Enco Precast Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union & Ors [2021] ICQ 15

INDUSTRIAL COURT OF QUEENSLAND CITATION: Enco Precast Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union & Ors [2021] ICQ 015 PARTIES: ENCO PRECAST PTY LTD (ACN 072 772 037) (appellant) v CONSTRUCTION, FORESTRY, MARITIME, MINING AND ENERGY UNION (first respondent) SHAUN DESMOND (second respondent) BEAU SEIFFERT (third respondent) LUKE GIBSON (fourth respondent) ANTHONY ROEL HARDING (fifth respondent) CRAIG PATRICK DAVIDSON (sixth respondent) FILE NO/S: C/2020/21 PROCEEDING: Appeal DELIVERED ON: 20 August 2021 HEARING DATE: 3 February 2021 MEMBER: Davis J, President ORDER/S: 1. Appeal dismissed. 2. The parties are to be heard on the question of costs. CATCHWORDS: INDUSTRIAL LAW - QUEENSLAND - APPEALS - APPEAL TO INDUSTRIAL COURT - where union officials holding entry permits under the Work Health & Safety Act 2011 (the Safety Act) sought entry to the appellant’s work site – where the appellant initially denied entry - where entry was allowed - where any right of entry without consent was dependent upon the permit holders having a reasonable suspicion of contravention of the Safety Act - where any right of entry was also dependent upon workers on site being eligible for membership of the union - where the appellant applied to the Queensland Industrial Relations Commission (QIRC) for relief concerning a “dispute” as to the right of entry - where the QIRC determined that there was no relevant dispute as to reasonable suspicion of contravention of the Safety Act - where alternatively the QIRC found there was reasonable suspicion held by the permit holders - where the QIRC held that the burden of proof lay upon the operator to prove the Union did not have coverage - where the QIRC held that a lack of union coverage had not been established - where -- 1 of 42 -- 2 the QIRC refused relief – where the appellant appealed - whether there was error of law or jurisdiction in the QIRC decision INDUSTRIAL LAW - WORK HEALTH AND SAFETY - GENERALLY - where union officials who held entry permits under the Safety Act sought entry to a workplace operated by the appellant - where entry was dependent upon a reasonable suspicion of contravention of the Safety Act and workers on site being eligible for membership of the union - where entry was allowed by the appellant - where the operator applied for relief to the QIRC - where the jurisdiction to grant relief depended upon there being a “dispute” - whether, given entry had occurred, there was a relevant dispute about the union’s coverage – whether, given that entry had been allowed, there was a relevant dispute about reasonable suspicion of contravention of the Safety Act INDUSTRIAL LAW - QUEENSLAND - INDUSTRIAL DISPUTE - INDUSTRIAL ORGANISATIONS - MEMBERSHIP - ELIGIBILITY - where union officials holding entry permits under the Safety Act sought access to the appellant’s site - where the right of access depended upon workers at the site being eligible for membership of the union - where the union claimed coverage based on the Federated Engine Drivers’ and Firemen’s (FEDFA) Rule and the Terrazzo Rule - whether the FEDFA Rule gave coverage to the union - whether the Terrazzo Rule gave coverage to the union EVIDENCE - PROOF - BURDEN OF PROOF - GENERALLY - where union officials holding entry permits under the Safety Act sought entry to the appellant’s premises - where there was dispute about the existence of preconditions to the right of entry - where entry was allowed - where the appellant sought relief in the QIRC claiming the preconditions for the right of entry did not exist - whether the burden of proving that the preconditions existed fell upon the union - whether the burden of proving that the preconditions didn’t exist fell upon the appellant CASES: Fair Work Act 2009 (Cth), s 481, s 482, s 483 Industrial Relations Act 2016, s 447, s 448, s 451, s 557 Work Health & Safety Act 2011, s 3, s 116, s 117, s 118, s 119, s 128, s 131, s 132, s 133, s 141, s 142, s 143, s 156, s 191, s 192, s 193, s 194, s 230 Work Health & Safety Regulation 2011 (Qld), s 28 Australian Licensed Aircraft Engineers Association v Qantas Airways Ltd [2018] FCA 1065, considered -- 2 of 42 -- 3 Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424, followed Coco v The Queen (1994) 179 CLR 427, cited Coldham, Re; Ex parte Australian Workers Union (1985) 59 ALJR 95, considered Construction, Forestry, Mining and Energy Union (NSW) v Acconia Infrastructure Australia Pty Ltd and Ferrovial Agroman (Australia) Pty Ltd t/as The Pacifico Acconia Ferrovial Joint Venture [2017] NSW IR Comm 1000, followed Construction, Forestry, Mining and Energy Union & Ors v Bechtel Construction (Australasia) Pty Ltd [2015] FWCFB 946, followed Construction, Forestry, Mining and Energy Union v CSBP Pty Ltd (2012) 212 IR 206, cited Construction, Forestry, Mining and Energy Union v Ostwald Bros Pty Ltd (2012) 219 IR 118, cited CSBP Ltd v Construction Forestry Mining and Energy Union (2011) 212 IR 162, considered Currie v Dempsey [1967] 2 NSWR 532, followed Dickinson v Minister of Pensions [1953] 1 QB 228, followed Enco Precast Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union & Ors [2020] QIRC 188, related Enfield City Corporation v Development Assessment Commission (2000) 199 CLR 135, followed Federated Engine Drivers' & Firemen's Association of Australasia, Re [1958] AR (NSW) 689, followed Insurance Commission of Western Australia v Container Handlers Pty Ltd (2004) 78 ALJR 821, considered MZAPC v Minister for Immigration and Border Protection [2021] HCA 17, cited Plenty v Dillon (1999) 171 CLR 635, cited Portlock v Baulderstone Hornibrook Engineering Pty Ltd [2005] NSWSC 775, cited Project Blue Sky Inc & Ors v Australian Broadcasting Authority (1998) 194 CLR 355, cited R v Dunlop Rubber Australia Ltd; Ex parte Federated Miscellaneous Workers’ Union of Australia (1957) 97 CLR 71, cited Regional Express Holdings Limited v Australian Federation of Air Pilots (2017) 262 CLR 456, cited Rescrete Industries v Commissioner Jones of the Industrial Relations Commission (1998) 86 IR 269, followed SZTAL v Minister for Immigration and Border Protection (2017) 91 ALJR 936, cited The Queen v A2; The Queen v Magennis; The Queen v Vaziri (2019) 93 ALJR 1106, cited Vines v Djordjevitch (1955) 91 CLR 512, followed COUNSEL: JE Murdoch QC with T Spence for the appellant CA Massy for the respondents -- 3 of 42 -- 4 SOLICITORS: Hopgood Ganim Lawyers for the appellant Hall Payne Lawyers for the respondents [1] The Queensland Industrial Relations Commission (QIRC) dismissed an application by Enco Precast Pty Ltd (Enco) for relief arising from the purported exercise of powers by members of the Construction, Forestry, Maritime, Mining and Energy Union (the Union) under the Work Health & Safety Act 2011 (the Safety Act). This is an appeal from the dismissal of that application. Background [2] The Union, as its full name suggests, is a trade union whose members work in various occupations, including the construction industry. The coverage of the Union1 was in issue in the application and is in issue in the appeal. [3] Under the Safety Act, unions have a role to play in the maintenance of safety standards in workplaces and in the protection of workers from harm. A union’s role extends not only to sites where the union’s members are working, but sites where workers are eligible for membership of the union.2 [4] A Work Health Safety Entry Permit (WHS Entry Permit) may be issued by the Industrial Registrar to a union official.3 Each of the respondents, other than the Union itself, namely Shaun Desmond, Beau Seiffert, Luke Gibson, Anthony Harding and Craig Davidson, are officials of the Union and hold WHS Entry Permits. Under the Safety Act, a WHS Entry Permit holder has rights, in some circumstances, to enter a workplace.4 [5] The Safety Act establishes the office of the Regulator5 who may appoint inspectors (WHS inspectors).6 WHS inspectors have different powers to the WHS Entry Permit holders but the scheme of the Act is that the powers of the WHS inspectors and those of the WHS Entry Permit holders are designed to further the objects of the Safety Act which is to ensure the safety of workers within “a balanced nationally consistent framework”.7 [6] Enco, as its full name suggests, produces civil precast products. These are used as the concrete members of major structures such as bridges and ramps which take vehicular traffic. [7] The Union operates a “safety hotline” where its members or other citizens may report a safety concern. Mr Stott, a union official, received a call on the hotline relating to Enco’s site. His note of the complaint was in these terms: 1 Those workers eligible for membership: “The Dunlop Rubber principle”; R v Dunlop Rubber Australia Ltd; Ex parte Federated Miscellaneous Workers’ Union of Australia (1957) 97 CLR 71, Work Health & Safety Act 2011, s 116. 2 Work Health & Safety Act 2011, ss 116 and 117. 3 Work Health & Safety Act 2011, Part 7, division 5, in particular s 133. 4 Work Health & Safety Act 2011, s 117. 5 Work Health & Safety Act 2011, Part 8 and schedule 2, Work Health & Safety Act 2011, Chapter 2A. 6 Work Health & Safety Act 2011, s 156. 7 Work Health & Safety Act 2011, s 3. -- 4 of 42 -- 5 “there were ‘some safety issues on a site’ and described them as being: ‘Some of the lifting equipment is in poor condition because it is not maintained. Some of it is very old looking and there is no paint on it. It has been knocked around and I don’t think it is listed on the lift register. … There is shit everywhere throughout the site. Things are put wherever there is an empty spot and stuff is just chucked in there. The place is a mess.’” [8] The Regulator operates a website where safety complaints may be lodged. Upon receipt of the complaint from the hotline, Mr Stott alerted various other union officials and then logged the complaint on the Regulator’s website. [9] Mr Stott, when logging the complaint with the Regulator, described the complaint as: “Some of the lifting equipment not maintained and in poor condition and not on lifting equipment register. Access & egress through work areas in normal and emergency conditions not satisfactory, stuff just stored anywhere there is some space.” [10] Mr Seiffert and Mr Desmond, both WHS Entry Permit holders and both officials of the Union, were detailed to attend Enco’s site to investigate the complaint. Mr Seiffert was wearing a body camera. [11] Mr Seiffert and Mr Desmond planned to enter the site and investigate the complaint. As will be made clear later, the power of entry is conditional upon workers being present at the site who are either members of the Union or eligible to be members of the Union, and also dependent upon the WHS Entry Permit holders (here Mr Seiffert and Mr Desmond) holding a reasonable belief that Enco was contravening the Safety Act.8 [12] WHS permit holders are required to serve a notice of entry when exercising rights under the Safety Act. The notice of entry served on Enco was in these terms: “Additional - for entry under section 117 Details of the suspected contravention to which this notice relates: LIFTING REGISTER NOT COMPLETE + UP TO DATE ACCESS + EGRESS AROUND SITE NON-COMPLIANT UNDER NORMAL OR EMERGENCY CONDITIONS” [13] Mr James, the General Manager and Director of Enco, confronted the two union officials and refused them entry. His primary objection was that there were no workers on site who were either members of the Union or eligible to be members and therefore the Union had no coverage. 8 Work Health & Safety Act 2011, ss 116 and 117. -- 5 of 42 -- 6 [14] Mr Seiffert and Mr Desmond then sought the assistance of the Regulator to resolve the dispute.9 In due course, WHS inspectors arrived and concluded that the Union had no coverage. However, after further investigation, the WHS inspectors decided that the Union did have coverage. [15] Mr James’s stated position to the WHS inspectors was that the Union did not have coverage and that the WHS Entry Permit holders had no reasonable suspicion of contravention so as to authorise entry, even if the Union did have coverage. Mr James also said that the dispute had been referred to the QIRC.10 [16] Two of the WHS inspectors entered the Enco site, and inspected, but no safety concerns were expressed to Mr James. A WHS inspector issued Enco with an “Improvement Notice” stating that Mr James had refused the entry of the WHS Entry Permit holders to the site without reasonable cause.11 No entry was achieved on 3 September 2019 by Mr Seiffert or Mr Desmond. [17] On 4 September 2019, Mr Seiffert and Mr Desmond returned to the Enco site and again sought entry. They were again met by Mr James who again refused them entry. Notices of Entry in similar terms to those delivered the day before were delivered to Mr James. [18] Again, Mr Seiffert and Mr Desmond called the WHS inspectors who attended the site. The WHS inspectors undertook a site inspection. [19] As earlier observed, Mr James had, on 3 September, informed Mr Seiffert, Mr Desmond and the WHS inspectors that the dispute had been referred to the QIRC. During the confrontation on 4 September, it became known that an application brought to the QIRC by Enco seeking to enjoin the Union officials from entering the site was being heard that afternoon. The WHS inspectors issued further improvement notices asserting that Enco had improperly refused entry to the site by the Union officials. Mr Seiffert, Mr Desmond, Mr James and the WHS inspectors then all left the site. Mr James announced that he was attending the QIRC for the hearing of the injunction application. [20] Industrial Commissioner Hartigan heard and dismissed Enco’s application for an injunction. That occurred in the afternoon of 4 September 2019. [21] Mr Seiffert and Mr Desmond attended the Enco site again on 5 September 2019, this time in the company of other union officials who also held WHS Entry Permits; Mr Harding, Mr Davidson and Mr Gibson. Further entry notices were produced. These were in similar terms to those produced on the earlier occasions. [22] All three attendances by Union officials at the Enco site were to investigate the complaints received on 3 September 2019. No further complaints were received between 3 and 5 September. [23] Again, the Union officials were met by Mr James and he challenged their right of entry. Mr Seiffert again called the WHS inspectors. Before the inspectors arrived, 9 Work Health & Safety Act 2011, s 141. 10 Work Health & Safety Act 2011, s 142. 11 Work Health & Safety Act 2011, ss 191-194. -- 6 of 42 -- 7 however, Mr James informed the Union officials that he would allow them to enter the site. The Union officials, in the company of Mr James and some other Enco employees then inspected the site. [24] The WHS inspectors arrived on the scene and conducted a safety inspection. Also present on site during that inspection were the five union officials and representatives of Enco. Various safety issues were identified and the inspectors issued Enco with six Improvement Notices and one Infringement Notice. [25] Enco then commenced a second application to the QIRC. That was filed on 13 September 2019. It was amended during the hearing before the QIRC. As amended, the application was in these terms:12 “The Applicant seeks the following orders pursuant to s 142(e) of the Work Health and Safety Act 2011: 1. (a) That the Notices of Entry of the Second and Third Respondents dated 3 September 2019 were invalid and of no force and effect for the purposes of the Work Health and Safety Act 2011; and (b) That the Second and Third Respondents were not entitled to enter the Enco precast facility at 73 Counihan Road, Seventeen Mile Rocks, in accordance with section 117 of the Act on 3 September 2019. 2. (a) That the Notices of Entry of the Second and Third Respondents dated 4 September 2019 were invalid and of no force and effect for the purposes of the Work health and Safety Act 2011; and (b) That the Second and Third Respondents were not entitled to enter the Enco precast facility at 73 Counihan Road, Seventeen Mile Rocks, in accordance with section 117 of the Act on 4 September 2019. 3. (a) That the Notices of Entry of the Third, Fourth, Fifth and Sixth Respondent dated 5 September 2019 were invalid and of no force and effect for the purposes of the Work Health and Safety Act 2011; and (b) That the Third, Fourth, Fifth and Sixth respondent were not entitled to enter the Enco precast facility at 73 Counihan Road, Seventeen Mile Rocks, in accordance with section 117 of the Act on 5 September 2019. 4. That for the purpose of the Work Health and Safety Act 2011 the First Respondent is not entitled to represent the industrial interests of any worker employed by the Applicant at Enco precast facility at 73 Counihan Road, Seven Mile Rocks. 5. Any other order the Commission determines appropriate.” 12 Transcript T 3-2, exhibit 25. -- 7 of 42 -- 8 [26] The application was brought pursuant to s 142 of the Safety Act. That section confers jurisdiction upon the QIRC to “deal with a dispute about the exercise or purported exercise of a right of entry”. I later return in some detail to s 142. [27] The application filed 13 September 2020 was decided against Enco by Industrial Commissioner Hartigan in Enco Precast Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union & Ors.13 It is from that judgment that the current appeal is brought. [28] The Industrial Commissioner, in disposing of the application, posed herself four questions: “(a) Whether the Commission has jurisdiction to assist in the resolution of the dispute as described by Enco? (the jurisdiction issue) (b) Whether the permit holders held a ‘reasonable suspicion’ that a suspected contravention had occurred, or was occurring, that affected relevant workers? (the reasonable suspicion issue) (c) Whether the workers were ‘relevant workers’ within the meaning of s 116 of the WHS Act on the basis that Enco contends they were not eligible to be members of the union? (the relevant workers issue) (d) Whether the relief sought by Enco should be granted? (Enco’s entitlement to relief)” [29] As later explained, the jurisdiction issue turns on whether there is a “dispute” between the parties “about the exercise or purported exercise … of a right of entry”.14 As to the jurisdiction issue, the Industrial Commissioner: 1. held that there were two central issues between the Union and Enco at the time the Union officials sought entry to Enco’s site: whether the Union had coverage and whether the Union officials held the relevant reasonable suspicion to authorise entry;15 2. held that, given that Enco had allowed entry onto the site on 5 September 2019, the dispute as to whether the officials held a reasonable suspicion ceased to be a matter of dispute;16 3. held that the issue as to whether the Union had coverage remained a dispute;17 and 4. although finding that there was no issue as to the reasonableness of the suspicion, the Industrial Commissioner felt obliged to consider that issue in case she was wrong about her view that the reasonable suspicion issue was not a live one.18 13 [2020] QIRC 188. 14 Work Health & Safety Act 2011, s 142. 15 Enco Precast Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union & Ors [2020] QIRC 188 at [86]. 16 At [93]. 17 At [94]. 18 At [97]. -- 8 of 42 -- 9 [30] As to the reasonable suspicion issue, the Industrial Commissioner concluded that a suspicion was held that contraventions of the Safety Act were occurring on the Enco site and further held that the suspicion was formed on reasonable grounds.19 [31] As to the relevant workers issue, the Union contended that Enco workers were eligible under the Union’s “Terrazzo Rule” and its “FEDFA Rule”. The FEDFA Rule has its heritage in the Federated Engine Drivers’ and Firemens’ Association. The Industrial Commissioner found against Enco on the coverage issue, finding that Enco employed workers who were eligible for membership of the Union.20 She found positively that Enco workers were eligible for membership of the Union under the Terrazzo Rule. The Industrial Commissioner found that Enco had failed to prove that Enco workers were not eligible for membership of the Union under the FEDFA Rule.21 [32] Based on the findings made, it followed that Enco was denied relief.22 [33] From that judgment, Enco mounted the present appeal upon the following grounds: “Ground 1: Dispute about Reasonable Suspicion (a) That the Commission erred in law in failing to find that there was no lawful basis for the following WHS entry permit holders to enter the Appellant’s factory premises at 73 Counihan Road, Seventeen Mile Rocks, on the dates specified: • Shaun James Desmond- 3 September 2019; • Beau Seiffert - 3 September 2019; • Shaun James Desmond - 4 September 2019; • Beau Seiffert - 4 September 2019; • Beau Seiffert - 5 September 2019; • Luke Gibson - 5 September 2019; • Anthony Roel Harding- 5 September 2019; • Craig Patrick Davidson - 5 September 2019; · where, in the circumstances, the aforementioned WHS entry permit holders had no lawful right to enter the site pursuant to s 117 of the Work Health and Safety Act 2011 (Qld) (WHS Act) (or otherwise) without the permission of the Appellant. (b) That the Commission erred in law in failing to find that: (i) the ‘Notice of entry’ issued by the abovementioned WHS entry permit holders on 3, 4, and 5 September 2019 were not compliant with s 119 of the WHS Act and s 28 of the Work Health and Safety Regulation 2011 (Qld) (WHS Regulation); 19 At [163]. 20 At [213]-[215]. 21 At [239], [249], [279], [283] and [298]. 22 At [295]-[298]. -- 9 of 42 -- 10 (ii) the WHS entry permit holders’ entry to the Appellants site on 3, 4, and 5 September 2019 was not sanctioned by the WHS Act; and (iii) the WHS permit holders were trespassing on the Appellant’s premises on 3 and 4 September 2019. (c) That the Commission erred in law and made a jurisdictional error in finding that the jurisdiction of the Commission pursuant to s 142 WHS Act did not extend to deciding whether the WHS entry permit holders held the requisite ‘reasonable suspicion’ pursuant to s 117 of the WHS Act. (d) That the Commission erred in law by taking into account an irrelevant consideration in finding that the Appellant permitting the right of entry permit holders to enter their premises on 5 September 2019 had the effect of resolving the dispute about whether the right of entry permit holders held the requisite ‘reasonable suspicion’ pursuant to s 117 of the WHS Act on 3, 4 and 5 September 2019. (e) That the Commission erred in law in finding that the WHS entry permit holders held the requisite ‘reasonable suspicion’ pursuant to s 117 of the WHS Act on 3, 4, and 5 September 2019 for the following reasons: i) there was no factual basis or material/s with probative value which would provide a basis for a reasonable suspicion that the Appellant had contravened, or was contravening, s 19 of the WHS Act. ii) the Commission failed to give appropriate weight to the evidence that Work Health and Safety Inspectors conducted an inspection of the Appellant’s premises on 3 September 2019 and identified no contraventions of the WHS Act or WHS Regulation in relation to a lifting gear register or access and egress from the site. Ground 2: Onus to establish the ‘relevant worker’ s 116 of the Work Health and Safety Act 2011 (a) That the Commission erred in law by finding that the Appellant bore the onus of proving that their employees were not ‘relevant workers’ within the meaning of s 116 of the WHS Act. Ground 3: Construction of the eligibility rules of the CFMMEU (a) That the Commission erred in law by interpreting the registered eligibility rules of the Construction, Forestry, Mining, Maritime and Energy Union (CFMMEU) and finding that the workers employed by the Appellant are eligible to be members of the CFMMEU pursuant to rule 2(A)(A)(3)(i) (‘terrazzo rule’) [N.B. there is an error at heading 6.4 of the -- 10 of 42 -- 11 Commission’s decision refering to rule 2(A)(A)(l)(i)] for the following reasons: i) The Appellant does not ‘prepare or erect terrazzo or similar compositions’ within the meaning of rule 2(A)(A)(3)(i) of the registered rules of the CFMMEU. ii) Despite accepting that the prestressed concrete products manufactured by the Appellant was not the same product as terrazzo, the Commission made an error in determining that the products manufactured by the Appellant were of a similar composition to terrazzo; iii) The Appellant’s employees are not engaged in the ‘preparation and/or erection of terrazzo or similar compositions’, because they are engaged in the manufacture and production of prestressed concrete beams and decking for bridges and like civil engineering structures. (b) That the Commission erred in law in interpreting the registered eligibility rules of the CFMMEU by finding that the workers employed by the Appellant who may operate gantry cranes as an incidental activity in the course of their general duties are crane drivers within the meaning of rule 2(E)(a) of the registered eligibility rules of the CFMMEU. (c) That the Commission erred in law in interpreting the registered eligibility rules of the CFMMEU by finding that the workers employed by the Appellant who operated a ‘skid steer’ machine, as an incidental activity in the course of the workers’ general duties, are within the specific categories of engine drivers for the purposes of rule 2(E)(a) of the registered eligibility rules of the CFMMEU. (d) That the Commission erred in law and made a jurisdictional error by finding that the Commission was unable to determine whether there was a boiler attendant, within the meaning of rule 2(E)(a) of the registered eligibility rules of the CFMMEU, employed by the Appellant at their factory at the time of the attempted entries on 3, 4, and 5 September 2019. In particular, the Commission was led into error through a misunderstanding of the evidence by finding that the regulation of temperature and steam valves on the curing hoods, used for the purpose of concrete curing, involved an adjustment of boiler valves and boiler temperature, whereas the evidence was that the regulation of temperature and steam for the concrete curing process requires the adjustment of valves located on the curing hood, which receives steam remotely via pipelines. (e) That the Commission erred in law in interpreting the registered eligibility rules of the CFMMEU by not finding that the workers employed by the Appellant who may operate a hydraulic pump, as an incidental activity in the course of the -- 11 of 42 -- 12 workers’ general duties, are not pump attendants for the purposes of rule 2(E)(a) of the registered eligibility rules of the CFMMEU.” What is the dispute? [34] For reasons which follow, a central issue is the identification of the relevant “dispute” for the purposes of s 142 of the Safety Act. [35] Part 7 of the Safety Act deals with the right of entry of WHS Entry Permit holders. Section 116 is a definitions section. It provides: “116 Definitions In this part— official of a union means a person who holds an office in, or is an employee of, the union. relevant person conducting a business or undertaking means a person conducting a business or undertaking in relation to which the WHS entry permit holder is exercising or proposes to exercise the right of entry. relevant union means the union that a WHS entry permit holder represents. relevant worker, in relation to a workplace, means a worker— (a) who is a member, or eligible to be a member, of a relevant union; and (b) whose industrial interests the relevant union is entitled to represent; and (c) who works at that workplace.” [36] Section 117 gives a power of entry. It provides: “117 Entry to inquire into suspected contraventions (1) A WHS entry permit holder may enter a workplace for the purpose of inquiring into a suspected contravention of this Act or the Electrical Safety Act 2002 that relates to, or affects, a relevant worker. (2) The WHS entry permit holder must reasonably suspect before entering the workplace that the contravention has occurred or is occurring.” [37] Section 119 requires the service of a Notice of Entry. It provides: “119 Notice of entry (1) A WHS entry permit holder must, as soon as is reasonably practicable after entering a workplace under -- 12 of 42 -- 13 this division, give notice of the entry and the suspected contravention, as prescribed by regulation, to— (a) the relevant person conducting a business or undertaking; and (b) the person with management or control of the workplace. (2) Subsection (1) does not apply if to give the notice would— (a) defeat the purpose of the entry to the workplace; or (b) unreasonably delay the WHS entry permit holder in an urgent case. (3) Subsection (1) does not apply to an entry to a workplace under this division to inspect or make copies of documents mentioned in section 120.” [38] Section 118 prescribes the rights which may be exercised upon entry: “118 Rights that may be exercised while at workplace (1) While at the workplace under this division, the WHS entry permit holder may do all or any of the following in relation to the suspected contravention of this Act or the Electrical Safety Act 2002— (a) inspect any work system, plant, substance, structure or other thing relevant to the suspected contravention; (b) consult with the relevant workers in relation to the suspected contravention; (c) consult with the relevant person conducting a business or undertaking about the suspected contravention; (d) require the relevant person conducting a business or undertaking to allow the WHS entry permit holder to inspect, and make copies of, any document that is directly relevant to the suspected contravention and that— (i) is kept at the workplace; or (ii) is accessible from a computer that is kept at the workplace; (e) warn any person whom the WHS entry permit holder reasonably believes to be exposed to a serious risk to his or her health or safety, emanating from an immediate or imminent exposure to a hazard, of that risk. -- 13 of 42 -- 14 (2) However, the relevant person conducting the business or undertaking is not required under subsection (1)(d) to allow the WHS entry permit holder to inspect or make copies of a document if to do so would contravene a law of the Commonwealth or a law of a State. (3) A relevant person conducting a business or undertaking must not, without reasonable excuse, refuse or fail to comply with a requirement under subsection (1)(d). WHS civil penalty provision. Maximum penalty—100 penalty units. (4) Subsection (3) places an evidential burden on the defendant to show a reasonable excuse.” [39] Before a right to enter is enlivened in favour of a particular WHS Entry Permit holder, there must be a “relevant worker”. A person is a relevant worker if the person is a member of the union of which the WHS Entry Permit holder is a member, or is entitled to be a member of that union. [40] There is nothing new about the notion that the authority of a trade union to represent workers extends not only to workers who are its members, but also to workers who are eligible for membership.23 Section 116 of the Safety Act is a statutory recognition of that fundamental principle. [41] Eligibility for membership of a union is dependent upon the work that the worker undertakes. Whether, at a particular site, workers are covered by a particular union therefore also depends upon what industry is being undertaken. [42] Section 117 has a temporal aspect. The right to enter must arise at the time the power of entry is sought to be exercised. Therefore, at any time when a WHS Entry Permit holder seeks to enter a site, entry is only authorised by the statute if relevant workers are employed in the industry being conducted on the site. Similarly, the right to enter is dependent upon a contravention of the Safety Act then occurring or at least then being reasonably suspected to be occurring. [43] It is for those reasons that the ruling ultimately sought in paragraph 4 of the amended application before the QIRC could never succeed.24 That sought, in the broadest and most absolute of terms, a ruling that the Union is not entitled to represent workers employed by Enco at the site. A site cannot be “union proofed” in that way. It might be that on each of 3, 4 and 5 September 2019 there was no relevant worker employed by Enco. However, if that changed, then a WHS Entry Permit holder who is an official of the Union may (provided there is a reasonable suspicion of a contravention), have rights under s 117. [44] Sections 141 and 142 of the Safety Act provide: 23 R v Dunlop Rubber Australia Ltd; Ex parte Federated Miscellaneous Workers’ Union of Australia (1957) 97 CLR 71 and Regional Express Holdings Limited v Australian Federation of Air Pilots (2017) 262 CLR 456. 24 See paragraph [25] of these reasons. -- 14 of 42 -- 15 “141 Application for assistance of inspector to resolve dispute If a dispute arises about the exercise or purported exercise by a WHS entry permit holder of a right of entry under this Act, any party to the dispute may ask the regulator to appoint an inspector to attend the workplace to assist in resolving the dispute. 142 Commission may deal with a dispute about a right of entry under this Act (1) The commission may deal with a dispute about the exercise or purported exercise by a WHS entry permit holder of a right of entry under this Act (including a dispute about whether a request under section 128 is reasonable). (2) The commission may deal with the dispute in any way it thinks fit, including by means of mediation, conciliation or arbitration. (3) If the commission deals with the dispute by arbitration, it may make 1 or more of the following orders— (a) an order imposing conditions on a WHS entry permit; (b) an order suspending a WHS entry permit; (c) an order revoking a WHS entry permit; (d) an order about the future issue of WHS entry permits to 1 or more persons; (e) any other order it considers appropriate. (4) The commission may deal with the dispute— (a) on its own initiative; or (b) on application by any of the following to whom the dispute relates— (i) a WHS entry permit holder; (ii) the relevant union; (iii) the relevant person conducting a business or undertaking; (iv) any other person in relation to whom the WHS entry permit holder has exercised or purported to exercise the right of entry; (v) any other person affected by the exercise or purported exercise of the right of entry by a WHS entry permit holder; (vi) the regulator. -- 15 of 42 -- 16 (5) In dealing with a dispute, the commission must not confer any rights on the WHS entry permit holder that are additional to, or inconsistent with, rights exercisable by the WHS entry permit holder under this part. (6) A person dissatisfied with the decision of the commission may appeal under the Industrial Relations Act 2016, chapter 11, part 6.”25 [45] Mr Massy of counsel who appeared for all respondents submits that on a proper construction of ss 141 and 142, and in the context of other provisions26 such as 117 and 14327 in particular, s 142 “embraces disputes which have a prospective context, not ones about the determination of … rights and liabilities in the past, but the resolution and creation or establishment of rights”.28 [46] He submits, therefore, that as entry was gained on 5 September 2019, the question of whether the relevant suspicion was reasonably held is a thing of the past. However, whether the Union has coverage of the Enco site may affect future rights exercisable under s 117. The parties are in disagreement about that and therefore there is a “dispute” for the purposes of s 142 about coverage. [47] Mr Murdoch QC for the appellant submits that the jurisdiction bestowed by s 142 is a wide one. He relies upon a statement in those very terms in Construction, Forestry, Mining and Energy Union (NSW) v Acconia Infrastructure Australia Pty Ltd and Ferrovial Agroman (Australia) Pty Ltd t/as The Pacifico Acconia Ferrovial Joint Venture.29 He submits that on each of 3, 4 and 5 September Enco objected to entry claiming, among other objections, that there was no reasonable suspicion of contravention of the Safety Act. Two applications were lodged by Enco raising that as a dispute. The fact that entry was in the end allowed, does not, he submits, resolve that dispute. He agrees with Mr Massey that the coverage issue is in dispute. [48] The Safety Act is in a similar form to workplace safety legislation throughout the country. In Construction, Forestry, Mining and Energy Union & Ors v Bechtel Construction (Australasia) Pty Ltd,30 it was accepted that an equivalent to s 142 dealt with current, or ongoing, disputes. That is, with respect, correct. Section 142(2) refers to the QIRC dealing with disputes by way of mediation, conciliation or arbitration. Section 142(3) identifies remedies which govern the future exercise of the entry powers under s 117. Section 143 creates an offence to contravene orders under s 142(3), suggesting that those orders govern conduct of the parties in the future. 25 Section 128, referred to in s 142(1), is irrelevant here. 26 SZTAL v Minister for Immigration and Border Protection (2017) 91 ALJR 936 at [14] and [35]-[40], The Queen v A2; The Queen v Magennis; The Queen v Vaziri (2019) 93 ALJR 1106 at [32], Project Blue Sky Inc & Ors v Australian Broadcasting Authority (1998) 194 CLR 355 at [78]. 27 Which creates an offence of contravening an order made under s 142. 28 Transcript, T 1-59. 29 [2017] NSW IR Comm 1000 at [55]. 30 [2015] FWCFB 946. -- 16 of 42 -- 17 [49] A separate regime is established to deal with past breaches. There are offence provisions, for instance.31 Prosecutions may only be launched by the WHS inspectors or the WHS Prosecutor.32 [50] In one sense, there is no dispute at all between the parties as there is no current attempt by the WHS Entry Permit holders to enter the Enco site. However, s 142 has a wider operation. It empowers the QIRC to deal with a current dispute which might concern the future exercise of rights.33 [51] Whether there is a current dispute is a matter of fact. The history of Enco’s application to the QIRC is informative. There was an application filed on 4 September when the Union officials were at Enco’s premises. As already observed, that sought interlocutory relief and failed. A second application was filed on 13 September 2019. This is the application which was heard and determined by Industrial Commissioner Hartigan, although, as earlier observed, it was amended. [52] The application was supported by an affidavit of Alana Paterson, a solicitor. After swearing, on information and belief to the events of 3, 4 and 5 September 2019, she then identified the relief sought: “27. The Applicant seeks orders that: (a) the Second, Third, Fourth, Fifth and Sixth Respondents treat the Notices of Entry dated 3, 4 and 5 September, 2019 as invalid and non-compliant with the Work Health & Safety Act 2011 (Qld) (the Act) on the basis that there is no relevant worker as defined in s116 of the Act: i. who is a member, or eligible to be a member of the CFMMEU; ii. whose industrial interests the CFMMEU is entitled to represent; and iii. who works at the Workplace. (b) the Second, Third, Fourth, Fifth and Sixth Respondents treat the Notices of Entry dated 3, 4 and 5 September, 2019 as invalid on the basis that on those dates they did not reasonably suspect before entering the Workplace that a contravention of the Act had occurred or was occurring. (c) As and from the date of this order, the Applicant is entitled to refuse entry to its Workplace to permit holders who are officials of the CFMMEU, whilst it remains engaged in the industry of manufacture of pre-cast and pre-stressed concrete products used predominately in 31 Part 7, Division 7. 32 Work Health & Safety Act 2011, s 230 and for the WHS Prosecutor; Part 4. 33 Construction, Forestry, Mining and Energy Union (NSW) v Acconia Infrastructure Australia Pty Ltd and Ferrovial Agroman (Australia) Pty Ltd t/as The Pacifico Acconia Ferrovial Joint Venture [2017] NSW IR Comm 1000 and Construction, Forestry, Mining and Energy Union & Ors v Bechtel Construction (Australasia) Pty Ltd [2015] FWCFB 946. -- 17 of 42 -- 18 civil bridge construction and its workers are not employed for the primary purpose of any occupation, calling, vocation or industrial pursuit described in the Constitution of the CFMMEU. (d) Any other order the Commission determines appropriate.” (emphasis added) [53] Paragraph 27(d) is just a catchall designed to enable the QIRC to grant relief ancillary to the substantive relief claimed. [54] Paragraphs 27(a) and (c) concern the coverage issue. What paragraph 27(c) seeks is an order which is consistent with s 117 of the Safety Act. Paragraph 27(c) recognises that the entitlement to enter depends upon there being a relevant worker employed at the time the power to enter is sought to be exercised. It recognises that whether a worker is a relevant worker depends upon the work being performed by the worker at the time of entry. Paragraph 27(c) frames a current dispute, namely whether the workers are relevant workers if working in the industries currently undertaken by Enco. Section 142 gives jurisdiction to the QIRC to hear that dispute. [55] Paragraph 4 of the amended application34 is defective as explained earlier.35 However, in both the proceedings before the QIRC and on appeal, the temporal aspects of s 117 were acknowledged by the parties, consistently with paragraph 27(c) of the application filed 13 September 2019. [56] Only paragraph 27(b) of Ms Paterson’s affidavit concerns the reasonable suspicion point. Other than a finding that a reasonable suspicion was held, no other relief is sought. It is not, for example, sought by Enco to rely upon attempts by the WHS Entry Permit holders to enter without a reasonable suspicion as justifying other orders under s 142(3). [57] As earlier observed, leave to amend the application was sought during the hearing.36 What was finally sought was the relief set out at paragraph [25] of these reasons. Although framed differently to the original application, it can be seen that the only part of the application which seeks relief having any current or future operation is paragraph 4. Paragraph 4 concerns coverage. [58] The Union officials asserted a right to enter on 3, 4 and 5 September 2019 based on a reasonable suspicion of contravention. WHS inspectors were involved in the dispute pursuant to s 141, entry was allowed and inspections were conducted by the WHS Entry Permit holders who then left. There is no suggestion that any WHS Entry Permit holders will seek to enter Enco’s premises pursuant to a suspicion held on information which was received about two years ago. Whether a reasonable suspicion was in fact held in September 2019 is not relevant to any current dispute between the parties. [59] Before the QIRC, Enco submitted that there was a current dispute because of potential exposure to penalties for breach of the Safety Act. The Industrial Commissioner dealt with this in her reasons as follows: 34 Paragraph [25] of these reasons. 35 Paragraph [43] of these reasons. 36 Transcript, T 3-2, exhibit 25. -- 18 of 42 -- 19 “[95] Finally, Enco submits that if this issue is left unresolved, it will be exposed to penalties for breach of the WHS Act. Presumably, the reference to an exposure to penalty for a breach of the WHS Act is a reference to potential penalties that could be sought arising out Enco’s refusal to permit entry on 3 and 4 September 2019 and its alleged non-compliance with the Improvement Notices issued by the inspectors on 3 and 4 September 2019. [96] The proceedings before me do not seek any orders against Enco or its officers and/or employees, including seeking orders for pecuniary penalties. Accordingly, the conduct of Enco and its officers and employees in the context of any potential breach of the WHS Act are not matters that I need consider in this proceeding. In the present circumstances, I do not consider that Enco’s possible exposure to penalties for beach of the WHS Act is relevant to the matter, nor does it enliven the jurisdiction of the Commission to deal with the dispute pursuant to s 142 of the WHS Act.” [60] Any prosecution, as already observed, is brought by a WHS inspector or the WHS Prosecutor. The only parties to the present litigation are Enco, the Union and the WHS Entry Permit holders. A ruling in this case in favour of Enco would not affect any prosecution. [61] The Industrial Commissioner was right to hold that there was no dispute about the reasonableness of the permit holders’ suspicions for the purpose of s 142 of the Safety Act. [62] Ground 1 of the appeal also raises issues as to the Industrial Commissioner’s findings about the validity of the Notices of Entry.37 They were said to lack particularity. [63] Section 11938 of the Safety Act provides for the giving of notices of entry. [64] Section 28 of the Work Health & Safety Regulation 2011 (Qld) (Regulations) provides, relevantly: “28 Additional requirements—entry under section 117 A notice of entry under section 119 of the Act in relation to an entry under section 117 of the Act must also include the following— (a) so far as is practicable, the particulars of the suspected contravention to which the notice relates; (b) a declaration stating— (i) that the union is entitled to represent the industrial interests of a worker who carries out work at the 37 Grounds of appeal 1(b)(i). 38 Set out at paragraph [37] of these reasons. -- 19 of 42 -- 20 workplace entered and is a member, or eligible to be a member, of that union; and (ii) the provision in the union’s rules that entitles the union to represent the industrial interests of that worker; and (iii) that the suspected contravention relates to, or affects, that worker.” [65] In Australian Licensed Aircraft Engineers Association v Qantas Airways Ltd,39 Flick J examined provisions of the Fair Work Act 2009 (Cth) which gave powers to permit holders to enter premises of employers. The regime is, for all practical purposes the equivalent to that established under the Safety Act, and, like s 119 provides for the provision of a notice of entry.40 [66] Section 481 of the Fair Work Act provides for a right of entry to investigate suspected contraventions. Section 487 provides for service of a Notice of Entry before the permit holder enters the premises. Section 119 of the Safety Act provides that the permit holder must give a notice of entry “as soon as is reasonably practicable after entering a workplace”.41 Section 518 of the Fair Work Act prescribes the contents of the Notice of Entry. [67] In relation to the Fair Work Act scheme, Flick J observed: “52 Section 481 does not require as a condition precedent to the exercise of the statutory right of entry for a contravention to have in fact occurred; it is sufficient if a permit holder ‘reasonably suspect[s]’ that a contravention has occurred or is occurring. Section 481(1) refers to ‘the purpose of investigating a suspected contravention of this Act’. The exercise of the statutory right of entry is thus not made unlawful should it later be established that there has in fact been no contravention. 53 The fundamental importance of both the permit holder having a reasonable suspicion and the need for that suspicion to be held in respect to a particular ‘contravention’ as being dual preconditions for the exercise of the right of entry is not only self-evident from the terms of s 481 itself, but is also further reinforced by the requirement in s 518(2)(b) to ‘specify the particulars of the suspected contravention’ in the Entry Notice. 54 There is a degree of precision required by s 518(2)(b). So much is made explicit by both the term ‘specify’ and the identification of that which is to be specified, namely ‘particulars’ of the suspected contravention. 55 It will not be sufficient if an Entry Notice merely states that there is or has been a ‘suspected contravention’ or even that there is or has been a ‘suspected contravention’ of (for example) 39 [2018] FCA 1065. 40 Fair Work Act 2009 (Cth), ss 481, 482, 483. 41 Emphasis added. -- 20 of 42 -- 21 a particular clause of an enterprise agreement. A permit holder seeking to exercise a right of entry needs to provide further details to an occupier. Section 518(2)(b), it is considered, does not require a permit holder to:  ‘specify the particulars’ as to the basis upon which the permit holder ‘reasonably suspect[s]’ a contravention to have occurred, but s 518(2)(b) does require a permit holder to:  ‘specify the particulars’, namely set forth the facts, matters and circumstances said to give rise to ‘the suspected contravention, or contraventions’. Such a requirement not only imposes a discipline upon the permit holder seeking to exercise the statutory right such that the permit holder is required to focus attention upon those ‘particulars’ which go to the ‘suspected contravention’; such a requirement also enables an occupier or employer whose common law rights are being displaced by the statutory right of entry to make an informed decision as to whether the statutory right is being lawfully exercised or whether the permit holder is acting in excess of the right conferred.”42 [68] His Honour’s remarks cannot be applied strictly to ss 117 and 119 of the Safety Act because, unlike under the Fair Work Act, the service of a notice of entry does not precede the entry onto premises by the WHS Entry Permit holders. [69] However, s 119 of the Safety Act and s 28 of the regulations are, as Flick J explained in relation to the equivalent provisions of the Fair Work Act, inextricably bound to the right of entry then being exercised. [70] It follows that the adequacy or otherwise of the Notices of Entry served here is not a dispute for the purpose of s 142 of the Safety Act. The notices must reflect the claimed right to enter; in other words, the basis of the reasonable suspicion. As already observed, there is no suggestion that entry is presently contemplated on any suspicion particularised in the notices delivered in September 2019. The alleged invalidity of the notices is not relevant to the future exercise of any rights. Determination of ground 1 of the Notice of Appeal [71] Some of the complaints in ground 1 might be thought to raise the coverage issue. For example, ground 1(a) complains of the ultimate determination by the Industrial Commissioner and asserts that the Union officials had “no lawful basis … to enter [Enco’s premises]”. The “lawfulness” of the entry raises questions of both reasonable suspicion of contravention, and coverage. However, ground 1 is entitled “Dispute about Reasonable Suspicion” and grounds 2 and 3 are where the challenges to the Industrial Commissioner’s findings about coverage are mentioned. Ground 1, therefore, only relates to the reasonable suspicion issue, and the related jurisdiction issue. 42 Australian Licensed Aircraft Engineers Associates v Qantas Airways Ltd [2018] FCA 1065. -- 21 of 42 -- 22 [72] In Ms Paterson’s affidavit and in the amended application, there is reference to sources of jurisdiction to make the order independently of s 141 of the Safety Act.43 The Industrial Commissioner referred to this at paragraph [36] of her reasons but seems not to have otherwise dealt with the alternative sources of jurisdiction in her reasons. There is no ground of appeal alleging that a failure by the Industrial Commissioner to consider the other sources of jurisdiction or alleging that the alternative sources of jurisdiction authorised the making of the orders sought or otherwise authorised an inquiry into the reasonable suspicion issue. [73] Ground 1 fails because there is no current dispute about the reasonable suspicion issue. There is no need to consider the Industrial Commissioner’s findings as to whether a reasonable suspicion of contravention of the Safety Act was held by the union officials. Who bore the onus on the coverage issue? (Ground 2 of the Notice of Appeal) [74] Ground 2 of the notice of appeal raises the question as to who bears the onus of proof, or disproof as the case may be, of the fact that Enco employees were relevant workers on 3-5 September 2019. The Industrial Commissioner found that Enco bore the onus “to establish that the workers are not ‘relevant workers’”.44 [75] It being common ground that Enco’s employees were not members of the Union, the issue was whether they were eligible for membership. That required consideration of the Union rules against factual findings as to the industry being conducted on the Enco site. [76] The Union rules identify categories of employees who are eligible for membership. As previously observed, there were two rules which the Union submitted authorised membership; the Terrazzo Rule and the FEDFA Rule. [77] The Industrial Commissioner expressed her ultimate conclusions in relation to the Terrazzo Rule in these terms: “[215] Accordingly, on the basis of the evidence before me, I am not satisfied that Enco has discharged the onus in order to establish that the terrazzo rule does not apply to the Enco site.” [78] However, as is shown by my analysis of ground 3, the Industrial Commissioner made a number of positive factual findings in relation to the Terrazzo Rule,45 and then applied those findings to the terms of the Union rules. Those conclusions did not turn on who bore the onus. [79] The Industrial Commissioner’s findings in relation to the FEDFA Rule did turn on the question of who bore the relevant onus of proof. [80] There can, in my view, be no doubt that if one of the WHS entry permit holders came to the QIRC attempting to enforce an alleged right to enter Enco’s premises pursuant to s 117 of the Safety Act, the permit holder would have to prove on the balance of probabilities that the permit holder held the relevant suspicion of contravention of the 43 Industrial Relations Act 2016, ss 447, 448 and 451. 44 At [176] of the reasons. 45 Summarised at paragraphs [213] and [214] of the reasons. -- 22 of 42 -- 23 Safety Act and that relevant workers were employed on Enco’s site. This is because a party moving a court seeking relief bears the onus of proving the entitlement to relief.46 As Walsh JA (as his Honour then was) explained in Currie v Dempsey:47 “In Purkess v. Crittenden, [1966] A.L.R. 98; 114 C.L.R. 164, at pp. 167-8, it was said that the proposition there quoted from Phipson on Evidence, 10th ed., para. 92, has been frequently acknowledged. The proposition was that the expression “the burden of proof”, as applied to judicial proceedings, “has two distinct and frequently confused meanings: (1) the burden of proof as a matter of law and pleading–the burden, as it has been called, of establishing a case, whether by preponderance of evidence, or beyond a reasonable doubt; and (2) the burden of proof in the sense of introducing evidence”. The author went on to say, and this also was approved in the case last cited, that the burden of proof in the first sense is always stable, but the burden of proof in the second sense may shift constantly. In my opinion, the burden of proof in the first sense lies on a plaintiff, if the fact alleged (whether affirmative or negative in form) is an essential element in his cause of action, e.g. if its existence is a condition precedent to his right to maintain the action. The onus is on the defendant, if the allegation is not a denial of an essential ingredient in the cause of action, but is one which, if established, will constitute a good defence, that is, an “avoidance” of the claim which, prima facie, the plaintiff has.”48 [81] This basic principle explains why in Construction, Forestry, Mining and Energy Union v Ostwald Bros Pty Ltd,49 where the Union was seeking a bargaining order, it had to prove that it had members who were covered by the proposed agreement.50 [82] True it is that the entry onto premises by WHS permit holders constitutes a significant invasion of common law rights held by the occupier.51 However, the proceedings in this case in the QIRC did not involve the Union or the WHS permit holders seeking to enforce a right of entry onto Enco’s premises. The WHS permit holders had entered the premises on 5 September 2019. Enco moved the QIRC, by application under s 142 of the Safety Act seeking, in effect, declaratory relief that the Union had no coverage on the site. Enco bears the onus to prove the entitlement to that relief and, and if it seeks to do so on the basis that the FEDFA Rule does not cover its employees, it must prove that. [83] Ground 2 fails. 46 Dickinson v Minister of Pensions [1953] 1 QB 228 at 232. 47 [1967] 2 NSWR 532. 48 At 539; see also Vines v Djordjevitch (1955) 91 CLR 512 at 519-520 followed in MZAPC v Minister for Immigration and Border Protection [2021] HCA 17 at [105]. 49 (2012) 219 IR 118. 50 At [96]. 51 Plenty v Dillon (1991) 171 CLR 635 and Coco v The Queen (1994) 179 CLR 427. -- 23 of 42 -- 24 The FEDFA Rule (a limb of Ground 3) [84] Ground 3 of the notice of appeal concerns the Industrial Commissioner’s findings that the Union had coverage over Enco’s site. The FEDFA Rule was a rule which may have justified coverage. [85] Relevantly, the Union rules provide: “(E) Without limiting the generality of the foregoing and without being limited thereby the following are eligible to be members of the Union:- (a) An unlimited number of all classes of engine drivers, firemen, crane drivers, mobile crane drivers, forklift drivers, tow motor drivers, excavator drivers, pump attendants, pile drivers, motor drivers or attendants, greasers, cleaners, trimmers and any other works assisting in and about the work incidental to any engine, boiler or machinery connected with the production or utilisation of power on land or any harbour or river, and boiler attendants attending boilers not generating steam for power purposes and such persons as have been elected or appointed as paid officers of the Union or a branch of the Union or whilst financial members of the Union are elected as representatives of any working- class organisation to which the Union or a branch thereof is affiliated, or as a working-class member of Parliament. Provided that mobile crane drivers, operators of fork lifts and/or tow motors engaged on the waterfront upon such work being that of a waterside worker or engaged in the transport of goods by road, or motor ruck drivers wherever employed, shall not be eligible for membership. (b) Further, provided that, without limiting the generality of the foregoing the following classes of workers engaged in or in connection with or incidental to the erection, repair, renovation, maintenance, ornamentation, alteration, removal or demolition of any building are eligible to be members of the Union. For the purposes of this sub-rule (b) building shall include a building-type structure of the purpose of housing persons, goods or workshop equipment (other than mechanical or electrical plant) on a civil or mechanical engineering site. Dogman Hoist or Winch Driver Gantry Hand or Crane Hand Crane Chaser Dogman/Crane Hand Trainee Dogman/Crane Hand Pile Driver -- 24 of 42 -- 25 Pile Driver Assistant Rigger performing rigging work that is an integral part of, or is incidental to, cranage operations Assistant Rigger Drilling Machine Operator Dump Cart Operator in respect of Victoria only Provided that, nothing in sub-rule (b) shall render eligible to join the Union any person employed: (1) on a building or structure which building or structure is for the purpose of housing mechanical or electrical plant on a civil or mechanical engineering site. (2) In that area of Queensland situated north of a line commencing at the sea coast with the twenty second parallel of south latitude, thence by that parallel of latitude due west to a hundred and forty seven degrees of east longitude thence by that meridian of longitude due south to twenty two degrees thirty minutes of south latitude, thence by that parallel of latitude due west to the western border of the State. (3) in the mining or exploration or hydro-carbons industries.” [86] It was common ground that an employee is only eligible for membership of the Union if their “primary function of employment” falls within a description of work within an eligibility rule.52 [87] Therefore, to succeed in its application before the QIRC, Enco was required to prove that, in relation to all of the workers in those four categories, either: 1. the work being done by the worker does not fall within a description of worker in the FEDFA Rule; or 2. that the workers do not do the prescribed work as their “primary function of employment”. [88] There were four categories of workers who potentially fell within the FEDFA eligibility rule: 1. the bobcat skid-steer operator; 2. the boiler attendants; 3. the gantry crane operators; 4. the hydraulic pump attendants. 52 Construction, Forestry, Mining and Energy Union v CSBP Pty Ltd (2012) 212 IR 206 at [44] and Enco Precast Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union & Ors [2020] QIRC 188 at [219]. -- 25 of 42 -- 26 [89] The Industrial Commissioner found that workers in each of the four categories were doing work which fell within a description in the FEDFA Rule. She then turned to the issue of “primary function of employment”. [90] As to the bobcat skid-steer operator, the Industrial Commissioner found: “[237] I find that Enco does engage a worker, who performs the work of store person and in the course of his or her duties, operates the bobcat skid-steer for some of that time. Whilst Mr James' evidence is that the bobcat skid-steer was used approximately for one hour per day by various labourers, there is no evidence with respect to how much of that time may be attributed to the store person. Given the paucity of evidence, I am unable to form a quantitative assessment with respect to the time spent on the bobcat skid-steer by the store person. Further, I am unable to make a qualitative assessment as to the work performed, as there is no detail or direct evidence about the duties undertaken by the store person, or when he/she may be required to use the bobcat skid-steer in the performance of their duties. [238] Further, there was no evidence adduced by Enco in relation to the other employees who are deemed competent to drive the bobcat skid-steer with respect to the tasks that they perform in relation to operating the bobcat skid-steer175 and how long they spend on such tasks. Accordingly, I am unable to make either a qualitative or quantitative assessment with respect to those other employees. [239] Accordingly, on the evidence before the Commission, I am not in a position to form a conclusion about whether the operation of the bobcat skid-steer forms a primary function of the relevant workers.” (emphasis added) [91] As to the boiler attendants, the Industrial Commissioner found: “[242] The evidence was that there were two employees who conducted tasks associated with the boiler. The first was the production foreman, Mr Duric, who switched the boiler on and off. Mr Duric holds a ticket deeming him competent to perform this task. The second employee was a person employed during the night (‘night duty officer’), whose main task was to regulate the valves and adjust the levels of steam to keep the temperature on the Enco product correct. [243] It was submitted by Enco, that, on the evidence, Mr Duric spends 45 minutes or less on the activity of starting and shutting off the boiler. Mr Duric's evidence also shows that the time spent on adjusting steam valves and monitoring canopy and concrete temperatures by various employees is on an intermittent basis each day. [244] The respondents referred to the absence of evidence from Mr James and Mr Day in relation to the work of the boiler attendant -- 26 of 42 -- 27 in their evidence in chief. It was submitted that there is a worker that is dedicated to checking on the boiler's operation in the evening time. It was submitted that this worker is required to operate the valves coming from the boiler to control the steam levels for the curing of the concrete product. It was submitted that this is either attending the boiler or performing work which is incidental to the boiler. The principle purpose of that worker's employment is attending to the boiler or being any other worker who is assisting in and about the work incidental to a boiler utilising power on land. [245] On the evidence before me, I am unable to conclude that the primary function of the work of the foreman is operating the boiler. The foreman's duties associated with the boiler, on the evidence, appears to be ancillary to his primary duties. … [248] There was no evidence given about how long the night duty officer would spend performing this process, although, it is assumed given the importance of the curing process to the production of the product, that the night duty officer would be expected to monitor the temperature level throughout the night. Whilst an inference may be able to be drawn that the night duty officer's primary function was to attend to the boiler and to ensure that the correct temperature was maintained, I am not satisfied that I have all relevant evidence as to the work that worker performed. The Commission would have been assisted by the receipt of detailed and direct evidence with respect to the tasks performed by the night duty officer. [249] Accordingly, on the basis of the evidence produced, I am not in a position to form a conclusion about whether the operation of the boiler formed a primary function of the relevant worker's employment.” (emphasis added) [92] As to the gantry crane operators, the Industrial Commissioner found: “[279] For the forgoing reasons, I have concluded that the operators of the gantry cranes are crane drivers within the meaning of the FEDFA rule. However, I am not in a position to form a conclusion about whether the operation of the gantry crane formed a primary function of the relevant workers' employment.” (emphasis added) [93] As to the hydraulic pump attendants, the Industrial Commissioner found: “[280] The fourth category of work relates to the operation fo the hydraulic pump. The operation of the pump is not referred to in the pre-cast labourer position description but evidence was received that labourers operate and attend the hydraulic pump during the prestress process. -- 27 of 42 -- 28 [281] It was submitted by Enco that the operation of the hydraulic pump requires a worker to press and hold down a button. It was submitted that such a function was a ‘classic ancillary function’ to the other duties undertaken in relation to the preparation for the pour and the subsequent manufacture of the product. It was submitted that no worker is employed specifically to undertake the task and that Enco does not have dedicated pre-tensioning workers. [282] The respondents submitted that the prestressing procedure is an essential part of Enco’s business. Further, it was submitted that Mr Duric’s affidavit states that prestressing process takes place for approximately five hours per day. The respondents submitted that the evidence of Mr James and Mr Day in cross examination, was that when prestressing was taking place, the person was required to operate or attend the pump. This required being in physical contact with the pump at all times, whilst it was operating. There was also the worker who was responsible for handling the pumps' connection to the jacks and their gauges. [283] Whilst I accept that the prestressing procedure is an essential part of Enco’s business and that the prestressing process is conducted over a large part of the working day, there is no direct or detailed evidence about the individual workers who perform that work. Given the absence of evidence I am unable to undertake a quantitative or qualitative assessment as to whether any worker at the site performs the role of pump attendant as a primary function of their employment.” [94] Ultimately, on the question of the FEDFA eligibility rule, the Industrial Commissioner concluded: “[298] With respect to the FEDFA rule, I consider that there is plant and machinery operated by workers in the ordinary course of their duties of the type referred to in the FEDFA rule. I conclude that the evidence adduced by Enco did not discharge the onus resting on Enco to establish that the work performed on the bobcat skid-steer, gantry crane, hydraulic pump and boiler was not a primary function of the workers' employment. Indeed, I consider that there was a body of evidence, particularly with respect to the work undertaken operating the cranes, which suggests that such work may form the primary function of employment for some workers. Although, I ultimately determined, due to the absence of evidence as to the detailed nature of the work of the workers, not to make such a finding.” (emphasis added) [95] Appeals from the QIRC are only as a right on error of law or jurisdictional error,53 although an appeal on other grounds can be mounted by leave.54 There is no 53 Industrial Relations Act 2016, s 557(1). 54 Industrial Relations Act 2016, s 557(2). -- 28 of 42 -- 29 application for leave to mount a ground based on factual error not amounting to an error of law or jurisdictional error. [96] As earlier observed, the onus of proof was upon Enco to prove that the workers did not fall within the FEDFA Rule. The Industrial Commissioner was not so satisfied. In reaching that conclusion she: 1. made findings as to what each worker did. They were clearly factual findings; 2. construed the FEDFA Rule to ascertain whether the worker prima facie fell within the rule. That was an exercise of legal construction; 3. considered whether she was satisfied that the relevant function of the employee was a primary function. That was a fact finding exercise. [97] Enco complains55 that the Industrial Commissioner made a factual error as to what the alleged “boiler attendant” did. This is framed as an error of law or jurisdiction because the Industrial Commissioner misunderstood the evidence.56 This should be taken as a complaint that there was no evidence upon which the finding which was made could have been made. If made out, that is a complaint of legal or jurisdictional error. [98] Mr James gave this evidence: “And in relation to a boiler, did they, on any of the visits on 3rd , 4th or 5 th of September, assert that they had eligibility on the basis of there being a boiler on site?---The CFMEU members didn’t. That came about – the comment I made came about when CFMEU – when workplace health and safety called their head office – after they’d made their assertion that they didn’t have coverage, then they called head office and came back and said something about it at that point. Not CFMEU, only workplace health and safety. So eligibility on the basis of a boiler was not used by the CFMEU representatives - - - ?---No. - - - was that the position?---There was – there was no mention of any specifics of eligibility. It was only just saying we have – we have eligibility. We have coverage. Now, so far as the boiler is concerned, you said that it’s a boiler that does not require an attendant. Is that - - -?---Yes. Yes. And so far as it needs to be switched on, who does the switching on?---Our foreman, who’s - - - And who is that?---Goran Duric. And so far as he’s concerned, does he have any tickets for that task?- --He does, yes. And during the evening – can you describe what the person on duty during the night does in relation to the product?---The main thing he 55 Transcript 1-52 to 1-53. 56 Ground of appeal 3(d). -- 29 of 42 -- 30 does is – the boiler is generating steam and has a – a – it has a chamber of steam. It’s running away, automated. The boiler can be turned off from remotely if it needs to, but it sends steam to the product. What he does is he regulates the valves and adjusts the levels of steam to keep the temperatures on the products right. So where are those valves? Are they at the boiler or are they at the location of the product?---They’re at the location of the product. And how, then, does the steam get from the boiler to the location of the product?---It travels in pipes underground. And are there valves somewhere to enable the regulation of the steam to the product?---So there’s one – there’s one main valve on the – at the boiler which is automated, and that opens after it reaches pressure. Yes?---And then that’s then – that pressurizes the lines, and then the valves at each line distribute steam into the lines. So there’s varying amounts of valves at each line depending on the size of the line. So that the night shift person, he’s located where in the factory?---He walks around the whole factory. Yes. And so far as the product is concerned, what stage of the manufacture is the product when he’s involved in walking around at night?---The manufacturing’s finished and the product’s covered and he’s – he’s purely curing the product. And what adjustments would he, in a normal shift, make to the steam on the product?---Well he has a – ramp-up process. So he has to slowly open the steam valves to start with, and there’s a prescribed – a graph that he has to follow. So he – he opens the steam valves very slightly, injects a little bit of steam until certain temperature points are reached over a period of time, and then once he gets to a certain temperature he monitors that that stays level. And the monitoring, is that at the product point?---Yes. Yeah, we have data loggers in the product. And the adjustment that he makes, is that at the product point?--- Yes.”57 [99] The foreman undoubtedly operated the boiler but as the Industrial Commissioner positively found58 that was not his primary purpose. [100] As to the night attendant the findings of the Industrial Commissioner were at [242]- [244] which is set out at paragraph [91] of these Reasons. [101] Enco’s point is that the night attendant does not attend the boiler but just attends the valves on the curing hood and that the Industrial Commissioner misunderstood the evidence. 57 Ground of appeal 3(d). 58 At [245]. -- 30 of 42 -- 31 [102] In my view the Industrial Commissioner did not misunderstand the evidence. She quite evidently understood that the valves being operated by the night attendant were not part of the boiler. They were “valves coming from the boiler” to “control the steam levels for the curing of the concrete plant”.59 [103] The factual findings raises the question of law, namely whether the night attendant is prima facie a “boiler attendant” for the purposes of the FEDFA Rule.60 [104] As to persons working with boilers, the FEDFA Rule concerns: 1. work incidental to any…boiler; 2. connected with the production of power; or 3. connected with the utilisation of power (1-3 are “limb 1”); and 4. boiler attendants attending boilers; 5. not generating steam for power purposes. (4 and 5 are “limb 2”) [105] Limb 2 does not apply. The night attendant does not “attend” the boiler. He does not operate it in any way. He doesn’t start it, stop it or monitor its performance. He just regulates the use of the steam produced by it. [106] Limb 1 (subject to the “primary function of employment” issue) catches the night attendant. While the boiler does not produce steam for power, the night attendant does work “incidental to the boiler” which is “connected with the…utilisation of power”. [107] In my view on a proper construction of the FEDFA Rule the night attendant is a “relevant worker”, subject to the primary function of employment issue. [108] Enco does not submit that the Industrial Commissioner made any error as to what a bobcat skid-steer is or does. Rather it is submitted that it is not a piece of equipment whose operation falls within the rules. That is a matter of construction of the rules and a matter of law. [109] The Full Bench of the New South Wales Industrial Commission in Federated Engine Drivers’ and Firemen’s Association of Australasia61 considered the registration of the Federated Engine Drivers and Firemens Association as a trade union. The Australian Workers Union objected to the registration which led to a consideration by the New South Wales Industrial Commission as to the scope of membership of the Association. That required an interpretation of the rules in question in the present appeal. [110] The Full Bench of the New South Wales Industrial Commission held: “In view of the very broad meaning which the word “engine” is capable of possessing, we do not think that the words “engine drivers” in the Constitution Rule of the Association are self- explanatory. It is clear upon an examination the award history of 59 At [244]. 60 Excluding for a moment the “primary purpose” issue. 61 [1958] A.R. (NSW) 689. -- 31 of 42 -- 32 plant operators that they have always been regarded as covered by the term “engine drivers” in the Association’s Constitution Rule, and we regard this as a relevant fact in ascertaining the class of person proper to be regarded as falling within those words in the Constitution Rule of the Association. The Association has for many years enrolled these persons, and it has obtain awarded for them without opposition or interference from any other union. No other union has sought to secure award for them while the Association existed as a registered industrial union. We are of opinion that, in these circumstances, any objection based upon the interpretation of the Constitution Rule of the Association must fail.” (emphasis added) [111] The bobcat skid-steer would be “plant” and is caught by the rule as it was explained by the Full Bench of the New South Wales Industrial Commission. However Enco submits that the New South Wale Industrial Commission should not be followed given what was held by the High Court in Re Coldham; Ex parte Australian Workers Union.62 [112] Re Coldham was a case concerning the FEDFA Rule. A dispute arose as to whether mobile crane drivers fell within the rule. The High Court held: “The AWU’s submission is that the description which follows the words “any other workers” applies also to all the specific categories of workers which precede these words. The submission pays insufficient attention to the structure of the clause which naturally falls into three parts. The first part consists of “all classes of” the specific categories, including “mobile crane drivers” down to and including “motor drivers”: With the exception of “firemen” and “pump attendants” the categories in the first group comprise drivers of various kinds. And all the employees described in this group, with the possible exception of “pump attendants” have some degree of special skill. The second part of the clause commences with the disjunctive “or” and includes “attendants, greasers, cleaners, trimmers, and any other workers assisting in or about the work incidental to any engine, boiler or machinery connected with the production or utilisation of power”. We note in passing that it is unnecessary for the purposes of the present case to decide whether the words “on land or any harbour or river” qualify the first part of the clause. The third part of the clause includes “boiler attendants not generating steam for power purposes”. Once the structure of the clause is understood it becomes evident that the eligible membership of the FEDFA consists of three groups: (1) all classes of enumerated drivers, firemen and pump attendants; (2) attendants, greasers, cleaners, trimmers, and any other workers who answer the general description contained in the second part of the clause; and 62 (1985) 59 ALJR 95. -- 32 of 42 -- 33 (3) boiler attendants who answer the description contained in the third part of the clause. It is not possible to treat the limiting description governing the second group of eligible members as having application to the first group, without doing violence to the structure and the language of the clause.” [113] That passage was cited and applied by McKerracher J sitting in the Federal Court of Australia in CSBP Ltd v Construction Forestry Mining and Energy Union.63 [114] Nothing in either Re Coldham or CSBP is inconsistent with the observations of the Full Bench of the New South Wales Industrial Commission. In my view neither case limits the term “engine drivers” to those classes of engine drivers then specified. The opening words of the clause, “An unlimited number of all classes of engine drivers” suggests quite the contrary. [115] Neither case limits the term “engine driver” in a way which excludes plant operators and therefore the operator of the bobcat skid-steer. [116] Enco submits that the gantry crane operators are not “crane drivers” for the purposes of the rule because the crane is driven on tracks remotely by an operator who is not in the crane. Enco submitted to the QIRC, and to the Court on appeal, that the workers “operate” the crane rather than “drive” the crane. [117] There is no doubt a distinction between “driving” a crane and “operating” a crane.64 In Insurance Commission of Western Australia v Container Handlers Pty Ltd 65 the High Court considered the notion of “driving” as that term is used in the Motor Vehicle (Third Party Insurance) Act 1943 (WA). The term used in the Western Australian statute obviously derives its meaning from the context and purpose of the legislation. However, in the course of judgment McHugh J observed this: “The Australian Oxford Dictionary and The New Shorter Oxford English Dictionary relevantly define “drive” as to “operate and direct the course of” and to “operate and control the course of” a vehicle respectively. Thus, when the Act refers to a consequence of the “driving” of the vehicle, it refers to a consequence of the actual operation and control of the direction and speed of the vehicle. This is confirmed by the expression “or of the vehicle running out of control” in the second part of s 3(7), which conveys the notion of a vehicle in motion. This meaning of the word “driving” also finds support in a number of cases, in which the notion of driving has been held to comprehend the controlling of the movement and direction of the vehicle in a substantial sense. Reconciling the outcomes in these cases, however, is probably impossible. The inconsistencies in the conclusions reached by the courts when applying the concept of “driving” show that it is not always easy to draw a line between an 63 (2011) 212 IR 162 at [22]. 64 Portlock v Baulderstone Hornibrook Engineering Pty Ltd [2005] NSWSC 775. 65 (2004) 78 ALJR 821. -- 33 of 42 -- 34 activity that can be described as “driving” and one that cannot be so described.”66 (references deleted) [118] Given that the persons operating the cranes on Enco’s site not only cause the cranes to lift and lower things but also cause the cranes to go up and back along the tracks, the operator is in my view “driving” the cranes and, subject to whether or not that is his primary function, he is a “crane driver”. [119] There seems no contest that an employee operating a hydraulic pump is caught by the FEDFA Rule provided that is his primary function. [120] Consequently, the FEDFA Rule catches workers who operate the boiler valves, the gantry crane, the hydraulic pump and the bobcat skid-steer provided that those roles are the primary functions of those works. [121] As previously concluded, the onus of proving that the relevant work of the workers was not the primary role of the alleged relevant workers fell upon Enco. Further, as previously observed, the only grounds of appeal here alleged error of law or jurisdiction. Given those two matters, Enco needs to establish on appeal that there was no basis upon which the Industrial Commission could have failed to prove that the primary function of the workers was not within the FEDFA Rule. To merely state that proposition demonstrates how difficult it is for Enco to establish. [122] The Industrial Commissioner carefully considered the facts. She was concerned about a lack of evidence on crucial issues. That led her to conclude that Enco would not prove that the workers relevant roles were not their primary ones. That conclusion was clearly open. The Terrazzo Rule [123] The Union submits in the appeal that Enco must show an error of law or jurisdictional error. That submission ought to be accepted.67 Enco does not suggest otherwise. Some of the conclusions reached by the Industrial Commissioner relevant to the Terrazzo Rule were findings of fact and some were determinations of matters of law. [124] The case turns ultimately on whether Enco’s workers “were engaged in the preparation and/or erection of terrazzo or similar compositions”. However, that term must be considered in the context of the rules. If they were so engaged, then that work was the primary role of those workers. There is no suggestion to the contrary. [125] That part of clause 2 of the rules which is relevant to the current appeal is: “(A)(A) The following unlimited number of persons, whether male or female, are eligible to.be members of the Union (1) employed in, usually employed in or qualified to be and desirous of being employed in or seeking to be employed in or in connection with the industry or industries, and/or occupations, and/or calling, and/or vocations and/or industrial pursuits of - 66 At [52]. 67 Industrial Relations Act 2016, s 557. -- 34 of 42 -- 35 and/or (2) who, otherwise than as employees or employers, follow an occupation in or in connection with the industry or industries of: and/or (3) who, otherwise than as employees or employers, are engaged in the industrial pursuit or pursuits of: (i) carpenters or joiners (including foremen and sub-foremen) and carpenters or joiners employed in the States of New South Wales, Tasmania and Western Australia or in the Australian Capital Territory on bridges, wharves, jetties or piers or employed in the State of Victoria on bridges, wharves, jetties or piers which are wholly or substantially built of concrete and in respect of which the performance of formwork requires the exercise of a substantial amount of the knowledge and skill of a tradesman carpenter, or employed in one of the said States or in the State of Queensland or the said Territory on dams, ship carpenters or joiners (including foremen and sub-foremen) or tilelayers, including without limiting the meaning of the word tilelayers, persons employed in the laying or fixing of tiles, faience, mosaic, ceramic, opalite and the like not exceeding in measurement .093 square metres when such opalite and the like is fixed with cement composition or stonemasons, marble masons, polishers, machinists, sawyers and all other persons engaged in the dressing and preparation and/or erection of stone, marble or slate also those engaged in the preparation and/or erection of terrazzo or similar compositions, or bricklayers, tuckpointers, or in a trade or calling of a slater, roof tiler, shingler, ridger or cement tiler, fixer of roofing sheets of asbestos, fibro, fibrolite or cement mixtures and accessories, malthoid sisalkraft or bituminous roofing materials and all accessories made of the same materials and without limiting the meaning of the above they shall be deemed to include terra cotta, glazed, semi-glazed roofing tiles, cement tiles, slates, fibro slates, tiles, asbestos, fibro fibrolite, fibrous mixtures, cement and any mixtures that may replace or be used in conjunction with the foregoing or any materials incidental thereto or -- 35 of 42 -- 36 in place thereof, or in New South Wales journeymen and other labour engaged in the plate, sheet and ornamental glass trade, or apprentices or trainees to or in any of the foregoing trades together with such other persons whether employees in the industry or not as have been appointed officers of the Union and admitted as members thereof PROVIDED however that notwithstanding the foregoing:- (a) In the States of Western Australia, South Australia, Tasmania and Queensland and in the Australian Capital Territory, nothing in paragraph (A)(i) of this rule shall render eligible for membership any employee engaged in tilelaying as defined in this sub-rule; (b) In the States of New South Wales, Victoria, South Australia, Queensland and Tasmania nothing in paragraph (A)(i) of this rule shall render eligible for membership, any employee engaged in tilelaying as defined in this sub-rule who is eligible for membership of The Federated Furnishing Trade Society of Australasia; (c) In the Australian Capital Territory and the State of Tasmania nothing in paragraph (A)(i) of this rule shall render eligible for membership persons engaged in the fixing of corrugated asbestos cement roofing sheets; (d) Nothing in paragraph (A)(i) of this rule shall render eligible for membership any person who is a member of or eligible for membership of The Plumbers and Gasfitters Employees’ Union of Australia; (e) In the States of Victoria, South Australia, Queensland, Tasmania and the Australian Capital Territory nothing in paragraph (A)(i) of this rule shall render eligible for membership any employee engaged in the plate, sheet and ornamental glass industries as defined in this sub-rule who is eligible for membership of The Federated -- 36 of 42 -- 37 Furnishing Trades Society of Australasia.” (emphasis added) [126] Ultimately, the construction of the eligibility rule is a matter of law.68 That includes the meaning of “terrazzo” and the term “similar compositions” as those terms appear in the rule. [127] Both parties called expert evidence. The case was conducted on the basis that the term “terrazzo” as it appeared in the eligibility rule takes what can perhaps be described as its trade meaning. The experts gave evidence as to what terrazzo is. That is a matter of fact. [128] Evidence was led as to the composition and characteristics of terrazzo and of the concrete products which are produced by Enco. What that composition and characteristics are (of both substances) are matters of fact. Evidence was led as to the differences in the composition and characteristics of, respectively, terrazzo and the Enco products. Again, they are all matters of fact. [129] As to all those issues, the Industrial Commissioner found, either expressly or by recording evidence without then rejecting it: 1. terrazzo is composed of a mixture of cement, water and aggregate;69 2. the Enco product is composed of a mixture of cement, water and aggregate;70 3. aggregate used in the Enco product may be of a different type to that used in terrazzo. The aggregate used in the Enco product will be of a stronger or higher load bearing capacity;71 4. terrazzo has a particular type of finish where the concrete is cut, ground and honed (sometimes polished) exposing the aggregate;72 5. the Enco product is not cut or ground down to expose the aggregate;73 6. the Enco products are load bearing;74 7. terrazzo is usually not load bearing but can be used for that purpose;75 8. Enco’s products are reinforced with steel;76 9. terrazzo is generally not reinforced with steel but would be if put to a load bearing use.77 [130] Leave is not sought to challenge any of these findings of fact. 68 Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424 at [25] following Enfield City Corporation v Development Assessment Commission (2000) 199 CLR 135 at 151-156. 69 Enco Precast Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union & Ors [2020] QIRC 188 at [190]. 70 At [190]. 71 At [191]-[194]. 72 At [198]-[199]. 73 At [198]-[199]. 74 At [177]. 75 At [208]. 76 At [178]-[179]. 77 At [204]-[208]. -- 37 of 42 -- 38 [131] Once that point is reached, the first matter of law is whether the Enco products, with the composition and characteristics found by the Industrial Commissioner, are either: 1. terrazzo; or 2. a substance of “similar composition” to terrazzo as that term is used in the eligibility rule. [132] The Industrial Commissioner found that the Enco products were not terrazzo.78 [133] The Industrial Commissioner turned her mind to the legal issue as to whether, for the purpose of the eligibility rule, the Enco products were of a “similar composition” to terrazzo. She held: 1. that as both the Enco product and terrazzo are comprised of cement, aggregate, water and admix additives and may be reinforced with steel, they have a “similar composition”; 2. the difference in the finish of the concrete in terrazzo and in the concrete in the Enco products does not render them of a different composition; 3. for the purposes of the eligibility rule, the Enco products are of a similar composition to terrazzo.79 [134] Part of Enco’s submission on appeal was that the uncontested evidence before the QIRC was that the Enco products were produced by unqualified labourers under the supervision of leadings hands, none of whom held trade qualifications. I shall return to the significance of that. [135] The Industrial Commissioner held that the appropriate principles in construing the Union rules were: “[171] The general principles regarding the interpretation of union eligibility rules are well established. They may relevantly be summarised, as follows: (a) the general rule of construction is that eligibility provisions should be construed liberally rather than narrowly or technically; (b) union eligibility rules will be construed objectively; (c) it is permissible to have regard to any common understanding among people concerned with relevant industries and particularly with industrial matters of the ordinary application of the words used, and to the previous use of the words in the relevant organisation’s rules and in statutory provisions, decisions, determinations, awards, reports and other papers concerned with the relevant industry or industries: Federal awards, including consent awards, made by Commonwealth industrial tribunals at a time when the 78 At [189]. 79 At [213]-[215]. -- 38 of 42 -- 39 legislative award-making power was founded upon the industrial disputes power in s 51(xxxv) of the Constitution, are important sources in this respect since a union may only be a party to an industrial dispute involving employees eligible to be its members: (d) if there is ambiguity as to the meaning of words in the eligibility rules, assistance may be sought in the terms of the industry rule (subject to it being understood that the scope of the eligibility rule is not restricted by the scope of the industry rule); (e) words in an eligibility rule should not be read in isolation such as to give the rule a wide and indefinite scope of operation that is unlikely to have been intended; and (f) terms used in union eligibility rules should not be interpreted statically in accordance with the meaning they bore at the time that they were first introduced into the rules. Although such terms will have fixed connotation, they bear a changing denotation – that is, they may be interpreted in accordance with their appropriate current meaning, taking into account changing technologies and methods of work. This may mean that eligibility rules may cover industries or callings not known when the rules were originally drafted.80 [136] Both parties accept that the principles identified by the Industrial Commissioner are the correct ones but Mr Murdoch QC submits that she did not properly consider the history of the Union relevantly to the rules. He submitted that the Union is an amalgamation of various unions, including the Building Workers’ Industrial Union. That union represented tradesmen, so the Terrazzo Rule does not catch unskilled workers except those who are assisting a skilled person. [137] The history of the Union and its rules was raised before the Industrial Commissioner. This was submitted. Mr Murdoch QC’s submissions: “Historically, as we analyse the various stages of the amalgamations, the provisions in (3)(i) appear to be the provisions that came out of the rules of the old Building Workers Industrial Union, the BWIU, which was a craft-based union. On the other hand, under (ii), that one came out of the rules of the old plasterers’ union. And you get a sense of that if you read (ii) with the emphasis on plaster-type products. But so far as the BWIU rule under (3)(i) is concerned, coming as it did from the BWIU, you’ll see that the categories which are listed in that rule are the trade and the skill categories. And you see carpenters, 80 References removed. -- 39 of 42 -- 40 joiners, etcetera, etcetera, consistent with the fact that terrazzo, as we heard in the evidence, was an activity undertaken by skilled artisans. Now, the relevant part of the rule refers to the preparation and/or erection of terrazzo or similar compositions. Now, I don’t understand it to be contended that the products manufactured by my client are terrazzo. But what appears to be contended is that these piles, ridge beams, girders, are of similar composition to terrazzo. We strongly reject that and submit that it’s factually incorrect and that it is a distortion of the relevant part of the union rule.” Mr Massy’s submissions: “Insofar as my learned friend sought to draw some support from the fact that this was part of the BWIU rule and some of the occupations described above could be described as artisans, the Commission will note that the very next occupation which is described in the rule is a bricklayer. It is not an artisan by any stretch of the imagination.” [138] The history of the rule no doubt forms part of the context against which the words of the rule are construed. [139] The Industrial Commissioner was referred to Rescrete Industries v Commissioner Jones of the Industrial Relations Commission81 where the Terrazzo Rule was considered. [140] The Full Court was considering the exact rule which is relevant here. O’Connor and Moore JJ (with whom Beaumont J agreed) observed: “It is relatively plain that the words ‘similar compositions’ was intended to extend the class to employees who, while not engaged in the preparation and/or erection of terrazzo, were engaged in the preparation and/or erection of material that was composed of elements with similar characteristics as the elements of terrazzo.”82 [141] In Rescrete, the employer, like here, produced precast concrete members which were both reinforced with steel and were load bearing. The Full Court held: “In the present case, it is necessary to consider the elements that make up the products made by Rescrete and that make up terrazzo. The products made by Rescrete are a mixture of sand, cement, water and aggregate. Terrazzo is a mixture of sand, cement, water and stone particles. Having regard only to these matters, they are plainly similar in composition and counsel for Rescrete did not submit otherwise. The point of distinction relied upon by counsel for Rescrete was that terrazzo does not, and the Rescrete products do, contain steel reinforcing which can be stressed. The addition of stressed steel results in a product which is load bearing. However there is no evidence establishing, one way or the other, whether terrazzo has been or is manufactured with these features. It may be that terrazzo 81 (1998) 86 IR 269. 82 At 279. -- 40 of 42 -- 41 does not, nor ever has, contained steel or at least steel that has been stressed. Equally, however, it is possible that terrazzo used for panelling contained some steel designed to give the product structural integrity and may, in some circumstances, be load bearing. However, given the paucity of evidence on what terrazzo is, this Court is not able to answer these questions in the way we are invited to by Rescrete. It has failed to demonstrate that terrazzo and the products manufactured by Rescrete are not of a similar composition.”83 [142] Unlike here, there was no evidence before the Full Court of the Federal Court as to whether Terrazzo may contain steel and be a stressed member in the construction of civil structures. That is, as explained, a matter of fact, which the Industrial Commissioner found against Enco. [143] Mr Murdoch QC submits that the term “terrazzo” and “similar composition” to terrazzo take their meaning from the context of the rule. Given the history of the rule, the approach is not to just determine whether the generic composition of terrazzo and Enco’s products are “similar”. That is because “those engaged” are only artisans or persons assisting artisans. [144] Rule 2(A)(A)(3)(i) commences with a reference to “carpenters or joiners”, obviously tradesmen. It then limits eligibility to those tradesmen employed in certain pursuits; formwork on bridges. In distinction, when it comes to the erection etc of stone, there is reference to particular trades (stonemasons etc) and then an extension of the rule to “all other persons” (obviously not tradesmen) engaged in the particular activity of dressing etc stone. In relation to terrazzo, there is no reference to particular tradepersons. The words used are “… also those engaged in the preparation and/or erection of terrazzo or similar compositions”. [145] Even taking into account the history of the rule, in my view, it is clear that: 1. all persons, whether trades people or otherwise; 2. “engaged in the preparation and/or erection of terrazzo”; or 3. “engaged in the preparation and/or erection of similar compositions to terrazzo”; 4. Are covered by the Terrazzo Rule; and 5. based on the factual findings of the Industrial Commissioner, the Enco products are, for the purposes of the rule a “similar composition” to terrazzo. [146] Laborers working on the Enco site as at 3-5 September 2019 were engaged in the preparation and/or erection of compositions similar to terrazzo and were therefore eligible to be members of the Union. They were “relevant workers”. Conclusions [147] It follows that the Industrial Commissioner was correct on the only live issue between the parties, namely the coverage of the Union, and the appeal should be dismissed. [148] Orders: 83 At 279. -- 41 of 42 -- 42 1. Appeal dismissed. 2. The parties are to be heard on the question of costs. -- 42 of 42 --