Fair Work Act 2009

s.505 - Right of entry

Construction, Forestry, Maritime, Mining and Energy Union

Application to deal with right of entry dispute -dispute concerning operation of Part 3-4 of the Fair Work Act 2009 (Cth) -dispute concerning attempted entry by CFMMEU official to Qube intermodal terminals - construction of CFMMEU eligibility rule - whether Rule 2(E)(a) and/or 2(P)(F)(a) permitted CFMMEU to enrol as members persons engaged by Qube at three intermodal terminals as operators of container forklifts and reach stackers - proviso in Rule 2(E)(a) and 2(P)(F)(a) excluded inter alia mobile crane drivers and forklift drivers (in the case of Rule 2(E)(a)) and persons (in the case of Rule 2(P)(F)(a)) engaged in the transport of good by road from eligibility for membership - consideration of the meaning of "engaged in the transport of good by road" - determined that the operators were engaged in the transport of good by road within the meaning of the proviso - the operators were therefore excluded from membership of CFMMEU - CFMMEU permit holder cannot exercise discussion entry rights - entry properly refused.

• [1] By its application dated 28 July 2020, the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) asks pursuant to s.505 of the Fair Work Act 2009 (Act) the Commission to deal with a dispute about the operation of Part 3-4 of the Act which contains various right of entry provisions. In essence, the dispute concerns attempts by Mr Shane Reside to enter four intermodal terminals. Three of the terminals are occupied by Qube Logistics (SB) Pty Ltd (Qube), while the fourth terminal is occupied by Maritime Container Services Pty Ltd (MCS). Mr Reside is an official CFMMEU employed by it as an Organiser attached to the Maritime Union of Australia Division. He is a permit holder under the Act. Qube and MCS each refused entry to Mr Reside on the basis that the employees performing work at the relevant premises are not eligible to be, or become, members of CFMMEU. MCS is not a respondent to the dispute and nothing further need be said about its refusal to permit entry.

• [2] It is uncontroversial that the resolution of the dispute turns on the proper construction of the CFMMEU's rules and particularly its eligibility rules. Before turning to the CFMMEU rules, it is necessary to set out by way of background some factual matters.

• [3] On 9 June 2020, Mr Reside sent Qube by email a notice of entry advising that he proposed to enter its intermodal terminal (ITM) at Moorebank Avenue, Moorebank (Moorebank ITM) at 8:00 am on 10 June 2020 for the purpose of holding discussions with employees.[1]

• [4] Later in the morning of 9 June 2020, Mr Dan Coulton, Qube's General Manager for Industrial Relations, responded by email to Mr Resides' notice asking Mr Reside to clarify how it is that the CFMMEU asserts coverage of relevant employees and absent any clarification that he (Mr Coulton) was of the view the CFMMEU did not have coverage under its rules and therefore, Mr Reside did not have a right to enter the premises under the Act.[2] Further emails were exchanged between Mr Coulton and Mr Reside but consensus remained elusive.[3]

• [5] Mr Reside attended the Moorebank ITM on 10 June 2020 and attempted entry. He was not permitted to enter and he left.[4]

• [6] On 10 June 2020, Mr Reside sent Qube by email a notice of entry advising that he proposed to enter its IMT at Canal Road, St Peters (St Peters IMT) at 2:00 pm on 11 June 2020 for the purpose of holding discussions with employees.[5] Mr Coulton responded to the notice by email indicating that his position was as communicated on 9 June 2020.[6] Mr Reside attended the St Peters IMT on 11 June 2020. He attempted entry but was not permitted to enter and he left.[7]

• [7] On 11 June 2020, Mr Reside sent Qube by email a notice of entry advising that he proposed to enter its IMT premises at Loftus Road, Yennora (Yennora IMT) and at Stonny Batter Road, Minto (Minto IMT) at 8:00 am and 1:00 pm respectively on 12 June 2020.[8] Mr Coulton responded to the notice by email indicating that his position was as previously communicated.[9] Mr Reside attended at both IMTs on 12 June 2020. He attempted entry at each site but was not permitted to enter and he left.[10]

• [8] Qube Logistics (Aust) Pty Ltd (Qube Logistics) is part of a group of companies of which Qube Holdings Limited is the parent company.[11] Qube Logistics is the largest integrated third party container logistics provider in Australia and provides services covering road and rail transport, warehousing and distribution, shipping container parks and related services, and intermodal logistics hubs including rail terminals and international freight forwarding.[12] Qube (a wholly owned subsidiary of Qube Logistics) relevantly carries on a road transport and distribution business in NSW and operates the Moorebank ITM, the Yennora IMT and Minto IMT.[13]

• [9] Qube operates a fleet of approximately 48 trucks throughout Sydney and Western Sydney in its road transport operations.[14] The fleet of trucks are based at the Yennora IMT and the Minto IMT.[15] It also employs a pool of approximately 92 truck drivers to operate its fleet of trucks.[16]

• [10] At each of the Moorebank ITM, the Yennora IMT and Minto IMT, Qube also has employees (Operators) who are involved in the loading and unloading of vehicles and trains and transporting goods by road to various locations within the terminals and who carry out the activities of driving empty container forklifts and driving reach stackers (a non-slewing mobile crane).[17] At the Moorebank ITM, Operators will from time to time drive a "combi-lift" which is similar to a straddle crane but this is said only to be a relatively minor part of their role.[18] Otherwise, Qube does not employ straddle crane operators.[19] It is these employees, the Operators, that the CFMMEU contends are eligible to be its members.

• [11] The Yennora IMT provides a full range of logistics services to Qube's customers in Sydney.[20] It is directly linked by rail to stevedore terminals in Port Botany and an empty container terminal at the Cooks River ITM operated by Maritime Container Services Pty Limited which in December 2017 was acquired by Qube Logistics (Aust) Pty Ltd.[21] The Yennora ITM receives and sends trains carrying cargo to and from Port Botany and/or the Cooks River Site up to four times per day and trains carrying empty shipping containers are also regularly sent from Yennora to Port Botany and/or the Cooks River Site.[22] At the Yennora IMT, Qube operates a road transport business which involves approximately six trucks and approximately ten truck drivers.[23] The truck driving operations involve:

• transporting imported cargo by road (unloaded from trains that have arrived from Port Botany) from the Yennora IMT directly to customers;

• transporting export cargo by road from customers to the Yennora IMT for subsequent transfer by rail to Port Botany;

• transporting cargo by road to and from Port Botany and customers directly, without any rail transport component;

• • transporting cargo in an internal loop between locations within the Yennora IMT.[24]

• [12] Other logistics providers also access the Yennora IMT for each of the abovementioned activities.[25]

• [13] Qube also employs approximately seven Operators at the Yennora IMT whose work involves loading and unloading containers from trucks and trains and driving the containers by roads to and from staging areas within the Yennora IMT as well as positioning containers in large storage areas around the Yennora IMT which are accessible by roads.[26]

• [14] Qube Logistics operates an intermodal warehouse and distribution hub at the Minto IMT, which also provides a full range of logistics services to Qube's customers in Sydney and is directly linked by rail to stevedore terminals in Port Botany and the Cooks River Site operated by MCS.[27] The Minto IMT usually receives and sends up to six trains each day carrying cargo to and from Port Botany and/or the Cooks River Site, and trains carrying empty shipping containers are also sent to Port Botany and/or the Cooks River Site from the Minto IMT.[28]

• [15] Qube's road transport business operating from the Minto IMT involves approximately 36 trucks and approximately 64 truck drivers.[29] Third party logistics providers also access the Minto IMT.[30] At the Minto IMT Qube employs approximately 12 Operators who perform the same work described earlier for Operators at the Yannora IMT.

• [16] The Moorebank IMT is a relatively new development and forms part of the Moorebank Logistics Park project - Australia's largest freight infrastructure project which will link Port Botany direct to rail terminals and warehouses at the juncture of the M5 and M7 motorways in Western Sydney.[31] Moorebank Logistics Park is being developed in two stages. The first stage is the Moorebank IMT which is an automated intermodal terminal.[32] Once fully operational Qube is likely only to employ a small number of Operators at the Moorebank IMT because trains will be loaded and unloaded by large automated cranes and container movements within the site will be carried out by automated straddle cranes through a network of roads within the rail terminal, and outside the rail terminal by trucks in Moorebank Logistics Park.[33] Operators who are retained at the Moorebank IMT will be utilized in the event of equipment breakdown or for specific customer requirements where the automated equipment is not suitable.[34] Three Operators are currently employed by Qube at the Moorebank IMT.[35] As earlier noted, Operators at the Moorebank IMT also operate combi-lifts, which are similar to a straddle crane, to move containers.

• [17] Qube employs a small number of truck drivers who are based at MCS's Cook River IMT but it does not employ any Operators.[36]

• [18] The earlier mentioned truck drivers and Operators employed by Qube are covered by enterprise agreements, respectively the Qube Logistics (NSW) - Road Transport Enterprise Agreement 2017 and the Qube Logistics Western Sydney lntermodal Terminals and the TWU - Enterprise Agreement 2017.

• [19] There was evidence led through Mr Coulton which indicates that the relevant workplaces are large intermodal hubs with a network of internal roads in which the Operators transport goods on these roads shared with trucks.[37] By way of example, the Traffic Management Plan in at Yennora contains the following information:

• Arrangement and marking of roads, intersections, pedestrian walkways and vehicle parking/loading areas - Traffic Flow Signs (All Traffic):

• A detailed site map showing premises layout, traffic flow, speed limits, hazardous areas and specific safety instructions is provided to all visiting drivers and employees at the workplace. All personnel moving about the site have received induction training and have a clear understanding of traffic control systems and safety procedures.

• Roads are clearly marked and clear signage indicates traffic flow, speed limits, parking and loading areas, pedestrian access/crossings and require "give way" and cautionary actions. Barriers are installed around hazardous or sensitive areas. Traffic movements are centrally supervised.

Note: It is recommended that familiar road signs eg 'Stop' and 'Give Way' are used in

• Roadways and plant/equipment identified areas are designed to minimise the number of intersections where vehicle/vehicle or vehicle/pedestrian conflicts can occur.

• • Painted walkways are provided with (sic), some with barriers to control traffic flow. Signage provides advanced warning for both vehicles and pedestrians. If blind corners are present, convex mirrors are to be installed."[38]

• [20] As earlier noted, the right of entry dispute the subject of this application is about the refusal by Qube to allow a CFMMEU employed permit holder to enter particular IMTs at which Qube operates its business for the purpose of holding discussions with employees who are said to be employed as forklift drivers, reach stacker operators, straddle crane operators and/or mobile crane drivers or as I have earlier described them, as Operators. The refusal to allow entry is because Qube contends that the Operators are not eligible to be members of the CFMMEU. The CFMMEU contends otherwise. Under s.484 of the Act, a permit holder may, relevantly, enter premises for the purposes of holding discussions with one or more employees:

(b) whose industrial interests the permit holder's organisation is entitled to represent; and

• [21] This dispute is about (b) above, namely the capacity of the CFMMEU to represent the industrial interests of employees of Qube who are employed as Operators and perform work at the three earlier mentioned ITMs at which Qube conducts its business.

• [22] Whether an employee organisation which, as with the CFMMEU, is registered under the Fair Work (Registered Organisations) Act 2009 is entitled to represent the industrial interests of an employee who performs work at a premises depends only on whether that person is eligible for membership under the organisation's eligibility rules.[39] The resolution of the dispute therefore requires the interpretation of the CFMMEU's eligibility rules and the application of those rules, correctly construed, to the work of the Operators understood in its full context.

• [23] The relevant part of the eligibility rule on which the CFMMEU relies (Rule 2(E)(a) and (P)(F)(a)) is as follows:

"(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, 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.

(P) Additional Eligibility for Admission to Membership in the State of New South Wales

This Rule 2(P) does not apply outside the State of New South Wales.

Without limiting the generality of the foregoing rules and without being limited thereby, the following provisions of this rule provided for additional eligibility for admission to membership of the Union in the State of New South Wales:-

(F) Without limiting the generality of the foregoing and without being limited thereby the Union shall also consist of:-

(a) An unlimited number of all classes of engine drivers, (including operators of rear side and/or bottom dumpers on construction work), firemen, crane drivers dynamo attendants, 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 and all operators and trainees howsoever called employed by Shell Refining (Australia) Pty Limited at its Clyde Refinery and Gore Bay terminal or any other site where these installations may be relocated in the future.

Provided that persons engaged in the transport of goods by road, or motor truck drivers wherever employed, shall not be eligible for membership."

• [24] The CFMMEU contends that the first part of Rule 2(E)(a) extends its coverage to "[a]n 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 ...".[40] The Operators, as earlier noted operate reach stackers and container forklifts and so on this contention the Operators are said to be either "mobile crane drivers" or "forklift drivers". Alternatively, the CFMMEU contends the Operators are "engine drivers" within the first part of Rule 2(E)(a) and 2(P)(F)(a).[41] There is no dispute here that the Operators fall within some of the occupational descriptors in the opening 3 lines of the first paragraph of Rule 2(E)(a). The same observation may be made for Rule 2(P)(F)(a). This dispute concerns the operation of the proviso in both parts of the rule on which both Qube and the TWU rely.

• [25] As to the "engaged in the transport of goods by road" proviso found in the second paragraphs of Rule 2(E)(a) and (P)(F)(a), the CFMMEU contends firstly that the internal roads on which both Qube and the TWU rely, are not the roads contemplated by the proviso and does not capture internal roads used in the course of loading and unloading at places where loading and unloading occurs.[42] Secondly it contends that although the relevant employees may be said to move goods by internal roads, they cannot be said to be "engaged in" the transport of goods by road because moving goods by road is at most only part of their duties.[43] The CFMMEU contends that whilst the transport of goods forms some part of the duties of at least some of the relevant employees when moving full containers, this is not the whole of the duties of any of the operators. The employees are not transporting goods by road when loading or unloading containers or when moving empty containers.[44] It contends that it is necessary to consider the primary purpose of the engagement of the employees and points to the position description for the relevant employees[45] which provides that the primary purpose of the relevant employees is to safely and efficiently operate container forklift/s and reach stackers, communicate effectively with Transport, Yard & Rail operations in accordance with company policy, safety procedures and legislative requirements whilst delivering the highest level of customer service possible.[46]

• [26] The approach to the construction of a union's eligibility rules is not seriously in contest. Interpreting the eligibility rules of a union and determining their application in a particular factual context is "a legal question to be solved by legal considerations".[47] The essential task is to construe the words of the eligibility rules objectively and give the words used their ordinary meaning.[48] It is legitimate to have regard to the industry rule for the purpose of resolving doubt as to the proper construction of the eligibility rule of a union,[49] understanding that the scope of the eligibility rule is not restricted by the scope of the industry rule.[50]

• [27] The eligibility rules of a union are generally construed in a liberal or purposive manner,[51] but the approach of giving a broad or generous construction to a legal document has limits and the meaning of the words used remains a legal question and the ordinary meaning of the words used will generally be applied.[52] Eligibility rules will not be interpreted in a manner that would give the rule a wide and indefinite scope of operation[53] or to promote exorbitant claims to coverage.[54]

• [28] Terms used in union eligibility rules should not be interpreted statically in accordance with the meaning they bore at the time that they were first introduced into the rules. Although such terms will have a fixed connotation, they bear a changing denotation - that is, they may be interpreted in accordance with their appropriate current meaning, taking into account changing technologies and methods of work.[55]

• [29] As to the construction of a proviso in an eligibility rule provision limiting the classes of employees eligible for membership of a union, the general approach of construing eligibility rules liberally does not necessarily follow. As the High Court of Australia explained in Re Grimshaw; Ex Parte Australian Telephone and Phonogram Officers' Association:[56]

"The general rule of construction is that eligibility provisions should be construed liberally rather than narrowly or technically (Reg v. Cohen; Ex parte Motor Accidents Insurance Board (1979) 141 CLR 577, at pp 581, 587). But it does not follow, as the prosecutor submits, that a proviso should also be construed liberally. In the present case we should construe the proviso objectively, recognizing that it constituted the settlement of a conflict between the APTU and the prosecutor in which the prosecutor was concerned to ensure that the alteration of the APTU's eligibility clause would not enable it to enrol present or future members of the prosecutor."[57]

• [30] I consider that the Operators employed by Qube performing work in its road transport and distribution business operating at the three IMTs fall within the proviso in Rule 2(E)(a) and (P)(F)(a) and so are not eligible to be members of the CFMMEU. It follows that the Operators are not persons whose industrial interests the CFMMEU is entitled to represent and that Qube was entitled to refuse Mr Reside entry to the premises at the three IMTs for the purpose of holding discussions with the Operators. My reasons for that conclusion are set out below.

• [31] First, the narrow construction of the proviso for which the CFMMEU contends is not supported by the text of the proviso or common sense. It is also not supported by the history of the proviso to which I will return shortly. The proviso in Rule 2(E)(a) and (P)(F)(a) is not to be read as only excluding mobile crane drivers, operators of forklifts and/or tow motors if such operators are actually and principally engaged in the transport of goods by operating the vehicles (and transporting the goods) on public roads. The physical transport of goods by public roads will usually be undertaken by truck, van or car and save for a very short distance (for example across a public road from one warehouse to another) will not be undertaken by mobile crane drivers or operators of forklifts. The usual form of transport of goods by road - by truck - is taken into account in the proviso by excluding persons who are "motor truck drivers wherever employed". The exclusion of "mobile crane drivers, operators of fork lifts and/or tow motors engaged in the transport of goods by road" can only be sensibly read as encompassing employees engaged in and performing that work as part of an operation to transport goods by road which includes the physical movement of the goods by, most commonly, truck. The notion that the proviso is engaged only when an employee is principally engaged to operate a mobile crane or forklifts or tow motor to transport goods by operating that vehicle on public roads renders almost nugatory the effect of the proviso and is devoid of the economic and industrial realities involved in the transportation of goods by road.

• [32] Second, the phrase "transport of goods by road" in the proviso is a broad one. To transport means the action of carrying or conveying a thing or person from one place to another.[58] Noting the caution about over reliance of dictionaries in the exercise of construction, "road" is a "way, usually open to the public for the passage of vehicles, persons and animals" or "the track on which vehicles etc pass, as opposed to the pavement".[59] The transport of goods "by road" involves moving the goods by using a road surface or travelling along a road. Being "engaged in" the transport of goods by road seems to me to involve no more than actively participating in or undertaking duties directly connected with the carrying out of the transport of goods by road.[60]

• [33] Third, the Operators are engaged in the transport of goods by road because the work performed by them is part of and directly connected with the road transport business carried on by Qube. The CFMMEU's reliance of the statement of "Primary Purpose" in the forklift operator's job description[61] is misplaced. That which is relevant is whether the operator is using the forklift or the reach stacker in a way which causes the Operator to be engaged in the transport of goods by road. The evidence clearly established that that is the case in respect of Operators at the three IMTs. They are engaging in the loading or unloading and in the transportation or repositioning containers for the purposes of the containers (and the goods in them) being transported by road. The Operators are engaged in the transport of goods by road in that they are directly engaged in tasks or duties that are essential to, and part of, the transport of those goods. The Operators perform work by using or operating the relevant vehicles to load or unload trucks and to reposition containers for the purposes of the containers being loaded or unloaded onto and from trucks and to be transported by road.

• [34] It is uncontroversial that Qube undertakes a road transport and distribution business. The function of the Operators who operate reach stackers and container forklifts are to unload, consolidate and load containers on and off trucks and trains, which undertaking is for the purposes of, and as part of, the goods transported by road for Qube's clients. Without the function being carried out by the Operators, the physical transport of goods by road cannot happen. This analysis focuses on the work performed by the Operators and whether that work has the result that the Operators are "engaged in the transport of good by road". It does not rely for its efficacy on a consideration of the industry in which Qube operates its business but plainly Qube's business is relevant in understanding the functions undertaken by the Operators, the whole of which are directed at, and a necessary or essential part of, the transport of goods by road.

• [35] Fourth, the history of the rule is consistent with the construction I prefer. I accept the TWU's contention that the history of the proviso is of some assistance in understanding its intended scope.

• [36] The words in the proviso were inserted into the rules of the Federated Engine Drivers and Firemen's Association (FEDFA) in 1947 by the Industrial Registrar of the Commonwealth Court of Conciliation and Arbitration in proceedings dealing with an application by the FEDFA to, inter-alia, alter its eligibility for membership rule and an objection thereto by, amongst others, TWU.[62] The proviso inserted was in the following terms:

"Provided that mobile crane drivers, operators of forklifts and/or tow motors engaged on the waterfront upon work being that of a waterside worker or engaged in the transport of goods by road shall not be eligible for membership."[63]

• [37] The alteration to its eligibility rule sought by the FEDFA, was to add "mobile crane drivers, operators of forklifts, and operators of tow motors" to the crane drivers category already found in its rules.[64] In deciding to insert the proviso, the Industrial Registrar reasoned as follows:

"I turn then to the objection of the Transport Workers Union of Australia. This objector is concerned mainly with the transport of goods by road of goods (and to a lesser extent of passengers); as incidental to that goods transport members of the Union load and unload vehicles and at times stack goods for loading or stack unloaded goods. The objection, as to fork lifts, would appear mainly to be directed at work upon stacks of goods. As to mobile cranes and tow motors the objection appears to be designed to prevent any intrusion by members of the applicant into road transport of goods. It appears to me that the spheres of the objector and the applicant are fairly well recognized even if not easy of exact definition. The business of road transport of goods is the province of the objector not of the applicant. The objector has no place in establishments where the business is the production of power or the utilization of power generated there or elsewhere. These limits have been fairly well observed by the parties and as far as my knowledge goes disputes in this connection have been very rare. But the callings which the applicant now seeks to include, may I think, open avenues for disagreement not present under the registration as now current.

It appears to me, however, that the applicant has established a right to bring within its sphere employees of the desired classes where they are found in the industrial areas presently occupied by the applicant. My decision on the matter appears later. "[65]

• [38] Three things may be observed from the extract above. The first is the recognition by the Industrial Registrar that the business of road transport of goods is in the province of the TWU and not the FEDFA. The second is the notation of the TWU's concern with its object to forklift operators directed at work upon stacks of goods and to mobile crane and tow motor operators the objection was designed to prevent any intrusion by members of the FEDFA into road transport of goods. The third is the acknowledgement that the callings which the FEDFA sought to include (namely "mobile crane drivers, operators of forklifts, and operators of tow motors") open avenues for disagreement not present under the registrations as now current (that is, in 1947). The proviso was inserted to resolve these matters and is to be understood by reference to these matters.

• [39] That the TWU, as objector, was concerned with the FEDFA encroaching into the area of the transport of goods by road including the function of loading and unloading road transport vehicles by forklifts and mobile cranes and the like seems, as the TWU have pointed out,[66] plain when regard is had to the transcript of the proceedings before the Industrial Registrar.[67]

• [40] The registration of the FEDFA was subsequently cancelled by the Court of Conciliation and Arbitration, but it was registered again and on 6 August 1951 a further application to amend its eligibility rules was granted in relation to which the TWU was also an objector. In the result is apparent that the words "or motor truck drivers wherever employed" were added to the proviso to signify the exclusive coverage by the TWU of motor truck drivers.[68]

• [41] Thus, for the reasons stated, the Operators who are drivers of the reach stackers and container forklifts at the three IMTs are thereby in my view engaged in the transport of goods by road. The proviso in Rule 2(P)(F)(a) is more broadly expressed than the proviso in Rule 2(E)(a), but in the result is, relevantly, to the same effect.

• [42] I also reject the CFMMEU's contention that the operators are "engine drivers" within Rule 2(E)(a). Presumably this submission extends to "engine drivers" in Rule 2(P)(F)(a). It appears to me that the addition of the classifications crane drivers, mobile crane drivers and forklift drivers within Rule 2(E)(a) (which were inserted into the FEDFA's rules in 1947 together with an earlier iteration of the current proviso), and the specification of mobile crane drivers and operators of forklifts in the proviso, indicates that these classifications are not considered as falling within the term "all classes of engine drivers". A reading to the contrary would render the separate reference to mobile crane drivers and forklift drivers superfluous and the operation of the proviso upon these separate classes of work engaged in the transport of good by road ineffective. As I have already pointed out, the proviso in Rule 2(P)(F)(a) is more broadly expressed and relevantly extends to "persons engaged in the transport of goods by road" and so even other "engine drivers" are caught if so engaged.

• [43] Given my conclusions above, it is not necessary to deal with the alternative construction advanced by Qube and the TWU, namely that the Operators are physically transporting goods by road in the relevant sense and are thus caught by the proviso. It is also unnecessary to deal with Qube's additional contention that the first entry sought by Mr Reside was properly refused as it was not authorised because the requisite prior notice was not given.

• [44] For the reasons stated, the Operators employed by Qube performing work in its road transport and distribution business operating at the three IMTs fall within the proviso in Rule 2(E)(a) and (P)(F)(a) and so are not eligible to be members of the CFMMEU. It follows that the Operators are not persons whose industrial interests the CFMMEU is entitled to represent and that Qube was entitled to refuse Mr Reside entry to the premises at the three IMTs for the purpose of holding discussions with the Operators.

• [45] The dispute is determined accordingly and no orders are necessary.

Mr Mark Gibian SC for the Transport Workers' Union

[37] Exhibit 3 at [22], [23], [28], [30], [36] and the Traffic Management Plans at DC-2, DC-3 and DC-4.

[39] Regional Express Holdings Limited v Australian Federation of Air Pilots [2017] HCA 55, (2017) 262 CLR 456 at [1].

[40] Outline of Applicant's Submissions [5]-[8] relying on Re Coldham; Ex parte Australian Workers' Union [1984] HCA 62; (1984) 59 ALJR 95.

[42] Outline of Submissions of the Applicant in Reply at [15].

[46] Outline of Submissions of the Applicant in Reply at [23], [28].

[47] See R v Aird; ex parte Australian Workers' Union [1973] HCA 53; (1973) 129 CLR 654 at 659; Re Australian Workers' Union; Ex parte Construction Forestry Mining and Energy Union [2002] FCAFC 150; (2002) 120 FCR 527 at [44].

[48] See R v Williams; Ex parte Australian Building, Construction Employees' and Builders Labourers' Federation [1982] HCA 68; (1982) 153 CLR 402 at 408; Australian Manufacturing Workers' Union v ResMed Limited [2014] FWCFB 3501 at [34].

[49] See Construction, Forestry, Mining and Energy Union v CSBP Ltd [2012] FCAFC 48; (2012) 212 IR 206 at [50]- [52]; Australian Manufacturing Workers' Union v ResMed Limited [2014] FWCFB 3501 at [34].

[50] See R v Gough; Ex parte Municipal Officers' Association [1975] HCA 30; (1975) 133 CLR 59 at 69; Australian Manufacturing Workers' Union v ResMed Limited [2014] FWCFB 3501 at [34].

[51] See R v Cohen ex parte Motor Accidents Insurance Board [1979] HCA 46; (1979) 141 CLR 577 at 587; Re Electrical Trades Union of Australia v Waterside Workers Federation of Australia (1982) 59 FLR 78 at 87; Australian Manufacturing Workers' Union v ResMed Limited [2014] FWCFB 3501 at [34].

[52] See R v Aird; ex parte Australian Workers' Union [1973] HCA 53; (1973) 129 CLR 654 at 659; Co-operative Bulk Handling Ltd v Waterside Workers' Federation of Australia [1980] FCA 141; (1980) 49 FLR 355 at 361.

[53] See R v Gough; Ex parte Municipal Offıcers' Association Australia [1975] HCA 30; (1975) 133 CLR 59 at 68-69; Construction, Forestry, Mining and Energy Union v CSBP Ltd [2012] FCAFC 48; (2012) 212 IR 206 at [52]- [53].

[54] See Construction, Forestry, Mining and Energy Union v CSBP Ltd [2012] FCAFC 48; (2012) 212 IR 206 at [49].

[55] See Co-operative Bulk Handling Ltd v Waterside Workers' Federation of Australia [1980] FCA 141; (1980) 49 FLR 355 at 363-364; Australian Manufacturing Workers' Union v ResMed Limited [2014] FWCFB 3501 at [34].

[56] (1986) 60 ALJR 588.

[58] See Zader v Truck Moves Australia Pty Ltd [2016] FCAFC 83 at [11].

[60] See, for example, De Ronde v Minister for Immigration and Multicultural and Indigenous Affairs (2014) 188 IR 266 at [53].

[62] A copy of the decision of the Industrial Registrar made on 18 February 1947 is annexed to Exhibit 2 and marked WC- 2.

[67] A copy of the transcript of the proceedings before the Industrial Registrar on 25 November 1946 is annexed to Exhibit 2 and marked WC- 1. The relevant passages from the transcript are recorded in the transcript of the proceedings before me at PN 704, PN 706, PN 708, PN 710, PN 712, PN 715 and PN 717.

[68] See summary of history set out in Transport Workers Union of Australia v The Federated Engine Drivers and Firemens Association of Australasia [1951] CthArbRp 669; (1951) 72 CAR 852 at 853-854.

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