s.99 notification of industrial dispute

Appeal - dispute finding - eligibility rules - substantial character test - appeal allowed in part - record of finding varied.

[1] This is an appeal, for which leave is required, by Harnischfeger of Australia Pty Ltd (Harnischfeger; the Appellant) under 1

[2] An appeal to the Full Bench lies only by leave of a full bench. A full bench must grant leave to appeal if, in its opinion, the matter is of such importance that, in the public interest, leave should be granted. [2] Otherwise, a grant of leave is governed by the conventional considerations for the grant of leave to appeal by an appellate court, which include whether the decision is attended with sufficient doubt to warrant its reconsideration or whether substantial injustice may result if leave is refused. However, "[t]hese 'grounds' should not be seen as fetters upon the broad discretion conferred by s 45__(1), but as examples of circumstances which will usually be treated as justifying the grant of leave" although "[i]t will rarely, if ever, be appropriate to grant leave unless an arguable case of appealable error is demonstrated. This is so simply because an appeal cannot succeed in the absence of appealable error". [3]

The grounds of appeal set out in the Appellant's Notice of Appeal are:

"(a) that the Commission erred in law in its interpretation of the CFMEU's eligibility rule as it relates to Harnischfeger, its business and its employees;

(b) that on the basis of the error set out in (a), the Commission acted without jurisdiction, or in excess of its jurisdiction, in finding that an industrial dispute exists between Harnischfeger and the CFMEU as a consequence of the service of, and non-accession to, the log of claims."

[4] It is well settled that the finding of the existence of an industrial dispute is a finding as to a jurisdictional fact. In Corporation of the City of Enfield v Developmental Assessment Commission [4] the joint judgment of Gleeson CJ, Gaudron, Gummow, Kirby and Hayne JJ described the term "jurisdictional fact" in these terms:

"The term 'jurisdictional fact' (which may be a complex of elements) is often used to identify that criterion, satisfaction of which enlivens the power of the decision-maker to exercise a discretion." [5]

[5] Similarly in Re CFMEU - Termination of Bargaining Periods, Lee and Madgwick JJ said:

"… the question presents as one of whether the Commission may have erred as to a 'jurisdictional fact', that is, the existence or non-existence of a state of affairs which was a statutory precondition to the Commission acting …" [6]

[6] In dealing with an appeal from the determination of a jurisdictional fact a full bench of the Commission is concerned with whether the member at first instance reached the right conclusion. It is not concerned simply with whether the decision of the single member was reasonably open to him or her. [7] As Gummow J pointed out in Minister for Immigration and Multicultural Affairs v Eshetu,[8] a court or tribunal cannot give itself jurisdiction by erroneously deciding that a jurisdictional fact exists.

[7] That approach is to be applied in the present case to the Senior Deputy President's finding of an industrial dispute. The subject matter of the appeal concerns a finding of jurisdiction based upon a complex set of factual circumstances and questions of interpretation and construction of union eligibility rules. In the circumstances, we consider that the grounds of appeal are of such importance that it is in the public interest that leave to appeal be granted. We do so.

[8] On 6 April 2004 the CFMEU served a log of claims and letter of demand on a number of employers, including Harnischfeger of Australia Pty Ltd trading as P&H Shovels. The CFMEU subsequently filed a dispute notification pursuant to s.99 of the WR Act seeking a finding of dispute between the employers served with the letter of demand and log of claims and the CFMEU.

[9] The CFMEU's notification was heard by Senior Deputy President Drake on 20 and 21�December 2004. During those proceedings Harnischfeger objected to being named as a respondent to any dispute finding with the CFMEU.

[10] On 15 March 2005 the Senior Deputy President issued her decision in respect of the CFMEU's notification and found that an industrial dispute existed between Harnischfeger and the CFMEU in relation to work performed at the Bulga coal mine by employees of Harnischfeger. Her Honour found the work in question to be work in the coal industry or in connection with the coal industry.

[11] A formal Record of Finding was issued on 13 May 2005. The present appeal by Harnischfeger is an appeal in respect of that finding.

[12] The issue for determination in the proceedings at first instance was whether employees of Harnischfeger were eligible to be members of, and represented by, the CFMEU under Rule 2D of the CFMEU's rules. Rule 2D is in the following terms:

"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."

[13] In the decision of 15 March 2005 her Honour adopted a number of the observations and findings she made in a recent decision which dealt with similar issues, Re Construction, Forestry, Mining and Energy Union and AAA Services Equipment Hire and Others [9] (the AAA Services decision). Despite its length it is useful to set out the relevant part of her Honour's conclusion:

"[145] I accept as I did in AAA Services that coal mining conditions are not now paid by a number of contractors performing work for coal mine operators because those contractors contend that the work that they perform is not work in the coal industry.

[146] Mr Herbert submitted that the Commission would be in error if it examined the duties and activities of one group of Harnischfeger employees and characterised the industry of Harnischfeger by reference to the location of that work, without any consideration of the business, trade or industry of Harnischfeger as a whole. The industry of Harnischfeger needs to be considered. He submitted that the factual circumstances in this application are not distinguishable from the reasoning of the High Court in Poon Bros.

[147] I agree that the industry of Harnischfeger needs to be considered. I agree that the location of the work performed by Harnischfeger employees is not determinative. I disagree that the facts in this application are not distinguishable from those in Poon Bros.

[148] The question I have to determine is whether or not the work performed by the employees of Harnischfeger, the subject of this application, and therefore the industry in which Harnischfeger operates in relation to those employees, is work in or in connection with the coal industry. I do not believe I have to give pre-eminence in my consideration of this question to a holistic view of Harnischfeger's operations as pressed upon me by Mr Herbert. No single factor has pre-eminence in such a consideration. It is a matter for determination on the facts in each case after weighing all factors, including amongst others the operational framework of the employer as well as the location of the work.

[149] I intend to first deal with the employees of Harnischfeger at Bulga coal mine.

[150] I have concluded from the evidence of the witnesses and the materials tendered that the work performed by Harnischfeger employees at Bulga coal mine has a primary purpose which is the maintenance and repair of the dragline and shovel which were supplied by Harnischfeger, and which is performed either pursuant to the LCM Contract or pursuant to an additional commercial contractual arrangement. In addition there is work performed by Harnischfeger employees on the bulldozers and other non Harnischfeger supplied equipment which is performed on request. There is also occasional help and assistance provided to Bulga coal mine employees on Bulga work which is performed on request. As a result of a co-operative and pragmatic arrangement the latter assistance is only invoiced if its duration exceeds one hour. This arrangement also applies to assistance provided by Bulga coal mine employees to Harnischfeger employees.

'… The line between industries is in many cases not clear. One industry may be entirely concerned with the service of another industry, and yet may not be part of that other industry.' (1948) 77 CLR 130

Conversely, the service industry to which Latham CJ refers may be part of the industry to which it provides the service. This is a matter to be determined on the facts in each case.

[152] In this application the parties spent a great deal of time attempting to either establish the integration of Harnischfeger employees with Bulga employees and the Bulga coal mine operator or alternatively the separateness of Harnischfeger employees from Bulga employees and the Bulga coal mine operator, according to their interests.

[153] Much of the evidence concerned the significance of rosters, training, use of consumables (both billed and unbilled), crane hire, payment for diesel fuel, hard hats, uniforms and use of workshop facilities. Whilst individually none of these factors was a very weighty consideration, I have concluded that overall there was a partial integration of the workforces of Harnischfeger and Bulga on site.

[154] Mr Herbert (Transcript, 17 February 2005 at paragraph 87) stated that it is a question of whether the extent of involvement is sufficient to warrant an extension of Union coverage. I do not believe that this is the right question. To the extent it is relevant such integration is just one of the relevant factors for consideration. This is not a case where the critical issue is the extent of any integration between the Harnischfeger employees with the Bulga coal mine employees and the Bulga coal mine operator. It is one of many factors, including the nature of the work in all its forms which constitutes the service provided.

[155] This work is not analogous to laundry, catering, telecommunications or transport. This work is the continuous maintenance and/or repair of essential mining equipment. The work of Harnischfeger at Bulga mine is work which is intrinsic to the coal industry. This applies to the primary purpose of compliance with the LCM Contract as well as the breakdown maintenance, service days and other work which I have detailed in paragraph 151 of this Decision. Open cut coal mining is a highly developed method of mining coal involving huge capital outlays in plant and equipment. I have already indicated that in this Decision I adhere to my previous findings in AAA Services regarding what characterises the coal industry and the role of maintenance within that industry. This work is not just an after sales service. It is not a breakdown maintenance service. It is not the signing off on repairs to equipment repaired in an offsite workshop or the signing off in relation to the installation or erection of new equipment.

[156] Mr Herbert submitted that Harnischfeger is only on site because the dragline and shovel are too unwieldy to take off site for repair or maintenance. This would be a more persuasive argument if Harnischfeger was on site only for breakdown repairs or even for occasional maintenance. But this is not the case. Harnischfeger employees are on site day in and day out and most every day they work on the continuous maintenance of the dragline and shovel and, on occasion, the bulldozer. This day to day continuous maintenance will always be required whilst a dragline and shovel is on site and maximum availability of that equipment for coal mining is required by the Bulga coal mine. Harnischfeger do not send their staff on site to perform maintenance as required. It is required every day as well as on service days which are organised in advance and designated at regular intervals.

[157] The work of Harnischfeger employees at Bulga is inherently part of the process of producing coal. It is within what Latham CJ considered might be included in the coal mining industry in Drake-Brockman.

'In my opinion the coal mining industry is the industry which produces coal as the consequence of mining operations. Coal mining operations include, not only the actual excavation of the coal from the seam, but also the removal of it from the pit to the surface and placing it upon the surface in a disposable form. All those operations would, according to the ordinary usage of language, properly be included within coal mining operations and would be conducted as part of the coal mining industry.' (1943) 68 CLR 56

None of the operations referred to by Latham CJ can be completed at Bulga coal unless the draglines and shovels and the bulldozers are assiduously maintained and repaired.

[158] As well as the nature of the maintenance work itself, the obligation to obtain generic and particular coal mine induction certificates; the operation of coal mining legislation and regulation on the work of Harnischfeger employees; the partial integration of the workforce of Harnischfeger with direct coal mine employees; the role of direct mine site maintenance supervisors and other management personnel; the use of mine site equipment; the sharing of crib facilities and the integration of Harnischfeger maintenance planning with the Bulga maintenance planning and the maintenance planning of other contractors are all positive factors in favour of a finding that the work of Harnischfeger employees at the Bulga coal mine is work performed in the coal industry.

[159] The substantial character of the work performed by Harnischfeger employees at Bulga coal mine 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 industry of manufacturing and heavy engineering.

[160] If this work is not in the coal industry it is work in connection with the coal industry.

[161] I wish to deal shortly with Mr Herbert's submission that a finding in this application would cause 'cataclysmic confusion'. This submission arises from what he submitted must flow if the Commission finds that any employee of Harnischfeger is employed in the coal industry. He submitted that the inevitable result of any such finding is that all of Harnischfeger employees are in the coal industry. I do not believe that is the case. It does not reflect clear authority. An employer can be in more than one industry.

[162] Harnischfeger are able to deal with different rates of pay and conditions for different work. Different rates are already paid for work on site and work in the workshops. Construction rates are paid for work on site during the erection of draglines and shovels.

[163] Nor is it helpful to an overall purpose in the CFMEU to follow the rule into all aspects of Harnischfeger's operation. If it is the CFMEU's purpose it is an ambitious one not likely to succeed. However, even if this is so I have not been asked to consider any other employees of Harnischfeger in this matter and I have not done so.

[164] This is equally relevant to what Mr Herbert says of the CFMEU's latent plans to cover the work surrounding the construction/erection of the dragline and shovels. If there is any such application to be made in the future it can be considered then. It was not argued before me.

[165] I have decided that I am not in a position to make any findings in relation to Harnischfeger employees at other coal mine sites. The only direct evidence before me concerned Harnischfeger employees at the Bulga coal mine. I am not prepared to make findings about the work of Harnischfeger employees at other coal mining sites, or those who perform drilling work, against the objection of Harnischfeger and in the absence of direct evidence.

[166] I find that an industrial dispute exists between Harnischfeger and the CFMEU in relation to the work performed at Bulga coal mine by employees of Harnischfeger which I find to be work in the coal industry or in connection with the coal industry. A formal finding of dispute pursuant to s.101 will be issued as soon as an appropriate draft is provided by the CFMEU." [10]

[14] The Appellant contends that her Honour erred in her interpretation of Rule 2D by failing to appreciate or decide that the rule was concerned with the industry or enterprise of the employer and that the industry of an employer is not to be identified simply by looking at the work activities of some of its employees.

[15] At paragraph 148 of her decision her Honour stated:

"The question I have to determine is whether or not the work performed by the employees of Harnischfeger, the subject to this application, and therefore the industry in which Harnischfeger operates in relation to those employees, is work in or in connection with the coal industry." [emphasis added]

The Appellant submits that this was not the question to be asked or determined, as the question contained an erroneous premise. Accordingly, the answer that her Honour gave to that question was also wrong.

[17] According to the Appellant, that incorrect premise was the assumption, contrary to authority, that the question of eligibility to join the CFMEU pursuant to Rule 2D is solely and completely determined by whether or not work performed by a specific group of employees of Harnischfeger, who are engaged at a specific location, is characterised as being work which is in or in connection with the coal industry. It is argued that her Honour had wrongly proceeded on a basis that the mere fact that some employees of an employer are engaged in work within the boundaries of a particular industry, is of itself sufficient to demonstrate that the employer is "therefore" engaged in or in connection with, that industry for the purposes of the CFMEU eligibility rule.

[18] The Appellant submits that it is well established that a rule expressed in the terms of Rule 2D is construed as relating to the industry of the employer, that is to say that, in order for persons to be eligible to be members of the organisation, they must be employed in an industry carried on by their employer which satisfies one or more of the descriptions in the eligibility clause. [11]

[19] Further, in the present circumstances, this means that to be eligible for membership of the CFMEU pursuant to Rule 2D a person must be employed by an employer whose business activities satisfy the description in that eligibility rule, namely that the employer is engaged in a business which is properly characterised as being one that is in or in connection with the coal and shale industries.

[20] According to the Appellant the correct application of Rule 2D requires that the employer's business or enterprise be assessed as to whether that business or enterprise meets the relevant description. It is said to be evident from paragraphs 163 and 165 of her decision that her Honour did not fully appreciate this requirement.

[21] It is submitted that the evidence before the Commission demonstrates that the proper characterisation of the substantial nature or character of the business of Harnischfeger is the maintenance, supply, installation, servicing and maintenance of surface mining equipment and the manufacture repair and maintenance services to a range of other industries, including ports and general engineering. It is engaged in the manufacturing and heavy engineering industries. The relevant applicable Award is the Metal, Engineering and Associated Industries Award 1998. Whilst the business of Harnischfeger may, in part, entail the provision of services and supply to the coal mining industry, together with other industries, it does not follow that Harnischfeger itself is engaged in or in connection with the coal mining, or any other, industry.

[22] Further, the Appellant submits that the correct application of Rule 2D in this matter requires an examination of the correct characterisation of the industry, trade or business of the employer. Whether or not an employer is so engaged, and consequently whether those persons are so employed, is a question of fact. [12] That issue is to be decided by determining whether, as a matter of fact, Harnischfeger carries on an (employer) business (or industry) that is correctly determined to be a business the substantial purpose or character of which is able to be described as existing or operating in or in connection with the coal and shale industries. The Appellant submits that for these purposes the "industry" of the employer is defined in s.4 of the WR Act as including "any business, trade, manufacture, undertaking or calling of employers".

It is argued that in characterising the industry of the employer to determine whether an industrial organisation has coverage of that employer's employees, the test to be used is that of the primary or predominant purpose, which the relevant authorities have equated with the "substantial character" of the enterprise in which the employment occurs. It is not a classification of the nature or quality of the work performed by a selected group of employees. In support of this proposition the Appellant relies on the following observation by the Full Bench in National Tertiary Education Union v Technisearch:

"The issue of principle raised on the appellants' submissions is about how the NTEU's constitutional coverage, and therefore its capacity to generate a dispute, is to be determined. Mr Burchardt raised a question as to whether the 'substantial character of the enterprise' is the central test to be applied. That question can only be answered in perspective with the process involved when the capacity of an organisation of employees to generate an industrial dispute is put in issue. Such issues are by no means novel. The principles and approach to be followed on an appeal of this kind are in our view sufficiently and accurately stated in the following passage from the 1989 decision of a Full Bench in Australian Theatrical and Amusement Employees Association v Professional Radio and Electronics Institute:

'This matter turns on an interpretation of ATAEA's eligibility rule; if the rule encompasses the areas of SBS's activities to which the log was directed then, all other questions being satisfied, there is a duty on the Commission to make a finding of dispute. The Commission at first instance declined to make a finding of dispute as to the radio aspects of the log for the reason that the ATAEA rule was held to be too narrow to permit it to create a dispute in that respect. Therefore we approach this matter on the basis of the view we form on the meaning of the rule. If our view differs from the decision at first instance it follows that we must uphold the appeal.

The resolution of whether the relevant employment is within the scope of the eligibility rule requires as a first step the construction of the eligibility rule which is, in the words of Barwick CJ in R v. Aird; ex parte The Australian Workers' Union, "a legal question to be solved by legal considerations". That is, the meaning must be ascertained by the application of ordinary legal principles of construction. However, as Barwick CJ said in the same case, those legal considerations will "include any industrial meaning or usage of the words of the clause to be construed ..." and later "... but, granted this generosity of approach, the question of the meaning of the words used remains a legal question." The reference to "industrial meaning or usage" follows the reasoning adopted by Dixon J in R v. Hickman; ex parte Fox and Clinton which would permit, in the construction of eligibility provisions, reference to the previous use of the words of the eligibility rule in "statutory provisions, decisions, determinations, awards, reports and other papers concerned with the relevant industry or industries". (See also The Queen v. Williams; ex parte Australian Building Construction Employees' and Builders Labourers' Federation.) The second step involves the application of the eligibility rule, properly construed, to the circumstances of the particular employees or employment for the purpose of determining whether the employment falls within the scope of the rule. As Jacobs J noted in R v. Neil; ex parte Cinema International Corporation Pty Ltd and others [(1976) [1976] HCA 11; 134 CLR 27], this may involve a question of mixed fact and law and one of degree. …

On the authorities to which we have referred, it then becomes a question of degree whether an SBS employee engaged on work on or related to those activities is employed in or in connection with an amusement in the sense used in the ATAEA's eligibility rule. Specifically, is the work of a technical officer engaged to ensure technical quality in programme transmission and correct interfacing between programme originators and transmitters able to be classified as being in connection with an amusement? The identification of the action of amusing in a radio broadcast demands an integration of programme content with transmission and reception. Were this matter to be decided on a test of the primary or predominant purpose or substantial character of the enterprise in which the employment occurs, we would find that the substantial character of the employment derives from the nature of the enterprise in which it occurs and the SBS enterprise is most appropriately identified with the radio broadcasting service or industry. The primary character of the SBS, the employer, is to be a broadcasting service in terms of its statutory function: the SBS is not an amusement in the concrete sense; nor is it appropriate to conclude that the statutory function of the SBS places a sufficiently high degree of emphasis on activity to amuse to make that more than one of a number of subsidiary purposes which include education and the achievement of other policy objectives identified with multilingual broadcasting. However, we read the authorities by which we are bound as requiring both an examination of the degree to which an activity fits within a description of industry or calling, and an acceptance that a particular activity may fit the description of more than one industry [R v. Isaac; ex parte Transport Workers' Union of Australia, (1985) 159 CLR 323 at 333; and R v. Moore; ex parte Federated Miscellaneous Workers Union of Australia, [1978] HCA 51; (1978) 140 CLR 470; and see cases referred to Shaw: Interpreting Trade Union Constitutional Rules, 62 ALJ 692 at 696-697]. The assessment of the degree to which an employment calling fits an eligibility rule description involves a judgment of fact. An examination must 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 any kind of amusement [Federated Miscellaneous Workers Union of Australia v. Colonial Sugar Refining Company Ltd, (1971) 18 FLR 386 at 392].'

We note one point in that context. The High Court cases cited 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. 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 6. In our view, it is essential to focus on construction of the rule and to then apply it to the circumstances of the case.

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 in 1983 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." [13] [emphasis added]

[24] If one accepts that the Rule 2D refers to the industry of the employer, the next step (which the Appellant submits her Honour failed to take) is to assess whether, as a matter of fact, the evidence establishes that the Appellant's business has become so enmeshed in the industry of coal mining that it can properly be characterised as being engaged in or in connection with that industry.

[25] Applying the "substantial character" test, the Appellant states that the substantial character of its industrial pursuit is the manufacture, supply, installation, servicing and maintenance of surface mining equipment to the mining industry generally, and the manufacture, supply, installation, service and maintenance to a range of other industries, including ports and general engineering. Consequently, it is not sensible to describe such a business, taken as a substantial whole, as one that is engaged in or in connection with the coal industry.

[26] The Appellant also relied on the recent decision of the Full Bench of the Commission in an appeal by Dyno Nobel Asia Pacific Ltd against a decision of Senior Deputy President Drake [14] (Dyno Nobel). The Full Bench in that matter concluded as follows:

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

(a) An eligibility rule, or part of an eligibility rule, that simply refers to persons employed or engaged 'in or in connection with' a specified industry or industries is properly characterised a conventional industry rule and the discrimen 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.

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

(c) 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.

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

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

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

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

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

(e) 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.

(f) 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."

[27] The Appellant submits that the conclusions of the Full Bench in Dyno Nobel are entirely consistent with the Appellant's submissions in this appeal, and are sufficient to dispose of the question as to whether her Honour's finding of dispute was in error.

[28] Further, in this matter it is said that her Honour adopted a test that was essentially identical to the test she adopted in Dyno Nobel, which was found by the Full Bench to have led her Honour into jurisdictional error. At paragraph 61 in Dyno Nobel, Lawler VP and Hamberger SDP stated as follows:

"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.

[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."

[30] As set out above, in the reasons for the dispute finding her Honour stated as follows:

"[146] Mr Herbert submitted that the Commission would be in error if it examined the duties and activities of one group of Harnischfeger employees and characterised the industry of Harnischfeger by reference to the location of that work, without any consideration of the business, trade or industry of Harnischfeger as a whole. The industry of Harnischfeger needs to be considered. He submitted that the factual circumstances in this application are not distinguishable from the reasoning of the High Court in Poon Bros.

[147] I agree that the industry of Harnischfeger needs to be considered. I agree that the location of the work performed by Harnischfeger employees is not determinative. I disagree that the facts in this application are not distinguishable from those in Poon Bros.

[148] The question I have to determine is whether or not the work performed by the employees of Harnischfeger, the subject of this application, and therefore the industry in which Harnischfeger operates in relation to those employees, is work in or in connection with the coal industry. I do not believe I have to give pre-eminence in my consideration of this question to a holistic view of Harnischfeger's operations as pressed upon me by Mr Herbert. No single factor has pre-eminence in such a consideration. It is a matter for determination on the facts in each case after weighing all factors, including amongst others the operational framework of the employer as well as the location of the work." [emphasis added]

[31] According to the Appellant's submissions, the observations in paragraph 148 of her Honour's decision, and in particular the use of the word "therefore" in relation to the connection between the nature of the work performed by a small number of employees at the Bulga coal mine and the correct characterisation of the industry in which Harnischfeger operates, make it clear that her Honour expressly adopted the same test as she applied in Dyno Nobel and disavowed the proper test by which the "substantial character" of the trade or business of the employer is to be assessed. The Appellant submits that this is further illustrated in paragraph 159 in which her Honour says:

"The substantial character of the work performed by Harnischfeger employees at Bulga Coalmine is work in the coal industry."

[32] The Appellant submits that on the authority of Dyno Nobel such a conclusion cannot, of itself, be determinative of the question of the substantial character of the business conducted by Harnischfeger. The Appellant further submits that the sole focus of the analysis by her Honour was on the substantial character of the work of a small number of employees at a single geographical location. Her Honour did not attempt to examine the substantial character of the business of Harnischfeger, as she was required to do.

[33] Accordingly, it is the Appellant's submission that the Senior Deputy President led herself in the present matter to the same jurisdictional error as was identified by the Full Bench in Dyno Nobel, and that the same result must occur, that is:

"Where an administrative decision is affected by jurisdictional error, there is at law 'no decision at all'." [15]

[34] On those bases, the Appellant submits that the appeal must be allowed and the finding of dispute quashed.

[35] In addition to its principal submission the Appellant also contends that the actual finding of dispute was stated in terms that were far wider than the ambit of the dispute alleged by the CFMEU to exist and wider than the Senior Deputy President indicated was intended to be the subject of her decision. [16] We return to this aspect of the Appellant's submissions later.

[36] The Respondent noted that at paragraphs 140 and 141 of her decision, the Senior Deputy President set out and adopted the findings from AAA Services applying the authorities to the coal industry, in which her Honour recorded the following features of the coal industry:

(a) The coal industry produces coal from mining operations. [17]

(b) Industry safety legislation applies to all work conducted on a coal mine. [18]

(c) Mechanical and electrical engineering maintenance is essential for the functioning of any coal mine [19].

(d) Since the 1990s maintenance work has been performed by contractors. [20]

(e) The work is not extraneous to coal mining, in contrast to catering or laundry work. [21]

(f) Without constant maintenance of capital equipment, mining would cease. [22]

(g) The investment in capital equipment in coal mining is extraordinarily high. [23]

[37] The Respondent noted that her Honour also made the following findings about the work performed by the Appellant's employees at the Bulga coal mine:

(a) There was a partial integration between the Appellant's employees and the direct employees of the mine operator. [24]

(b) The work was not analogous to laundry, catering, telecommunications or transport. It was work intrinsic to the coal industry. [25]

(c) It involved compliance with the Life Cycle Maintenance contract, breakdown maintenance, service days and other work. [26]

(d) It is not just after-sales service. [27]

(e) It is not a breakdown maintenance service. [28]

(f) The Appellant's employees are on the mine site day in and day out performing maintenance on mining equipment. [29]

[38] The Respondent contends that the Appellant in its submissions essentially refers to one fundamental error said to be made in her Honour's decision in relation to the interpretation of Rule 2D of the CFMEU's rules. That error is the failure to take an approach to interpreting the rule that requires that the industry that the employees are working in or in connection with be ascertained from the perspective of the business of the whole of the company of the employer (which the Respondent refers to as the "whole company approach").

[39] The Respondent also contends that other errors alleged by the Appellant in her Honour's interpretation of the rule also have this supposed fundamental error as their foundation. For example, the Respondent submits that the Appellant's complaint that her Honour failed to use the "substantial character" test to characterise the business of the employer, [30] is really a complaint that her Honour did not use the "whole company approach".

[40] However, the Respondent submits that the High Court decisions that have applied the "substantial character" test have not required the "whole company approach", and that suggestions to the contrary in the Appellant's submissions and in the decision in Dyno Nobel [31] are not supported by the authorities relied upon.[32]

[41] The Respondent also submits that the Appellant has avoided dealing with the impact of the words "in or in connection with" in Rule 2D and that a proper construction of the rule must deal with these words. In the Respondent's submission, these are words of expansion that allow a finding of eligibility even if the employees in question are not in the relevant industry. The Respondent refers to R v Isaac and others; Ex parte Argyle Diamond Mines Pty Ltd [33] (the Argyle Diamond case) at 344, where Wilson J said:

"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."

"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."

[43] In R v Hibble; Ex parte Broken Hill Proprietary Co Ltd [34] (Hibble) Higgins J referred to the term in the following passage:

"It appears that there is an organization registered under the Commonwealth Conciliation and Arbitration Act under the name of the 'Australasian Coal and Shale Employees' Federation.' The log was sent under this name, claiming wages and conditions for the members of the Federation. But, according to the constitution of the Federation, the only members allowed were 'employees engaged in or in connection with the coal and shale industry.' The words used are not 'in or in connection with coal,' or 'in or in connection with coal industries'; and when one speaks of 'the coal and shale industry,' as a single industry, the meaning is surely the industry of extracting coal and shale. Coke is not made from shale, but shale is frequently lying over beds of coal. If there is any 'coal and shale industry,' it must be in the process of extraction from the earth. It is not enough to show that coke is 'connected with' coal, or jam with sugar; the employees must be engaged in the industry, or in connection with it (e.g., as surface-men or engineers in connection with coal mining, or as carpenters with jam factories)." [35]

[44] The Respondent further submits that Federal Court cases in other contexts have also given the words "in or in connection with" a wide meaning. [36]

[45] The Respondent's key submission is that the Appellant's submissions in relation to error are fundamentally misconceived because they involve the requirement of the "whole company approach" without any regard to these words of expansion. According to the Respondent, the Appellant has therefore failed to establish any error associated with the Senior Deputy President's interpretation of Rule 2D.

[46] In respect of the second error alleged in the Appellant's submissions - that the dispute finding recorded is framed too broadly - the Respondent makes the following submissions:

• this complaint is not raised in the notice of appeal and no attempt has been made to explain how it falls within the scope of s.45(1);
• a draft Record of Finding was forwarded to the Appellant on 21 April 2005 and the parties were given the opportunity to address her Honour on the draft on that day. The Appellant's solicitor told her Honour that "we agree that the dispute finding accords with your decision" [37];
• so far as there is a discrepancy between the decision and the Record of Finding it is inconsequential and the complaint bears the hallmarks of the Appellant applying a fine tooth comb to the proceedings;
• the Record of Finding is confined to the work performed by the Appellant's employees at the Bulga coal mine and reflects her Honour's decision in that all of the employees of the Appellant who can be characterised as performing work at the Bulga coal mine and therefore are part of the business working in or in connection with the coal industry are entitled to be members of the CFMEU.

[47] In the event that the appeal is upheld the Appellant contends that the Commission should determine for itself the matters in question in these proceedings. The Appellant submits that on the basis of the evidence before her Honour the application of the "substantial character" test to the business of Harnischfeger requires a conclusion that Harnischfeger is not engaged in or in connection with the coal and shale industry. The Appellant's submissions in respect of the evidence said to support this conclusion are set out at paragraphs 14 to 21 of Exhibit A2.

[48] In the event that the Commission decides to uphold the appeal the Respondent contends that the matter should be remitted to Senior Deputy President Drake for determination in accordance with the Full Bench's decision.

[49] Should the Commission take the view that it will deal with the matter the Respondent relies on the findings of her Honour at paragraphs 140 and 141 of her decision, as to the nature of the coal industry. The Respondent contends that the evidence of the changed nature of employment arrangements in the coal industry with the rise of the use of contractors is particularly cogent, and relies on its summary of the evidence at Attachment A of the CFMEU's submissions at first instance. [38]

[50] The Respondent submits that the evidence supports the finding that the Appellant's business is in the coal industry and this finding cannot be tempered or reversed by a consideration of whether the Appellant's business may also be in other businesses.

[51] The proper construction of union eligibility rules is a matter which has long occupied this Commission and the courts, and there is a long history of authorities, including High Court authorities, that bear on the issue. A number of these authorities were extensively referred to in the decision of Lawler VP and Hamberger SDP in Dyno Nobel. We do not propose, nor do we think it necessary, to canvass the same authorities here.

[52] However, we do think it necessary to draw attention to some aspects of those authorities that we consider have a significant bearing on the matter presently before us. Namely, whether Drake SDP's decision at first instance reached the right conclusion as to the existence of an industrial dispute between Harnischfeger and the CFMEU. That task requires us to form our own view as to whether such a dispute existed and therefore we must consider the proper construction of Rule 2D of the CFMEU's rules.

[53] The Appellant submits that such a proper construction requires us to ask ourselves what is the "substantial character" or the "primary or predominant purpose" of the Appellant's enterprise, taken as a "substantial whole", and not based on a classification of the nature or quality of the work performed by a selected group of the Appellant's employees. The Respondent, on the other hand, submits that the Appellant's approach avoids dealing with the expansionary effect of the words "or in connection with" in Rule 2D, and that the authorities dealing with the "substantial character" test do not require the "whole company approach" argued for by the Appellant.

[54] The Appellant, in its approach to construction, in part relies on the majority decision in Dyno Nobel, and in particular, on the following principle "(c)" expressed in that decision:

"The answer to that question of fact [whether or not the trade or business of an employer is in or in connection with a particular industry] 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." [39] [emphasis added]

[55] That principle in Dyno Nobel was said to be supported by the High Court's decisions in R v Central Reference Board; Ex parte Thiess (Repairs) Pty Ltd [40] (Thiess Repairs) and Re Federated Liquor and Allied Industries Employees' Union of Australia; Ex parte Australian Workers' Union[41] (Poon Bros), decisions upon which the Appellant's submissions similarly rely.

[56] Rule 2D is an "industry rule" of the kind considered by the High Court in Hibble. The eligibility rule under consideration in Hibble was in very similar terms to that presently under consideration, namely that the union would:

"… consist of an unlimited number of employees engaged in or in connection with the coal and shale industry, together with such other persons … as have been appointed offers of the federation and admitted as members thereof."

[57] The Court held as follows as to the proper construction of that rule:

"… 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 …

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 … 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". [42]

[58] In Poon Bros [43] Barwick CJ explained industry-based eligibility rules in the following way:

"… 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… Whether or not they are so employed is a question of fact: see eg R v Hibble, supra, loc cit.

The question, therefore, … 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." [44]

[59] There is ample authority to support the proposition that eligibility clauses are to be construed broadly, and not narrowly or technically. In R v Aird; Ex parte Australian Workers' Union, for example, Barwick CJ held:

"I now turn to consider the meaning of the eligibility clause in relation to the manufacture in the batching plants of ready-mixed concrete. This is a legal question to be solved by legal considerations But those considerations will, in relation to the present question, include any industrial meaning or usage of the words of the clause to be construed. As with all construction, the nature of the instrument in which the words appear and the purposes the instrument is evidently intended to serve or effect must be kept in mind. In this respect, it is proper, in my opinion, in the present case to acknowledge that the eligibility clause will have been drawn, more likely than not, by union officials more familiar with the practical affairs of industry than with the niceties or subtle nuances of language. The purpose of the clause is to define, in brief terms, industries or callings relevant to the representative character of the union. But, granted this generosity of approach, the question of the meaning of the words used remains a legal question." [45]

[60] Thiess Repairs is widely cited as authority for the proposition that, when applying industry-based eligibility rules to the activities of a particular employer, the requisite test is the "substantial character" test. Thiess Repairs arose out of a dispute in relation to the termination of an employee (Mr Belmar) of Thiess (Repairs) Pty Ltd, and a challenge to the jurisdiction of the Central Reference Board to deal with that dispute. The Regulations that established the Board provided that: "The Governor-General may appoint a Central Reference Board for the prevention or settlement of any industrial dispute in the Coal Mining Industry" [46] [emphasis added]. The jurisdictional fact in issue was whether Thiess (Repairs) Pty Ltd, a company that carried on engineering repair work (mostly) on equipment used on an open-cut coal mine, was engaged "in the Coal Mining Industry", and whether Mr�Belmar had been employed "in" that industry.

[61] Ultimately, the Court found that Thiess (Repairs) Pty Ltd was not a company engaged "in" the coal mining industry, and therefore that the Board had no jurisdiction to deal with the dispute. Relevantly, Latham CJ had this to say about the test to be applied when determining whether a company is engaged in a particular industry:

"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. 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." [47] [footnotes omitted]

"In my opinion the question to be asked is - What is the substantial character of the industrial enterprise in which the employer and employee are concerned? In the present case, the employer is Thiess (Repairs) Pty Ltd. That employer is not engaged in coal-mining, but is an engineering company carrying on general work. It is not under the control of the mine owner, or even of the contracting party (Thiess Bros Pty Ltd), which actually conducts the mining operations. But the more important fact is that its operations are separate from and different in kind from the operations carried on at the open cut. It supplies certain needs of the coal-mining industry in the same way as do many other industrial enterprises. But these facts do not show that all such suppliers of goods or services to that industry are themselves engaged in that industry. In my opinion the evidence in this case shows that Thiess (Repairs) Pty Ltd did not employ Belmar in the coal-mining industry. As already stated, the Central Reference Board can make an order only in relation to certain matters in or in connection with that industry, and therefore the Board had no jurisdiction to make the order for the reinstatement of Belmar". [48]

[63] In the final statement in the passage extracted immediately above, Latham CJ stated that the Central Reference Board could make an order only in relation to certain matters "in or in connection with" the coal mining industry. However, nowhere else in his Honour's judgment had Latham CJ discussed the jurisdiction of the Board in the context of matters "in connection with" the industry, and the relevant regulation, and his Honour's consideration of its meaning, focused only on the fact of the Board's jurisdiction in relation to matters that were "in" the coal mining industry.

[64] It is important to recognize that Thiess Repairs was not a case that dealt with the construction of an eligibility rule of an organisation. In particular, it did not deal with the expression "in or in connection with the coal and shale industries" [emphasis added] as appears in Rule 2D. Rather, that case dealt with the meaning of the more limited expression "in the Coal mining industry". This distinction was discussed by Gibbs CJ in the Argyle Diamond case as follows:

"Although it is not always useful to compare the facts of one case with those of another, the decision in R v Central Reference Board; Ex parte Thiess (Repairs) Pty Ltd provides some assistance. That case was decided on the National Security (Coal Mining Industry Employment) Regulations and the question simply was whether the workers were employed 'in the coal mining industry' - not whether they were employed 'in or in connection with' that industry. The facts were that a company conducted open cut coal mining operations on land adjacent to an engineering shop conducted by another company. The engineering shop was used to effect all major repairs for the machinery at the mine although it did some other general engineering work as well. Dixon J, who dissented, thought that the work carried out by the engineering shop was done in the coal mining industry. He relied on the following matters: the operations were under one control and management, the proximity of the two enterprises, the fact that the repair and overhaul of the mining machinery was the purpose of setting up the shop and the convenience of having the repairs, which were essential to the mining operation, done in that way: see at p141. The majority took a different view, but Latham CJ said:

'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.'

It appears to be implicit in these remarks that although one enterprise was not the same as the other, it was closely connected with it." [49] [emphasis added; footnotes omitted]

[65] What then, is the impact of the words "or in connection with" in the construction of an eligibility rule such as Rule 2D?

[66] As noted above, the Respondent submits that the Appellant avoided dealing in its submissions with the impact of the words "or in connection with" in Rule 2D. The Respondent submits that these are words of expansion and allow a finding of eligibility even if the employees in question are not "in" the relevant industry. [50]

[67] The words "in or in connection with" have been considered in a number of contexts extraneous to the construction of eligibility rules. The Federal Court has held, for example, that the words "are words of wide import" [51] and "have a wide connotation, requiring merely a relation between one thing and another. They do not necessarily require a casual relationship between the two things."[52]

[68] The expansionary effect of the words "or in connection with" is discussed in the context of a construing an eligibility rule (albeit a "calling rule" and therefore not a rule of the same type as that presently before us) in Federal Tobacco Workers Union of Australia v Amalgamated Metal Workers Union, [53] where the Full Federal Court stated:

"…The opening words of the new eligibility rule were:

'The Union shall consist of an unlimited number of persons who are employed or usually employed in or in connection with the following trades or callings or branches thereof…' ….

The opening words, on their face, are words of expansion. In particular, the words 'in or in connection with' show that in addition to the listed trades or callings, persons who are 'employed' in connection with those trades or callings are eligible to become and remain members of the Metal Workers' Union. In this context the word 'employed' is to be read as 'engaged'. Thus, it is quite appropriate to say of a person who is employed by an employer which is not engaged in the engineering industry, but is employed to assist another employee who is performing the tasks of a metal worker, for example, a fitter, that the first person is engaged, or employer, in or in connection with the trade or calling of that fitter. …

The words 'in or in connection with' are words of expansion and provided that an industrial occupation is engaged in by an employee in connection with one of the listed trades or callings, that employee comes within the eligibility rule of the Metal Workers' Union." [54]

[69] We agree with the Respondent that the words "or in connection with" in the context of Rule 2D are words of expansion and must have some work to do.

[70] With respect, we do not consider that recent decisions dealing with the scope and meaning of Rule 2D have afforded sufficient weight to those words of expansion.

[71] In her decision at first instance in Dyno Nobel, Drake SDP concluded that if the substantial character of the work performed by Dyno Nobel on coal mining leases or nearby depots was not work "in the coal industry", it was work "in connection with the coal industry", but her Honour did not elaborate on the latter point. [55]

[72] Nor did the Full Bench on appeal deal in any significant way with the expansionary effect of those words in Rule 2D.

[73] Lawler VP and Hamberger SDP included in their majority decision in Dyno Nobel large extracts of the decisions of Gibbs CJ and Wilson J in the Argyle Diamond case. [56] The purpose of their Honours' iteration of those passages was their posited relevance to the question of the tests to be applied in answering the question of whether a particular description fits an industry or calling. However, aspects of the decisions of Gibbs CJ and Wilson J in Argyle Diamond dealing with the effect of the words "in connection with" were not discussed in Dyno Nobel. The extract of Gibbs CJ's judgment included the following truncated passage:

"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…" [57]

[74] The complete extract of the relevant passage from the judgment of Gibbs CJ in the Argyle Diamond case is:

"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. It is not enough that the products of the worker are used in the industry or that the products of the industry are used by the worker. Thus it has been held that workers employed to produce coke from coal, in a business of iron and steel manufacturers, were not employed in or in connection with the coal and shale industry: R v Hibble; Ex parte Broken Hill Proprietary Co Ltd. Similarly, workers who produced the coal in those circumstances could not have been said to be employed in or in connexion with the iron and steel industry: cf. Reg v Watson; Ex parte Australian Workers' Union. The question is one of fact and depends on all the circumstances of the case…" [58] [footnotes omitted]

[75] Gibbs CJ later made clear that the words are intended to expand the construction of the relevant eligibility rule:

"It was further submitted that even if the work done in the construction and operation of the mine was done in connexion with the 'reducing and refining of ores' in the ordinary meaning of those words, the context of the rule shows that the scope of the words should be restricted to prevent an inconsistency with other parts of the rule. The rule expressly refers to 'metalliferous mining' and to 'mining for brown coal' and it is clear enough that mining for minerals which are neither metals nor brown coal is not an industry within the scope of the rule. It is said that this provides an indication that work done in the mining operations in the present case should not be regarded as done in or in connexion with one of the industries or callings mentioned in the rule. If the rule referred only to labour 'in' the specified industries and callings, there might be some force in the argument that the description of one branch of an industry (eg, 'metalliferous mining') provides and indication that labour in other branches of the same industry (eg, diamond mining) was not intended to be covered by words elsewhere in the rule. However, labour 'in connexion with' the named industries is included and it is apparent that this very considerably widens the scope of the rule. Moreover, rules of this kind bear on their face the evidence of the fact that they have not been prepared by skilled legal draftsmen. The industries and callings to which they refer sometimes overlap. The rules should not be restrictively construed: see Reg v Holmes; Ex parte Public Service Association (NSW)." [59] **[**emphasis added; footnotes omitted]

[76] Wilson J made very similar comments in the same case:

"In construing the eligibility clause in the constitution of an organization, it is necessary to bear in mind the nature of the instrument in which the words appear and the purposes that it is intended to serve. The rule now in question bears ample indication on its face that it has been prepared without the assistance of a skilled draftsman. It has been amended from time to time, probably in response to the exigencies attending the industrial affairs of the union and without regard to the effect of the amendment on the internal consistency of the clause as a whole. It follows that the words of the rule should be given a wide meaning and interpreted according to their ordinary or popular denotation rather than by reference to some narrow or formal construction: Reg v Cohen; Ex parte Motor Accidents Insurance Board; Reg v McKenzie; Ex parte Actors and Announcers Equity. Nevertheless, notwithstanding this generosity of approach, the meaning of the words remains a legal question to be determined by the application of the ordinary rules which govern the construction of written documents: Reg v Aird; Ex parte Australian Workers' Union; McKenzie". [60] [footnotes omitted]

[77] Justices Deane and Dawson agreed with the reasons given by Gibbs CJ and Wilson J.

[78] As noted above, Gibbs CJ in Argyle Mining also noted the limited value of Thiess Repairs when construing eligibility rules, because Thiess Repairs did not concern the question of whether a business was engaged "in or in connection with" an industry. Despite this the majority decision in Dyno Nobel relied on Thiess Repairs in concluding that the question whether or not the trade or business of an employer is in or in connection with a particular industry 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" [61]. The majority judgment also includes an extract from Thiess Repairs to illustrate the proposition that the mere supply of goods or services to an industry is not, of itself, sufficient to render the supplier's business one that is "in connection with" the industry of the business supplied.[62] We have already given reasons why Thiess Repairs cannot, with respect, properly be relied upon as authority for that "whole company approach".

[79] The High Court's judgment in R v Cohen Ex parte Motor Accidents Insurance Board [63] (Cohen's case) is also relevant in this context.

[80] That case concerned the question whether employees of a government board fell within the eligibility rule of a union. The leading judgment in that case was that of Mason J (with whom Gibbs, Stephen and Aickin JJ agreed and with whom Murphy J reached the same conclusion). His Honour spelt out the relevant eligibility rule as follows (at page 583):

"The conditions of eligibility for membership of the Union, in so far as they are presently relevant, are as follows: 'The Union shall consist of an unlimited number of members, male and female employed or usually employed in the business of Insurance or Assurance or by the Insurance Council of Australia together with such other persons whether or not employees in the Industry as have been appointed or elected officers of the Union and admitted as members thereof.' "

[81] This is clearly a rule that is based on the industry of the employer. As His Honour found (at page 585):

"It is the functions of the Board under the Act which must be examined in order to determine whether its staff are 'employed or usually employed in the business of insurance'."

[82] His Honour set out the broad approach to construction of union rules (at page 587):

"In considering whether the Board is engaged in 'the business of insurance', it should be recognized at the outset that we are concerned with the use of that expression in the eligibility clause of a trade union's registered rules. The expression is, in such a context, no doubt intended to have a wide meaning and it should be interpreted and applied in accordance with its ordinary and popular denotation rather than with some narrow or formal construction. Thus the question is whether, as a matter of ordinary usage, the Board can properly be said to be in 'the business of insurance'."

[83] Significantly, the Court rejected an approach to the application of the eligibility rule to the business of the employer that required a whole company (or in this case Board) approach. The approach of the Court, as set out in the judgment of Mason J was as follows (at page 589):

"It was argued for the Board that its functions under the Act should be considered, not in isolation, but in their totality and that, if this was done, it could not be said that the 'business' of the Board was that of insurance. The simple answer to this argument is that it is quite possible, as in the present case, for a person or body to be engaged in several activities, one of which can properly be described as 'the business of insurance'. It is in my opinion, a misconceived approach to attempt to characterize the functions of the Board in their totality, and there is certainly nothing in the present case which warrants such an approach."

[84] Cohen's case was not the subject of submissions or consideration in Dyno Nobel.

[85] Rule 2D is an industry rule and the discrimen of eligibility under such a rule is the industry of the employer. [64] Hence the question here is whether the trade or business of Harnischfeger is "in or in connection with the coal and shale industries". This is a question of fact and the answer is determined by the substantial character of the activities in which the employer is engaged.

[86] The substantial character of a business may be in or in connection with more than one industry. [65] In such circumstances it is not necessary to decide which is predominant.[66] Nor is it necessary for each group of activities that have a "substantial character" to operate as distinct businesses or enterprises within the employer's overall operation. To the extent that Dyno Nobel may be said to stand for such a proposition, and we do not think it does, we respectfully disagree. In our view a proper reading of the authorities does not support such a proposition.

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

"The cases establish that one may be employed in connexion with the mining industry notwithstanding that one is merely developing the infrastructure which will be necessary to support the actual mining when it commences and notwithstanding that one is engaged, not in the process of extracting the ore from the mine, but in its subsequent treatment. A sufficient connexion may therefore be found in an occupation which takes place either before or after the actual work which itself identifies the industry in question." [67]

[88] We now turn to apply the approach we have outlined to the facts of this case. Harnischfeger contends that it carries on the business of the manufacture, supply, installation, servicing and maintenance of surface mining equipment throughout Australia. We accept that this is so. But the application of the "substantial character" test allows that a business may operate substantially in or in connection with two or more industries simultaneously. That is the case here. We are satisfied that the evidence in these proceedings, and her Honour's findings in respect of that evidence (see particularly paragraph 37 above and paragraphs 59 to 106, 214 to 247 and 288 to 289 of the transcript of the appeal proceedings), clearly establish that the business of Harnischfeger is "in connection with the coal and shale industries" within the meaning of Rule 2D of the CFMEU's rules.

[89] The work performed by the Appellant's employers at coal mines is an integral part of the coal mining operations. It is clearly distinguishable from the provision of a service such as catering or laundry.

[90] Her Honour's findings in this regard are amply supported by the evidence and we adopt them. [68]

[91] In his evidence Mr Shea, the general Manager North East Region for Harnischfeger, characterised the Appellant's business as:

"… the manufacture, supply, installation, servicing and maintenance of surface mining equipment in Australia and nearby South East Asian countries, marketed under the trademark of P&H. This equipment includes:

Harnischfeger also provides manufacturing, repair and maintenance services to a range of other industries, including ports and general engineering." [69]

[92] A table of Harnischfeger's operations showing the number of employees involved in each aspect of its business and the revenue earned is attached to Mr Shea's statement and marked as RS2 (also see transcript at paragraphs 1271 to 1339). In our view the application of the "substantial character" test to this material supports a finding that Harnischfeger operates "in connection with" the coal industry within the meaning of Rule 2D. The business activities that relate to the installation, servicing and maintenance of surface mining equipment support such a finding. As we have already observed it is not necessary to establish that those activities are the predominant activities performed by Harnischfeger or that a majority of Harnischfeger employees are engaged in such activities. Nor does it need to be established that these activities are performed as a discrete business within Harnischfeger's overall operations. It is only necessary that the activities be substantial, and we are satisfied that such is the case.

[93] In the circumstances it is unnecessary to decide whether the application of the "substantial character" test would lead us to conclude that Harnischfeger operates "in … the coal and shale industries".

[94] We dismiss the Appellant's principal submission.

[95] In its secondary submission (see paragraph 35 above) the Appellant challenges the actual finding of dispute on the basis that the terms of the finding were "far wider than the ambit of the dispute alleged by the CFMEU to exist and also wider than SDP Drake indicated was intended to be the subject of her decision…". [70]

[96] It is argued that the Record of Finding issued by her Honour does not indicate which specific Harnischfeger employees at the Bulga coal mine, or which duties they perform, are covered by the finding. It is said that a dispute of the kind found by her Honour did not exist at any time and was not alleged by any party to exist. For this reason alone it is contended that the finding in these proceedings should be set aside.

[97] We think there is some substance to the Appellant's challenge to the terms of her Honour's Record of Finding. As the Appellant readily concedes, a finding that Harnischfeger is "engaged in or in connection with the coal and shale industry" leads to the conclusion that the finding of dispute should extend to all of Harnischfeger's employees and not be limited in the manner determined by her Honour. This proposition is supported by the "summary of principle" set out in Dyno Nobel at paragraph 51(f) of that decision. There was no challenge to that proposition in proceedings before us.

[98] In view of our conclusion that the business of Harnischfeger is "in connection with the coal and shale industry" it is apparent that her Honour's more limited Record of Finding is erroneous. We grant leave to appeal and uphold the appeal in this respect. The Record of Finding issued by her Honour on 13 May 2005 will be varied by deleting the following words from paragraph 1 "in relation to the work performed by its employees at Bulga coal mine".

A. Herbert of Counsel with A. Fitzpatrick for Harnischfeger of Australia Pty Ltd.

S. Crawshaw, Senior Counsel, A. Slevin of Counsel with J. Gray for the Construction, Forestry, Mining and Energy Union.

[1] See Construction Forestry Mining and Energy Union v AC Whalan & Co and Ors, Drake SDP, 15 March 2005 [PR956447].

[3] Wan v AIRC [2001] FCA 1803; (2001) 116 FCR 481 at paragraph 30.

[4] [2000] HCA 5; (2000) 199 CLR 135.

[6] (2002) 113 IR 241 at paragraph 53.

[7] Pawel v Australian Industrial Relations Commission [1999] FCA 1660; (1999) 97 IR 392 per Branson and Marshall JJ at paragraph 16.

[8] (1999) 162 ALR 577 at paragraph 127. Also see R v Judges of the Federal Court of Australia; Ex parte WA National Football League (Inc) [1979] HCA 6; (1979) 143 CLR 190 at 214.

[11] See R v Hibble; Ex parte Broken Hill Pty Co Ltd [1921] HCA 15; (1921) 29 CLR 290 (R v Hibble), at 297 and R v Moore & Ors; Ex parte Australian Workers' Union [1985] HCA 80; (1976) 11 ALR 449 (Poon Bros case), at 453).

[12] See R v Hibble and Poon Bros case.

[13] (1996) 66 IR 38 at 42-43.

[14] PR956868, 14 July 2005 per Lawler VP, Hamberger SDP and Lewin C.

[15] Dyno at paragraph 66 and Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at paragraph 51.

[16] See paragraphs 45-51 of Exhibit A1.

[17] AAA Services at paragraph 349_._

[31] Paragraphs 28 and 51(c), Footnote 44.

[32] R v Central Reference Board; Ex parte Thiess (Repairs) Pty Ltd [1948] HCA 9; (1948) 77 CLR 123 (Thiess Repairs) and Re Federated Liquor and Allied Industries Employees' Union of Australia; Ex parte the Australian Workers' Union (Poon Bros).

[34] [1921] HCA 15; (1921) 29 CLR 290

[36] See Our Town FM v Australian Broadcasting Tribunal [1987] FCA 301; (1987) 16 FCR 465 at 479; Burswood Management Limited v Attorney General [1990] FCA 203; (1990) 23 FCR 144 at 146. Also see J.W. Shaw Interpreting Trade Union Constitution Rules (1988) 62 ALJR 690 at 695.

[37] Transcript at paragraph 1099.

[38] See generally paragraphs 57-65.

[39] Dyno Nobel at paragraph 51.

[40] [1948] HCA 9; (1948) 77 CLR 123 at 135.

[42] Ibid at 297-298 per Knox CJ, Duffy, Powers, Rich and Starke JJ.

[43] [1985] HCA 80; (1976) 11 ALR 449.

[45] [1973] HCA 53; (1973) 129 CLR 654 at 659.

[46] National Security (Coal Mining Industry Employment) Regulations, reg 5; see Thiess Repairs at 128 per Latham CJ.

[47] Thiess Repairs at 134 per Latham CJ.

[50] Submissions of the Respondent, paragraph 44.

[51] Burswood Management Limited v Attorney General [1990] FCA 203; (1990) 23 FCR 144 at 146 per Lockhart, Wilcox and Hill JJ, although their Honours went on to note that reference to their meaning in particular reported cases is "of little assistance in determining the meaning… because they take their meaning from the particular statute in which they appear".

[52] Our Town FM v Australian Broadcasting Tribunal [1987] FCA 301; (1987) 16 FCR 465 at 479 per Wilcox J.

[53] (1988) 29 IR 263 per Northrop, Gray and Ryan JJ.

[55] Drake SDP, Re Construction, Forestry, Mining and Energy Union and AAA Services Equipment Hire and Others, Sydney, 2 November 2004, PR952859 at paragraph 371.

[56] Re Appeal by Dyno Nobel Asia Pacific Limited, PR956868 per Lawler VP and Hamberger SDP at 37-40.

[57] R v Isaac; Ex parte Transport Workers Union (1985) 159 CLR 323 per Gibbs CJ at 333; extracted in the decision of Lawler VP and Hamberger SDP in Re Appeal by Dyno Nobel Asia Pacific Limited, PR952859, Sydney, 14 July 2005, PR956868 at paragraph 37.

[61] Re Appeal by Dyno Nobel Asia Pacific Limited, PR952859 per Lawler VP and Hamberger SDP at paragraph 51 and footnotes there cited; see also at paragraphs 18-23.

[62] Re Appeal by Dyno Nobel Asia Pacific Limited, PR952859 per Lawler VP and Hamberger SDP at para 46.

[63] [1979] HCA 46; (1979) 141 CLR 577.

[64] Hibble at 296-298 per Knox CJ, Gavan, Duffy, Powers, Rich and Starke J; Poon Bros at 268 per Barwick CJ with whom the rest of the Court agreed.

[65] R v Drake Brockmen; Ex parte National Oil Pty Ltd [1943] HCA 35; (1943) 68 CLR 51; Cohen's case.

[66] R v Isaac; Ex parte Transport Workers Union (1985) 159 CLR 323 at 332 per Gibbs CJ, with whom Deane and Dawson JJ agreed.

[68] For example see the evidence of Mr Murray, Exhibit CFMEU1 at paragraphs 10-12 and transcript at paragraphs 417-425; Mr Hill, Exhibit CFMEU 2 at paragraphs 6 and 9-13, and transcript at paragraphs 491-497 and 504-629; and Mr Alexander, Exhibit CFMEU3 at paragraphs 4-5 and 7-11, and transcript at paragraphs 636-640 and 657-772. We have also had regard to Mr Freeburn's response to this evidence, see Exhibit H1 and transcript at PNs975-1101.

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