The difficulty with the CFMMEU's contentions
41 There are difficulties in accepting the argument of the CFMMEU.
42 A singular focus on text while eschewing consideration of context and the history of the rule is apt to mislead. Although the notion that anyone who drives a forklift for a significant proportion of their work activity is to be classified as a "forklift driver" has the attraction of simplicity, it is incongruent with the objectively ascertained intent of the rule when one considers the relevant context and history. As the Full Bench correctly recognised, since initial registration, "the FEDFA was established as a 'craft union' or, in more contemporary parlance, an occupational union". When this is appreciated, the employment identified in the rule must be construed as a descriptor of an occupation.
43 It may be accepted that there is nothing intrinsic to the activity of forklift driving that suggests it has to be an exclusive duty. It can also be accepted that the characterisation of Mr Lambert as a Warehouse Operator, although relevant, is not determinative as a descriptor of occupation. But, although it is a necessary condition for classification as a forklift driver that an employee operates a forklift for a substantial amount of their work time, it is not a sufficient condition. On the undisputed facts, Mr Lambert had a range of activities, akin to those commonly associated with a storeman and packer; this was the purpose of his position within the context of Dulux's business operation. Notwithstanding he used a forklift to undertake those work activities, this does not mean he is a forklift driver as that term is used in the rule.
44 It may also be accepted that Mr Lambert spent the vast bulk of his working time in control of forklifts (including spending almost a third of his time performing "picking" work using an LLOP, which requires no licence and no special skill). But his purpose (and his role within Dulux) is to work as a Warehouse Operator, including "picking", using the RF Gun, and using the LLOP and manual handling techniques. One cannot escape the conclusion (also reached by the Full Bench (at [61])) that the purpose of his role is 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.
45 As the principles set out above demonstrate, when the task of identifying the employment identified in the rule is undertaken, it occurs in the context of the purpose of employment and the employer's organisation of work. In the Appeal Decision (at [55]), the Full Bench fastened upon, and articulated the central question: Was Mr Lambert employed to drive a forklift so that he earns his wages by doing that, or whether he is employed to do something else? The Full Bench then went on to observe correctly that Mr Lambert will not be a "forklift driver" within the meaning of rule 2(E)(a) "merely because he drives a forklift in order to do what he is employed to do".
46 The conclusion he earns his wages by being a Warehouse Operator and not as a forklift driver is not only consistent with the factual findings as to his range of activities and his work description, but also accords with both the context and history.
47 As to the context and history, when one legitimately has regard to the industry rule (see [23] above), consistently with the Full Court's reasons in CSBP Limited, the scope of the eligibility rule is better understood. As the Full Bench recognised (at [56]), the CFMMEU's approach would give eligibility "in respect of virtually any employee who operates a forklift to a significant degree in their employment". Although it is to be construed objectively, the terms of the industry rule do not confirm the CFMMEU's approach, but rather reinforce the focus of the rule on the occupation of persons "employed … as drivers of … any … fork lift". The terms of the rule are directed to the purpose of employment, which accords with the history of approval of the rule as explained above.
48 This is sufficient to dispose of the application. Mr Lambert was not a forklift driver as contemplated by rule 2(E)(a), and the CFMMEU was therefore not entitled under the Rules to represent his industrial interests and was not a bargaining representative. Accordingly, s 229 of the FW Act did not permit the CFMMEU to bring an application concerning the alleged failure of Dulux to comply with the obligations in s 228. As such, a valid application was not before the FWC, and the relevant jurisdictional fact is not made out. No basis has been established for any prerogative relief.
49 It is appropriate, however, to make two further points.
50 The first is to deal with the submission of the CFMMEU to which reference has been made (at [31] above), that the proviso "does not apply" because the major and substantial part of Mr Lambert's duties did not involve the transport of goods by road, and "there is no basis to discount the out the front work from any consideration" as to whether Mr Lambert is substantially engaged in the activity of driving a forklift. This is partly correct, but beside the point because both parties accepted at this hearing that Mr Lambert was substantially engaged in driving a forklift. If it was of importance (which it was not), the CFMMEU submission that the proviso "does not apply" is expressed too broadly. Obviously enough, the whole of the rule, including the proviso, is relevant to the proper construction of the rule. Having said that, reliance on the notion that the proviso is a broad one involving anyone who might be indirectly involved in road transport seems an insecure foundation for the conclusion that the proviso operates to exclude any consideration of any use of the truck forklift by Mr Lambert to perform work "out the front" loading and unloading trucks. Although nothing in the case turns on the question, I would have thought "out the front" work involving the use of a forklift cannot simply be put to one side in the characterisation exercise of determining whether Mr Lambert is substantially engaged in the activity of driving a forklift.
51 Secondly, the reasons why relief should be refused are substantially similar to the reasons for the Full Bench dismissing the appeal (or to use the statutory words in s 607(3) of the FW Act, making a decision to "confirm" the decision the subject of the appeal). Even if the alleged error was one that was not jurisdictional because it did not in truth involve a jurisdictional fact, in these circumstances the result of denying prerogative relief would, obviously enough, be the same.