[1] This is an appeal against a finding of dispute between the Construction, Forestry, Mining and Energy Union ("union") and Dyno Nobel Asia Pacific Limited ("Dyno Nobel") made by Senior Deputy President Drake on 23 December 2004 pursuant to a decision given on 2 November 2004 [1] and a supplementary decision given on 23 December 2004[2] That finding was based on the service of a log claims by the union and the rejection of that log by Dyno Nobel.

[2] An appeal lies to a Full Bench only with the leave of the Full Bench: s.45(1) of the Workplace Relations Act 1996 ("the Act"). This matter raises important questions about the proper application of a class of union eligibility rules known as 'industry' rules. Those questions have a significance far broader than the contest between the parties. In our view the appeal is of such importance, that in the public interest leave to appeal should be granted. Accordingly, by virtue of s.45(2) of the Act, we are obliged to grant leave to appeal and we do so.

[3] Leave having been granted, the appeal proceeds by way of a rehearing [3] on the evidence before her Honour and any fresh evidence admitted pursuant to the discretion conferred by s.45(6)(a). However the Full Bench can allow an appeal and exercise its powers under 4

[4] The Commission has no jurisdiction to find that there exists between a federally registered union and an employer an "industrial dispute" within the meaning of s.4 of the Workplace Relations Act 1996 unless, on the proper construction of the union's eligibility rules, the employees concerned are eligible to become members of the union. [5]

[5] Rule 2D of the eligibility rules of the CFMEU is in the following terms:

Without limiting the generality off the foregoing and without being limited thereby the Union shall also consist of an unlimited number of employees engaged in or in connection with the coal and shale industries together with such other person whether employees in industries or not as have been appointed officers and admitted as members.

[6] The central issue before her Honour was whether, pursuant to Rule 2D, employees of Dyno Nobel were eligible to become members of the CFMEU. Her Honour held that employees of Dyno Noble who worked out of depots on or near coal mining leases were eligible to become members of the CFMEU and proceeded to find a dispute, albeit a finding that was not limited to this class of employees. Dyno Nobel contends that her Honour erred in finding a dispute and in the width of the dispute finding.

[7] Whether an alleged dispute is an "industrial dispute" within the meaning of the Act is a question going to the jurisdiction of the Commission. As such, the issue on appeal is not whether the finding that employees of Dyno Nobel were eligible to become members of the CFMEU was reasonably open to her Honour but rather whether that finding was correct on the evidence before her Honour. [6] The matter was put succinctly by the Full Bench in Australian Human Resources Institute Pty Ltd v National Tertiary Education Industry Union:[7]

[10] The appeal is against a decision by way of a finding in relation to an alleged industrial dispute. The issues raised concern questions as to the Commission's jurisdiction. The fundamental issue in the application before the Deputy President was the NTEU's constitutional coverage and therefore its capacity to create an industrial dispute with the AHRI. The determination of this issue involved firstly the construction of the relevant eligibility rules of the NTEU and secondly the application of those rules, properly construed, to the facts. The first step is " a legal question to be solved by legal considerations ". The second may involve a question of mixed law and fact. The determination of the issue did not, however, involve the exercise of a discretion. Either the NTEU had the requisite constitutional coverage and, therefore, the capacity to generate the dispute or it did not. The task for this Full Bench is to determine its own view as to the meaning of the NTEU's eligibility rules and, if that view differs from the Deputy President's conclusion at first instance, we are obliged to uphold the appeal. (footnotes omitted)

[8] Dyno Nobel manufactures and supplies explosives and provides various explosive related services to its customers, including customers in the coal mining industry. Her Honour summarised the work performed by Dyno Nobel employees at various coal mines and at depots on or near coal mine leases as follows:

[353] I have concluded that the work performed by Dyno Nobel employees at various coal mines and at depots on coal mine leases or nearby includes the following:

• Ensuring that stock at the depots is stored correctly, properly accounted for and adequately and safely maintained.

• Consulting with the mine site operator as to how the shot is to be planned and what product is to be used and supplied.

• Loading raw materials on to the bulk explosives vehicles.

• Loading mixed materials into explosive holes.

• Preparation of the drill and blast design at Gregory by an employee from Peak Hill who works solely on coal mining work.

• Providing training to mine staff in the safe use of Dyno Nobel products.

• Maintaining the truck, including calibration on a monthly basis.

• Maintaining the safety and maintenance quality systems.

[354] Dyno Nobel employees do not designate where the blasting is to occur and they do not drill blast holes.

[355] Dyno Nobel employees complete the explosives manufacturing process by turning the inert products in the explosives truck into an explosive by mixing the products as they go into the holes on the mine site.

[9] Her Honour set out extracts from various authorities and summarised the question for determination as follows:

[359] The question I have to determine is whether or not the work performed by the employees of Dyno Nobel, and therefore the industry in which Dyno Nobel operates in relation to those employees, is work in or in connection with the coal industry. I do not believe I have to give prominence in my consideration of this question to a panoramic view of Dyno Nobel's operations as pressed upon me by Mr Herbert.

[10] Her Honour then made the following findings:

[360] Blasting and shotfiring are identified as advanced competencies in the [Coal Mining (Production and Engineering) Award]. Blasting and shotfiring is work performed on coal leases across Queensland, New South Wales and in Western Australia. In New South Wales there is a specific award for shotfirers and deputies which applies to employees of employers who are members of the New South Wales Coal Association.

[361] I accept that the past practice in coal mining was for direct mine site employees to perform explosives work with materials supplied by the explosives suppliers. That work previously performed by direct mine site employees has not disappeared. It is now predominantly performed by the contractors who supply the explosives, such as Orica and Dyno Nobel.

[362] I have concluded that removing the overburden is an essential element of open cut coal mining. It is a critical input to the cost of open cut coal mining. It involves a huge capital investment. How well the mechanical process of removing the overburden progresses, and the cost of the explosives involved, are essential considerations in the overall economics of the production of coal at open cut mines.

[363] Removal of overburden is work performed within the coal industry. Preparing a drill and blast pattern is an essential component of removing the overburden. Mixing of the inert components supplied by Dyno Nobel in the explosives truck and pouring that explosive down the hole is also an essential component of removing the overburden. If there is no down the hole process and no consequent explosion there can be no removal of the overburden. Without the removal of overburden there can be no open cut mining.

[364] Secondary blasting, if it takes place, is the same physical activity as the first down the hole process. It is engaged in to either amend an unsatisfactory first blast or to remove an impediment in the exposed coal seam. It is an adjunct to the initial down the hole task. In my opinion secondary blasting is work performed in the coal industry.

[365] Shotfiring is work performed within the coal industry. It is governed by coal mining legislation and regulations, particularly in relation to safety. Certification for shot firing is a prerequisite for its performance. Employees trained by Dyno Nobel in shotfiring or any part of the down the hole process tend to remain in that work. It is an activity which is engaged in at open cut coal mines across the Bowen Basin as part of the process of mining for coal. It is recognised as a coal mining activity in various Awards and Agreements of this Commission.

[366] I have concluded that the activities engaged in by Dyno Nobel employees on coal mining leases, or on the depots located either on site or nearby, is work performed within the coal industry. The substantial character of this work performed by Dyno Nobel is work in the coal industry. This does not include the activities of Dyno Nobel engaged in at their various manufacturing plants or off coal mining sites or depots in other industries.

[367] Mr Herbert described shotfiring as an adjunct service or incidence to the manufacturing of explosives. I do not accept this characterisation, nor do I believe it is a minor or incidental part of Dyno Nobel's service. Shotfiring might earn a small percentage of total revenue but it is a significant part of the service which has emerged from customer demand.

[368] The work engaged in by Dyno Nobel employees on site or at these depots is essential to the mining of coal. Without these functions the mining of coal could not be achieved. The activities are integral to the processes of the coal industry. They are not peripheral activities provided to the coal industry such as those the subject of the decision in Poon Bros. Although the work of Dyno Nobel is a service provided to the coal industry by contractors, the work is work performed in the coal industry. I have not drawn this conclusion because the client of Dyno Nobel is the coal industry. I have drawn this conclusion because of the nature of the work itself. It is not the provision of fuel or food or the provision of some other extraneous service.

[369] I make no comment about what other industry Dyno Nobel might operate in. A company can operate in a number of industries. I am not required to determine which industry is predominant and identify Dyno Nobel as being a contractor in that predominant industry. The revenue obtained as a percentage of Dyno's gross revenue is not determinative. It is clear that at least part of its work is in the chemical industry. That is the industry described in the Explosives Award. My findings are confined to the work which I have considered in this decision, which is the work conducted on the coal mining leases or conducted on and from the depots of Dyno Nobel which are on or nearby the coal mining leases. This includes the down the hole service, shotfiring and other related tasks such as the preparation of the drill and blast pattern by the single employee who performs that service for the Gregory mine.

[370] I have already determined that the substantial character of the work performed by Dyno Nobel on coal mining leases or in its nearby depots is work in the coal industry. If also considered from the aspect of its control, organisation, location, personnel and equipment it is in the coal industry. It is not part of a distinct or separate explosives industry or chemical manufacturing business.

[12] The scope of a union eligibility rule is matter of the proper construction of the rule. This is "a legal question to be solved by legal considerations". [8] The basic principles governing the construction of union eligibility rules are well established and need not be repeated here.

[13] The Courts and the Commission have long recognised two particular categories of eligibility rule:

(i) rules based on the industry in which the business or enterprise of the employer operates (such a rule is referred to as an 'industry rule');

(ii) rules based on the type of work performed by employees (such a rule is usually referred to as a 'vocational rule' and sometimes referred to as a trade, craft or calling rule)

Sometimes a particular eligibility rule may be expressed in such a way as to form a hybrid with different parts falling into each of these two categories. Of course, a rule may be framed in such a way that it does not fall into either of these categories.

[14] The approach to the proper construction and application of eligibility rules properly classified as 'industry rules' dates back to the decision of the High Court in R v Hibble; Ex parte Broken Hill Proprietary Co Ltd [9] ("Hibble"). In that case the High Court was concerned with the proper construction of an eligibility rule of the Australasian Coal and Shale Employees' Federation that provided:

...[the union]shall consist of an unlimited number of employees engaged in or in connection with the coal and shale industry, together with such other persons, whether employees in the industry or not, as have been appointed officers of the Federation and admitted as members thereof. (emphasis added)

[15] The issue was whether employees of BHP engaged in converting coal to coke for use in its steelworks were "employed in or in connection with the coal and shale industry" within the meaning of the relevant eligibility rule. The High Court unanimously held that the employees in question were not eligible for membership pursuant to that rule. Five of the six members of the bench (Knox CJ, Gavan Duffy, Powers, Rich and Starke JJ) delivered a joint judgment in which they held: [10]

The Broken Hill Proprietary Co. Ltd. carries on the business of iron and steel manufacturers, and in that business employs certain workmen who are engaged in converting coal into coke for use in connection with the production of iron and steel. These workmen, it is said, have been admitted as members of the Coal and Shale Employees' Federation as persons engaged in or in connection with the coal and shale industry. The words are no doubt wide, but they do not cover every person who uses coal or works in connection with it. The Arbitration Act allows the organization of employees according to their association with the trades or businesses of employers or according to the occupations or avocations of employees. The discrimen adopted by the Coal and Shale Employees' Federation, on a proper interpretation of their rules, is, we think, the trade or business of the employer. Thus, some employers extract coal from the earth, convert some of it into coke, and distribute both coal and coke to consumers. Such a business would in point of fact be part of the coal or shale industry, and all persons employed in that business are properly said to be employed in or in connection with that industry. A person, however, who carried on the trade or business of a baker using coal or coke for the purpose of heating his ovens could not, according to the ordinary meaning of words, be said to be engaged in the coal or shale industry, nor could his employees be rightly said to be employed in or in connection with that industry.

The question whether a particular trade or business is or is not part of the coal and shale industry must in all cases be a question of fact. We hold that a steel and iron manufacturer who for the purpose of his business uses coal in its natural state or after it has been transformed by him into coke is not engaged in the coal or shale industry, and that his employees are not employed in or in connection with that industry. Our decision does not prevent the association of workmen in any form they think fit. The Federation might have based its membership on the calling of coal workers or any other avocation of employees, but it has not done so, and we must decide the matter on the words that were in fact chosen for the qualification of membership.

[16] Rule 2D of the CFMEU eligibility rules refers to "employees engaged in or in connection with the coal and shale industries". It is an industry rule and the discremen of eligibility is the trade or business of Dyno Nobel. Indeed, counsel for the CFMEU acknowledged that Rule 2D is the current manifestation of the very rule considered by the High Court in Hibble. Accordingly, we are bound, as was her Honour, to apply the decision in Hibble to Rule 2D. [11] Thus, the issue in this appeal turns on the proper characterisation of the business of Dyno Nobel, that is, whether the business of Dyno Nobel is "in or in connection with" the coal industry.

[17] Her Honour set out extracts from a number of authorities that appear to lend support her approach to the characterisation of the industry of Dyno Nobel. In those circumstances it is necessary to consider the authorities in some detail.

[18] In R v Central Reference Board; Ex parte Thiess (Repairs) Pty Ltd [12] ("Thiess Repairs") the High Court was concerned with whether the Central Reference Board had jurisdiction to consider an unfair dismissal claim by a shop fitter, Mr Belmar, who was employed by Theiss Repairs Pty Ltd. The Board had jurisdiction in relation to the coal-mining industry. The question was whether Belmar was employed in that industry. Thiess Brothers Pty Ltd operated a coal mine in which it utilised earthmoving machinery. Minor repairs to that machinery were performed by employees of Thiess Brothers Pty Ltd . Major repairs were performed by a closely related company, Thiess Repairs Pty Ltd, in a engineering workshop situated on same mining lease. Such repairs formed the major part of its work, but it also undertook some general engineering work. The High Court (Latham CJ, Rich and Starke JJ; Dixon and McTiernan JJ dissenting) held that Theiss Repairs Pty Ltd did not perform work in the coal mining industry and that, consequently, the Board did not have jurisdiction in relation to order the reinstatement of Mr Belmar.

[19] The leading judgment is that of Chief Justice Latham. The Chief Justice observed: [13]

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 - R. v. Drake-Brockman; Ex parte National Oil Pty. Ltd. [(1943) [1943] HCA 35; 68 CLR 51]. 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 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. 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. (emphasis added)

[20] Although her Honour referred to the judgment of Latham CJ [14], she did not refer to the passage we have set out, which is the passage that is most relevant for present purposes.

[21] Dixon J described the case as being "very much upon the border line" and observed: [15]

The function or activity with which we are concerned is the major repair and overhaul of the earth-moving and excavating equipment used in removing the over-burden and in winning the coal from the open cut. As a matter of reason, it seems to me that such repairs and overhauls may be carried out as an integral part of the operations of open-cut mining so as to form an indivisible element in the undertaking or may be relegated to separate and independent engineering operations outside the undertaking. In the one case I should have thought that they might quite well be considered part of the industry. In the other case I do not think they ought to be so considered. The difference must depend upon circumstances, the chief of which must be separateness of establishments in point of control, organization, place, interest, personnel and equipment. It must in the end come down to a matter of degree. It is not like the cases of Ex parte Fox and Clinton [(1945) [1945] HCA 53; 70 CLR 598] where the distinction rested upon the character of the operations, upon function. There we thought that the transport of coal in distribution was to be distinguished from coal-mining as an industry.

In the present case the prosecutor has not satisfied me that the major repair and overhaul of the machines is conducted otherwise than as an integral part of the mining undertaking, because of the following factors. The operations, although carried on by a distinct company, are under one control and management with the mining operations. The distinct company is a subsidiary. The works are situated close to the open cut, about three-quarters of a mile away, and the site was obviously chosen for that reason. The site is variously described as "upon" the open cut, as adjacent to but outside the area of the open cut and as upon the mine-owner's land but outside the fence. Although some other work has been done, the repair and overhaul of the mining machinery was the purpose of setting up the engineering shop and substantially, it has no other present purpose. It was set up because of the inconvenience, and I would assume cost, of having the work done by outside engineering establishments. Another workshop for minor repairs and adjustments is in the open cut. Though that belongs to the mining or excavating company there is an interchange of tools and spare parts. The major repair and overhaul of the machines doing the mining is of course essential to the mining operation and to do it as part of the same undertaking may be considered to give all the advantages of expedition, co-ordination and reduction of cost that are supposed to arise from unity of control and proximity. The fact that the operations of mining and of major mechanical repair are divided between distinct legal entities ought not, where the question is whether they form a main and an incidental part of the same undertaking, to weigh against the facts that they are under one control and management and conducted in the same interest.

[22] Notwithstanding that Dixon J was in dissent, his reasoning has subsequently been cited with approval. It is important to note that notwithstanding his finding that the major repair and overhaul of the earthmoving machines performed by Thiess (Repairs) Pty Ltd was "essential to the mining operation", Dixon J regarded the key question as being "whether they [ie. the mining and the repair work] form a main and an incidental part of the same undertaking". Dixon J saw two alternatives:

• such work "may be carried out as an integral part of the operations of open-cut mining so as to form an indivisible element in the undertaking" (in which case it was work in a business that was in or in connection with the coal mining industry), or, alternatively,

• such work "may be relegated to separate and independent engineering operations outside the undertaking_"_ (in which case it was not work in a business that was in or in connection with the coal mining industry).

[23] Distinguishing between these two alternatives "must depend upon circumstances, the chief of which must be separateness of establishments in point of control, organization, place, interest, personnel and equipment". The better view is that Dixon J's dissent is the result of a differing judgment in relation to the facts of a borderline case. It is doubtful whether the two approaches can lead to different results in a case that is not a borderline case.

[24] In Re Federated Liquor and Allied Industries Employees' Union of Australia; Ex parte Australian Workers' Union [16] ("Poon Bros") the High Court was concerned with an eligibility rule of the AWU that declared as eligible for membership "every bona fide worker... engaged in manual or mental labour in or in connection with the following industries or callings, namely... metalliferous mining... and... employees engaged in or in connection with ... all work in laundries." Two companies were contracted by iron ore mining companies to supply catering, cleaning, laundry, housekeeping and garbage services for townships purpose built by the mining companies to house the workers who operated the mines. The issue was whether the employees of the contractors were engaged in or in connection with the metalliferous mining industry and thus eligible for membership of the AWU. Barwick CJ (with whom the rest of the Court, Gibbs, Stephen, Mason and Jacobs JJ, agreed) noted:[17]

It is well settled that an eligibility clause expressed in the terms of the eligibility clause of the applicant should be construed as relating to the industry of the employer; that is to say, that persons to be eligible to be members of the organization must be employed in an industry carried on by their employer which satisfies one or more of the descriptions in the eligibility clause: see eg R v Hibble; Ex parte Broken Hill Pty Co Ltd [1921] HCA 15; (1921) 29 CLR 290 at 297. In relation to the present circumstances that means that, to be eligible for membership of the applicant, the employees of the respondent companies must be employed by the respondent companies in or in connection with the industry of metalliferous mining. Whether or not they are so employed is a question of fact: see eg R v Hibble, supra, loc cit.

The question, therefore, which will decide the validity of the consent award is whether the respondent companies do in fact carry on an industry of or in connection with metalliferous mining, or put another way, whether the employees of the respondent companies are employed by those companies in or in connection with the industry of metalliferous mining carried out by those companies. (emphasis added)

[25] The Chief Justice observed: [18]

The Full Court of the Commission ... said: "We are of the view that although the catering facilities provided by the respondent employers to those engaged in the mining industry are necessary for those people and would not exist in their absence, the catering industry as performed by Poon Bros and SHRM is identifiably different from the mining industry and when a mining employer decides to obtain the services of a contractor instead of himself catering, the catering becomes a service and is not part of the mining industry whatever it may have been before."

In my opinion, this was a correct view. The business of the respondent companies was quite distinct and separate from that of the mining companies engaged in metalliferous mining. True it is that the respondent companies served the mining companies and provided them with commodities and services the provision of which was desirable if not indeed necessary for the maintenance of the workforce to carry on the mining operations. But that does not mean that in contracting to provide and in providing these commodities and services the respondent companies entered into the business of the mining companies so as themselves to be carrying on metalliferous mining; nor were their employees employed in connection with that industry. Their businesses remained distinct. Though serving the mining industry, the respondent companies did not carry on metalliferous mining or a business or industry in connection with metalliferous mining. Although employees of the mining companies who provided food or services of the kind furnished by the respondent companies might have been held to be working in the industry of metalliferous mining, such work done by an independent contractor has a different nature or quality. It cannot be said to be done as an integral part of the metalliferous mining operation. Sir Owen Dixon in R v Central Reference Board; Ex parte Thiess (Repairs) Pty Ltd [1948] HCA 9; (1948) 77 CLR 123 at 141, thought that the separateness of the establishments in point of control, organization, place, interest, personnel and equipment might furnish a relevant discrimen in deciding the question of fact. Sir John Latham, in the same case, at p 135, thought that the substantial character of the industrial enterprise in which the employer and employee were concerned was decisive of the question whether the employee was engaged in an industry of given description. Here the substantial character of the industrial enterprise in which the respondent companies are engaged is that of catering and of providing cleaning, etc services. That they should at a particular place perform such work exclusively for mining companies and under contract with them does not require or permit the conclusion that in doing so the respondent companies carry on an activity in or in connection with metalliferous mining or that their employees are employed in or in connection with such an industry.

[26] Finally, the Chief Justice noted that employees of the contractors who were performing laundry work may have been eligible for enrolment under what his Honour must have seen as a vocational portion of the rule: [19]

It is possible that some of the employees of the respondent companies may have been engaged "in or connection with … work in laundries" within the meaning of the eligibility clause. I find no need to decide whether such employees were so eligible. But, if they were, the applicant would only have had standing to raise a dispute on their behalf. But the applicant sought to raise a dispute on behalf of the employees generally, and the award which was made by the Commissioner dealt with employees such as cooks, kitchen-hands, stewards and stewardesses, housekeepers, housemaids, garbage attendants and snack bar attendants as well as laundresses.

[27] We note that, while referring with apparent approval to the remarks of Dixon J in Thiess Repairs, Barwick CJ applied the "substantial character" test of Latham CJ to the business of the contractors. To the extent that these approaches might lead to different outcomes, the decision in Poon Bros suggests that the outcome ought not be contradicted by the "substantial character" test, which, of course, is a test directed towards the character of the employer's business or enterprise.

[28] We note that when Barwick CJ said "put another way [the question is], whether the employees of the respondent companies are employed by those companies in or in connexion with the industry of metalliferous mining carried out by those companies" [20] his Honour ought be taken as referring to the employees of a distinct business, enterprise or undertaking of the employer as a whole and not as intending to suggest that the question could be answered in the affirmative if a small proportion of the employees within a given business, enterprise or undertaking could be so characterised. His Honour applied Hibble and approach of Latham CJ in Thiess Repairs and they indicate as much.

[29] In paragraph [340] her Honour set out an extract from the judgment of Aickin J [21] in R v Moore; Ex parte Federated Miscellaneous Workers' Union of Australia[22] ("Uranium Mining case"). In that case a dispute had been raised by the AWU in relation to an enormous uranium mining project before the construction of the project had commenced. Four mining companies and a number of project engineers had been named as respondents in the log of claims. The construction of the mine and its associated facilities was to be carried out by contractors yet to be engaged by the project engineers. Relevantly for present purposes, the High Court was concerned with whether the AWU was entitled to enrol employees of the project engineers as members. The relevant eligibility rule authorised the AWU to enrol workers "engaged in manual or mental labour in or in connection with the following industries or callings, namely:... metalliferous mining..." The principal judgments are those of Aickin J and Jacobs J. Barwick CJ agreed Aickin J. Stephen J agreed with Jacobs J. Gibbs J agreed with both Jacobs J and Aickin J.

It is abundantly clear that the four mining companies each wish to have constructed a mine or mines with all ancillary works. It is equally clear that the other companies propose to engage in the work of constructing the mines and all their ancillary works. Nothing could be more closely related to metalliferous mining than constructing or having constructed a metalliferous mine and its ancillary works. It is an integral part of the mining operation. See Re Federated Liquor and Allied Industries Employees' Union of Australia; Ex parte Australian Workers' Union per Barwick C.J., [(1976) 51 ALJR, at p 268]. The facts in the last-mentioned case were quite different. Catering and cleaning services were far removed from any concept of metalliferous mining which was the relevant industry in that case. The decision does not assist the present applicant.

The argument of the applicant has the extraordinary result that the metalliferous mines and their ancillary works would be constructed without anybody engaged in that construction being engaged on work in or in connexion with metalliferous mining. It seems to me that the proposition has only to be stated in order that it may be seen how untenable the argument is. Construction work cannot be looked at apart from what is being constructed. The connexion is so close as to be inseparable. The mine owner is engaged in or in connexion with the industry of metalliferous mining when it has its metalliferous mining installations and associated works constructed. The constructor is engaged in work in connexion with metalliferous mining when it constructs the mining installations and associated works.

[31] Aickin J set out a lengthy extract from Poon Bros, including the passage set out above, and said: [24]

I have quoted that passage in full because it appears to me to determine the present matter. By way of contrast, the activities of the project engineers in the present case cannot, in my opinion, be said to be "quite distinct and separate from that of the mining companies engaged in metalliferous mining". Here what they are doing is itself part of the business of metalliferous mining, and at the very least it is "in connexion with" that industry. It is, I think, equally clear that there is no "separateness of establishments" in the sense referred to in the passage quoted because on the facts here in question the "establishment" of each project engineer is in truth that of the mining company for the purpose of carrying out the latter company's mining operations during both the construction and the mining stages. Applying the other test quoted, the substantial character of the industrial enterprise in which the project engineers and their employees will be engaged will be in the metalliferous mining industry, notwithstanding that all, or some, of it may properly be called construction work.

If it is right to say that the project engineers are engaged in the metalliferous industry, so far as their performance of their contracts to act for the mining companies are concerned, then it must follow that the A.W.U.'s demand was made upon employers engaged in an industry in respect of which its members were eligible under its rules to work.

[32] We note that the emphasised portions of this passage demonstrate that, consistent with Hibble, Thiess Repairs and Poon Bros, Aickin J was concerned with the characterisation of the business ("enterprise") of the project engineers. Bearing in mind that the Uranium Mining case concerned a project in a remote location that was truly enormous, it is reasonable to conclude that an unarticulated major premise of the reasoning of Aickin J was that the size and remoteness of the project meant that, on any view, it would amount to a distinct 'establishment' or 'industrial enterprise' for each of the project engineers.

[33] We note also that, the 'enterprise' in which the project engineers and their employees were engaged was in or in connection with the metalliferous mining industry notwithstanding that it could also be characterised as within the civil construction industry. The Uranium Mining Case is thus an example of how industries may overlap and the one enterprise of an employer may have a substantial character that places it in two industries simultaneously.

[34] We further note that neither Jacobs J nor Aickin J made direct reference to Hibble or Thiess Repairs. Each referred to Poon Bros with approval. Indeed, Aickin J regarded the case as being determined by the decision in Poon Bros. We do not think that Aickin J or Jacobs J can properly be taken as having intended to alter the law as established by Hibble and Thiess Repairs.

[35] In paragraph [341] of her decision her Honour extracted a passage from the joint judgment of Deane and Dawson JJ (with whom Mason ACJ and Brennan J agreed) in the R v Coldham; Ex party Australian Workers' Union [25] ("Worsley Alumina case"). That case concerned construction work on a bauxite extraction and refining project. The work involved at the mine site included the construction of offices, workshops and amenities buildings, sewerage tanks, fencing and roads. At the refinery site, it included the construction of similar buildings and facilities and of a power plant, refinery tanks, waterworks, railway sidings, bridges and pipe racks. The refinery site was located fifty kilometres from the mine site and a conveyor belt connecting the two sites was to be constructed. The relevant passage in the joint judgment is as follows:[26]

In the Poon Bros. Case, the workers involved were not performing work which constituted, of its nature, part of the industry of metalliferous mining. If they had been actually employed by the mining companies it may nonetheless have been the case that they were workers employed in connexion with that industry. The sub-contractors which employed them were not, however, themselves engaged in the metalliferous mining industry. They were engaged in supplying the particular services which they supplied. In those circumstances, the relevant employees in the Poon Bros. Case were plainly employed in supplying those services and not in the mining industry. On the other hand, once it is accepted, as the Uranium Mining Case establishes, that the words metalliferous mining industry as used in the A.W.U.'s eligibility clause encompass not only the extraction and treatment of the mineral but the preliminary construction of mine, refinery and associated facilities, it is plain that the workers in the present case are themselves performing work in or in connexion with that industry and that they are employed by sub-contractors who are, in so far as the work of those workers is concerned, themselves engaged in that industry. The application of the considered comments of Jacobs and Aickin JJ., set out above, to the circumstances of the present case leads, in our view, to the conclusion that all of the relevant workers are eligible to become members of the A.W.U. in that they are, for the purposes of the A.W.U.'s eligibility provisions, workers "engaged in manual or mental labour in or in connection with" the metalliferous mining industry. For the reasons to which we have already referred, we are of the view that those considered comments of Jacobs and Aickin JJ. should be followed and applied in the present case.

[36] The portion with underline emphasis is the part of the passage extracted by her Honour. It was "plain" that the relevant workers in Worsley Alumina case were performing work in or in connection with the industry of metalliferous mining because all of the workers were engaged in construction work on a very large bauxite extraction and refining project and the Uranimum Mining Case found such construction work to be in or in connection with the metalliferous mining industry notwithstanding that it could also be characterised as construction work. The portions of the passage with bold emphasis demonstrate that Deane and Dawson JJ were cognizant that it was the business of the employer that was being characterised. Again it may be inferred the size of the work meant that the businesses of the construction employers thereby had a substantial character that was in or in connection with the metalliferous mining industry by virtue of their involvement in the project.

[37] In R v Isaac; Ex parte Transport Workers Union [27] ("Argyle Diamond case") the High Court was concerned, inter alia, with whether workers engaged in the construction and operation of the Argyle Diamond mine were employed "in connection with... the reducing and refining of ores" within the meaning of the eligibility rules of the AWU. The Court (Gibbs CJ, Deane, Wilson and Dawson JJ; Brennan J dissenting) answered this question in the affirmative. The mine owner had established a substantial crushing plant, proximate to the mine, where the diamonds were extracted from ore in which the diamond content was less than 1/600,000th part of the ore. The leading judgment was given by per Gibbs CJ (with whom Deane and Dawson JJ agreed). His Honour stated":[28]

A decision of the question whether a particular description fits an industry or calling involves matters of degree, and the answer may depend on the "substantial character" of the activities carried on: Reg. v. Moore; Ex parte Federated Miscellaneous Workers' Union of Australia [Uranium Mining case], at pp 483-485, and cases there cited. That does not mean that if the enterprise has two purposes, it is necessary to decide which is predominant. It is quite possible that an industry or calling can accurately be described in a number of ways, and the fact that it comes within one description does not mean that it cannot also come within another. For example, in Reg. v. Moore; Ex parte Federated Miscellaneous Workers' Union of Australia, some of the workers concerned were engaged in road making, as well as in or in connexion with metalliferous mining: see per Jacobs J. at pp.478-479. In the same case, Aickin J. said, at p.483:

"It does not, in my opinion, follow from the fact that it may be said that an employer is engaged in construction work that he may not also properly be regarded as engaged in activities in or in connexion with metalliferous mining."

The fact that the employees engaged to construct and work the mine at the Argyle Diamond Mine Project are quite clearly engaged in labour in or in connexion with mining does not necessarily mean that they are not engaged in or in connexion with "reducing and refining of ores".

The words "in connection with" in an eligibility rule connote a relationship between the work of the employee and the industry or calling in question. ...

The question is one of fact and depends on all the circumstances of the case. In the present case there was one co-ordinated project carried on at one place in Western Australia. The whole project was managed by Argyle Diamond Mines Pty. Ltd. There was a close physical proximity between the mine and the primary crusher which formed the part of the treatment works to which the ore was first taken. This proximity was neither contrived nor adventitious - it was necessary, for the economical operation of the project, that the large quantities of ore, containing only a small proportion of diamonds, should not be carried any further than was necessary. In this respect the statement by the Commission that the treatment plant could technically have been located in an entirely different area, although perhaps literally true, is incorrect from a practical point of view. Further, it is difficult to agree with the conclusion that the primary and predominant purpose of the activity was the mining of the pipe. It could with equal truth be said that the primary and predominant purpose of the project was the production of diamonds, by mining the ore and reducing and refining it. There was a very close relationship between the construction and working of the mine and the reducing and refining of the ore. The fact that some of the work in excavating the mine and building the access roads was done by contractors does not prevent the work done in carrying out those activities from being connected with the reducing and the refining of the ores.

[38] We note that when Gibbs CJ stated that the answer to the question of whether a particular description fits and industry or calling "may depend on the "substantial character" of the activities carried on" his Honour must be taken as referring to the activities of the employer and its employees in the particular business of enterprise of the employer. The passage from the Uranium Mining case to which his Honour refers is from the passage from the judgment of Aickin J set out above. We have already noted that it is clear from that passage that Aickin J, in the context of an industry rule, was focused on the characterisation of the business of the employer.

[39] Wilson J (with whom Deane and Dawson JJ also agreed) said: [29]

The employers argue that the same width of meaning which in the Uranium Mining Case and the Worsley Case was accorded to the concept of "in or in connection with ... metalliferous mining" should be applied to the industry of reducing and refining of ores. The Commission having rightly accepted that the word "ores" is not governed by the word "metalliferous" and that so far as its planned ore processing activities are concerned ADM is engaged in the industry of reducing and refining of ores, it is submitted that the Commission should have gone on to find that all the preparatory work including the construction of the mine, the removal and dumping of overburden and the construction of the necessary roads, together with the actual operations of extracting, loading and transporting the ore to the treatment plants and maintaining the site, was work in or in connection with the industry of reducing and refining of ores. Everything that is done on the site is done with a view to, and for the purpose of, reducing and refining the lamproite ore. The connection, so it is said, is a direct one because each step is a step in the one industrial process. Furthermore, the physical connection between mining and processing is much closer at Argyle than it was in the Worsley Case. Finally, there is a greater capital expenditure involved in establishing and operating the treatment plant than in conducting the mining operations, a fact which the employers claim militates against the assignment of a subsidiary role to the former.

[40] Wilson J then set out a lengthy passage from the decision of the Full Bench of the Commission in which it concluded that the construction and operation of the mine was distinct from the ore crushing operation and continued:

With all due respect to the members of the Commission, I think the reasoning in the passage which I have cited from their reasons for judgment is open to question. First, in the Uranium Mining Case Jacobs J., at p.477, used the word "integral" to describe the relationship between the preparatory work of constructing a mine together with its ancillary works and the actual activity of metalliferous mining. He described that preparatory work of construction as "an integral part of the mining operation". In so doing his Honour was emphasizing his view that there was a sufficient connection for the purposes of the rule between construction work and the industry of metalliferous mining. To say of the present case that the processing operation is not an integral part of mining in the sense used by Jacobs J. is to express a conclusion which is irrelevant. If the question was whether the processing operation was carried on in or in connection with the work of mining the Argyle Pipe there could be no doubt that the answer would be in the affirmative, whether or not that operation was thought to be an integral part of the mining operation itself.

Secondly, to look for "the primary and predominant purpose of the activity at Argyle" is to allow oneself to be diverted from the proper path of construction. The essential question is simply whether the workers in question are engaged in or in connection with any of the industries or callings described in the rule. Having identified a relevant industry, the question is as to the scope that is to be accorded to that industry in the circumstances of the case. ...

Thirdly, the Commission expresses the view that there is not the requisite connection between the mining operation and the treatment process because the former is not dependent on the latter. The Commission states that the mining could be carried out entirely independently of any reducing and refining operations which, technically speaking, could be located in an entirely different area. It is undoubtedly true that mining operations need not always be associated with the treatment of the ore so mined. One has only to reflect upon the huge quantities of iron ore that have been mined in the Pilbara region of Western Australia and exported in an untreated condition to be processed in Japan to realize the truth of that statement. But we are concerned with the eligibility of workers engaged and to be engaged in the Argyle operation. That there is some relationship in that operation between the treatment process and the mining of the ore cannot be doubted. The question is whether the connection is sufficiently close to satisfy the rule.

The cases establish that one may be employed in connection 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 connection may therefore be found in an occupation which takes place either before or after the actual work which itself identifies the industry in question. Just as the erection of houses for the workers who are to work the mines is work undertaken in connection with the industry of mining, notwithstanding that it precedes any mining, so is the preparation of the mine and the extraction of the ore undertaken by way of preparation before embarking on the work of reducing and refining that ore. There is an unbroken series of steps culminating in the production of diamonds, with each step logically connected to the next.

[41] Her Honour also placed reliance on the decision of the Full Bench in CPSU v EDS Australia. [30] In paragraph [343] of her decision her Honour observed:

_[343] More recently, in CPSU and EDS Australia and CPSU and IBM Global Services Australia the Full Bench [_PR939419 - Munro J, Marsh SDP, Deegan C - 17 October 2003 (EDS/IBM)] discussed the principles in relation to construction of eligibility rules, in particular, the widening of relevant considerations to encompass greater scrutiny of the activities of the employee.

"[89] Finally, we refer to a gloss on those principles inherent to another line of observations made serially since at least the 1988 amendment and replacement of the Conciliation and Arbitration Act 1904 (the C&A Act). They are a source of guidance that is especially relevant to the construction of eligibility rules in a manner informed by the industrial setting within which a rule is made or to be applied. Referring to the passage quoted at [87] from the 1989 Full Bench decision in ATEA v PREIA , the Full Bench in National Tertiary Education Union v Technisearch observed in May 1996:

"That emphasis is reinforced by another consideration. All of the cases cited about the proper application of the test for the substantial character of the industrial enterprise arose prior to 1988 when the Act in its current form was introduced. The changes made in that legislation and the effect of judicial rulings about what activities and employees are within jurisdiction for purposes of generating an industrial dispute justify some caution in applying some earlier dicta. The notion of "industry" and the centrality of the industrial pursuit of an employer in the construction of some union rules may be an inarticulated premise in some of the reasoning in the cases before 1983. Union rules developed after the Social Welfare Union Case (Re Coldham; Ex parte Australian Social Welfare Union [1983] HCA 19; (1983) 153 CLR 297) were able to be more confidently framed around employment as such . In addition, the newly registered organisations of employees engaged in provision of educational services after 1988 were able to cover persons who met the new definition of employee, viz a "person whose usual occupation is that of employee". Until then an employee meant "an employee in an industry". That and related requirements of the former Act had accentuated the need for there to be an identifiable industry of employees or employers to which industrial coverage could attach.

Where the relevant industry could be identified as the industrial pursuit of an employer, the "substantial character" test may have been the most appropriate means of discriminating between overlapping areas of industrial coverage. It is less effective where the industrial pursuit in question is an employment, and the notion of the "industry" covered is not unequivocally the industry of an employer.

Unless on proper construction the NTEU rules require otherwise, the principle to be applied in examining whether an employment is in connection with a part of the educational services industry is not a simple test of the substantial character of the employer's enterprise. Rather, an examination may need to be made of whether there is some element in the nature or quality of what the employee does which is connected with the nature or quality of the work performed in the class of educational service concerned." [66 IR 38 at 42-43]

[90] We do not intend by that reference to transpose without qualification the guidance about the nature and quality of the work from the employment context to which it related. However, we consider that the application of established principles of construction to an eligibility rule must take into account the statutory and industrial milieu. In particular in this case, the observation that the activity of an employer may fit the description of more than one industry has not diminished in force in the years that have now passed since a specification of an industry, of employers or of employees, was a necessary condition of registration for an industrial organisation. Since 1996, the statutory tolerance of overlapping coverage between organisations and for that matter between industries, whether defined as those of employers or of employees, has increased . Likewise since 1993, the expression business or part of a business has become a relatively commonplace item in industrial usage. That usage has arisen primarily in the context of the single business focus of the regulatory process for certified agreements. It has also been fed by increased debate about the transmission of business ingredient of maintaining the binding effect of awards or agreements under sections 149, 170MB and 170VS of the Act." (emphasis of her Honour)

[42] The decision of the Full Bench in CPSU v EDS Australia was challenged by the employer parties in an application for prerogative relief in the High Court. That application was remitted to the Full Federal Court. In IBM Global Services Australia Limited [31] the Full Federal Court refused the application for prerogative relief. However Gray J (with whom Whitlam and Moore JJ agreed) did not adopt or endorse the reasoning of the Full Bench but rather embarked afresh on a construction of the relevant eligibility rule: Rule 2, Pt 1A.1(iv) of the CPSU Rules. It is clear from that analysis that the outcome turned on the particular form of the rule which relevantly stated "all persons employed in the telecommunications industry as defined in Rule 3E...". The definition in Rule 3E defined that industry to mean, inter alia, "[a]ny business, or part of a business, whose principal function is incidental, ancillary or complimentary to the supply and/or installation and/or maintenance of telecommunication services as defined in the Telecommunications Act 1991". This definition meant that the Rule 2, Pt 1A.1(iv) was not a conventional industry rule. Unsurprisingly, the words of the definition, rather than a simple application of the conventional tests, determined the outcome. Indeed, there is no reference in the Gray J's reasons to the "substantial character" test or to Hibble, Thiess Repairs, Poon Bros, the Uranium Mining case, the Worsley Alumina case or the Argyle Diamond case.

[43] We make the following observations in relation to the extract from the decision of the Full Bench in CPSU v EDS Australia relied upon by her Honour. First, since the outcome in that case turned on the definition of "telecommunications industry" included in the particular rules, to the extent that the Full Bench in CPSU v EDS Australia might be seen as commenting on the construction of conventional industry rules, such comments are strictly obiter dicta. Secondly, the "principles" referred to in the opening sentence of the extract are the general principles of construing union eligibility rules established by the High Court as summarised in Australian Theatrical and Amusement Employees Association v Professional Radio and Electronics Institute [32] and TWU v Serco Australia Pty Ltd,[33] being summaries that that do not concern the question of characterisation of the industry of an employer or an application of the "substantial character" test_._ Thirdly, the extract from Technicsearch is immediately preceded by the following paragraph:[34]

The High Court cases cited [the Uranium Mining case and the Argyle Diamond case_] do not discard an examination of the substantial character of the industrial enterprise in which the relevant employee will be engaged as a test to be applied in establishing whether an activity is in connection with a relevant industry for purpose of a union eligibility rule. Aickin J in the_ Uranium Mining Case _expressly applied the test quoted [_R v Moore & Others; Ex parte Federated Miscellaneous Workers' Union of Australia _[1978] HCA 51; (1978) 140 CLR 470 @ 485]. But the Court has also made it clear that tests of that kind, including the related test of "the primary and predominant purpose of the activity" for which the employee is engaged, should not divert the Commission from the path of construction of the relevant eligibility rule [_R v Isaac (1985) 159 CLR 323 @ 344 per Wilson J. Similarly in the Worsley case: R v Coldham; Ex parte Australian Workers' Union [1983] HCA 35; (1983) 153 CLR 415 @ 431-434 per Deane and Dawson JJ who identify the prime issue as establishing the proper connotations of the relevant industry based on a construction of the union's rule.]. In our view, it is essential to focus on construction of the rule and to then apply it to the circumstances of the case.

[44] Thus, the "emphasis" referred to in the opening line of the extract from Technisearch set out in paragraph [89] of CPSU v EDS Australia is an emphasis on it being "essential to focus on construction of the rule and then to apply it to the circumstances of the case", an unremarkable proposition, and not to be "diverted" from that task by the "substantial character" test and the "primary and predominant purpose test", an equally unremarkable proposition since the "substantial character" test does not become relevant until the rule in question has, on its proper construction, been characterised as a conventional industry rule.

[45] The opening words of paragraph [343] and the emphasis supplied by her Honour to the extract from CPSU v EDS Australia suggest that, in the context of applying "the principles in relation to construction of eligibility rules", her Honour regarded the decision in CPSU v EDS Australia as having had the effect of "widening of relevant considerations to encompass greater scrutiny of the activities of the employee". For ourselves, we find the precise import of paragraph [90] of CPSU v EDS Australia obscure. As the Full Bench in Technisearch acknowledged, the "substantial character" test for determining the industry of an employer in context of an industry rule has not been discarded. Nor, we would add, has it become a test that is satisfied in relation to a given industry simply by showing that work of a few employees, viewed in isolation from the overall business of their employer, can be seen as work in that industry.

[46] The mere supply of goods or services to an industry not, of itself, sufficient to render the business of the supplier one that "in connection with" the industry of the business supplied, even if those goods are essential to the operation of that business. [35] This point is usefully illustrated by an example given by Latham CJ in Thiess Repairs:[36]

A laundry company may do work for hotels and restaurants but, to take a case at one end of the line, if the laundry business were conducted by a laundry company completely separate from any of the hotels and restaurants for which it did work (as for other customers) upon ordinary commercial terms, it would not be possible to say that the laundry was part of the hotel industry. A case at the other end of the line would be found where a hotel employed some laundresses on the hotel premises who did work exclusively for the hotel and were completely under the control of their employer. In such a case the laundresses might well be held to be working in the hotel industry.

[47] The decision of Northrop J in Burgess v Connell-Mott [37] provides a further illustration.

[48] Her Honour correctly identified the decision of the High Court in R v Drake Brockman; Ex parte National Oil Pty Ltd [38] as establishing that a single employer may carry on two or more industries. In that case a company mined shale and, at a manufacturing works adjacent to the mine, it extracted oil from the shale. By virtue of a war time regulation the Central Reference Board had jurisdiction to deal with disputes in the "coal-mining industry"[39] which term was defined to include shale mining industry. The issue was whether the Central Reference Board had jurisdiction to deal with a particular dispute in the manufacturing works. The High Court (Latham CJ, Rich and Williams JJ; Starke and McTiernan JJ dissenting) held that the company carried on two separate enterprises. One in the shale mining industry the product of which was shale and the other an industry the products of which were oil and petroleum coke. This finding was made notwithstanding that, in Australia at that time, shale was utilised solely for the obtaining of petrol and that, in the form in which it was being mined, the shale was not otherwise a product for which there was a market. Latham CJ observed:[40]

A single employer may carry on two or more industries. The same man may be a farmer and a miller and a baker, but there is a distinction between the industry which produces wheat, the industry which produces flour, and the industry which produces bread. The applicant company in this case conducts two industries. One is an industry the product of which is shale, and the other is an industry the products of which are oil and petroleum coke.

The fact that two industries are carried on at the same place does not abolish the distinction between them. If a single company mined coal and then used the coal to manufacture gas in works alongside the mine, it would nevertheless still be the case that two industries were carried on by that company, one the mining of coal and the other the manufacture of gas. The manufacture of gas would not become "coal mining" because one company was engaged in both enterprises. Nor would the industry of gas manufacturing for that reason become a part of the industry of coal mining.

Accordingly, in my opinion, the employees engaged in what is described as the manufacturing section of the company's works are not engaged in the shale-mining industry and an industrial dispute with respect to their wages or conditions of labour is not an industrial dispute in that industry or a matter affecting industrial relations in that industry. ...

[49] Her Honour relied upon a passage from the judgment of Gibbs CJ in the Argyle Diamond case where his Honour stated": [41]

A decision of the question whether a particular description fits an industry or calling involves matters of degree, and the answer may depend on the "substantial character" of the activities carried on. ... That does not mean that if the enterprise has two purposes, it is necessary to decide which is predominant. It is quite possible that an industry or calling can accurately be described in a number of ways, and the fact that it comes within one description does not mean that it cannot also come within another.

His Honour then gave the example of the road makers in the Uranium Mining case who were engaged in road making as well and in or in connection with metalliferous mining.

[50] The sentences that precede and follow the emphasised sentence suggest that Gibbs CJ was using the word "purpose" as an analogue of description which implies that determining a "purpose" of a business is a way of pointing to its substantial character. Thus, notwithstanding that an enterprise may have two "purposes" and notwithstanding that it is not necessary to decide which is predominant, consistent with Thiess and Poon Bros, it is still necessary for each "purpose" to confer a character on the enterprise that can properly be described as "substantial" before the "purpose" can ground a conclusion that the enterprise is in or in connection with the relevant industry.

[51] Drawing the High Court authorities together, we think the position is as follows:

• 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 [42] 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. [43]

• Whether or not the trade or business of an employer is in or in connection with a particular industry is a question of fact. [44]

• 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. [45]

• The business of an employer can be "in or in connection with" more than one industry. [46] 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. [47]

• 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. [48]

[52] We acknowledge that, on one view, there is 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 (particularly in some parts of the joint judgment in the Worsley Alumina case and in the judgment of Wilson J in the Argyle Diamond case) and the approach in the earlier cases (Hibble, Thiess Repairs and Poon Bros). In particular, some of the language used in the later cases, including in passages set out by her Honour, is suggestive of a characterisation process in relation to industry rules that can turn entirely on the nature of the work performed by employees engaged on a particular project rather than on an explicit characterisation of the business of their employer. However, there is no suggestion in the later cases that that the High Court was intending to overturn the earlier cases. On the contrary, the first of the later cases, the Uranium Mining case, was expressly determined by an application of Poon Bros. The subsequent cases, the Worsley Alumina case and the Argyle Diamond case, adopted and applied the Uranium Mining case and, as we have endeavoured to show, in fact continued to preserve the emphasis on the characterisation of the business of the employer laid down in the earlier cases. In those circumstances, until the High Court or the Full Federal Court holds otherwise, we think it necessary to construe the later cases in a way that is consistent with the earlier cases. In particular, each of the later cases was concerned with a project that was so enormous that the sheer size of the project meant that the substantial character of the business of relevant employers was altered by their involvement in the project such that those businesses took on, if they did not already have it, a substantial character that placed them in or in connection with the industry of the project.

[53] We turn now on the rehearing to the proper characterisation of the industry of Dyno Nobel on the evidence of before her Honour. There can be no doubt, as her Honour found, that shot firing is necessary for the removal of overburden which in turn is an integral part of open cut coal mining. Historically the loading of explosives into shot holes and shot firing was work performed by direct employees of mining companies. The trend in modern times has been for this work to be contracted out to the specialist contractors or to the explosive suppliers themselves. No doubt increasingly stringent safety and security regulations have made contracting out a more expedient and cost effective way of having that work performed.

[54] The main explosive used in mining in Australia is known as 'ANFO' and is made by combining ammonium nitrate, in a granular form known as 'prill', with diesel oil. When the blasting is to occur in "wet" holes, an emulsion is also added. These materials are transported to the blasting site in separate tanks on an 'explosives truck' and the ingredients are mixed directly into the blast hole. Ammonium nitrate and diesel oil are classified as oxidisers rather than explosives. It is only when the ingredients are mixed that an explosive is formed. In a very real sense the explosive manufacturing process undertaken by Dyno Nobel for supply to the mining industry continues to the very point where the ingredients are mixed by its employees at blast holes. [49] To the extent that an employee then proceeds to fire the shot, such activity is properly to be seen as incidental to Dyno Nobel's principal business activity, namely the manufacture and supply of explosives.[50]

[55] On the evidence before her Honour Dyno Nobel employed some 312 persons across Australia. [51] About 155 of those persons were classified as "operational" employees.[52] Of these, 51 employees operated out of depots located on or close to coal mining leases and performed work on coal mining leases.[53] The duties of these 51 employees typically consisted of maintaining the explosives store and ensuring compliance with safety and security regulations, maintenance of the 'explosives truck', attending shot holes with the 'explosives truck' and mixing the required quantity of explosive into the shot holes. Of these 51 employees, 8 also performed shot firing work as part of their regular duties for Dyno Nobel as contractor to coal mining companies (a further 6 employees were qualified to fire shot and did so only on an occasional ad hoc or relieving basis).[54] Those employees held qualifications and authorisations to perform those tasks as required by state legislation regulating the coal industry. One employee was a technical adviser in relation to the company's products who occasionally devised blast patterns for client coal mines.[55]

[56] On the evidence before her Honour, Dyno Nobel operates a single integrated business. There was no suggestion in the evidence that it operated an organisationally and functionally distinct enterprise for the supply of shot firing and blast design services to the coal industry or to the mining industry generally such that Dyno Nobel could be characterised as operating a 'separate' business or enterprise in relation to the supply of such services. Indeed, it is clear on the evidence that Dyno Nobel did not even maintain separate accounts in relation to the supply of such services and information on the value of those services had to be extracted manually from the accounting records of the company. [56] There is no basis in the authorities for concluding that, because an employer conducts its business at a number of geographically separate locations, that mere fact is sufficient to allow its operations at a particular location to be treated as a separate or distinct business.

[57] Dyno Nobel supplies explosives to clients in the coal mining industry, the metalliferous mining industry and the civil engineering industry. While about 29% off Dyno Nobel's revenue is derived from the sale of explosives into the coal mining industry, [57] a mere 0.24%[58] of its revenue ($400,000 out of $166,300,000[59]) was derived from shot firing services for coal mining companies. It is not to the point that that a significant proportion of the explosives manufactured by Dyno Nobel are supplied to businesses in the coal industry or that Dyno Nobel also provides some explosives related services to businesses in the coal industry. The mere supply of goods or services to an industry is not, of itself, sufficient to render the business of the supplier one that "in connection with" the industry of the business supplied, even if those goods are essential to the operation of that business.

[58] We do not place significant weight on the fact that Dyno Nobel has certified agreements with the CFMEU to cover the work it performs in Queensland or that Dyno Nobel's competitor is a respondent to a coal industry award. Those facts no doubt reflect a certain practical industrial relations reality on the ground but have little relevance to the proper construction of Rule 2D.

[59] The predominant purpose of the single integrated business operated by Dyno Nobel is the manufacture and supply of explosives. This confers a "substantial character" that places the business of Dyno Nobel in the explosives industry or, more generically, the chemical industry. The issue comes down to whether, because a small number of Dyno Nobel employees perform some work that can be regarded as work in the coal industry (the back-filling of shot holes and shot firing work performed by between 8 and 14 employees and the devising of blast patterns by one technical adviser), the single integrated business of Dyno Nobel also has a "substantial character" that places it in or in connection with the coal industry within the meaning of Rule 2D of the CFMEU rules. In our view, the fact 8 out of some 160 operational employees perform shot firing as a relatively small part of their overall work for Dyno Nobel, that a further 6 employees occasionally perform shot firing on an ad hoc or relief basis and that one technical adviser sometimes devises blast patterns for coal mining companies (which together accounts for about one quarter of one percent of Dyno Nobel's revenue) does not give the single integrated business of Dyno Nobel an additional "substantial character" as a business in or in connection with the coal industry. When considered in the context of the business of Dyno Nobel as a whole, these activities are too minor and incidental to confer an additional character on the business of Dyno Nobel that could properly be described as "substantial". Rather, these activities are properly to be seen as the supply of a service to employers in one industry by an employer whose business is in another industry not unlike the laundry and hotel example given by Latham CJ: the laundering of towels and bed linen is as integral to the operation of an hotel as shot firing is to the operation of an open cut coal mine.

[60] In essence, the approach adopted by her Honour was that, because the law recognises that an employer may carry on two or more industries, an employer should be found to carry on business in a given industry if some of its employees perform work that is properly characterised as being in that industry, irrespective of the proportion of employees so engaged and the nature of the employer's overall business and the context of the work in question in that overall business. We think that such an approach involves error. The fact that some employees perform work that, viewed in isolation, may be characterised as being in a given industry, while certainly a relevant factor, will not necessarily be determinative of a "substantial character" of the business of the employer. An example may serve to illustrate the point. Suppose the sole business of an employer is the operation of a chemical plant and suppose the employer directly employs several security guards to monitor the gate and patrol the plant. Undoubtedly the work of the security guards is work that could be characterised as being work in the security industry. However, that fact would not thereby result in the business of the employer having a "substantial character" that placed it in the security industry as well as the chemical industry.

[61] At this point, it is useful to restate the question that her Honour posed for herself:

[359] The question I have to determine is whether or not the work performed by the employees of Dyno Nobel, and therefore the industry in which Dyno Nobel operates in relation to those employees, is work in or in connection with the coal industry. I do not believe I have to give prominence in my consideration of this question to a panoramic view of Dyno Nobel's operations as pressed upon me by Mr Herbert.

[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. [60]

[63] 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.

[64] On the evidence before her Honour, the employees of Dyno Nobel were not engaged in or in connection with the coal industry within the meaning of Rule 2D and were therefore not eligible for membership of the CFMEU pursuant to that rule. Accordingly, the Commission had no jurisdiction to find a dispute in this matter and her Honour erred in finding otherwise.

[65] If, contrary to our view, the mere fact of geographical separateness allows the depots operated by Dyno Nobel on or near coal mining leases, to be treated as distinct businesses which may then be said to have had a "substantial character" that placed them in or in connection with the coal industry, her Honour erred in finding a dispute that involved Dyno Nobel generally rather than a dispute that was confined to those distinct businesses.

[66] We allow the appeal. In terms of the dichotomy between judicial and administrative decisions, decisions of the Commission are administrative rather than judicial decisions because the Commission is not established as a court exercising federal judicial power pursuant to Chapter III of the Constitution. Where an administrative decision is affected by jurisdictional error there is at law "no decision at all". [61] Nevertheless, given that a Full Bench on appeal has no power to provide declaratory relief, the appropriate course is to quash her Honour's dispute finding in relation to Dyno Nobel. The matter will not be remitted because, for the reasons we have given, on the evidence before her Honour the business of Dyno Nobel does not have a substantial character that places it in or in connection with the coal industry within the meaning of Rule 2D of the CFMEU rules so that employees of Dyno Noble were not eligible to become CFMEU and, accordingly, on the evidence before her Honour the Commission has no jurisdiction to find a dispute between the CFMEU and Dyno Nobel.

[67] This is an appeal by Dyno Nobel against a decision and finding of an industrial dispute pursuant to s.101 of the Workplace Relations Act 1996 (the Act). The decision and finding were made by Senior Deputy President Drake on 2 November 2004 in [PR952859].

[68] I have had the advantage of reading the reasons for decision of Vice President Lawler and Senior Deputy President Hamberger. I am grateful for the benefit of the extensive discussion of the relevant cases and judgments which should guide the Full Bench in its consideration of the Appeal in this matter.

[69] As for leave to appeal, I concur for the reasons stated by my colleagues that the appeal is of such importance that, in the public interest, leave to appeal should be granted.

[70] I also agree with my colleagues that the Senior Deputy President applied the wrong test in her characterisation of the industry in which Dyno Nobel conducts its business. However, my reasons are more narrow than those of my colleagues. I would dispose of the appeal differently, for reasons which are also expressed below. In my view, having regard to the alternative possibility alluded to by my colleagues at paragraph 65 and for the reasons associated therewith it is appropriate to remit the matter to Senior Deputy President Drake.

[71] The appellant submits that the finding of dispute made by Senior Deputy President Drake was not open to the Commission because the notifier of the dispute, the Construction, Forestry, Mining and Energy Union (CFMEU), while having served a letter of demand and log of claims upon Dyno Nobel, lacked the necessary standing to do so. This, the appellant, submits is because, while the union is entitled to represent employees engaged in, or in connection with, the coal industry, Dyno Nobel is not conducting a business or enterprise in the coal industry.

[72] It was unexceptional in the proceedings both below and before us that Dyno Nobel:

• manufactures explosive materials for use in the coal industry,

• delivers explosive materials to facilities on and about coal mining leases,

• fills blast holes drilled by persons engaged in coal mining with explosive charges,

• fires blasts to remove overburden material in coal mines, among other things.

[73] To the extent required by regulations applicable in the coal industry Dyno Nobel's employees hold the relevant qualifications and authorisations to perform such tasks.

[74] It was submitted at both first instance and before us that as Dyno Nobel was not engaged in or in connection with the Coal Industry the union was unable to represent the interests of employees of Dyno Nobel either present or future, as such employees were not eligible to be members of the union. In the appellant's submission this is so on a proper construction of the meaning of the union rule 2D, which is in the following terms.

"(D) Without limiting the generality of the foregoing and without being limited thereby the Union shall also consist of an unlimited number of employees engaged in or in connection with the coal and shale industries together with such other persons whether employees in the industries or not as have been appointed officers and admitted as members."

[75] It follows that if this submission is correct no dispute could arise between the union and Dyno Nobel.

[76] The union submitted at first instance, and before us, that Dyno Nobel employed persons engaged in or in connection with the coal industry and thus the service of the letter of demand and log of claims had the legal effect in the factual circumstances of creating a dispute, the claims not having been acceded to by Dyno Nobel.

[77] Consequently, the proceedings at first instance, to a considerable extent, revolved around the question of whether or not the employees of Dyno Nobel were engaged in or in connection with the coal industry and whether the industry of the employer could be characterised accordingly. There were differences of approach to the question reflected in the submissions put by the parties at first instance. The critical distinction, implicit in the argument between the parties, which was also maintained before us, concerned the extent to which the answer to that question could be discerned by a factual analysis of what work was performed by the employees of Dyno Nobel.

[78] In essence, while the CFMEU accepted that the test was to be applied against the trade or business of the employer [62], it contended and maintained that the answer to whether or not the employer was engaged in a trade or business in, or in connection with, the coal mining industry could be established conclusively from a factual analysis of the work of the employees of the employer said to be so engaged[63].

[79] On the other hand, Dyno Nobel both before the Commission at first instance and before us, submitted that the work performed by those employees said to be engaged in, or in connection with, the coal industry formed only a part of the answer to the question of whether or not the employer's trade or business was in or in connection with the coal industry.

[80] Moreover, Dyno Nobel submitted to us on appeal that the Senior Deputy President at first instance had explicitly rejected what had been described by them as the "holistic approach" to the determination of whether or not the employer, Dyno Nobel, carried on trade or business in or in connection with the coal industry.

[81] In this particular respect the grounds of appeal and the submissions of Dyno Nobel identify the explicit rejection of this approach by the Commission at first instance, at paragraph 359 of the decision under appeal. At that point of the decision at first instance the Commission said:

[359] The question I have to determine is whether or not the work performed by the employees of Dyno Nobel, and therefore the industry in which Dyno Nobel operates in relation to those employees, is work in or in connection with the coal industry. I do not believe I have to give prominence in my consideration of this question to a panoramic view of Dyno Nobel's operations as pressed upon me by Mr Herbert. (my emphasis added)

[82] In my view, this submission highlights the critical issue in this matter. To determine the industry of the employer requires that the Commission considers the facts revealed by the evidence in a particular manner. Most particularly the manner in which the facts are construed must be in accordance with applicable legal principle.

[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"?

[84] 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) [64] 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. 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." (my emphasis added)

[85] 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.

[86] In my respectful opinion, the Senior Deputy President confined her consideration in that part of her decision in which the crucial decisional steps were taken to the facts of the work of the employees. By doing so the wrong question was asked and the wrong test was applied. The result was a constructive error of jurisdiction [65] so that the dispute finding was not properly made.

[87] Therefore I would uphold the appeal for this reason. The record of finding should be quashed.

[88] As for the disposition of the appeal, I would, for the reasons upon which I have reached the conclusion that the appeal should be upheld, among others, refer the matter to the Senior Deputy President to determine according to law. Whilst there is transcript of evidence and considerable documentary material from which the Full Bench might determine whether or not a dispute exists, as alleged or otherwise, to elect to do so is a matter of discretion [66]. My preference to exercise the discretion available in relation to the disposition of the appeal so as to refer the matter to the Senior Deputy President arises because I do not have the benefit of either participating in the inspections or of hearing the evidence and obtaining the understanding gained accordingly. The application of the correct test as to the industry of the employer could result in a somewhat more limited finding of dispute which distinguishes the industries or enterprises in which the employer is engaged. The scope or boundaries of such a dispute may be discovered from the evidence and the understanding gained by the inspection.

Mr A Herbert of counsel for the Appellant, Dyno Nobel Asia Pacific Ltd

Mr T Slevin of counsel for the Respondent, the Construction, Forestry, Mining and Energy Union

[3] Coal and Allied Operations Pty Ltd v AIRC [2000] HCA 47; (2000) 203 CLR 194 at para [17]

[5] R v Portus; Ex parte Federated Clerks' Union of Australia [1949] HCA 53; (1949) 79 CLR 428 at 432-3, 436; R v Watson; Ex parte Australian Workers' Union [1972] HCA 72; (1972) 128 CLR 77; R v Aird; Ex parte Australian Workers Union [1973] HCA 53; (1973) 129 CLR 654 at 666; R v Neil; Ex parte Cinema International Corporation Pty Ltd [1976] HCA 11; (1976) 134 CLR 27 at 30; R v McKenzie; Ex parte Actors and Announcers Equity Association of Australia [1982] HCA 6; (1982) 148 CLR 573 at 574-5.

[6] Staff Aid Services v Bianchi [2003] WAIRComm 10388; (2004) 133 IR 29 at [16] and see also Pawel v AIRC [1999] FCA 1660; (1999) 94 FCR 231

[7] PR941696, Williams SDP, Lacy SDP and Foggo C, 10 November 2003 at para [10]

[8] R v Aird; Ex parte Australian Workers Union [1973] HCA 53; (1973) 129 CLR 654 at 659

[9] [1921] HCA 15; (1921) 29 CLR 290

[11] R v Coldham; Ex party Australian Workers' Union [1983] HCA 35; (1983) 153 CLR 415 at 430-1.

[12] [1948] HCA 9; (1948) 77 CLR 123

[16] (1976) 51 ALJR 266 at 268-9

[20] A passage relied upon by her Honour at para [340]

[21] The passage is incorrectly attributed to Jacobs J.

[25] [1983] HCA 35; (1983) 153 CLR 415

[30] PR939419, Munro J, Marsh SDP and Deegan C, 17 October 2003

[31] [2005] FCAFC 66, Gray, Whitlam and Moore JJ, 29 April 2005

[33] (1996) 67 IR 28 at 29

[34] (1996) 66 IR 38 at 42

[35] Argyle Diamond case (1985) 159 CLR 323 at 333 per Gibbs CJ (with whom Deane and Dawson JJ agreed)

[36] [1948] HCA 9; (1948) 77 CLR 123 at 131

[37] [1979] FCA 12; (1979) 27 ALR 427

[38] [1943] HCA 35; (1943) 68 CLR 51

[39] It may be noted that the jurisdiction of the Central Reference Board was in relation to disputes "in" the coal-mining industry (as defined) and not "in or in connection with" the coal-mining industry.

[42] Re Federated Liquor and Allied Industries Employees' Union of Australia; Ex parte Australian Workers' Union (1976) 51 ALJR 266 at 268

[43] R v Hibble; Ex parte Broken Hill Pty Co Ltd [1921] HCA 15; (1921) 29 CLR 290 at 297; Re Federated Liquor and Allied Industries Employees' Union of Australia; Ex parte Australian Workers' Union (1976) 51 ALJR 266 at 268

[45] R v Central Reference Board; Ex parte Thiess (Repairs) Pty Ltd [1948] HCA 9; (1948) 77 CLR 123 at 135; Re Federated Liquor and Allied Industries Employees' Union of Australia; Ex parte Australian Workers' Union (1976) 51 ALJR 266 at 268

[46] R v Drake Brockman; Ex parte National Oil Pty Ltd [1943] HCA 35; (1943) 68 CLR 51 at 57

[47] R v Isaac; Ex parte Transport Workers Union (1985) 159 CLR 323 at 333

[48] R v Hibble; Ex parte Broken Hill Pty Co Ltd [1921] HCA 15; (1921) 29 CLR 290

[49] See the evidence of Mr Wyllie at AB1, Tab 5, Transcript PN1551-1557

[50] Compare Burgess v Connell-Mott [1979] FCA 12; (1979) 27 ALR 427 at 442

[51] AB2, Tab 13, Affidavit of Mr Wyllie of 24 July 2003, annexure DW-1

[53] Counsel for Dyno Nobel submitted that the true number was 51. Annexure DW-1 to Mr Wyllie's affidavit of 24 July 2003 suggests that the number was 60. Re-examination of Mr Wyllie at PN1804-5 indicates that 9 of the 60 did not work away from the relevant depots. Transcript PN2092-2108 indicates that the representatives of the parties agreed that counsel for Dyno Nobel would put the correct figure from the bar table to avoid the need to recall Mr Wyllie.

[54] Mr Wyllie's initial affidavit indicated that there were 14 employees (13 permanent and one casual) who performed shot firing work as part of their duties (AB2, Tab 13, annexure DW-1). His subsequent affidavit suggests the true number was 8 (AB2, Tab 14, annexure DW-1). He confirmed this number in oral evidence (AB1, Tab 5, Transcript PN 1570) and explained the discrepancy at AB1, Tab 5, Transcript PN1684-6.

[55] AB1, Tab 5, Transcript PN1504-1520

[56] See the evidence of Mr Wyllie at AB1, Tab 5, Transcript PN1540-2

[57] AB2, Tab 13, Affidavit of Mr Wyllie of 24 July 2003, para 4

[58] AB2, Tab 13, Affidavit of Mr Wyllie of 10 November 2003, para 3

[59] AB1, Tab 5, Transcript PN1569

[60] Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163 at 179 (per the Full Court); Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [82] per McHugh, Gummow and Hayne JJ (with whom Gleeson CJ agreed).

[61] Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at para [51]

[62] R v Hibble; Ex parte Broken Hill Proprietary Co Ltd [1921] HCA 15; (1921) 29 CLR 290

[64] R v Central Reference Board; Ex parte Thiess (Repairs) Pty Ltd [1948] HCA 9; (1948) 77 CLR 123

[65] Craig v The State of South Australia [1995] HCA 58; (1995) 184 CLR 163

[66] Workplace Relations Act 1996 s.45(7)

Printed by authority of the Commonwealth Government Printer