Fair Work Act 2009

s.604 - Appeal of decision

Construction, Forestry, Mining and Energy Union

Appeal against decision [2017] FWCA 454 of Commissioner Roe at Melbourne on 20 January 2017 in matter number AG2016/6710.

[1] This matter is an appeal by Northern SEQ Distributor - Retailor Authority trading as Unitywater (Unitywater) and the Australian Workers' Union (the AWU) from a decision of Commissioner Roe (the Decision) in which the Commissioner, in accordance with s.201 of the Fair Work Act 2009 (the FW Act), noted that the Unity Water Industry Field/Outdoor Employees (Operations and Maintenance - Non-Trade) Enterprise Agreement No 1 (the Agreement) covered the Construction Forestry Mining and Energy Union (the CFMEU).

[2] Commissioner Roe found, and it was not disputed on appeal, that the CFMEU had members employed by Unitywater.

[3] Section 183 of the FW Act provides that an employee organisation that was a bargaining representative for the proposed agreement may give notice to the Fair Work Commission that it wants the enterprise agreement to cover it. It was not disputed that the CFMEU gave such a notice in accordance with the Act.

[4] Section 176(3) of the FW Act provides that an employee organisation cannot be a bargaining representative for a member of that organisation unless 'the organisation is entitled to represent the industrial interests of the member in relation to work that will be performed under the agreement'.

[5] Commissioner Roe was required to determine whether the CFMEU was entitled to represent the industrial interests of two particular CFMEU members, namely Mr Grocott and Mr Carroll, in relation to work that will be performed under the Agreement.

[6] In the proceedings before the Commissioner the parties agreed to rely upon the evidence, transcript and submissions in a related scope order application which had been before Commissioner Booth[1] and made specific submissions in relation to the CFMEU's application to be covered by the Agreement. The scope applications before Commissioner Booth did not require a determination of the issue which arose for determination before Commissioner Roe and because of the manner in which the matter proceeded the Commissioner did not have the benefit of an evidentiary hearing directed at the issue in contention.

[7] As a result of the manner in which the parties chose to put the case at first instance the evidence before the Commissioner was limited and the focus of that evidence was not upon the factual dispute that the Commissioner was required to resolve. We make no criticism of the Commissioner for acceding to the proposal put by the parties. We appreciate the desire of the parties to have the agreement approval application dealt with promptly, but it would have been preferable for a hearing of this application to have been conducted in a way that enabled the relevant factual disputes to be fully tested before the Commissioner.

[8] The Commissioner determined that the CFMEU was not entitled to represent the industrial interest of Mr Carroll in relation to the work that he would perform under the Agreement and that finding was not challenged under appeal. However he reached a different conclusion relevant to Mr Grocott.

[9] In the scope proceedings before Commissioner Booth, Mr Grocott gave evidence on behalf of the CFMEU and was cross-examined. Mr Craig Dearling the Employee Relations Manager (People, Culture and Safety) of Unitywater gave evidence on behalf of Unitywater and was cross-examined. This was the evidence provided to Commissioner Roe.

[10] The only direct evidence about the work performed by Mr Grocott on a day-to-day basis was given by Mr Grocott.

[11] Mr Grocott commenced work with the Redcliffe City Council as a crane driver. He subsequently became a plant operator and he obtained tickets to operate a backhoe, excavator, bobcat and front end loader.[2] He remained employed by varying entities until the work was transferred to Unitywater where he was employed as a "crew member."[3] He gave evidence that his job "primarily comprised of digging holes with an excavator so that other Unitywater employees could access or install water meters or repair broken pipes."[4]

[12] It was his evidence that he was allocated work via his 'Toughbook'.[5] He said there was one 1.8 tonne excavator at the yard and if a job required excavation it was given to him because he was "an excavator driver and have an excavator ticket."[6] In examination in chief he said that "they only call him when they think it is an excavator job."[7] He further said 80-90 per cent of the jobs require a digger.[8]

[13] He gave evidence that he always took the excavator with him to the job.[9] If he was not performing work on site he remained in the yard performing other duties such as dumping spoil. He used the excavator for that task.[10]

[14] He said he usually gets three to four jobs per day and his primary duty is excavation work.[11] He described his typical day as being called to a job, assessing the task, and digging the hole. While another employee was repairing the pipe he assisted by handing over other equipment. He did not do the repair work. Once the pipe was repaired he would backfill the hole and return to the yard or go to the next job.[12]

[15] Sometimes he would do manual digging.[13] It was his evidence that he operated the excavator on three of the four days he worked and that most jobs required the use of an excavator. [14]

[16] Mr Dearling gave evidence that Unitywater had "10 excavators in operation. Each is in operation for less than one day per week. There are 23 civil maintenance employees who can operate these 10 excavators. No single employee is engaged to operate an excavator exclusively (even as their primary duty). .... The primary purpose of their role is not to drive the excavator; operating it from time to time simply makes up part of their role, and a minor part at that." [15]

[17] Through Mr Dearling a Position Description for the position Crew Member - Civil was tendered.[16] Mr Grocott was cross-examined on this and when asked if he was aware of the Position Description for the role said, "I did see a copy of that just recently."[17] It was his evidence that he did some but not all of things listed as accountabilities on the Position Description. It was his evidence that he performed "back filling, trench compaction and site restoration."[18] He uses a computer. Further he performs duties as a "truck driver, plan (sic) operator, maintain and operate the vehicle and tools, report potential and actual incidents, ask for assistance if [he] is unsure, if injured pro-active with the Unitywater's return to work programs, comply with Unitywater's safety and management systems."[19] Of the eight key functions listed in the position description, which were not generic in character, his evidence that he only did backfilling, trench compaction, site restoration, drove a truck and or operated a plant was not challenged in cross-examination. For example, he did not do any repair work or pipe laying or testing or installation.

[18] Mr Dearling gave evidence that he had spoken to Mr Grocott's manager and he said that Mr Grocott tends to work on jobs that come in that require excavating because he puts his hand up for those jobs and everyone goes along with it.[20]

[19] Mr Dearling produced evidence of the amount of time that Mr Grocott's excavator was in use which showed that it was in use an average of 21.58 per cent of the time over the last 12 months.[21] In cross-examination Mr Dearling accepted that this did not accurately record the time the employee who drove the excavator is engaged on a particular job.[22]

[20] In cross-examination Mr Grocott said that when he came across from the Council he was "led to believe that everything just sort of rolled over and [I] came across as an operator."[23] He said he was never told he was not a designated driver, operator.[24]

[21] Mr Grocott said he was not in a set crew; he just goes to whoever needs the machine.[25]

[22] When cross-examined on the data Mr Grocott said that on most days he takes the excavator with him whether it is needed or not. He explained some of the discrepancies between his evidence and the data produced by Mr Dearling by saying that he turns the machine off all of the time.[26]

[23] In cross-examination when asked what he did for the balance of the day he said he did "general cleaning up by hand around the main."[27]

[24] Mr Grocott accepted that the data shows that his actual use of the excavator rarely exceeded three hours a day and even with 2 hours travel time there is a lot of other time and that was when he was doing the other tasks.[28]

[25] Mr Jim O'Brien who was Mr Grocott's supervisor was called to give evidence by the ASU but did not give any evidence about how work was allocated to Mr Grocott or the work he performed.

[26] Commissioner Roe made the following findings about the work performed by Mr Grocott:

• When a job comes through which may require excavation it is given to Mr Grocott because he is an experienced excavator.

• He always takes the excavator with him to jobs on a trailer which is towed by the truck because it is common for an excavator to be required.

• When he is not required for a reactive job Mr Grocott works in the Margate Depot performing duties such as dumping spoil. He uses the excavator to dump spoil.

• When he arrives at a reactive job he assesses the excavation requirements.

• Generally when excavation is required Mr Grocott does the excavation work and other workers perform the work to repair the pipe or main. He does not do the pipe repair work although he may assist by handing over equipment and other manual work. Once the repair work is finished Mr Grocott will usually backfill the hole with the excavator.

• There are occasions when other methods are used for excavation such as manual digging with a shovel or use of a vacuum digger. Mr Grocott is not qualified to do vacuum digging.

• When he transferred from being a plant operator with the Council to being a crew member with Unitywater nothing much changed in respect to his work.[29]

[27] Commissioner Roe accepted that the data produced by Unitywater showed that during 2015-16 the excavator operated by Mr Grocott had its engine running 22 per cent of the working time,[30] and went on to make the following findings and observations:

'[24] I am satisfied that only a proportion of Mr Grocott's time is out responding to jobs, the balance of the time is at the depot. Given the nature of the work a significant amount of time is expended in travelling to and from jobs. When at a job Mr Grocott does not spend all his time operating the excavator. Not every job Mr Grocott attends requires excavation and when the excavator is used there is the time following excavation and prior to backfilling during which repair or other work is undertaken. During that period Mr Grocott may engage in manual labour cleaning up around the main. Mr Grocott does work using the excavator virtually every day.

[25] Mr Grocott gave evidence that he was not qualified to perform all of the responsibilities listed in the crew member position description although other crew members would be. He also gave evidence that he did not perform all of the duties in the position description and that those which he did perform mostly related to the operation of the excavator.

[26] I accept that Mr Grocott was in error in his estimation of the number of jobs involving

the excavator he generally performed each day.'[31]

[28] Commissioner Roe considered the Position Description tendered by Unitywater and observed that it was 'highly generic' and that:

'... it reads and operates more like a classification definition in an award or an agreement. That is, it is a single descriptor for a range of different jobs. Not every crew member is required or able to currently perform all aspects of the position description. There is some differentiation in the work generally required to be performed by particular crew members. Of course a crew member may at some stage in the future be required to alter their work and/or expand their skills and competencies.'[32]

[29] The Commissioner observed that 'it is what the employee does in the context of the employer's organisation of work which is determinative of the primary purpose of their employment'[33] and in that regard found as follows:

'In this case it has been established over many years that it is [Mr Grocott] who operates the excavator and that other crew members in the yard do not operate the excavator when [Mr Grocott] is at work. Excavation is a critical part of the work to repair and maintain water infrastructure.

It is hardly surprising that the operator of an excavator would not spend the majority of their time operating an excavator with its engine running. As with many other jobs there are many incidental and vital requirements to the job such as planning, assessing, reporting, travelling, waiting, and assisting others with necessary tasks to get the job done particularly in the gap between excavation and backfilling.

Occupational union rules and occupational awards frequently operate in this manner. For example, there are many workers who would be covered by the CEPU rules for electricians or the ANMF rules for nurses who don't spend the majority of their time installing electrical wiring or caring for patients. The FEDFA occupational rule to cover "excavator drivers" is not to be read down by the scope of the CFMEU industry rules. [30] I am satisfied that Mr Grocott is eligible to be a member of the CFMEU. I am satisfied that the CFMEU can be covered by the Agreement on the basis of Mr Grocott's job.'[34]

[30] The decision which is the subject of the appeals is the determination that the primary purpose of Mr Grocott's employment was to operate an excavator (rather than be a Crew Member).

[31] The grounds of appeal relied upon by Unitywater are as follows:

1. The Commissioner misapplied the primary purpose test.

1. The Commissioner failed to have regard to the circumstances in which excavation work was allocated to Mr Grocott.
2. The Commissioner had insufficient regard to Mr Grocott's limited use of the excavator in determining the primary purpose of Mr Grocott's employment.
3. The Commissioner had regard to an irrelevant consideration namely the finding had limited consequences for Unitywater.

[32] The grounds of appeal relied upon by the AWU are as follows:

1. The Commissioner applied the wrong test to determine if the CFMEU was entitled to represent the industrial interests of Mr Grocott.

2. The Commissioner wrongly relied on the historical and/or point in time performance by Mr Grocott of a minority component of the scope of work duties whilst at the same time accepting that Mr Grocott could be required to alter his work and/or expand his skills and competencies.

3. The Commissioner applied the wrong test by holding that it is what the employee does in the context of the employer's work organisation that is determinative irrespective of the full scope of the work for which he was actually engaged and which is covered by the Agreement.

4. The Commissioner misunderstood and misapplied the evidence and reached the wrong conclusion.

5. The Commissioner applied the wrong principle as the majority of the work performed falls within the scope of the Position Description. The minority of the work performed has no licencing requirement and the employer did not direct the employee to perform it.

(i) Unitywater's submissions

[33] Unitywater submitted that the Commissioner needed to determine the primary purpose of the employee's employment.[35] It relied upon the decision of CFMEU v CSBP Ltd.[36] It accepted that in determining the primary purpose it is necessary to consider the substance of the work performed.[37]

[34] It submitted that by focusing on what Mr Grocott did rather than what he was employed to do in the context of Unitywater's business, the Commissioner fell into error.[38]

[35] It submitted that in focusing on Mr Grocott's work as an excavator driver, which was only 21 per cent of his working time[39], the Commissioner erroneously focused on an aspect of his work in isolation.[40] Further it submitted that the Commissioner erroneously focused on one factor, Mr Grocott's substantive duties, and ignored other relevant factors[41] and it submitted that the Commissioner erroneously focused on Mr Grocott's work history which was irrelevant to the primary purpose of his current role.[42]

[36] Unitywater submitted the excavation work gravitated to Mr Grocott because of his experience and because he likes to do it and that this does not support a finding that Unitywater directed him to perform the work to the exclusion of other duties so as to undermine the legitimacy of the Position Description.[43] Further, excavation work was a small proportion of Mr Grocott's work.[44] It was submitted that excavation is a small fraction of Mr Grocott's work and when he is not doing excavation he does general cleaning up by hand which it says is what the crew member role anticipates.[45]

[37] It was submitted that the Commissioner did not have proper regard to other factors such as the range of duties prescribed in the Position Description or Mr Grocott's role in the context of Unitywater's organisation of work.[46] In this regard it was submitted that Mr Grocott accepted that he was employed as a crew member, that he was aware of the Position Description and the Position Description lists the key functions of the role. It was submitted that there was insufficient regard to the Position Description[47] and that the Position Description required Mr Grocott to perform a wide range of duties which may vary from day to day.[48] It submitted that the Position Description was generic because Unitywater does not rely on particular individuals for the performance of specific duties.[49]

[38] Unitywater accepted that certain work might gravitate to some employees.[50]

[39] Unitywater submitted that the Commissioner assessed the primary purpose of the role by reference only to Mr Grocott's evidence.[51] It submitted that the onus was on the CFMEU to establish the primary purpose and it was not incumbent on Unitywater to fill the evidentiary gap. It submitted that it could not be assumed that Mr Grocott does nothing other than limited excavation work and travel to and from the site and incidental tasks.[52]

[40] It submitted that, in any event, Mr Grocott's evidence about his work was inaccurate, yet the Commissioner declined to make any adverse findings about that evidence.[53] It was further submitted that the Commissioner failed to have proper regard to Mr Dearling's evidence that no employee was engaged to operate an excavator and that the work gravitates to Mr Grocott because he likes to do it.[54] It further submitted that the Commissioner had regard to an irrelevant matter namely, that no other crew member operates the excavator when Mr Grocott is at work because no employee is engaged to operate an excavator.[55]

[41] Unitywater submitted that the paucity of evidence about what Mr Grocott did when not operating an excavator meant that the Commissioner could not be satisfied that the primary purpose of his role was as an excavator driver and therefore he could not be satisfied that the CFMEU was entitled to represent his industrial interests.[56]

[42] Unitywater also submitted that:

• the Commissioner failed to explain why he preferred Mr Grocott's evidence about why he was allocated the work over Mr Dearling's evidence;[57]

• there was no evidence to support the finding at [22] that when Mr Grocott transferred to Unitywater that nothing much changed in respect to his work;[58]

• the Commissioner had insufficient regard to evidence of Mr Grocott's limited use of the excavator; [59]

• the Commissioner had regard to an irrelevant consideration when he observed that Unitywater would in any event have to live with the CFMEU. (It was also submitted that in addition to being irrelevant, it was not accurate as, in respect to this Agreement, it would not have live with the CFMEU but for this decision.); and[60]

• it was wrong to conclude that the decision has limited consequences.[61]

[43] As to the issue of permission to appeal, Unitywater submitted that permission to appeal should be granted because the appeal raises an issue of general importance, namely the status of a union as a bargaining representative.[62] It submitted that it is in the public interest that the primary purpose test is applied correctly and that as a result of the Decision it will be exposed to a risk of ongoing union conflict; it gives the CFMEU the status of a default bargaining representative for a replacement agreement; it gives the CFMEU an ongoing role in relation to matters covered by the Agreement in particular the new water industry classification, and it makes union eligibility subject to whatever duties are performed at any given time.[63]

• (ii) The AWU's submissions

[44] The AWU submitted that as the CFMEU was not entitled to represent the industrial interests of Mr Grocott the notice given by the CFMEU under s.183 was void and of no effect. [64] It contends -that the question to be determined was not whether the CFMEU was entitled to represent the industrial interests of Mr Grocott at large but whether it was able to represent his industrial interests in relation to work that will be performed under the Agreement[65] and that this requires an assessment of how work was to be performed or arranged under the Agreement which may bear no relation to how work not covered by the Agreement was performed.[66]

[45] The AWU submitted that the Commissioner erroneously focused on historical considerations and failed to have regard to the Position Description.[67] It submitted that it is not merely what an employee physically does in the context of the employer's organisation of work which determines the primary purpose of their employment but it is the primary purpose for which the employee engages the employee to work which is to be assessed. It submitted that the Commissioner was required to assess the role of crew member which was the role that Mr Grocott was employed to do and this assessment did not occur.[68]

[46] The AWU supported Unitywater's submission that Mr Grocott's evidence grossly exaggerated what work he did and it was submitted that, despite the Commissioner accepting that his evidence was not correct, he proceeded as though it were.[69] It submitted that based on the evidence before him the Commissioner should not have been satisfied that the CFMEU had made out its case.[70]

[47] The AWU submitted that the correct approach is to view the duties for which the employer employs the employee and which duties can be allocated under the Agreement.[71] It submitted that the key evidence in this matter was the Position Description which provided for a broad range of duties. The AWU noted that the Commissioner accepted that the employee may in the future be required to alter their work and/or expand their skills and competencies. Therefore it submitted that the Commissioner should not have focused on the duties at a "point in time".[72]

[48] The AWU submitted that to be employed as an excavator driver it must be established that that specific work is the function which the employer engages that employee to perform, effectively to the exclusion of other work with the exception of minor or incidental tasks[73] and that the Position Description means that such a characterisation is not possible. Further, it was submitted that the evidence before the Commission was that no-one was employed as an excavator driver.[74] It submitted that the function of excavator operation is not mentioned in Mr Grocott's Position Description and that the Commissioner inverted the true test and relied upon a small minority of Mr Grocott's work.[75] It submitted that the primary purpose of Mr Grocott's role was to be a crew member and he was required to perform functions within that role as required by his employer.[76] It was submitted that the Commissioner erred in making findings based on Mr Grocott's subjective view of his role and that it was an error to put aside the Position Description.[77]

[49] The AWU submitted that it and Unitywater had negotiated a broad ranging and flexible Position Description which permits the employer to allocate employees a range of tasks and that just because there may be a particular concentration of tasks to one individual should not result in that individual being classified outside of the work structure. It submitted that the subjective intentions or preferences of a particular worker within the flexible work structure does not determine the correct classification of their work and that the characterisation of the work must be objective not subjective.[78]

[50] The AWU submitted that, if upon the implementation of this Agreement, a regular rotation of the task of operating the excavator was implemented then the CFMEU would no longer be able to represent Mr Grocott's industrial interests. This, it submitted, supported a finding that the Agreement does not include a dedicated excavator driver.[79]

[51] It submitted the Commissioner's analogy (at paragraph [29] of the Decision) to nurses and electricians is indicative of error because the only purpose of their engagement relates to their technical or professional qualifications which was not the situation of Mr Grocott.[80]

[52] The AWU submitted that it is in the public interest to correct a decision of the Commission when the Commission exceeds its jurisdiction under the FW Act even if this is caused by an erroneous determination of a factual issue.[81] It submitted that the conferral of bargaining representative status on the CFMEU diminishes the capacity of the AWU to be the sole default bargaining representative in respect of the Agreement and that it is in the public interest that demarcation issues not be encouraged.[82]

[53] It further submitted that the correct approach to the determination of whether an industrial organisation is a bargaining representative[83] and the correct approach to determining whether a person who is employed under a broad and generic position description is entitled to have their employment description narrowed, are issues of critical and general importance.[84]

• (iii) The CFMEU's submissions

[54] The CFMEU submitted that permission to appeal should not be granted because the matter in dispute does not rise any higher than the interests of the parties. The appeal concerns the eligibility of one employee.[85]

[55] The CFMEU submitted that the Commissioner did not err when he had regard to the duties performed by Mr Grocott in determining what the primary purpose of Mr Grocott's employment was. It submitted that this is consistent with the approach in CSBP.[86]

[56] It submitted that the Commissioner did not limit his assessment to one factor and did in fact consider the Position Description.[87] It submitted that the Commissioner did not limit himself to one factor because he had regard to the evidence of Unitywater and accepted its evidence about the proportion of time Mr Grocott spent operating the excavator.[88]

[57] The CFMEU submitted that there was no error in the Commissioner having regard to the history of Mr Grocott's employment in circumstances where it was his evidence about what he understood occurred when his employment transferred to Unitywater. It submitted that it was not put to Mr Grocott that his duties changed.[89]

[58] The CFMEU submitted that the Commissioner did not err in not making any adverse findings about Mr Grocott's evidence. It submitted that much of Mr Grocott's evidence was not in contest and that there was no reason for the Commissioner to make a general finding in relation to credit.[90]

[59] It submitted that the matters referred to in [35] and following of Unitywater's submissions do not identify appealable error and that the Commissioner was correct to comment that his decision would have limited consequences.[91]

[60] The CFMEU also submitted that the AWU's focus on the Position Description is not consistent with the authorities[92] and that the Commissioner correctly had regard to the Position Description but it was not determinative;[93] nor did the Commissioner err in failing to give weight to the duties that Mr Grocott might have been required to perform.[94]

[61] Section 176 of the Act sets out the criteria that must be satisfied for the CFMEU to be a bargaining representative for Mr Grocott.

1. Mr Grocott must be an employee who will be covered by the Agreement.[95]

2. Mr Grocott must be a member of the CFMEU.[96]

3. Mr Grocott must not have appointed another person as his bargaining representative or has revoked the status of the CFMEU as his bargaining representative.[97]

4. The CFMEU must be entitled to represent the industrial interests of Mr Grocott in relation to work that will be performed under the Agreement.[98]

[62] In the present proceedings only point (4) is in contest.

[63] A person aggrieved by a decision of the Commission may appeal the decision with the permission of the Commission.

[64] The CFMEU submitted that the AWU did not have the requisite standing to appeal the Commissioner's decision. It submitted that the decision to note that the CFMEU was covered by the Agreement has no consequences, legal or otherwise, for the AWU and the fact that the CFMEU gains the right to enforce the Agreement as a result of the Decision, does not diminish or otherwise impact on the AWU's rights or interests. It further notes that even the rights conferred on the CFMEU are limited as it can only enforce the Agreement on behalf of a member if it is eligible to represent the member.[99]

[65] The AWU submitted that it was person aggrieved by the decision.[100] In support of its submissions it relied on the decision of the Full Bench in Traffic Technologies Traffic Management Division Pty Ltd[101] and the Director of the Fair Work Building Industry Inspectorate v CFMEU.[102] In particular it relied upon the following:

'The 'person aggrieved' test for standing to institute an appeal has been interpreted to have a wide field of operation. In Tweed Valley Fruit Processors Pty Ltd v Ross ('Tweed Valley') the Full Court of the Industrial Relations Court of Australia dealt with the meaning of 'a person aggrieved' in s.45(3)(d) of the Industrial Relations Act 1988 (a legislative predecessor to s.604 of the FW Act). In that matter the Court held that a union was a 'person aggrieved' because it had an interest in the decision sought to be appealed beyond that of an ordinary member of the public, despite the fact that the relevant decision did not affect the union's legal interests,:

"The decision ... did not affect [the union] legal interests. But the union had an interest in the decision beyond that of an ordinary member of the public ... it was concerned with the maintenance of members' conditions of employment, it had participated in the decision complained of by making submissions (pursuant to a statutory right ...) and the decision was one containing potential for industrial disputation."

While Tweed Valley was decided in a different statutory context it has been applied to the expression 'person aggrieved' in s.604 (1) of the FW Act.'[103] (References omitted)

[66] We are satisfied that the AWU has a sufficient interest to be characterised as a person aggrieved by the Decision. The AWU is covered by the Agreement and represents the industrial interests of some of the employees who will be covered by the Agreement. While we acknowledge that no legal or other right of the AWU is diminished by the Decision we accept that but for the Decision the AWU would be the only union covered by the Agreement and to the extent that it has rights that derive from being covered by the Agreement those rights will now need to co-exist with the CFMEU's rights.

[67] An appeal of a decision is not as of right and permission to appeal must first be obtained.[104] Subsection 604(2) of the FW Act requires the Commission to grant permission to appeal if satisfied that it is 'in the public interest to do so'. The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.[105]

[68] Other than the special case in s.604(2), the grounds for granting permission to appeal are not specified. Considerations which would usually justify the grant of permission to appeal include that the decision is attended with sufficient doubt to warrant its reconsideration or that substantial injustice may result if permission is refused.[106]

[69] All the parties accepted that the powers of a Full Bench on appeal are only exercisable where there is error on the part of the primary decision maker.[107] Unitywater and the AWU submitted that the determination of the primary purpose of Mr Grocott's employment was a legal question involving questions of law and fact.[108] The CFMEU submitted that the question of whether Mr Grocott was an excavator operator was a question of fact. [109]

[70] For the purpose of determining the appeal we have proceeded on the basis that Unitywater and the AWU correctly characterise the question of the primary purpose of Mr Grocott's employment as a legal question, or at least a mixed question of fact and law, and that:

'The decision required the Commissioner to make findings of fact on the evidence, and to assess the 'primary purpose' of the employee's role. The Commissioner was then required to decide whether those facts supported a conclusion that the Respondent was entitled to represent the industrial interests of Mr Grocott.'[110]

[71] It is not in dispute that the CFMEU's rules covered excavator drivers. Nor is it in dispute that Mr Grocott is a member of the CFMEU. The factual dispute between the parties was whether what Mr Grocott did in the context of the employer's organisation of work meant that the primary purpose of his employment was that of an excavator driver.

[72] This was not a case where the member at first instance had any particular advantage in the terms of the assessment of the witnesses as the Commissioner did not hear the witness evidence but rather relied upon the transcript and evidence tendered in the proceedings before another member of the Commission. We are required to make a judgement of whether the findings of facts made by the Commissioner were open to him on the evidence.[111]

[73] There is no dispute between the parties that judgment of the Full Court of the Federal Court's decision in CFMEU v CSBP Limited[112] sets out the approach to follow in determining whether an industrial organisation is entitled to represent the industrial interests of a particular employee. As to the primary purpose test the Full Court observed that:

'in applying this test one does not focus upon one aspect of an employee's work in isolation from the totality of his or her duties.'[113]

[74] Further, the Full Court cited,[114] with approval, the observation of Gray J. in Joyce v Christoffersen[115] that 'the primary function of an employee must be determined by looking at what he or she does in the context of the employer's organisation of work'.

[75] In the Decision the Commissioner held that "it is what the employee does in the context of the employer's organisation of work which is determinative of the primary purpose of their employment."[116] Unitywater accepted that the Commissioner correctly articulated the test.[117] We agree. The AWU while relying on CSBP,[118] said that focus should be on the work that will be performed under the Agreement, we return to that contention shortly.[119]

[76] We do not accept the submission that the limited evidence that was before the Commissioner meant that he could not be positively satisfied that the primary purpose of Mr Grocott's employment was that of an excavator driver. All parties had the opportunity to bring evidence about what Mr Grocott did in the context of the employer's organisation of work. We accept that the CFMEU had to put sufficient evidence to persuade the Commission that it was entitled to represent the industrial interests of Mr Grocott. The Commissioner was required to have regard to the evidence before him. That evidence was that of Mr Grocott and Mr Dearling including the Position Description and the data about the excavator use.

[77] Mr Grocott accepted that he was employed as a crew member. However apart from the Position Description, which we discuss below, there was no evidence before the Commissioner about scope of this position. While the predecessor agreement was before the Commissioner, no party took the Commissioner to that agreement to support its contention as to the primary purpose of Mr Grocott's employment.

[78] Before the Commissioner, Unitywater sought to rely upon the Position Description and the data about the time the excavator was in operation and the locations it was in operation. Further, it relied upon Mr Dearling's evidence that no-one was employed as an excavator driver. The AWU sought to rely on the Position Description and the classification structure in the Agreement as well as Mr Dearling's evidence.

[79] We accept that a position description is a relevant factor in any consideration of the primary purpose of employment. However, it seems to us that a party seeking to rely on a position description is obliged to do more than simply put the position description into evidence. It must also provide evidence that the position description sets out what the employee may be required to perform, either contractually or under the relevant award or an agreement. There was no such evidence before the Commission in this matter.

[80] In particular, there was no evidence before the Commission about when the Position Description came into existence. It was Mr Grocott's unchallenged evidence that he had seen a copy of it recently.[120] Nor was there any evidence that Mr Grocott's contract of employment incorporated, or referred to, or adopted the Position Description.

[81] We note, in relation to the Position Description, that there was direct evidence from Mr Grocott that apart from some incidental and general duties, such as set out in the last eight dot points of the Position Description,[121] the only key functions from the Position Description performed by Mr Grocott were "back filling, trench compaction and site restoration" and "truck driver, plant operator".[122] No contrary evidence was called by Unitywater or the AWU.

[82] Apart from the challenge to the amount of time Mr Grocott spent operating the excavator, Mr Grocott's evidence about his duties was not challenged in cross-examination. Further, there is nothing in the Position Description which would support a finding that those covered by it are required to undertake all or even the majority of the functions listed or that specialisation was not permitted.

[83] We are satisfied that the Commissioner had regard to the Position Description. We are not satisfied that his conclusions (at [27] of the Decision) about the Position Description manifested any error.

[84] Nor do we consider that the Commissioner erred in his conclusion about why excavator work was allocated to Mr Grocott. The Commissioner was entitled to accept Mr Grocott's direct evidence about why excavator work was allocated to him. The only contrary evidence was Mr Dearling's hearsay evidence about what a manager had told him. We reject the proposition that the Commissioner accepted Mr Dearling's evidence on this point. It is clear from the Decision that the Commissioner accepted Mr Grocott's evidence and merely recited Mr Dearling's evidence on this point. There was no error in the Commissioner preferring Mr Grocott's evidence to that of Mr Dearling in respect of this issue..

[85] We also reject the submission that the Commissioner erred in not making a general adverse finding about Mr Grocott's evidence. The Commissioner accepted that Mr Grocott erred in his estimation of the use of the excavator. At first instance Unitywater sought to impugn Mr Grocott's evidence on this ground and that he had not produced the Position Description. The Commissioner explained why he did not accept the latter submission[123] and we are not satisfied that his reasoning discloses error. Further, the fact that one aspect of a witness's evidence is not accepted does not inexorably lead to the rejection of the totality of the witness's evidence. In the context of this matter there was no necessity for the Commissioner to make a general adverse finding about Mr Grocott's evidence given Mr Dearling's concession that the data did not accurately record the period of time where an employee whose responsibility may be to drive the excavator is engaged on a particular job. Further Mr Grocott's other evidence was not challenged in cross-examination and no contrary evidence was called.

[86] The AWU submitted that it had negotiated a broad-ranging and flexible Position Description with Unitywater. The AWU did not point to any evidence before the Commissioner to support this submission. We do not accept the proposition that a broad-ranging position description, in the absence of evidence that employees are required to and did perform a broad range of tasks, is determinative of the primary purpose for which an employee is employed. A broad-ranging position description does not preclude an employer from employing persons with particular skills to perform particular tasks or from allocating particular tasks to an employee. If this is what occurs in practice, then the job title or job description is not determinative of the primary purpose of employment.

[87] For the reasons given we are not satisfied that the Commissioner erred in concluding that the Job Description did not determine the primary purpose for which Mr Grocott was employed.

[88] As we have mentioned, the AWU submitted that regard should be had to the work to be performed under the Agreement. Before the Commissioner at first instance the AWU submitted that the Water Industry Work (WIW) classification was relevant.[124] However it is relevant to note that the Agreement provides for employees to be classified as operations and maintenance - non-trade employees' levels 1 to 9.[125] It further contains WIW classification levels 1 to 5.[126] It also contains, at appendix 3, for the WIW Framework Implementation Guidelines.[127] This provides for a transition phase of six months after the approval of the Agreement. [128] Relevantly the Agreement provides that no existing non-trade employee is required to become a WIW. Therefore the submissions of the AWU in relation to this classification structure were not relevant to the Commissioner's consideration of the work to be performed under the Agreement. There was no evidence before the Commission that Mr Grocott's work under the Agreement would differ in any way from the way it was performed prior to the Agreement. Therefore the Commissioner did not err in having regard to the evidence before him about what Mr Grocott did in the context of the employer's organisation.

[89] It was submitted by the AWU that the work allocated to Mr Grocott might change over the life of the Agreement. That was not disputed. However the Commissioner was required to determine at the time of approving the Agreement if the CFMEU was entitled to represent his industrial interests in relation to work covered by the Agreement. If, at that time, it was so entitled that it might subsequently not be so entitled is not a relevant consideration. In any event there was no evidence that Mr Grocott's position would change.

[90] We are not satisfied that the Commissioner had insufficient regard to the limited time spent by Mr Grocott on the excavator. The Commissioner had regard to the data provided by Unitywater along with Mr Dearling's concession about that data. He had regard to the time spent by Mr Grocott getting to and from each job. He accepted that whilst others were repairing the pipe Mr Grocott assisted. There was no evidence of any other substantive tasks included in the Position Description that Mr Grocott performed. Mr Dearling did not give evidence about what else he did.

[91] We are not satisfied that the Commissioner erred in the factual findings he made at [24] and [27] of the Decision. Those findings were available to him on the evidence before him. Nor are we satisfied that the Commissioner erred in observing that his Decision would have limited consequences. We do not accept the submissions that the Decision will give the CFMEU the status of a default bargaining representative for a replacement agreement. That question will be determined on whether, at that time, the CFMEU is entitled to represent the industrial interests of any members it may have.

[92] Similarly, as to Unitywater's submission that the Decision would give the CFMEU right of entry in relation to this work, whether or not the CFMEU has a right of entry in the future will be decided on the facts in existence at the time.

[93] We accept that the CFMEU will have rights under the Agreement where the Agreement has given rights to the unions covered by the Agreement. It was submitted that the CFMEU would have the right to participate in the review of the Water Industry Review Group.[129] It is not entirely clear from the Agreement that the CFMEU would have such a right as the Agreement refers to union parties to the Agreement and union signatories to the Agreement. However for the purpose of the argument we accept the submissions of Unitywater that such a right is created by the Agreement. We accept that this would give the CFMEU a role it would not otherwise have had, however that role is itself limited and it cannot prevent the implementation of the new classification structure. In that regard they are in the same position as the AWU. If the AWU no longer has members employed by Unitywater it appears from the terms of the Agreement that it will retain the right to be involved in this review.[130] We were not taken to any other rights conferred on the unions covered by the Agreement. For example, the Dispute Resolution Procedure requires involvement of a relevant union but that is not limited to unions covered by the Agreement.

[94] Further, we are not satisfied that the Decision diminishes the AWU's role as a default bargaining representative. True it will not be the only union covered by the Agreement, but whether it or the CFMEU is a default bargaining representative is a function of whether it has members who it is entitled to represent. That issue will be determined at the relevant time.

[95] We also note that nothing in the Decision limits any existing right Unitywater has to direct Mr Grocott to perform different duties or functions.

[96] We are not satisfied that it is in the public interest to grant permission to appeal. Nor are we persuaded that there are any other considerations which warrant the grant of permission to appeal.

[97] This is not a case whether appellate guidance is required in order to address a diversity of decisions at first instance.

[98] The appeals involve a question about the eligibility of one of Unitywater's employees to be a member of the CFMEU at a particular point in time (namely during the course of bargaining for the Agreement). The Decision turns on its own facts and does not raise any issue of importance or general application, its relevance is limited to the particular factual matrix which was before the Commission. Further, as we have observed, the manner in which the parties chose to have the matter determined limited the evidentiary material before the Commission.

[99] The Commissioner correctly stated the test to be applied when determining whether an employee organisation is entitled to represent the industrial interest of a particular employee. The Commissioner's factual findings were reasonably open to him and he correctly applied the law to those facts. Indeed on the evidence before the Commission the Commissioner reached the correct conclusion.

[100] We are not persuaded that the Decision is attended with sufficient doubt to warrant its reconsideration or that substantial injustice may result if permission is refused.

[101] Permission to appeal is refused.

W. Ash and L Doust for the Construction, Forestry, Mining and Energy Union

A. Herbert and T.McKernan for the Australian Workers' Union

[1] Transcript of the proceedings at first instance, 7 December 2016 at PN 110

[22] Transcript of 5 August 2016 at PN 2820

[29] [2017] FWCA 454 at [22]

[30] Ibid at [24]. The Commissioner appears to have rounded up the actual figure, 21.58 per cent (see [19] above).

[34] Ibid at [27]-[30]. We note that in the Decision the relevant passage refers to Mr Carroll not Mr Grocott, but it is clear from the context that this is a mistake and that the Commissioner was referring to Mr Grocott.

[35] Submissions of Unitywater at [6]

[36] [2012] FCAFC 48

[37] Submissions of Unitywater at [8] and [9]

[39] We note that the evidence was that the excavator was in use 21.58 per cent of the time (see [19] above). Unitywater appears to have (incorrectly) rounded down the actual number.

[56] Transcript of 20 April 2017 at PN 195 and 203

[57] Submissions of Unitywater at [39]

[62] Submissions of Unitywater at [13]

[63] Submissions of Unitywater at [16]

[85] Submissions of the CFMEU of 12 April 2017 at [10]-[13]

[99] Submissions of the CFMEU of 12 April 2017 at [4]-[9]

[100] Transcript of 20 April 2017 at PN 264-272

[101] [2010] FWAFB 3963

[102] [2014] FWCFB 7154

[104] Section 604(1) Fair Work Act 2009 (Cth)

[105] GlaxoSmithKline Australia Pty Ltd v Making [2010] FWAFB 5343 at [26]- [27]; Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth [2010] FWAFB 10089 at [28], affirmed on judicial review; Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54; Ferrymen Pty Ltd v Maritime Union of Australia [2013] FWCFB 8025; and NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663

[106] Also see CFMEU v AIRC [1998] FCA 1404; (1998) 89 FCR 200; and Wan v AIRC [2001] FCA 1803; (2001) 116 FCR 481. Also see the Explanatory Memorandum to what is now s.604, at paragraph 2328.

[107] Submission of CFMEU dated 12 May 2017 at [13]; Submissions of Unitywater and AWU dated 16 May 2017 at [18]

[108] Submissions of Unitywater and AWU dated 16 May 2017 at [20]

[109] Submissions of CFMEU dated 12 May 2017 at [11]

[110] Appellant's Joint Submission 16 May 2017 at [22]

[111] Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 at [29]

[112] [2012] FCAFC 48

[115] (1990) 26 FCR 261 at 279

[117] Submissions of the Unitywater at [9]

[118] Submissions of the AWU at [21]-[22]

[120] AB 488 PN 1015

[123] [2017] FWCA 454 at [14]

[129] Transcript of 20 April 2017 at PN 222

[130] Appendix 3 to the Agreement - 'The Water Industry Worker Framework 'Implementation Guidelines' - provides (at p.67) that 'A representative of the union signatory to this Agreement (union official) has the opportunity to attend WWI Review Meetings. The AWU is 'the union signatory' to the Agreement.

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