd, instructed by Ashurst.

Mr C Massey of counsel for the CFMMEU and Mr Smyth, instructed by Hall Payne Lawyers.

Mr A Howell of counsel for the RTBU, instructed by Optimum Legal.

[1] CFMMEU Form F18 filed 26 March 2019 at [8].

[2] BMA Rail Greenfields Agreement 2013 [2013] FWCA 3869.

[4] Applicant Form F17 filed 4 January 2019 at [2.10].

[6] AFULE Form F18 filed 4 January 2019.

[7] CFMMEU Form F18 filed 26 March 2019 at [5].

[8] Stephen Smyth and CFMEU's Outline of Submissions.

[9] Affidavit of Stephen Smyth dated 8 March 2019 (Smyth Affidavit); Affidavit of John Callan dated 8 March 2019 (Callan Affidavit).

[10] Witness Statement of Shirley Anne Bella dated 15 March 2019 (Bella Witness Statement) at [12] - [56].

[12] RTBU Outline of Submissions at [14] - [17].

[14] Witness Statement of Dean Murray dated 17 March 2019.

[17] CFMMEU Form F18 filed 26 March 2019 at [8].

[18] Outline of Submissions of the Applicant at [10].

[20] Bella Witness Statement at [17].

[27] Re Union of Postal Clerks and Telegraphists; Ex parte Australian Telephone and Phonogram Officers' Association. [1986] HCA 45; (1986) 66 ALR 227, 235.

[29] R v Issacs; Ex Parte TWU [1985] HCA 80; (1985) 159 CLR 323, 335; 344.

[30]NTEU v Technisearch (1996) 66 IR 38 at [42].

[32] R v Williams; Ex parte Australian Building Construction Employees' and Builders Labourers' Federation [1982] HCA 68; (1982) 153 CLR 402, 408.

[37] Per the Applicant's email to Chambers dated 17 June 2019 in response to a request for a further submission from the parties regarding the composition of the Applicant's workforce following the hearing.

[38] R v Hickman [1945] HCA 53; (1945) 70 CLR 598.

[45] Transcript at PN [226] - [229]; referencing R v Hickman [1945] HCA 53; (1945) 70 CLR 598, 607.

[46] R v Hickman [1945] HCA 53; (1945) 70 CLR 598, 609.

[49] Outline of Submissions of the Applicant at [17(d)-(e), (i)-(k)].

[50] RTBU Outline of Submissions at [15] - [16].

[52] R v Central Reference Board; Ex Parte Theiss (Repairs) Pty Ltd [1948] HCA 9; (1948) 77 CLR 123.

[54] Outline of Submissions of the Applicant at [17(b) and (k)] in particular.

[55] R v Central Reference Board; Ex Parte Theiss (Repairs) Pty Ltd [1948] HCA 9; (1948) 77 CLR 123, 135.

[56] CFMEU v Dyno Nobel Asia Pacific Limited [2005] AIRC 622.

[61] Per the Applicant's email to Chambers dated 17 June 2019.

[62] Harnischfeger of Australia v CFMEU (2005) 152 IR 243.

[63] Ibid at [85] - [87] quoting R v Issacs; Ex Parte TWU [1985] HCA 80; (1985) 159 CLR 323, 346 in [87].

[64] R v Moore; Ex Parte Federated Miscellaneous Worker's Union of Australia [1978] HCA 51; (1978) 140 CLR 470.

[65] Transcript at PN [182] - [184].

[67] Bella Witness Statement at [11].

[68] Harnischfeger of Australia v CFMEU (2005) 152 IR 243 at [92].

[69] CFMEU v Dyno Nobel Asia Pacific Limited [2005] AIRC 622 at [62] - [63].

[72] AMWU v ResMed Ltd [2016] FWCFB 22 at [81].

[73] LCR Mining Group Pty Ltd v CFMEU [2017] FWC 1581

[74] Ibid at [3] for instance whereby the sole focus of the Applicant's work was on transport operations at the mine sites.

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