Re Isaac; Ex parte Argyle Diamond Mines Pty Ltd [1985] HCA 80

[19]

The applications were heard together by a Full Bench of the Commission which, after hearing evidence and inspecting the site, announced its decision on 5 November 1984. The members of the Commission rightly considered that a critical question was whether each applicant union had the constitutional capacity to enrol as its members employees of the class or group specified in the schedule to its application. That question depended on the proper construction of the rule of the union which laid down the conditions on which a worker would become eligible for membership of the union, and on the application of the rule to the circumstances of the employment. The Commission held that the eligibility rule of the T.W.U. covered all the work specified in the schedule to the T.W.U.'s application. In relation to the A.W.U.'s application, however, the Commission drew a distinction. The work at the Argyle Diamond Mine Project consisted of a number of activities which were managed by Argyle Diamond Mines Pty. Ltd. and which, for the purposes of the matters before it, the Commission regarded as falling into two distinct categories. First, there was the work of constructing the mine (including the construction of access roads) and the conduct of the mining operations. Secondly, there was the work of constructing and operating the plants in which the ore recovered by the mining operations was treated to enable the diamonds to be recovered from the ore. The Commission held that employees engaged in the second class of operations were eligible to be members of the A.W.U. but that employees engaged in the first class of operations (viz., the construction of the mine and the actual mining) were not so eligible. The Commission rejected a separate submission that employees of Roche Brothers Pty. Ltd. (a company which had a contract with Argyle Diamond Mines Pty. Ltd. for prestripping, i.e., excavating, the mine and constructing access roads) who were engaged in the construction of the access roads to the mine were eligible to join the A.W.U.

[41]

The words "in connexion 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 connexion with the coal and shale industry: R. v. Hibble; Ex parte Broken Hill Proprietary Co. Ltd. [11] . 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 [12] . The question is one of fact and depends on all the circumstances of the case. In the present case there was one co-ordinated project carried on at one place in Western Australia. The whole project was managed by Argyle Diamond Mines Pty. Ltd. There was a close physical proximity between the mine and the primary crusher which formed the part of the treatment works to which the ore was first taken. This proximity was neither contrived nor adventitious - it was necessary, for the economical operation of the project, that the large quantities of ore, containing only a small proportion of diamonds, should not be carried any further than was necessary. In this respect the statement by the Commission that the treatment plant could technically have been located in an entirely different area, although perhaps literally true, is incorrect from a practical point of view. Further, it is difficult to agree with the conclusion that the primary and predominant purpose of the activity was the mining of the pipe. It could with equal truth be said that the primary and predominant purpose of the project was the production of diamonds, by mining the ore and reducing and refining it. There was a very close relationship between the construction and working of the mine and the reducing and refining of the ore. The fact that some of the work in excavating the mine and building the access roads was done by contractors does not prevent the work done in carrying out those activities from being connected with the reducing and the refining of the ores.

[88]

We cannot accept this argument. We agree that at Worsley the connection between the refining and the mining operations is somewhat remote and we have difficulty in understanding the concept that construction employees at the refining site performed work in or in connection with the distant mining operations at Saddleback. We accept the view that the physical connection between mining and processing at Argyle is a closer one. However, in this case, the processing operation is not an integral part of mining in the sense of the term "integral" used by Jacobs J. in the Uranium Mining Case [28] . In both the Uranium Mining Case and the Worsley Case [29] the whole emphasis was on mining which was treated as the primary operation. Regardless of the respective amounts of capital investment in the mine and the treatment plant we are convinced as a result of the inspections and evidence that the primary and predominant purpose of the activity at Argyle is to be the mining of the kimberlitic pipe and that treatment of the ore will be ancillary to the mining operations. The processing and treatment operations commencing with the primary crushing flow directly from and are dependent upon the mining operations. However the reverse is not the case, as the mining could be carried out entirely independently of any reducing and refining operations within the treatment plant. The treatment plant could technically be located in an entirely different area. The same cannot be said of the mining operations. The Uranium Mining and Worsley Cases are authority for the view that the construction of the mines and ancillary treatment plants come within the scope of metalliferous mining. There is no warrant for extending these decisions any wider and we are not prepared to do so. Accordingly we find that there is no basis for holding that employees engaged on construction of the mine or in the mining of the kimberlitic pipe are engaged in labour in or in connection with the reducing and refining of ores. 1. (1978) 140 C.L.R., at p. 477. 2. (1983) 153 C.L.R. 415.

[99]

In my opinion, therefore, given that a wider construction of a rule such as the one with which we are concerned is to be preferred to a narrow construction, it does no violence to the words of the rule to conclude that all the work undertaken at Argyle by the classes of workers described in the A.W.U.'s application is undertaken in or in connexion with the industry of reducing and refining of ores. The evidence supports such a conclusion. The large quantity of ore that must be mined in order to produce a small quantity of diamonds, the essential close proximity of the treatment plant to the mine and the disparate contributions of capital required to develop and operate the mine and the treatment plant respectively all point to the conclusion that the mining operations may not unreasonably be said to be in connexion with the industry of producing the diamonds. The Commission may be correct in concluding that the primary and predominant purpose of the activity at Argyle is to be the mining of the "kimberlitic pipe" and that treatment of the ore will be ancillary to the mining operations. If the rule included a reference to the industry of mining that ore then no doubt the A.W.U. would be entitled to a finding in its favour in respect of all workers employed on the site. But the fact that such an industry is not mentioned in the rule merely transfers the inquiry to the industry that is mentioned, the reducing and refining of ores. The rule, by referring to the industry of reducing and refining of ores, defines precisely, if not the primary and predominant purpose of the whole operation, the end result to which the entire Argyle operation is directed. This being so, it was within the jurisdiction of the Commission, if having regard to the public interest it thought fit to do so, to make an order under s. 142A giving the A.W.U. the exclusive right to represent all the workers referred to in its application including those involved in the construction of the mine and associated facilities and those who were to be involved in the mining and production of the ore.

[108]

every bona fide worker, engaged in manual or mental labour in or in connection with any of the following industries or callings, namely: metalliferous mining, smelting, reducing and refining of ores including all workers engaged in or in connection with dredging or sluicing work, mining for brown coal including the extraction of the by-products; The term "metalliferous mining" follows terms descriptive of the manufacture, etc. of bitumen and asphalt preparations. The term "metalliferous mining" introduces a new class of industry - mining, but not mining of all classes. Metalliferous mining only, followed later in the list of industries by "mining for brown coal". Between the two kinds of mining, there appear three processes for the treatment of ore and a reference to "dredging or sluicing work". Dredging and sluicing are methods of mining, though it may be that sluicing can be used as a means of reducing ores. The activities described as "dredging or sluicing work" are included in what goes before, that is, in "metalliferous mining, smelting, reducing and refining of ores". Those activities are treated as a group in which dredging and sluicing work are included. If the processes "smelting, reducing and refining of ores" were not elements of a group of connected activities but were discrete activities having no necessary connexion with metalliferous mining, the words "including all workers engaged in or in connexion with dredging or sluicing work" would be taken to relate to the item which they follow - "reducing and refining of ores" - rather than to "metalliferous mining" to which they relate primarily if not exclusively. No doubt each of the processes of smelting, refining and reducing is or may be a distinct process so that any person engaged in labour in or in connexion with one of those processes is eligible for A.W.U. membership, but the terms describing the processes are so placed as to imply a connexion between them and metalliferous mining. That implication arises from the grouping of the processes of smelting, reducing and refining with metalliferous mining before the reference to dredging and sluicing and from the fact that mining is the winning of ore and the processes mentioned relate to the treatment of ore that has been won. This implication would have been more obvious in earlier times when the process of "smelting" was applied only to metalliferous ores, but nowadays the process can be applied to silicon which is not a metal.

Re Isaac; Ex parte Argyle Diamond Mines Pty Ltd [1985] HCA 80 - HCA 1984 case summary — Zoe

At a glance

Court

Decision date

Before

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Judgment (113 paragraphs)