Construction, Forestry, Maritime, Mining and Energy Union v Duluxgroup [2022] FCA 357 | Case summary

background 4 The UWU is a registered organisation of employees within the meaning of s 26 of the Fair Work (Registered Organisations) Act 2009 (Cth)(FW Act), and consequently is governed by rules that are registered with the FWC. Those rules provide that, inter alia, the UWU is permitted to enrol and industrially represent individuals who are employed in the 'paint industry'. 5 An issue before the FWC at first instance was the relevant union membership of a Duluxgroup employee at the manufacturing facility located in Rocklea, Queensland, Mr Wayne Lambert had been a member of the UWU up until he became a member of the applicant. Mr Lambert, and other individuals employed by the first respondent at its Rocklea site, were subject to the Dulux Rocklea Enterprise Agreement 2016 (enterprise agreement). Since November 2019, the UWU had been involved in negotiating a subsequent enterprise agreement with Duluxgroup. To this end the applicant applied to the FWC for enterprise bargaining orders under s 229 of the FW Act. 6 Section 176(3) of the FW Act relevantly provides: (3) Despite subsections (1) and (2): (a) an employee organisation; or (b) an official of an employee organisation (whether acting in that capacity or otherwise); cannot be a bargaining representative of an employee unless the organisation is entitled to represent the industrial interests of the employee in relation to work that will be performed under the agreement. 7 In Application by Construction, Forestry, Maritime, Mining and Energy Union [2021] FWC 3786, decided on 2 July 2021, the FWC, constituted by a Deputy President, found that the CFMMEU did not have standing to make an application for a bargaining order under s 229 of the FW Act in relation to a proposed enterprise agreement between Duluxgroup and employees at its Rocklea site. The FWC concluded that the CFMMEU was not entitled under its rules to represent the industrial interests of Mr Lambert, for whom the CFMMEU purported to be acting as bargaining representative and upon whom the CFMMEU relied to demonstrate its capacity to bring its application. 8 At [6] the Deputy President said as follows: 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. 9 The CFMMEU appealed the decision of the FWC to the Full Bench of the Fair Work Commission (Full Bench). 10 In its decision (Construction, Forestry, Maritime, Mining and Energy Union v DuluxGroup (Australia) Pty Ltd t/a DuluxGroup [2021] FWCFB 6020) the Full Bench noted at [8] that the CFMMEU relied on rule 2(E)(a) of its rules to establish its capacity to represent the industrial interests of Mr Lambert. This rule relevantly provided: (E) 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, excavation 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 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 which 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. 11 Rule 3 (F) further provided: (F) The group of industries comprised with in the calling, service, employment, occupation, or avocation of persons employed on land or any harbour, lake or river, as drivers of or attendants to any engine, winch, crane, mobile crane, fork lift, tow motor, pile driver, excavator, pump, boiler, generator, or motor used in or in connection with the generation, production, distribution, or utilisation of power, and persons assisting in or about any work incidental thereto. 12 The Full Bench noted that the Deputy President had set out an extensive analysis of the history and interpretation of rule 2(E)(a), which was not disputed. The Full Bench then emphasised salient points of that analysis, and supplemented it with further comment. In particular, the Full Bench referred to three decisions relevant to the construction of the rule, namely Re Coldham and Others, Ex parte Australian Workers' Union [1984] HCA 62; 56 ALR 149; Federated Engine Drivers and Firemen's Union WA v Mt Newman Mining Co Pty Ltd (1977) 57 WAIG 794, and Construction, Forestry, Mining and Energy Union v CSBP Limited [2012] FCAFC 48; 212 IR 206. The Full Bench referred to the observation of the Full Court in CSBP at [52] that it was … legitimate to have regard to the Industry Rule for the purpose of resolving doubt as to the proper construction of the Eligibility Rule. It is also legitimate to eschew a construction which is so 'extremely wide or indefinite as to be unlikely to have been intended'. Each of these propositions is supported by the decision of the High Court in R v Gough; ex parte The Municipal Officers' Association Australia [1975] HCA 30; (1975) 133 CLR 59 13 The Full Bench summarised the findings of fact of the Deputy President, noting that the CFMMEU's notice of appeal did not contend that there was any error of fact in the first instance decision. The Full Bench then turned to the decision of the Deputy President, nothing her conclusion that Mr Lambert was not principally or primarily employed as a forklift driver such as to bring him within rule 2(E)(a) of the CFMMEU's rules, and the reasons for this conclusion. 14 The notice of appeal of the CFMMEU to the Full Bench contained a single ground of appeal, described by the Full Bench at [42] as being (in substance) that the Deputy President erred in misapplying the principal purpose test to the facts as found and in misconstruing the true meaning and scope of the CFMMEU's rules. The Full Bench then summarised the submissions of the CFMMEU and Duluxgroup. 15 The Full Bench found that the appeal raised issues of sufficient importance to justify the grant of permission to appeal. It continued: 51. …Although, in strict terms, the decision under appeal is concerned only with whether the CFMMEU is entitled to represent the industrial interests of Mr Lambert, its practical effect is clearly to determine that the CFMMEU is not entitled to act as a bargaining representative for any employee at Dulux's Rocklea site since Mr Lambert was presumably selected by the CFMMEU as its best case, or at least as a representative case. Further, we consider that the decision has broader implications for the capacity of the CFMMEU to cover warehouse employees generally. 16 The Full Bench at [52] observed that they did not perceive propositions stated in the decision of the Deputy President concerning the proper construction and application of the expression "forklift drivers" in rule 2(E)(a) were the subject of challenge in the appeal, and in any event considered those propositions to be correct. The Full Bench stated: [59] Having regard to the occupational focus of the relevant part of the proviso to rule 2(E)(a), it follows that in order for an employee to come within rule 2(E)(a) as a "forklift driver", the principal purpose of their employment must be the occupation of forklift driver other than loading and unloading trucks by forklift so that goods may be transported by road. That is a matter of importance in this case since, on his own evidence, Mr Lambert spent a significant portion of his working time "out the front" loading and unloading vehicles with a truck forklift 17 The Full Bench examined the job description of 'Warehouse Operator', and concluded (at [61]) that: … Warehouse Operators such as Mr Lambert are not employed by Dulux for the purpose of engaging in the occupation of forklift driving. Rather, the operation of forklifts is one of a number of functions required to be carried out in order to fulfil the purpose of the role, which is to carry out all the tasks necessary for the operation of the warehouse. 18 The Full Bench agreed with the Deputy President that Mr Lambert's employment was best characterised in a substantive, as well as nominal, sense as that of Warehouse Operator, and was not encompassed by rule 2(E)(a) of the CFMMEU's rules. The Full Bench observed that this conclusion was consistent with industrial history, and that the characterisation of Mr Lambert's employment as a Warehouse Operator rather than a forklift driver fit within the long-established industrial norm (at [70]). 19 Accordingly, the Full Bench dismissed the appeal from the Deputy President's decision. 20 In its originating application filed in the Federal Court on 18 November 2021 the CFMMEU claimed as follows: On the grounds stated in the accompanying affidavit of Ms Lucinda Weber dated 17 November 2021, the Applicant applies for the following relief under section 562 of the Fair Work Act 2009 and section 39B of the Judiciary Act 1903: 1. A writ of certiorari issue to the Fair Work Commission removing into this Court and quashing: a. the decision of the Fair Work Commission made on 2 July 2021 in CFMEU v DuluxGroup (Australia) Pty Ltd [2021] FWC 3786 dismissing the application made by the applicant for bargaining orders pursuant to s. 228 of the Fair Work Act 2009 (Cth) (the Act) ("the dismissal decision"); b. the decision of the Full Bench of the Fair Work Commission made on 27 October 2021 in CFMEU v DuluxGroup (Australia) Pty Ltd [2021] FWCFB 6020 dismissing the appeal from the dismissal decision. 2. A writ of mandamus remitting issue to the Fair Work Commission requiring it to determine the applicant's application under s. 228 of the Act in accordance with law. 3. Such further or other orders as the court considers appropriate. 21 The originating application was listed for hearing, before a Full Court of the Federal Court of Australia on 13 May 2022. Case management orders to take the matter to hearing were made by Registrar Davis on 22 March 2022. 22 I have already noted that the interlocutory application presently before the Court was filed by the UWU on 21 March 2022.

CONSIDERATION 27 The power to join a non-party to a proceeding is found in r 1.32 of the Federal Court Rules. This rule provides: 1.32 Court may make any order it considers appropriate in the interests of justice The Court may make any order that the Court considers appropriate in the interests of justice. 28 It is well-established that a non-party to proceedings cannot apply for joinder under r 9.05 of the FCR: Grant v BHP Coal Pty Ltd [2015] FCA 329. Only a party to extant proceedings may make an application under r 9.05 to join a person who is a non-party to a proceeding: McAlister v State of New South Wales [2014] FCA 702. Nevertheless, it is necessary to apply the principles inherent in, and the relevant case law referable to, r 9.05 to an application for joinder to proceedings made under r 1.32: ECAP Finance Pty Ltd v Ottoway Engineering Pty Ltd [2017] FCA 237 at [28]. To this end, Edelman J noted in Kadam v MiiResorts Group 1 Pty Ltd [2016] FCA 1205 at [19]: …I accept, that any application of r 1.32 should generally be subject to the same constraints and conditions required by r 9.05. 29 More recently, Cheeseman J noted in Karellas Investments Pty Ltd v FW Projects Pty Limited (in liq) [2021] FCA 870 at [31] (adopting the reasoning of Edelman J in Kadam at [13]-[19]): In a joinder application initiated by a non-party relying on the Court's general power under r 1.32 of the Rules to make any order that the Court considers appropriate in the interests of justice, the same constraints and conditions as are required by r 9.05 have been treated as generally applicable… 30 In light of this reasoning, r 9.05 of the Federal Court Rules relevantly provides that: 9.05 Joinder of parties by Court order 1. A party may apply to the Court for an order that a person be joined as a party to the proceeding if the person: a. ought to have been joined as a party to the proceeding; or b. is a person: i. whose cooperation might be required to enforce a judgment; or ii. whose joinder is necessary to ensure that each issue in dispute in the proceeding is able to be heard and finally determined; or iii. who should be joined as a party in order to enable determination of a related dispute and, as a result, avoid multiplicity of proceedings. 31 In Ottoway, Besanko J considered the circumstances in which the power to join a non-party to proceedings should be exercised. In doing so, his Honour made specific reference to the decision of the Full Court in News Ltd v Australian Rugby Football League Ltd (1996) 64 FCR 410. There, Lockhart, von Doussa and Sackville JJ observed: In our opinion, the question should be decided according to the test proposed by Lord Diplock. The test involves matters of degree, and ultimately judgment, having regard to the practical realities of the case, and the nature and value of the rights and liabilities of the third party which might be directly affected. The requirement that a third party's rights against, or liability to, any party to the proceedings be directly affected is an important qualification that recognises that many orders of a court are likely to affect other people to a greater or lesser extent. This is particularly so with remedies in the nature of an injunction: see Silktone Pty Ltd v Devreal Capital Pty Ltd (1990) 21 NSWLR 317 at 322, per Kirby P. The requirement of a direct effect on rights or liabilities differentiates the case where a person ought to be joined, from other cases where the effect of the order on non-parties can be characterised as only indirect or consequential. Where, before trial, a question arises whether a necessary party has been joined, attention should be directed to the orders sought in the proceedings. It is the effect of the orders upon the third party that must be determined. The test is not whether the conduct of the third party is raised in the pleadings between the existing parties, or whether the third party is a party to a contract, the meaning or effect of which is pleaded as a matter relevant to the ascertainment of the rights between those parties. (emphasis added) 32 Their Honours' reasoning necessitates that it must be demonstrated, by the non-party seeking to be joined, that its rights or liabilities in relation to any party to that proceeding will be directly affected by any order made therein. The nature of a direct legal interest in this context, as distinct from an indirect interest, was examined in Roadshow Films Pty Ltd v iiNet Ltd (2011) 248 CLR 37, albeit in the context of intervention. In that matter, French CJ and Gummow, Hayne, Crennan and Kiefel JJ explained at [2]: In determining whether to allow a non-party intervention the following considerations, reflected in the observations of Brennan CJ in Levy v Victoria, are relevant. A non-party whose interests would be directly affected by a decision in the proceeding, that is one who would be bound by the decision, is entitled to intervene to protect the interest likely to be affected. A non-party whose legal interest, for example, in other pending litigation is likely to be affected substantially by the outcome of the proceedings in this court will satisfy a precondition for leave to intervene. Intervention will not ordinarily be supported by an indirect or contingent affection of legal interests following from the extra-curial operation of the principles enunciated in the decision of the court or their effect upon future litigation. 33 At the hearing Counsel for the UWU submitted that the UWU sought joinder, or, in the alternative, leave to intervene. In response to questions, it appears that the nature of the UWU's participation in the substantive proceedings would not, in its submission, differ if it were successful in respect of either form of relief. 34 With the relevant Federal Court Rules and these principles in mind, I now turn to the interlocutory application before the Court, and conclude that the proper order is to refuse the orders sought by the UWU. 35 First, I am not satisfied that any legal interest of the UWU is directly affected by any outcome of the substantive proceedings. Even if the CFMMEU is ultimately successful in its application for writs of certiorari and mandamus, insofar as I can ascertain from the material before me, the position of UWU will be unaffected in respect of its position as a bargaining representative of employees at Duluxgroup's Rocklea site for the purposes of s 228(1)(f) of the FW Act. Notwithstanding any remittal by the Federal Court of the proceedings to the Fair Work Commission, the UWU will retain its present entitlement to enrol and represent its members, and participate in bargaining under Part 2-4 of the FW Act as well as exercising the powers of a bargaining representative under the FW Act. 36 Further, I note that the CFMMEU has sought substantive relief by way of judicial review of the decisions of the FWC, where the FWC found that the CFMMEU did not have standing to make an application for a bargaining order under s 229 of the FW Act in relation to a proposed enterprise agreement between Duluxgroup and its employees at the Rocklea site. 37 The UWU submitted that, if the CFMMEU were to be successful in the substantive proceedings in the Federal Court, the decision of the Federal Court would effectively decide the question of whether the CFMMEU has standing as a bargaining representative in relation to Duluxgroup. 38 I do not accept this submission. There is extensive case law concerning the power of the Federal Court to grant writs of certiorari and mandamus. It is beyond the scope of the present interlocutory proceedings to make further observation, other than to note the discretionary nature of the relief, and that relief may be granted to address legal error on the part of a decision-maker: see, for example, Hossain v Minister for Immigration and Border Protection [2018] HCA 34. However it is not apparent to me as matters presently stand, and in the absence to date of either submissions or material filed by the parties in the substantive proceedings to inform the Court of the nature of their respective cases, that any decision by the Federal Court favourable to the CFMMEU in those substantive proceedings would either decide the status of the CFMMEU as a bargaining representative, or somehow preclude the UWU from participating in remitted proceedings before the Fair Work Commission. 39 The success of the CFMMEU in its judicial review application would require the Fair Work Commission to determine the CFMMEU's application according to law. I also note that the Federal Court has not been asked to make findings of fact concerning the status of the CFMMEU as a bargaining representative for the purposes of the FW Act. 40 At this stage there is no basis for me to conclude that, even on remittal, the Fair Work Commission would be bound by the decision of the Federal Court to find in the CFMMEU's favour in respect of its status as a bargaining representative. 41 The lack of any legal interest of the UWU directly affected by any outcome of the substantive proceedings precludes the joinder of the UWU as a respondent pursuant to r 1.32 of the Federal Court Rules. 42 Second, I am not satisfied that the UWU's interests are indirectly affected by the substantive proceedings. 43 The nature of any interests of the UWU indirectly affected by the substantive proceedings, should the CFMMEU be successful, is unclear. At the hearing the UWU did not explicitly identify any indirect interests. To the extent that the UWU proposed at the substantive hearing to make submissions concerning the history of representation of employees at Rocklea, in the paint industry more generally, and its role as the union representing those employees, I infer that the interest of the UWU in the substantive proceedings is referable to the existence of another union potentially being a bargaining representative at the Rocklea worksite. However, I am not persuaded that such indirect interest warrants an order by the Court granting leave to intervene, pursuant to principles explained in such cases as Levy v Victoria [1997] HCA 31; (1997) 189 CLR 579 and Roadshow Films. 44 As I have already observed in examining the question of joinder, the legal position of the UWU appears to be unaffected by the substantive proceedings. Such interests as the UWU appears to seek to protect by its application are its industrial interests, promoting its role as a representative union in the relevant employment field, rather than its legal interests. By analogy with commercial interests, as discussed in such cases as News Limited v Australian Rugby Football League Limited [1996] FCA 870; (1996) 64 FCR 410, Pegang Mining Co Ltd v Choong Sam [1969] 2 MLJ 52 and Ottoway Engineering P, the status of the UWU as a union representing employees in the relevant field does not, of itself, warrant an order either for joinder or intervention. 45 Third, for the purposes of r 9.12(1)(a) I am not satisfied that the potential contribution of the UWU to the substantive proceedings would be useful and different from the contribution of the parties to the proceeding. 46 Affidavit material has been filed by the UWU in support of the present interlocutory application, being affidavits of Ms Larissa Harrison, the National Industrial Coordinator of the UWU. In particular, the affidavit of Ms Harrison filed on 21 March 2022 describes the UWU, its role representing workers at the Duluxgroup Rocklea site, and its enterprise bargaining engagement with Duluxgroup. 47 As matters presently stand however, the nature of the UWU's prospective contribution to the substantive proceedings is unclear, except for historical information relevant to the industry and the site which the UWU submits would assist the Court in its construction of the CFMMEU eligibility rules. I also note the submission of Mr Borenstein QC for the UWU that the submissions the UWU anticipated making at the substantive hearing would be relatively short, and would not seek to repeat submissions made by Duluxgroup. 48 In this respect I find that: It would appear that submissions of the UWU in the substantive proceedings would add little to the submissions of Duluxgroup; It would appear that the submissions of the UWU in the substantive proceedings would add little to the decisions of the Fair Work Commission already before this Court. Indeed, the decisions of the Fair Work Commission already before this Court set out in detail industrial history relevant to the present proceedings; The nature of the additional evidence the UWU proposes to rely in the substantive proceedings on should it be either joined or granted leave to intervene is unclear; and It is unclear to me how evidence of the UWU in respect of the history of its coverage of employees or its own eligibility rules would be relevant to the substantive proceedings, including issues concerning the eligibility rules of the CFMMEU. 49 Fourth, I am satisfied for the purposes of r 9.12 (2)(b) that an order granting leave to the UWU to intervene would unreasonably interfere with the ability of the parties to conduct the proceeding as they wish. 50 As I noted earlier, present timetabling orders made on 22 March 2022 lead to the hearing of the substantive application on 13 May 2022, in particular Order 3 which provides: 3. In accordance with Practice Note APP2, not later than 4.00pm 20 business days before the hearing, the Applicant file and serve on the Respondents an outline of submissions and chronology of the relevant events. 51 Twenty business days before the hearing is 11 April 2022, namely Monday next week. Not only would the CFMMEU be required to file its submissions and chronology by next Monday taking into account the position of the UWU should I make the orders the UWU seeks, but: it is likely that revised case management orders would need to be made taking into account the involvement of the UWU as either a respondent or an intervener, and there is a real risk that the parties would require further preparation time, and would not be in a position to proceed with the hearing on 13 May 2022. 52 While Duluxgroup consents to the UWU actively participating in the substantive proceedings, the CFMMEU does not. In my view this is a factor weighing against the grant of orders sought by the UWU for the purposes of s 37M of the Federal Court of Australia Act 1976 (Cth). 53 Finally, I am not persuaded that the interests of justice demand either the joinder of the UWU as a respondent or the grant of leave to the UWU to intervene. The UWU was aware of the original hearing before the Deputy President, having been served with the originating application of the CFMMEU, but chose not to participate in the Fair Work Commission proceedings. No explanation has been offered for the decision of the UWU to now - belatedly - seek to participate in the Federal Court proceedings, other than that the proceedings are now in the Federal Court rather than the Fair Work Commission. The result is that multiple decisions of the Fair Work Commission, now sought to be reviewed, have been made without the input of the UWU. 54 Relevantly to rr 1.32 and 9.05 (1)(b)(iii) of the Federal Court Rules, the UWU also submits that the orders it now seeks would avoid a multiplicity of proceedings. This is because, in the absence of an order for joinder or intervention, it is entitled to, and may, separately commence proceedings in the Federal Court. To date, however, no such proceedings have been commenced. The nature of the proceedings the UWU would commence, the prospective respondents to such an application, and the relief the UWU would seek, are all presently unclear. No relevant evidence is before the Court which would permit me to make informed findings. In my view the prospect that the UWU may take such action is of no assistance to me in the present decision, and certainly does not permit me to conclude that there is a related dispute which can be determined by joinder of the UWU. 55 In my view the appropriate order is to dismiss the UWU's interlocutory application filed 21 March 2022. I certify that the preceding fifty-five (55) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Collier.

Construction, Forestry, Maritime, Mining and Energy Union v Duluxgroup

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