Enco Precast Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union & Ors [2020] QIRC 188

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: PARTIES: ENCO PRECAST PTY LTD v Construction, Forestry, Maritime, Mining and Energy Union & Ors [2020] QIRC 188 ENCO PRECAST PTY LTD (ACN 072 772 037) (Applicant) v Construction, Forestry, Maritime, Mining and Energy Union (First Respondent) and Shaun Desmond (Second Respondent) and Beau Seiffert (Third Respondent) and Luke Gibson (Fourth Respondent) and Anthony Roel Harding (Fifth Respondent) and Craig Patrick Davidson (Sixth Respondent) CASE NO: WHS/2019/117 -- 1 of 63 -- 2 PROCEEDING: Application to deal with a dispute about right of entry DELIVERED ON: 30 October 2020 HEARD AT: HEARING DATES: Brisbane 2, 3 and 5 December 2019 SUBMISSIONS: Applicant's supplementary submissions – 5 May 2020 Respondents' supplementary submissions - 12 May 2020 MEMBER: Hartigan IC ORDER: CATCHWORDS: 1. The application is dismissed. WORKPLACE HEALTH AND SAFETY – Dispute about right of entry – Whether permit holder held a "reasonable suspicion" – Whether "relevant worker" – Whether workers eligible to be members of union LEGISLATION: Work Health and Safety Act 2011 (Qld), s 3, s 116, s 117, s 118, s 119, , s 123, s 124, s 125, s 126, s 128, s 129, s 130, s 132, s 134, s 133, s 142, s 144, s 145, s 146, s 147, s 148 Work Health and Safety Regulations 2011 (Qld), s 28 Industrial Relations Act 2016 (Qld), s 447, s 451, s 453 CASES: Apollo Shower Screens Pty Ltd v Building and Construction Industry Long Service Payment Corporation (1985) 1 NSWLR 561 Australian Building and Construction Commission v Powell [2017] FCAFC 89 Australian Licensed Aircraft Engineers Association v Qantas Airways Ltd [2018] FCA 1065 Construction, Forestry, Mining and Energy Union (New South Wales Branch) v Acciona Infrastructure Australia Pty Ltd & Anor [2017] NSWIRComm 1000 -- 2 of 63 -- 3 Construction, Forestry, Mining and Energy Union v CSBP Ltd (2012) 212 IR 206 Co-operative Bulk Handling Ltd v Waterside Workers Federation of Australia (1980) 32 ALR 541 Electrical Trades Union of Australia v Waterside Workers Federation of Australia No 2 (1982) 42 ALR 587 Federated Clerks Union of Australia WA Branch v Cary (1977) 57 WAIG 585 Federated Engine Drivers' & Fireman's Association of Australasia, Re [1958] AR (NSW) 689 George v Rockett (1990) 170 CLR 104 Johnson v Triple C Furniture & Electrical Pty Ltd [2010] QCA 282 Joyce v Christoffersen (1990) FCR 261 Portlock v Baulderstone Hornibrook Engineering Pty Ltd [2005] NSWSC 775 R v Cohen; Ex parte Motor Accidents Insurance Board (1979) 141 ALR 263; 141 CLR 577 R v Isaac; Ex parte Transport Workers Union of Aust; sub nom Isaac, Re; Ex parte Argyle Diamond Mines Pty Ltd (ALR) (1985) 159 CLR 323 R v Gough; Ex parte Municipal Officers' Association (1975) 133 CLR 59 R v Williams; Ex parte Australian Building, Construction Employees' and Builders Labourers' Federation (1982) 153 CLR 402 Ramsay v Menso [2018] FCAFC 55 -- 3 of 63 -- 4 Re Union of Postal Clerks and Telegraphists; Ex parte Australian Telephone and Phonogram Officers' Association [1986] HCA 45; (1986) 66 ALR 227 Rescrete Industries Pty Ltd v Commissioner Jones of the Australian Industrial Relations Commission (1998) 86 IR 269 The Australian Manufacturing Workers' Union v ResMed Limited [2014] FWCFB 3501 APPEARANCES: Mr J E Murdoch QC and Mr T Spence of counsel for the applicant, instructed by HopgoodGanim Lawyers Mr C Massy of counsel for the respondents, instructed by Hall Payne Lawyers -- 4 of 63 -- 5 INDEX 1. Introduction ................................................................................................................................... 7 2. Relevant statutory framework...................................................................................................... 8 3. Evidence before the Commission................................................................................................ 15 3.1. Receipt of complaint and subsequent steps taken by the union............................................ 16 3.2. Attendance at Enco's site on 3 September 2019................................................................... 18 3.3. Attendance at Enco's site on 4 September 2019................................................................... 21 3.4. Attendance at Enco's site on 5 September 2019................................................................... 22 4. Does the Commission have jurisdiction to assist in the resolution of the dispute as described by Enco? ....................................................................................................................................... 24 5. Did the permit holders hold a "reasonable suspicion" that a suspected contravention had occurred, or was occurring, that affected relevant workers .................................................... 26 5.1. Onus – who must establish reasonable suspicion? .............................................................. 26 5.2. Consideration of the term "reasonable suspicion" – the authorities ................................... 27 5.3. Did the right of entry permit holders hold a reasonable suspicion? ................................... 29 5.3.1. Particulars included in the notice .................................................................................. 29 5.3.2. Evidence of the permit holders with respect to the formation of suspicion.................... 30 5.4. Consideration ....................................................................................................................... 34 6. Were the workers at the site "relevant workers" within the meaning of s 116 of the WHS Act? ............................................................................................................................................... 37 6.1. Construction of union eligibility rules ................................................................................. 38 6.2. Onus to establish the "relevant worker" .............................................................................. 39 6.3. The nature of the operations at Enco ................................................................................... 40 6.4. Rule 2(A)(A)(1)(i) – ("the terrazzo rule") ............................................................................ 40 6.5. Common elements – cement, water and aggregate .............................................................. 42 6.6. Finish of the products .......................................................................................................... 43 6.8. Consideration of the expression "preparation and/or erection" in the context of the terrazzo rule ...................................................................................................................................... 46 6.9. Conclusion regarding the terrazzo rule ............................................................................... 46 6.10. Rule 2E - The FEDFA rule .................................................................................................. 47 6.11. The evidence relating to primary function of the workers ................................................... 48 6.12. The operation of the bobcat skid-steer ................................................................................. 51 6.13. The work of the boiler attendants ........................................................................................ 52 6.14. The operation of the gantry cranes ...................................................................................... 54 6.15. The operation of the hydraulic pump ................................................................................... 60 7. Commissioner of Police v Seiffert & Ors ("Seiffert") ................................................................. 61 8. Should the relief sought by Enco be granted? ........................................................................... 62 -- 5 of 63 -- 6 9. Order............................................................................................................................................. 63 -- 6 of 63 -- 7 Reasons for Decision 1. Introduction [1] Enco Precast Pty Ltd ("Enco") has applied to the Queensland Industrial Relations Commission ("the Commission") to deal with a dispute about the exercise, or purported exercise, of a right of entry by a Work Health and Safety ("WHS") entry permit holder pursuant to s 142(4)(b) of the Work Health and Safety Act 2011 (Qld) ("WHS Act"). [2] The respondents to the application are the Construction, Forestry, Maritime, Mining and Energy Union ("the union") and five individual right of entry permit holders, Mr Seiffert, Mr Desmond, Mr Gibson, Mr Harding and Mr Davidson ("the permit holders'') who sought entry to Enco's premises. [3] Enco describes the dispute1 as being about an attempted right of entry pursuant to s 117 of the WHS Act on 3, 4 and 5 September 2019. Enco contends that the permit holders did not hold a reasonable suspicion that a suspected contravention had occurred, or was occurring, that affected relevant workers and, further, that the workers were not "relevant workers" within the meaning of s 116 of the WHS Act on the basis that the workers were not eligible to be members of the union. [4] The Commission2 may deal with a dispute about the exercise, or purported exercise, of a right entry by a WHS entry permit holder under the WHS Act and may make orders3 in respect of the WHS entry permit including by imposing conditions, suspending or revoking WHS entry permits, or making any order about the future issue of WHS entry permit or any other order the Commission considers appropriate [5] The relief sought by Enco in the application was ultimately framed4 in the following terms: 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 1 Application filed on 13 September 2019. 2 Work Health and Safety Act 2011 (Qld) s 142. 3 Ibid 142(3). 4 See Exhibit 25. -- 7 of 63 -- 8 (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. [6] The respondents resist the relief sought and seek that the application be dismissed. [7] In dealing with the dispute. I will address the following four issues: (a) Whether the Commission has jurisdiction to assist in the resolution of the dispute as described by Enco? (b) Whether the permit holders held a "reasonable suspicion" that a suspected contravention had occurred, or was occurring, that affected relevant workers? (c) Whether the workers were "relevant workers" within the meaning of s 116 of the WHS Act on the basis that Enco contends there were not eligible to be members of the union? (d) Whether the relief sought by Enco should be granted? 2. Relevant statutory framework [8] The main object of the WHS Act5 is to provide for a balanced and nationally consistent framework to secure the health and safety of workers and workplaces by: (a) protecting workers and other persons against harm to their health, safety and welfare through the elimination or minimalisation of risks arising from work or from particular types of substances of plant; (b) providing for fair and effective workplace representation, consultation, cooperation and issue resolution in relation to work health and safety; and (c) encouraging unions and employer organisations to take a constructive role in promoting improvements in work health and safety practices, and assisting persons conducting 5 Work Health and Safety Act 2011 (Qld) s 3. -- 8 of 63 -- 9 business or undertakings and workers to achieve a healthier and safer working environment; and (d) promoting the provision of advice, information, education and training in relation to work heath and safety; and (e) securing compliance with this Act through effective and appropriate compliance and enforcement measures; and (f) ensuring appropriate scrutiny and review of actions by persons exercising powers and performing functions under this Act; and (g) providing a framework for continuous improvement and progressively higher standards of work health and safety; and (h) maintaining and strengthening the national harmonisation of laws relating to work health and safety and to facilitate a consistent national approach to work health and safety in Queensland. [9] One of the ways in which the object of the WHS Act is to be achieved is by the issuing of WHS permits. A WHS entry permit holder may enter a workplace to inquire into a suspected contravention of the WHS Act. [10] Part 7 of the WHS Act provides for the means of workplace entry by WHS entry permit holders. [11] The Industrial Registrar may issue6 a WHS entry permit to a person after taking into account:7 (a) the objects of the WHS Act; and (b) the object of allowing the union right of entry to workplaces for work health and safety purposes. [12] The Industrial Registrar may issue8 a WHS entry permit to a union official where the industrial registrar is satisfied9 about the following matters: (a) that the official is an official of the union; (b) that the official has satisfactorily completed the prescribed training; and (c) holds, or will hold, an entry permit under the Fair Work Act or an industrial officer authority. [13] WHS permits confer a right on permit holders to enter premises and exercise specified rights10 whilst on the premises. 6 Work Health and Safety Act 2011 (Qld) s 134. 7 Ibid s 132. 8 Ibid s 134. 9 Ibid s 133. 10 Ibid s 118. -- 9 of 63 -- 10 [14] A permit holder may enter to inquire into suspected contraventions of the WHS Act as set out in s 117 of the WHS Act, as follows: 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 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. [15] The meaning of the term "reasonably suspect" referred to in s 117(2) will be considered further within these reasons. [16] Section 117 of the WHS Act refers to the term "relevant worker". Whether the workers at the Enco site were relevant workers is a relevant consideration in this matter. The term is defined11 to mean, in relation to a workplace, 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. [17] A WHS entry permit holder must give a notice of the entry and the suspected contravention, as prescribed by regulation, to the relevant person conducting a business or undertaking and the person with management and control of the workplace.12 [18] Section 28 of the Work Health and Safety Regulations 2011 (Qld) ("the Regulations") is the relevant regulation for the purpose of s 119 and prescribes additional requirements for a notice of entry under s 117 of the WHS Act. Sections 28(a) and (b) of the Regulations provides that the notice of entry must also include the following: 28 Additional requirements – entry under section 117 (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 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. 11 Work Health and Safety Act 2011 (Qld) s 116 (definition of 'relevant worker'). 12 Ibid ss 119(1)(a)-(b). -- 10 of 63 -- 11 Note- Section 130 of the Act provides that a WHS entry permit holder is not required to disclose the name of any worker to the person conducting the business or undertaking and may do so only with the consent of the worker. [19] Division 4, Part 7 of the WHS Act provides for requirements for WHS permit holders. [20] Sections 123 to 126 and ss 128 and 129 of the WHS Act are civil penalty provisions and prescribe the obligations on a WHS entry permit holder, including that a WHS entry permit holder: (a) must not contravene a condition imposed on a WHS entry permit;13 (b) must not enter a workplace unless he or she holds an entry permit under the Fair Work Act 2009 (Cth) ("FW Act") or an industrial officer authority;14 (c) must at all times that he or she is at a workplace under a right of entry under Division 2 or 3, have his or her WHS entry permit and photographic identification available for inspection by any person on request;15 (d) may only exercise a right under Division 2 or 3 during the usual working hours at the workplace;16 (e) must not exercise a right of entry unless he or she complies with any reasonable request by the relevant person conducting a business or undertaking or the person with management or control of the workplace to comply with – (i) any work health and safety requirement that applies to the workplace;17 and (ii) any other legislated requirement that applies to that type of workplace.18 [21] Division 7, Part 7 of the WHS Act outlines the following prohibitions: (a) a person must not, without a reasonable excuse, refuse or unduly delay entry into a workplace by a WHS entry permit holder who is entitled to enter the workplace under Part 7;19 13 Work Health and Safety Act 2011 (Qld) s 123. 14 Ibid s 124. 15 Ibid s 125. 16 Ibid s 126. 17 Ibid s 128(a). 18 Ibid s 128(b). 19 Ibid s 144. -- 11 of 63 -- 12 (b) a person must not intentionally and unreasonably hinder or obstruct a WHS entry permit holder in entering a workplace or in exercising any rights at a workplace under Part 7;20 (c) a WHS entry permit holder exercising, or seeking to exercise, rights under Part 7 must not intentionally and unreasonably delay, hinder or obstruct any person or disrupt any work at a workplace, or otherwise act in an improper way;21 (d) a person must not take action with the intention of giving the impression or reckless as to whether the impression is given that the doing of a thing is authorised by Part 7 if it is not so authorised;22 and (e) a person must not use or disclose information, or a document obtained under Division 2 in an inquiry into a suspected contravention for a purpose that is not related to the inquiry or rectifying the suspected contravention unless for a reason set out in sub sections (a) to (e).23 [22] Each of the provisions in Division 7, Part 7 are WHS civil penalty provisions. [23] Relevantly with respect to this matter, Division 6, Part 7 of the WHS Act provides for a means of dealing with disputes about workplace entry by WHS entry permit holders. [24] Section 141 of the WHS Act provides that if a dispute arises about the exercise or purported exercise by a WHS entry permit holder of a right of entry under the WHS Act, any party to the dispute may ask the regulator to appoint an inspector to attend the workplace to assist in resolving the dispute. [25] Section 141A of the WHS Act24 applies if an inspector is appointed under s 141 of the WHS Act and the dispute is about whether: (a) the WHS entry permit holder has a right to enter the workplace under Division 2 or 3; or (b) section 119 or 122 has been complied with in relation to notice of the entry or purported entry. [26] In such circumstances, the inspector may decide the matters in dispute and, if the inspector is reasonably satisfied the WHS entry permit holder has a right of entry under Division 2 or 3, give the person conducting the business or undertaking a direction, in writing, to immediately allow the WHS entry permit holder to enter the workplace under a stated provision of Division 2 or 3. 20 Work Health and Safety Act 2011 (Qld) s 145. 21 Ibid s 146. 22 Ibid s 147. 23 Ibid s 148. 24 The Work Health and Safety Act 2011 (Qld) has been amended by the Community Services Industry (Portable Long Service Leave) Act 2020 (Qld) so as to omit s 141A, commencing from 22 June 2020. -- 12 of 63 -- 13 [27] Such a direction must state the matters referred to in s 141A(3)25 and a person given such a direction must comply with it.26 [28] This application has been commenced pursuant to s 142 of the WHS Act. Section 142(1) provides that 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 s 128 is reasonable). [29] Section 142(2) provides that the Commission may deal with the dispute in any way it thinks fit, including by means of mediation, conciliation or arbitration. On the request of the parties, this dispute proceeded to arbitration without the parties participating in a conciliation or mediation. [30] In dealing with a dispute by way of arbitration, the Commission may make one or more of the orders set out in s 142(3) of the WHS Act, as follows: (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. [31] 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.27 [32] The form of the draft orders tendered28 by Enco seek to rely on s 142(e) of the WHS Act for the making of the orders. In submissions,29 Enco also sought to rely on the Commission's functions as outlined in ss 447(1)(n)(i), (o) and (p) and, its general powers at ss 451 and 453 of the Industrial Relations Act 2016 (Qld) ("IR Act"). [33] Section 447(1) of the IR Act details the following functions of the Commission: 447 Commission's functions (1) The commission's functions include the following- … 25 Section 141A(3) of the Work Health and Safety Act 2011 (Qld) requires the direction to state that (a) the inspector is reasonably satisfied the WHS entry permit holder has a right to enter the workplace under division 2 or 3; and (b) the reasons the inspector is reasonably satisfied about the right to enter. 26 Pursuant to s 141A(4) of the WHS Act which is also a WHS civil penalty provision. 27 Work Health and Safety Act 2011 (Qld) s 142(5). 28 See Exhibit 25. 29 T3-37, ll 3-10. -- 13 of 63 -- 14 (n) dealing with- (i) applications brought under this Act or another Act; or (ii) claims relating to dismissals; (o) making declarations about industrial matters; (p) any other function conferred on the commission under this Act or another Act. [34] Section 451 of the IR Act sets out the Commission's general powers, as follows: 451 General powers (1) The commission has the power to do all things necessary or convenient to be done for the performances of its functions. (2) Without limiting subsection (1), the commission in proceedings may- (a) give directions about the hearing of a matter; or (b) make a decision it considers appropriate, irrespective of the relief sought by a party; or (c) make an order it considers appropriate. (3) The commission may, by general order or for a particular case, delegate to the registrar- (a) the working out of a decision of the commission to implement the decision; or (b) a function relating to the decision, including, for example- (i) the giving of directions; or (ii) the making of orders; or (iii) the preparation of rosters and schedules; or (iv) a similar function it considers appropriate. (4) The full bench may, to assist in the resolution of proceedings- (a) refer the whole or part of a question or matter before it to the commission – (i) for investigation by the commission and the preparation of a report on the investigation; or (ii) for another action it decides; or (b) direct 1 or more of its members to carry out an investigation or inspection and prepare a report on the investigation or inspection. (5) The commission or member must comply with the reference or direction. -- 14 of 63 -- 15 [35] Section 453 of the IR Act provides that this "part does not limit, by implication, another power given to, or possessed by, the Commission under this Act or another Act or law." [36] The statutory framework is relevant to the consideration of the issues in this matter, including whether there is a dispute of such a nature which would enliven the Commission's jurisdiction to make the orders sought by Enco. However, prior to considering this jurisdictional point, it is necessary to address the evidence heard before the Commission. 3. Evidence before the Commission [37] The matter proceeded to hearing over the course of three days. The evidence in chief of each of the relevant witnesses was in the form of affidavit evidence. The parties respectively relied on expert evidence and the reports of each of the experts were tendered into evidence. The witnesses30 were cross-examined. The parties did not have the benefit of the transcript when submissions were made on the final day of hearing. The transcript has subsequently been made available to the Commission. [38] During the course of the hearing, Enco called the following witnesses, who were each senior employees31 of Enco: (a) Mr Steven James, general manager and director; (b) Mr Goran Duric, production foreman; and (c) Mr Forbes Day, operations manager. [39] Additionally, Enco called Mr Alex Milligan, a structural and civil engineer, to provide expert evidence. [40] The respondents called the following witnesses, who were either employees or officials of the union: (a) Mr Shaun Desmond; (b) Mr Craig Davidson; (c) Mr Luke Gibson; (d) Mr Anthony Stott; (e) Mr Anthony Harding; and 30 Except for Ms Leanne Butkus, an employee of the union, whose affidavit was tendered (see Exhibit 14) without the need for her to be cross-examined. 31 And shareholders. -- 15 of 63 -- 16 (f) Mr Beau Seiffert. [41] The respondents relied on the expert evidence of Mr Herzog, a consultant engineer specialising in material engineering. [42] A component of the evidence dealt with the events on 3, 4 and 5 September 2019. As these factual matters are relevant to my consideration of the issues to be resolved, I will provide a summary of that evidence below. 3.1. Receipt of complaint and subsequent steps taken by the union [43] The respondents called Mr Stott, who is employed by the union as a compliance officer and who, as part of his duties, managed the union's safety hotline. [44] Mr Stott gave general evidence32 about how the safety hotline operated, which may be summarised as follows: (a) a complaint may be made to the safety hotline by calling the safety hotline telephone number or online by lodging a complaint at https://qnt.cfmeu.org/forms/safety-hotline. The telephone hotline is attended to by a representative of the union between, 7.00am and 4.30pm, Monday to Friday, with an out of hours message service operating for any complaints logged out of hours; (b) calls from the hotline go directly to the work telephone number; (c) his practice is not to take the name or other identifying information from the complainant; (d) at the time of receiving a complaint, Mr Stott makes a note of the information as he receives it and then logs the complaint on the Office of Industrial Relations, Workplace Health and Safety Electrical Safety Office Worker's Compensation Regulator, WorkSafe ("WHSQ") website; and (e) after logging the complaint, a computerised receipt from WHSQ of the complaint is then generated by return email. [45] Mr Stott also gave evidence about the complaint he reports having received on 3 September 2019 in relation to the Enco site. Mr Stott's evidence33 in relation to his receipt of the complaint, may be summarised as follows: (a) on 3 September 2019 at about 9.00am, Mr Stott was working in the union's office and received a telephone call through the safety hotline; 32 Exhibit 15. 33 Ibid. -- 16 of 63 -- 17 (b) the caller stated that: (i) 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. (ii) The site was the "Enco Precast yard at 73 Counihan Road Seventeen Mile Rocks"; and (c) Mr Stott said he made some handwritten notes of the conversation as it occurred and then attempted to submit the information on the WHSQ website but was unable to do so after three attempts. [46] Mr Stott's handwritten notes of the conversation were not in evidence34 and under cross- examination he indicated that it was likely that he disposed of the notes after he eventually logged the call with WHSQ.35 [47] Mr Stott evidence about what he did following receipt of the complaint may be summarised as follows: (a) at about 9.10am, Mr Stott spoke to Mr Jade Ingham, the Assistant Secretary of the union and advised him of the complaint; (b) Mr Stott described the issues at the Enco site to Mr Ingham as "[l]ifting devices and register and housekeeping. Also sounds like access and egress"; (c) Mr Stott describes Mr Ingham as having stated that he would "get some boys to head out there"; and (d) Mr Stott indicated that he would continue to try and log the complaint on the WHSQ website. [48] Mr Stott's evidence was that after speaking to Mr Ingham, he was able to log the complaint on to the WHSQ website. [49] The Department sent an email back to the union, attaching the complaint Mr Stott had submitted at 10.16am. The complaint was allocated register number 42570 by WHSQ.36 34 T1-96, ll 23-45 and T1-97, ll 1-6. 35 T1-96, ll 32-33. 36 Exhibit 15, TS-3. -- 17 of 63 -- 18 [50] Mr Stott described the issues on the WHSQ form as follows: 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. [51] Mr Stott forwarded the email receipt from WHSQ to Mr Seiffert and Mr Desmond, copying in Mr Kupsch and Mr Mick Robinson. [52] Mr Stott says that Mr Ingham did not ask him the identity of the caller. 3.2. Attendance at Enco's site on 3 September 2019 [53] Mr Seiffert, Mr Desmond and Mr James gave evidence about what occurred when Mr Seiffert and Mr Desmond sought entry at the Enco site on 3 September 2019. [54] Mr Seiffert's evidence,37 may be summarised as follows: (a) on 3 September 2019, he attended a meeting with Mr Desmond and Mr Ingham, during which Mr Ingham advised him that a safety complaint had been received through the union's hotline from a worker at the Enco yard, stating that there were issues with unsafe access and egress to work areas and the rigging gear register was not up-to-date; (b) Mr Ingham requested he and Mr Desmond attend on the Enco site in response to the complaint; (c) he was aware of the type of work being performed at Enco, as he had previously attended the site and had seen a forklift operating around the yard and several cranes in use; (d) he believed that there were riggers and doggers performing work at the site, based on the high-risk nature of the loads that were lifted by the cranes and he believed that those workers were eligible to be members of the union; (e) on the basis of the information he had received, that there were potential consequences of the lifting gear failing and he suspected that Enco was not ensuring a safe place and/or safe system of work, as was required pursuant to s 19 of the WHS Act; (f) he and Mr Desmond arrived at the site at approximately 10.22am and that he was wearing a body camera which recorded their attendance at site; 37 Exhibit 21. -- 18 of 63 -- 19 (g) he had completed the Notice of Entry on 3 September 2019,38 which recorded the details of the suspected contravention as follows: 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 (h) he and Mr Desmond spoke to Mr Steven James, General Manager and Director of Enco, who was with other Enco workers and he advised Mr James that a complaint had been received about the lifting gear not being up-to-date and access and egress being substandard; and (i) he states that Mr James advised him that he would not be permitted to enter the site, on the basis that he did not believe that there had been a complaint and that the union was not able to represent workers at the site. [55] Mr Desmond gave evidence which was generally consistent with Mr Seiffert.39 [56] An extract of Mr James' evidence40 of the conversation he had with Mr Seiffert and Mr Desmond is relevantly, as follows: Me: "You don't have coverage of our workers or a reasonable suspicion, you are not permitted to enter" Mr Seiffert: "We are going to go and have a look at the safety contravention." Me: "I am not going to escort you mate. You are not walking out on the site. You leave the site now. Call WHSQ." Mr Seiffert: "You know we can't leave site." Me: "You can leave site." Mr Seiffert: "We go on every job site." Me: "This isn't a job site, this is a manufacturing site." Mr Seiffert: "We still have coverage here." Me: "You don't" Mr Seiffert: "We do. You've still got trades who are doing things we have coverage over." 38 Exhibit 21, BS-2, page 2. 39 Exhibit 17. 40 Exhibit 2, [43]. -- 19 of 63 -- 20 Me: "You don't" Mr Seiffert: "If you have nothing to worry about, why wouldn't you just let us walk out on site?" Me: "You don't have coverage of our workers." [57] Following this exchange, Mr Seiffert and Mr Desmond sought the assistance of the Work Health and Safety Regulator to attend on site to assist to resolve the dispute about entry. After some initial further discussion, Mr James took Mr Seiffert and Mr Desmond to a meeting room to wait whilst they were there. Three police officers attended the site and spoke to Mr Seiffert and Mr Desmond. The police officers sought Mr Seiffert's and Mr Desmond's details and advised that they were present to keep the peace. The police then left the meeting room and remained in a car park for the rest of the day.41 [58] Whilst Mr Seiffert waited in the meeting room,42 he could view monitors connected to CCTV that were operating in the crib room, the yard, the car park and on the front gates. The monitor showed workers performing work including pouring concrete into moulds, operating a gantry crane and rigging beams to be moved by the gantry crane. [59] At approximately 12.15pm, WHSQ Inspectors Houston, Hogan and Bell attended the site and met with Mr James, Mr Forbes Day (operations manager, Enco), Mr Seiffert and Mr Desmond in Enco's board room. [60] A component of the evidence at hearing dealt with the conversation between the inspectors, Mr Seiffert, Mr Desmond and Mr James about the union's eligibility rules and the identity as to, who had made the complaint. The transcript of that conversation identifies that the parties appear to be at cross-purposes in relation to the identity of the complainant and whether the complainant was a relevant worker. The inspectors expressed a view, on several occasions, that the operation of the WHS Act required that the complaint must be made by a relevant worker. That misapprehension as to the effect of the relevant provision of the WHS Act resulted in an unnecessary line of questioning by the inspectors, during the course of the meeting. [61] At approximately 1.30pm, Inspector Houston expressed a view that the union did not have coverage of the workers at Enco. [62] After further discussions between the parties, the inspectors were seen to have made several telephone calls. The inspectors returned and stated that a view had been formed that the workers at site were eligible to join the union and that Enco should permit the s 117 entry to occur. [63] Mr James disputed the Inspector's view that the union had coverage, as follows:43 41 Exhibit 21, [37] – [41]. 42 Exhibit 21, [42]-[43]. 43 Exhibit 2, [47]. -- 20 of 63 -- 21 They don't have coverage or a reasonable suspicion. A dispute has been lodged with the QIRC to determine this. [64] Mr James refused to permit Mr Seiffert or Mr Desmond to conduct an inspection. Inspectors Bell and Hogan did enter the site but did not raise any specific safety issues with Mr James. [65] Inspector Houston issued an improvement notice stating that Enco, through Mr James, had refused the entry of Mr Seiffert and Mr Desmond without reasonable cause.44 [66] Mr Desmond and Mr Seiffert then left the site. 3.3. Attendance at Enco's site on 4 September 2019 [67] At approximately 9.30am on 4 September 2019, Mr Seiffert and Mr Desmond attended at the Enco site. [68] Mr Seiffert's evidence was that: (a) they attended the site on that occasion to finalise the entry from the previous day; and (b) they provided Mr James with Notices of Entry, which were in similar terms45 as the Notices of Entry provided on 3 September 2019. [69] Upon attending the site, Mr James, together with other workers, physically positioned themselves in such a way so as to prevent Mr Seiffert and Mr Desmond from entering the gates. [70] Mr Seiffert stated that he advised Mr James that he and Mr Desmond were attempting to enter the site, pursuant to s 117 of the WHS Act and provided Mr James with a copy of the entry notices pursuant to s 119 of the WHS Act. [71] Mr James refused entry to Mr Seiffert and Mr Desmond and indicated to them that Enco would be seeking to have the matter dealt with urgently in the Commission. [72] Mr Seiffert and Mr Desmond then sought the assistance of WHSQ inspectors, who attended the site. Upon attending the site, the inspectors undertook a safety inspection. [73] During that inspection, it became apparent that the parties had been advised that an interlocutory injunction had been filed in this Commission and that it was listed to be heard at 12.30pm that day. Mr James indicated to the inspectors that he was leaving to attend the hearing of the urgent injunction. 44 Exhibit 2, SJ-1, page 19. 45 Ibid, pages 21 and 22. -- 21 of 63 -- 22 [74] The inspectors issued two further improvement notices to Enco, requiring it to allow the permit holders to enter by 11.45am that day. [75] The inspectors then left the site and Mr Seiffert and Mr Desmond left soon after. [76] Later that day, an application for an interlocutory injunction was sought by Enco. That application was heard before me and dismissed. 3.4. Attendance at Enco's site on 5 September 2019 [77] On 5 September 2019, Mr Seiffert and Mr Desmond again attended the site. However, on that occasion, they were in the company of Mr Harding, Mr Davidson and Mr Gibson who were officials of the union. Mr Seiffert again activated his body camera upon attendance at the site. [78] It is uncontested that each of those in attendance were officials of the union and had valid right of entry permits. They each produced notices which were in similar terms to the notices provided by Mr Seiffert and Mr Desmond on 3 and 4 September 2019. [79] Mr Seiffert gave evidence as to the attempted entry, which may be summarised as follows: (a) he approached a security guard who was stationed at the entrance to the Enco site; (b) he sought to explain to the security guard that he and the other officials were seeking to enter under s 117 of the WHS Act; and (c) the security officer advised that they were not permitted to enter. [80] Mr James then met the union representatives as they approached the site office. Mr James states that the following conversation took place:46 Me: "So I understand you have walked past the security guard." Mr Seiffert: "We have walked into the gate, yep. I opened the gate." Me: "So you have had an additional complaint, today?" Mr Seiffert: "No, this is the same as before. We are here to close out the issues that we haven't been allowed to close out yet." Me: "So we have additional members addressing the same complaint." Mr Seiffert: "We haven't closed out the issue from when we first arrived onto site." Me: "I'm just going to ask you to leave. You pushed through our security, you've entered a closed gate." 46 Exhibit 2, [63]. -- 22 of 63 -- 23 Mr Seiffert: "We have a lawful right to enter the worksite." Mr Seiffert: "So are you hindering our site visit today under section 117?" Me: "Yes. You need to deal with that under the QIRC process." Mr Seiffert: "Are you going to obstruct us?" Me: "Yes." Mr Seiffert: "Mate, I can't stand out here in the sun again like yesterday, so I'm going to head into the site office." [81] Mr Seiffert's evidence as to the events that then occurred, may be summarised as follows: (a) he contacted WHSQ and sought the assistance of WHSQ inspectors; (b) as the union officials were waiting for the inspectors to arrive, Mr James returned and advised them that he would take them around the site; (c) the entry permit holders were then taken around the site in the company of Mr James and other employees of Enco; (d) after completing the inspection with Mr James, the WHSQ Inspectors Houston, Hogan and Stanley arrived at the site; (e) a formal safety inspection was then conducted by the Inspectors together with the entry permit holders and representatives of Enco; and (f) during the safety inspection several safety issues were identified. [82] Following completion of the safety inspection, the inspectors conducted a meeting with the participants of the inspection to discuss the safety issues that had been identified. [83] Following the conclusion of that meeting, the WHSQ inspectors issued47 Enco with six separate improvement notices48 and one infringement notice.49 In summary, the safety issues identified in the notices were described, as follows: (a) Notice No. I2011967: several trip and fall hazards were observed and photographed, including electrical leads, production materials and waste laying in and around the workplace. (b) Notice No. I2011969: Mr Stanley observed and photographed contravention of access to engage lifting equipment to concrete beams, which were stacked "three high". This posed a risk to workers of a falls from one level to another. 47 On the following days. 48 Exhibit 2, SJ-1, pages 29-34. 49 Ibid, page 35. -- 23 of 63 -- 24 (c) Notice No. I2011972: lifting equipment (slings) which were not on the lifting equipment register were observed and photographed. (d) Notice No. I2011968: Mr Stanley observed and photographed incompatible chemicals stored together and inadequate chemical bunding was used to store chemicals in the chemical storage area. Hazardous chemicals stored in the area were not on the chemical register and did not have safety data sheets (SDS). (e) Notice No. I2011970: electrical leads and equipment that were out of test and tag date were observed and photographed, including electrical leads running through the workshops, production areas without mechanical protection and extension leads "piggy backed" to excessive lengths. (f) Notice No. I2011971: Mr Stanley observed and photographed that there were no identified pathways or signage around the site to separate vehicle and plant from the workers under normal working conditions and in an emergency. The fencing that had been installed to prevent access to the travel path of overhead cranes was in ill repair, missing parts and did not have adequate warning signage. (g) Infringement Notice I025350: regulation 346(1)(b) of the Regulations was contravened, being the register was not properly maintained to ensure the information in the register is up to date. [84] The respondents contend that because the permit holders were ultimately permitted to enter the site on 5 September 2019 and conduct a safety inspection with WHSQ, that the dispute, at least in so far as it relates to reasonable suspicion, was resolved. 4. Does the Commission have jurisdiction to assist in the resolution of the dispute as described by Enco? [85] Section 142 of the WHS Act authorises the Commission to exercise wide powers to deal with a dispute about the exercise, or purported exercise, by a WHS entry permit holder of a right of entry under the WHS Act.50 However, in order to exercise such powers, I must be satisfied that a dispute about entry as described by s 142(1) of the WHS Act exists. [86] As noted above, two of the issues that I must consider in this matter is whether the permit holders held a reasonable suspicion in the terms of s 117(2) of the WHS Act and whether the workers were "relevant workers" within the meaning of s 116 of the WHS Act. [87] The respondents accept that the dispute, in so far as it relates to whether the workers were "relevant workers" within the meaning of s 116 of the WHS Act, is a dispute which falls 50 In Construction, Forestry, Mining and Energy Union (New South Wales Branch) v Acciona Infrastructure Australia Pty Ltd and Ferrovial Agroman (Australia) Pty Ltd t/as the Pacifico Acciona Ferrovial Joint Venture [2017] NSWIRComm 1000 ("Acciona"), [55], Murphy C described the powers as being "extremely wide". -- 24 of 63 -- 25 within the Commission's powers to deal with a dispute pursuant to s 142 of the WHS Act.51 The basis of that position is that it is accepted that the parties continue to maintain their respective positions about the eligibility of the workers to be members of the union and that position will continue and effect future attempts to enter the workplace. [88] However, with respect to the question as to whether the permit holders held a "reasonable suspicion" on 3, 4 and 5 September 2019, the respondents submit that that dispute has been resolved by Enco permitting entry on 5 September 2019 and the safety issues having been addressed on that day. [89] This dispute, in so far as it relates to the allegation as to whether the permit holders held a reasonable suspicion, was a live dispute on 3 and 4 September 2019. That is because on each of those days, the permit holders issued a notice of entry wherein they purported to hold a reasonable suspicion about an alleged contravention of the WHS Act. On each of these occasions, the permit holders were refused entry. [90] On 5 September 2019, however, when the permit holders sought entry on the basis that they held a reasonable suspicion52 they were, ultimately, permitted to enter the site and an inspection subsequently occurred identifying several safety issues which were the subject of improvement notices and one infringement notice. [91] I do not consider that there is a dispute about whether the permit holders held a reasonable suspicion about the matters required by s 117 before entry, because on 5 September 2019, the permit holders were permitted to enter the site and the entry was affected. Accordingly, the dispute about whether the permit holders held a reasonable suspicion before entry is no longer in dispute. [92] Enco further argues that the "reasonable suspicion" issue is part of the foundation of the dispute, which gives the Commission its jurisdiction to deal with the matter under s 142 of the WHS Act. [93] I do not consider that the dispute, in so far as it relates to whether the entry permit holders held a reasonable suspicion, creates the foundation of the dispute on the basis that the dispute about those matters has been resolved. [94] That is not to say, however, that the Commission does not have jurisdiction pursuant to s 142 of the WHS Act. I consider that the foundation of the dispute is the dispute, which is of an ongoing nature, regarding whether the union is eligible to represent the industrial interests of the "relevant workers". The nature of that dispute is of a kind that remains unaffected by the entry because future entries at the Enco site will require the dispute about the union's eligibility to represent the workers at the site to have been resolved. 51 T3-56, ll 35-37. 52 The permit holders provided notices of entry and explained that the purpose of the entry was to close out the issues which they had not yet been permitted to close out from 3 September 2019 and 4 September 2019, see Exhibit 2, [63]. -- 25 of 63 -- 26 [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 2019.53 [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. [97] In case my conclusion that there is no dispute able to be resolved about "reasonable suspicion" is wrong, I have detailed my reasoning in relation to whether the permit holders held a "reasonable suspicion" further below. 5. Did the permit holders hold a "reasonable suspicion" that a suspected contravention had occurred, or was occurring, that affected relevant workers 5.1. Onus – who must establish reasonable suspicion? [98] Enco and the respondents each respectively contend that the onus rests with the other to establish whether there was (or was not) a reasonable suspicion for the purpose of s 117 of the WHS Act on each of the days of the relevant attempted entries. [99] The respondents submitted that Enco bears the onus of establishing that the permit holders did not have a reasonable suspicion,54 on the basis that Enco is the only party seeking orders. [100] In the alternative, Enco contends that the onus to prove whether the permit holders held a reasonable suspicion, lies with the permit holder.55 In support of its position, Enco relied on the Explanatory Notes to the Workplace Health and Safety Bill 2011, which identifies that there is an intention that the permit holder be required to prove the suspicion is reasonable, in the following circumstances:56 Subclause 117(2) requires the WHS permit holder to reasonably suspect before entering the workplace that the contravention has occurred or is occurring. If this suspicion is disputed by another party, the onus is on the WHS permit holder to prove that the suspicion is reasonable. 53 Work Health and Safety Act 2011 (Qld) ss 145 and 146. 54 Respondents' Final Submissions dated 5 December 2019, [21]. 55 Applicant's Outline of Submissions dated 22 November 2019, [11] – [13]. 56 Explanatory Notes, Work Health and Safety Bill 2011 (Qld), 67. -- 26 of 63 -- 27 [101] Further, Enco submits that as the permit holders were the only persons with the ability to know and prove the facts, they bear the onus of establishing a reasonable suspicion.57 [102] It appears, by reference to the Explanatory Notes, that it was parliament's intent that the onus rests with the permit holders to establish reasonable suspicion, if the suspicion is disputed by another party. That intention is consistent with the relevant authorities,58 in so far as the party who has the ability to know and prove the facts bears the onus of establishing them. Here, it is the permit holders who have the ability to prove the basis of the reasonable suspicion. [103] Accordingly, it is for the permit holders to discharge the onus to establish that they held a reasonable suspicion, in circumstances where that suspicion is disputed by Enco. 5.2. Consideration of the term "reasonable suspicion" – the authorities [104] The parties referred to a number of authorities considering the phrase "reasonable suspicion". The context of the phrase, as it appears within s 117(2) of the WHS Act, relevantly, is as follows: (1) A WHS entry permit holder may enter a workplace for the purpose of inquiring into a suspected contravention of this Act 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. [105] In George v Rockett (1990) 170 CLR 104 at 112, the High Court considered the term "reasonable grounds" for a state of mind including suspicion, as follows: When a statute prescribes that there must be "reasonable grounds" for a state of mind – including suspicion and belief - it requires the existence of facts which are sufficient to induce that state of mind in a reasonable person.59 [106] The New South Wales Industrial Commission in Construction, Forestry, Mining and Energy Union (New South Wales Branch) v Acciona Infrastructure Australia Pty Ltd & Anor ("Acciona")60 when considering a similar provision of the Work Health and Safety Act 2011 (NSW),61 had regard to the following authorities: 65 In R v Rondo, an authority relied upon by both parties, the Court of Criminal Appeal considered the term "reasonably suspects" in the context of section 357E of the Crimes Act 1990 which was, at the time of those proceedings, in the following terms: 357E A member of the police force may stop, search and detain: 57 Johnson v Triple C Furniture & Electrical Pty Ltd [2010] QCA 282, [52] – [54]. 58 Ibid. 59 George v Rockett (1990) 170 CLR 104, 112 (Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ). 60 [2017] NSWIRComm 1000, [65]-[66] (Murphy C). 61 Work Health and Safety Act 2011 (Nsw) s 117. -- 27 of 63 -- 28 (a) any person whom he or she reasonably suspects of having or conveying any thing stolen or otherwise unlawfully obtained or any thing used or intended to be used in the commission of an indictable offence; or (b) any vehicle in which he or she reasonably suspects there is any thing stolen or otherwise unlawfully obtained or any thing used or intended to be used in the commission of an indictable offence. 66 After considering the authorities cited in Streat v Bauer; Streat v Blanco (unreported, Supreme court, NSW, Smart J, Nos 13686, 13687 of 1996, 16 March 1998) Smart AJ stated as follows at [53]: 53 These propositions emerge: (a) A reasonable suspicion involves less than a reasonable belief but more than a possibility. There must be something which would create more than a possibility. There must be something which would create in the mind of a reasonable persona an apprehension of fear of one of the state of affairs covered by s. 357E. A reason to suspect that a fact exists is more than a reason to consider or look into the possibility of its existence. (b) Reasonable suspicion is not arbitrary. Some factual basis for the suspicion must be show. A suspicion may be based on hearsay material or materials which may be inadmissible in evidence. The materials must have some probative value. (c) What is important is the information in the mind of the police officer stopping the person or the vehicle or making the arrest at the time he did so. Having ascertained that information the question is whether that information afforded reasonable grounds for the suspicion which the police officer formed. In answering that question regard must be had to the source of the information and its content, seen in the light of the whole of the surrounding circumstances. [107] After considering these authorities, the New South Wales Industrial Commission concluded that:62 67 In the present matter, the question to be answered was whether or not there was some factual basis, some material or materials with probative value, which would create in the mind of a reasonable person a suspicion that Pacifico had contravened, or was contravening, s 19 of the WHS Act by failing to ensure, so far as is reasonably practicable, the psychological health of workers engaged on the Site. [108] I propose to adopt a similar approach in this matter. I will consider whether or not there was some factual basis or material/s with probative value which would create, in the mind of a reasonable person, a suspicion that Enco had contravened, or was contravening, s 19 of the WHS Act. 62 Construction, Forestry, Mining and Energy Union (New South Wales Branch) v Acciona Infrastructure Australia Pty Ltd & Anor [2017] NSWIRComm 1000, [67]. -- 28 of 63 -- 29 5.3. Did the right of entry permit holders hold a reasonable suspicion? 5.3.1. Particulars included in the notice [109] One of the arguments raised by Enco is that the notices of entry purportedly given, as required by s 119 of WHS, did not describe the suspected contraventions in any meaningful way so as to enable Enco to determine whether they should allow the respondents onto the site.63 Enco relied on Australian Licensed Aircraft Engineers Association v Qantas Airways Ltd64 ("ALAEA"), where Justice Flick stated:65 127 …An inability on the part of a permit holder to adequately "specify the particulars" may assist in reaching a conclusion that a permit holder does not "reasonably suspect" that a contravention has occurred or is occurring. [110] Enco submitted that the lack of meaningful particulars of the suspected contravention strongly suggests that the permit holders did not reasonably suspect that a contravention had occurred or was occurring. [111] The respondents contend that the reliance on the ALAEA decision is misplaced on the basis that the statutory regime for entry, pursuant to the WHS Act, is materially different to that contained in the FW Act. Relevantly, under the WHS Act, a permit holder does not have to give the occupier notice of the suspected contravention prior to entering, whereas, under the FW Act, the permit holder must give the occupier notice of the suspected contravention prior to entry. [112] I accept the respondents' submissions that the reliance on the passage from the ALAEA decision is misplaced, when considering the statutory regime for entry pursuant to the WHS Act. The requirements for entry under the WHS Act differ to the requirements for entry contained in the FW Act. The differences include that a permit holder under the FW Act,66 must, before entering, give the occupier of the premises an entry notice for the entry and particulars of the suspected breach must be specified in the entry notice.67 [113] The requirements under the WHS Act were considered by the Full Court of the Federal Court of Australia in Ramsay v Menso,68 as follows: 42 Fourth, we note that s 125 of the WHS Act requires that the permit holder, at all times that he or she is at a workplace under a right of entry under Divs 2 or 3 of the WHS Act, have his or her WHS entry permit and photographic identification available for inspection by any person on request. It follows that in exercising the right of entry under ss 117 and 119 the permit holder must have the permit and photographic identification with him or her, but not necessarily, the notice of entry. Provided the reasonable suspicion required by s 117 exists, it is the permit and the photographic identification which ensure that the occupier of the site can be satisfied that the person exercising the right of entry is both empowered to do so, and is the 63 Applicant's Outline of Submissions in reply dated 22 November 2019, [17]. 64 Australian Licensed Aircraft Engineers Association v Qantas Airways Ltd [2018] FCA 1065. 65 Ibid, [127] (Flick J). 66 Fair Work Act 2009 (Cth) s 487(1)(a). 67 Ibid, s 518(2). 68 Ramsay v Menso [2018] FCAFC 55, [42] (Dowsett and Collier JJ). -- 29 of 63 -- 30 person described in the permit. To that extent the logical purpose of the provision of a notice after entry is to create a record of the entry, to inform the occupier of the premises of the nature of the reasonable suspicion held, and to demonstrate the entitlement, under the relevant organisation's rules, to represent the relevant workers. [114] Accordingly, the purpose of an entry notice under the WHS Act is to create a record of entry and to, inter alia, inform the occupier of the premises the nature of the reasonable suspicion held. [115] I consider that the notices provided by the permit holders on 3, 4 and 5 September 2019 were adequate in so far as they informed Enco of the nature of the reasonable suspicion held. That is, the suspicion related to the lifting register not being complete and up to date and access and egress around the site being non-compliant under normal or emergency situations. Consequently, I am not able to draw the inference sought to be drawn by Enco, that any perceived lack of particulars strongly suggests that the permit holders did not reasonably suspect that a contravention had occurred or is occurring. 5.3.2. Evidence of the permit holders with respect to the formation of suspicion [116] Enco further argues, that there was no objectively reasonable basis for the permit holders to hold the suspicion.69 [117] The key factors relied on by Enco to assert that the suspicion could not be objectively reasonable include that: (a) The permit holders relied on hearsay information provided by Mr Ingham on 3, 4 and 5 September 2019 as the basis for their suspicion of the alleged contravention.70 (b) No permit holder spoke to Mr Stott, the individual who took the call on the hotline, on 3 September 2019.71 (c) No permit holder received information from Mr Stott regarding the alleged contravention. The permit holders did not know the identity of the alleged caller or the nature of the work or whether the alleged caller worked at the Enco site.72 [118] The respondents argue that the permit holders on 3, 4 and 5 September 2019 did hold a reasonable suspicion that the WHS Act was, or was in the process of, being contravened. [119] The respondents contend73 that the following evidence give rise to a sufficient basis to suspect that a contravention of the WHS Act was occurring, including that: 69 T3-27, ll 15-45. 70 T3-27, ll 43-45. 71 T3-27, ll 1-2. 72 T3-27, ll 4-7. 73 Respondents' Outline of Submissions dated 12 November 2019, [25]. -- 30 of 63 -- 31 (a) it was the common experience of the permit holders that the complaints made to the hotline were not fabricated; (b) a complaint was made; and (c) the substance of the complaint, if proven, was sufficient to give rise to a contravention of the s 19 of the WHS Act. [120] The respondents contend the substance of the complaint was "referred to the permit holders by a trusted source and was accurate."74 Additionally, the reasonableness of the suspicion as to the substance of the complaint was confirmed by the inspection of the Enco site on 5 September 2019, when the suspicions were born out.75 [121] Enco is critical of the permit holders in so far as they spoke to Mr Ingham who conveyed the information from Mr Stott but did not speak to Mr Stott directly. Enco submitted that the information should have been treated with caution, having been passed on in a "slap- dash" fashion, having no written record but put to memory and passed on only within the union.76 [122] In order to examine this contention, it is necessary to consider the evidence in relation to the receipt of the complaint by the union and how the information was conveyed to the permit holders. [123] As noted above, the unchallenged evidence of Mr Stott was that he received a complaint through the union's safety hotline. His evidence was that the conversation with the complainant was, as follows:77 Complainant: 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 point on it. It has been knocked around and I don't think it is listed on the lift register. Mr Stott: Okay. Anything else? Complainant: There is shit everywhere throughout the site. Things are put where there is an empty spot and stuff is just checked in there. The place is a mess. [124] Mr Stott's evidence is that he tried to submit the complaint to the WHSQ website, following the call, however, he was unable to do so. [125] Mr Stott says that he spoke to Mr Ingham and described the safety issues at the Enco site as follows: "[l]ifting devices and register and housekeeping. Also sounds like access and egress."78 74 Respondents' Final Submissions dated 5 December 2019, [80]. 75 Respondents' Outline of Submissions dated 12 November 2019, [25]. 76 T3-29, ll 6-13. 77 Exhibit 15, [26]. 78 Exhibit 15, [40]. -- 31 of 63 -- 32 [126] Mr Stott said that he provided handwritten notes he had taken of the call to Mr Ingham for him to read.79 Mr Stott's evidence is that he was then able to log the complaint with WHSQ by filling out a form partly headed “Complaint about a Work Health and Safety or Electrical Safety Issue”. Mr Stott described the safety issue on the WHSQ form as follows:80 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. [127] Mr Stott states that he advised Mr Ingham that he had received the response to the complaint from "the department" and asked which organiser did Mr Ingham want Mr Stott to send it to. Mr Ingham nominated Mr Seiffert and Mr Desmond. [128] Mr Stott emailed the response from WHSQ, Mr Seiffert, Mr Desmond and others at 10.22am.81 [129] Mr Stott was cross-examined82 in relation to the difference in language he attributed to the complainant in his affidavit and how he described the safety issue to Mr Ingham and on the WHSQ form. [130] In relation to the entry regarding the lifting equipment as being not on the lifting equipment register, Mr Stott conceded83 that the positive assertion that the lifting equipment was not on the lifting register was an error on his behalf and he should have stated, instead that there was a "suspicion that it may not be on the register". [131] Further, Mr Stott was cross-examined in relation to his statement that there were "access and egress through work areas in normal and emergency conditions not satisfactory". He explained,84 "like I said, my experience in – in the industry, that's always going to be identified as poor housekeeping, which also relates to your access or egress." [132] Mr Stott was asked85 where a reference to "access and egress" could be found in any of the legislation. After being given a copy of the WHS Act and Regulations to find such a provision,86 Mr Stott identified s 40(a) of the Regulations. [133] Section 40(a) of the Regulations relevantly states: 79 As referred to above, the handwritten notes were discarded by Mr Stott after he logged the complaint with WHSQ. 80 Exhibit 15, TS-2. 81 Ibid, TS-4. 82 T1-99, ll 22-46 to T1-105, ll 1-29. 83 T1-101, L 32. 84 TI-101, ll 44-45. 85 T1-102, L 5. 86 T1-102, ll 21-23. -- 32 of 63 -- 33 40 Duty in relation to general workplace facilities A person conducting a business or undertaking at a workplace must ensure, so far as is reasonably practicable, the following – (a) the layout of the workplace allows, and the workplace is maintained so as to allow, for persons to enter and exit and to move about without risk to health and safety, both under normal working conditions and in an emergency; … Maximum penalty—60 penalty units. [134] Mr Stott explained that his reference to access and egress was a reference to the language used in s 40 of the Regulations where it states "for person to enter and exit and move about". [135] Mr Desmond's evidence was that on 3 September 2019, Mr Ingham approached him and Mr Seiffert on the union premises and advised, as follows:87 I am glad you two are here. This morning the safety hotline received a complaint about Enco from a worker on site. The issues relate to the lift register not being updated and there may be faulty lifting gear there. There are also access and egress issues. [136] Mr Desmond states,88 that based upon his experience at the Enco site, that he thought there were eligible workers and he took the complaint to the safety hotline at face value, and for those reasons, suspected the WHS Act was being breached as outlined by the complaint. Namely, he thought Enco was not providing a safe system of work as required by the WHS Act. [137] Mr Seiffert also gives evidence of being approached by Mr Ingham about the safety complaint on the morning of 3 September 2019. His evidence is in similar terms to Mr Desmond's evidence.89 [138] Generally, the evidence of Mr Seiffert and Mr Desmond is that Mr Ingham advised them of the complaint and requested that they attend the Enco site. Mr Seiffert's and Mr Desmond's evidence was that based on the information that had been conveyed to them, they formed a suspicion which they considered to be a reasonable suspicion. [139] Mr Gibson's,90 Mr Harding's91 and Mr Davidson's92 evidence is that on 5 September 2019, Mr Ingham and Mr Seiffert met with them and conveyed information that had been received from the union's safety hotline. In relation to Mr Gibson and Mr Davidson, they 87 Exhibit 17, [22]. 88 Ibid, [26]. 89 Exhibit 21, [12]-[17]. 90 Exhibit 19, [18]. 91 Exhibit 20, [18]. 92 Exhibit 18, [15]. -- 33 of 63 -- 34 had also received a telephone call from Mr Ingham the previous evening during which information regarding the complaint has been conveyed to them. [140] The evidence of Mr Gibson, Mr Harding and Mr Davidson was to the same general effect, in that they relied on the information provided, together with their experience of responding to complaints logged with the safety hotline, to form a suspicion that they contend was reasonable. 5.4. Consideration [141] One of the ways in which the objects of the WHS Act93 is achieved is by permitting WHS entry permit holders to enter a workplace for the purpose of enquiring into a suspected contravention of the WHS Act, that relates to, or effects, a relevant worker. However, the WHS Act imposes some conditions on such entry, including that before entering the workplace, the permit holder must reasonably suspect that a contravention had occurred or was occurring.94 [142] In Australian Building and Construction Commission v Powell95 the Full Court of the Federal Court held that notwithstanding the closely-regulated environment of industrial and employment legislation, provisions relating to entry on to worksites and the regulation thereof should be construed conformably with the language used by Parliament and with an eye to common sense, so that they and can be implemented in a clear way on a day to day basis at work sites. [143] The union has instituted a process to receive complaints about safety issues whereby, it receives complaints via the safety hotline that are then logged with WHSQ and passed onto the entry permit holders. Some of the criticism made by Enco with respect to the reliability of the information conveyed to the entry permit holders in this matter arises out of the process the union has adopted to receive safety complaints. [144] The evidence of the entry permit holders in this matter is that they had previously received complaints about WHS matters from workers at sites or members of the public using the safety hotline. The evidence was that the union has created a dedicated safety hotline to channel workplace health and safety complaints, in order for them to be managed by the union and then inspected by the relevant WHS entry permit holders. The evidence was that the union has specific employees who attend the safety hotline and record the complaints that are logged with WHSQ. [145] The consequence of this process, however, is that all complaints recorded through the safety hotline, when conveyed by the recipient of the complaint, either directly or indirectly, to the permit holders will be in the form of hearsay information. 93 Work Health and Safety Act 2011 (Qld) s 3. 94 Ibid s 117(2). 95 [2017] FCAFC 89, [15] cited with approval in Ramsay v Menso [2018] FCAFC 55, [39] -- 34 of 63 -- 35 [146] As noted in the extract from the Acciona decision above, a suspicion may be based on hearsay material or material which may be inadmissible in evidence, so long as the suspicion is not arbitrary, that there is some factual basis for the suspicion as shown and the material has some probative value. [147] The information conveyed by the complainant was the name and the address of the workplace and specific information regarding the maintenance of the lifting equipment and the lifting equipment register, as well as matters relating to the upkeep of the site. In that regard, the information is not a complaint about general, non-specific matters but, rather matters that specifically relate to the lifting equipment, lifting register and the upkeep of the site. [148] As noted above, there is no submission made by Enco that the complaint was not received. Accordingly, I have concluded that there is a factual basis for the suspicion and that it arises from the complaint being received by the union safety hotline. [149] Enco's submissions were to the effect that the information that was provided was unreliable, in so far as it was conveyed from Mr Stott to Mr Ingham, who then conveyed it to the permit holders. Accordingly, consideration must be had as to whether that information afforded reasonable grounds for the suspicion to be formed. [150] Whilst Mr Stott says the written record of the complaint that he made at the time he received the telephone call was not retained, there is a contemporaneous note of the conversation in so far as that approximately one hour and fifteen minutes96 after receiving the complainant, Mr Stott logged the complaint with WHSQ. His evidence was that he relied on his written notes taken from the telephone call to log the complaint with WHSQ.97 [151] When one looks at the manner in which Mr Stott described the complaint on the WHSQ form, it accords generally with the information that the permit holders say Mr Ingham conveyed to them. The information that was conveyed from Mr Stott through Mr Ingham to the permit holders was not altered in any substantive manner by that chain of communication. That is, the substance of the complaint, being that it was about the maintenance of the lifting equipment and lifting equipment register and access and egress around the site, was maintained. [152] Further, Mr Stott's evidence is that he forwarded the email containing the complaint logged with WHSQ to Mr Seiffert and Mr Desmond. It was not put to either Mr Seiffert or Mr Desmond that they had not receive the email from Mr Stott. [153] Each of the permit holders gave direct evidence in relation to the information they received and say they relied on the content of the information provided by Mr Ingham. Further, the information from Mr Ingham was received within the context of each of the permit holders having been advised that the complaint has been received through the union's safety hotline 96 T1-96, ll 25-33 and Exhibit 15, TS-3. 97 T1-96, ll 23 -29. -- 35 of 63 -- 36 and each of them having had prior experience of complaints received by the union safety hotline as being generally valid. [154] I consider that it was reasonable for the permit holders to rely on information that came from a trusted source, being Mr Ingham, who advised that the complaint had been received through the union's safety hotline. [155] Further, Enco complains that the entry permit holders did not seek the identifying details, including the name of the complainant. [156] Section 130(1) of the WHS Act provides that a WHS entry permit holder is not required to disclose to the relevant person conducting the business or undertaking, or the person with management or control of the workplace, the name of any worker at the workplace. [157] Section 130(2) of the WHS Act provides that should the WHS entry permit holder wish to disclose the name of the worker, they may only do so with the consent of the worker. [158] In this regard, Mr Stott's evidence98 was that it was his practice not to take the name of the worker in order to ensure that there was no inadvertent disclosure of the worker's name in connection to a right of entry inspection. [159] It was put to Mr Stott during cross-examination,99 that surely, he would report back to the worker with respect to the investigation that was conducted. Mr Stott's evidence,100 was that there were no report back to the complainants in relation to a complaint made to the safety hotline. [160] I do not consider that in order to hold an objectively reasonable suspicion, that the name of the complainant need be taken, if other information of probative value is received from the complainant. In this instance, other information was relayed including information identifying the site and specific information relating to the operations at the site, namely information relating to the maintenance of lifting equipment, the lifting equipment register and access and egress issues around the site. [161] The information conveyed to the permit holders was of probative value in so far as it identified potential contraventions of the WHS Act as it referred to matters which could potentially be in contravention of s 19 of the WHS Act and s 40 of the Regulations. [162] In forming the view that the information was of probative value, I have not had regard to the respondents' submission that the testing of the permit holders' suspicion must be done in light of the uncontested evidence that the suspicion was born out when the inspection occurred and multiple safety issues were identified including with respect to the lifting 98 Exhibit 15, [14]. 99 T1-95, ll 33-45; T1-95, ll 40-41. 100 T1-95, ll 35-38. -- 36 of 63 -- 37 equipment register. Such a consideration is irrelevant, as to whether the suspicion was objectively reasonable before the entry.101 [163] I have concluded that the permit holders received information by way of a complaint made to the safety hotline which afforded reasonable grounds for the suspicion to be formed. I consider the information that was conveyed was of probative value and consequently, I consider that the suspicion was objectively reasonable. 6. Were the workers at the site "relevant workers" within the meaning of s 116 of the WHS Act? [164] Enco contends that on the attempted entries on 3 and 4 September 2019 and on the entry on 5 September 2019, that the union and individual respondents were in contravention of s 117 of the WHS Act because there were no "relevant workers" at the site. [165] Section 116 defines a relevant worker in relation to a workplace, to mean a worker who is a member, or eligible to be a member of a relevant union;102 and whose industrial interests the relevant union is entitled to represent;103 and, who works at that workplace.104 Enco contends that the workers were not eligible to be members of the union. [166] It was apparent from the evidence that there had been some ongoing issues between Enco and the union with respect to whether the union was entitled to represent the industrial interests of the workers. From the immediate arrival of the entry permit holders at the site, Mr James' was resistant to them entering the site. He questioned the veracity of the purported complaint in words such as "… I know the claim is bullshit because no one who works here could even spell 'lifting gear register' so they didn't make a complaint."105 [167] In cross-examination, it was put to Mr James that his position, that there had been no complaint, was based on his distrust of the union, to which he stated "I'd have no objection to that."106 Further, when Mr Seiffert and Mr Desmond arrived on the site on 3 September 2019, Mr James told them "the CFMEU are never coming on this site."107 [168] As Enco did not ultimately make submissions at the hearing that the complaint had not been made Mr James' comments are relevant only in so far as they highlight that there is ongoing dispute between Enco and the union with respect to whether the union is eligible to represent workers at the Enco site. 101 Work Health and Safety Act 2011 (Qld) s 117(2). 102 Ibid s 116(a). 103 Ibid s 116(b). 104 Ibid s 116(c). 105 T1-17, ll 1-5. Under cross-examination Mr James was asked whether he recalled saying this, to which he responded "[n]ot those exact words, but something of that nature, I'm sure." 106 T1-13, ll 43-44. Although Mr James later clarified that his objection was not based solely on that but also "what they had said didn't make sense." 107 T1-17, ll 19-21. -- 37 of 63 -- 38 [169] Perhaps because of the noted history between the parties, a significant component of the hearing dealt with the issue regarding the union's eligibility. [170] My resolution of this dispute insofar as it relates to the eligibility of the union to represent the workers at the Enco site will require consideration of the relevant eligibility rules, including how they are to be construed, together with evidence regarding the composition of the products produced at the Enco site and the consideration of the evidence Enco seeks to rely on regarding the primary function of the employees at the Enco site. 6.1. Construction of union eligibility rules [171] The general principles regarding the interpretation of union eligibility rules are well established. They may relevantly be summarised,108 as follows: (a) the general rule of construction is that eligibility provisions should be construed liberally rather than narrowly or technically; R v Cohen; Ex parte Motor Accidents Insurance Board;109 Re Union of Postal Clerks and Telegraphists; Ex parte Australian Telephone and Phonogram Officers' Association;110 (b) union eligibility rules will be construed objectively;111 (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: R v Williams; Ex parte Australian Building Construction Employees' and Builders Labourers' Federation.112 Federal awards, including consent awards, made by Commonwealth industrial tribunals at a time when the 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: Co-operative Bulk Handling Ltd v Waterside Workers' Federation of Australia;113 (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 108 The Australian Manufacturing Workers' Union v ResMed Limited [2014] FWCFB 3501. 109 (1979) 141 ALR 263; 141 CLR 577 at 581, 587. 110 (1986) 66 ALR 227, 235. 111 R v Williams; Ex parte Australian Building, Construction Employees' and Builders Labourers' Federation (1982) 153 CLR 402, 407. 112 (1982) 153 CLR 402, 407. 113 (1980) 49 FLR 355, 370. -- 38 of 63 -- 39 understood that the scope of the eligibility rule is not restricted by the scope of the industry rule); R v Gough; Ex parte Municipal Officers' Association;114 (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: R v Gough; Ex parte Municipal Officers' Association;115 Construction, Forestry, Mining and Energy Union v CSBP Ltd;116 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; Co-operative Bulk Handling Ltd v Waterside Workers' Federation of Australia.117 This may mean that eligibility rules may cover industries or callings not known when the rules were originally drafted: R v Isaac; Ex parte Transport Workers' Union.118 [172] In order to ascertain whether an employee is eligible to be a member of the union, it is necessary to assess the primary function of employment as against the eligibility rule.119 [173] The focus of the evidence during the hearing was with respect to several provisions of the union's eligibility rule, rule 2, specifically the terrazzo rule and the FEDFA rule. I will consider whether workers at Enco fall within the potential coverage of the terrazzo rule and the FEDFA rule for the purpose of determining whether they are "relevant workers" within the meaning of s 116 of the WHS Act. 6.2. Onus to establish the "relevant worker" [174] The respondents' position is that the onus in relation to the issue of eligibility rests with Enco. The respondents submit that in determining whether the union was entitled to represent the industrial interests of the employees on the Enco site, that, not only does Enco have an onus in proving that the workers were not eligible to join the union, the evidence as to the primary function of the employees is within Enco's knowledge. [175] Enco appears to concede, at least to some degree, that it bears the evidentiary onus regarding the primary function of the workers.120 114 (1975) 133 CLR 59, 69. 115 Ibid. 116 (2012) 212 IR 206, [52]-[53]. 117 (1980) 49 FLR 355, 363-364. 118 (1985) 159 CLR 323, 331. 119 Construction, Forestry, Mining and Energy Union v CSBP Ltd (2012) 212 IR 206, [44]. 120 Applicant's Outline of Submissions in reply dated 22 November 2019, [22]. -- 39 of 63 -- 40 [176] Matters with respect to the consideration of the eligibility of the workers to join the union fall largely within the power of Enco, as the employer, to produce.121 Accordingly, I consider that the onus rests with Enco to establish that the workers are not "relevant workers" within the meaning of s 116 of the WHS Act. 6.3. The nature of the operations at Enco [177] Before considering the composition of the products produced by Enco (collectively "the Enco products"), it is necessary to consider Enco's operations and the products it produces. Enco's operations include manufacturing precast concrete products. The evidence referred to the production of prestressed concrete beams, bridge deck units (slabs), parapet units (slide walls as protection barriers for bridges) and hexagonal piles.122 Enco has also previously manufactured concrete ramps for shopping centre carparks and it produced the precast concrete products used in the construction of Suncorp Stadium.123 [178] The manufacture of the precast concrete products at the facility involves the pouring of the concrete product into specified moulds. Following this, installation of steel reinforcement bars into the profiled moulds takes place. The bars are shaped to the required profile. [179] Steel reinforcing bars are bent to required shapes to suit the cross-sectional profile of the specific element to be produced. A prestressing process then takes place. [180] The completed product is removed from the steel form work once the concrete is set. The gantry cranes are used to remove the product from the moulds, as well as other activities. The concrete used by Enco is supplied to the site by a third party.124 6.4. Rule 2(A)(A)(1)(i) – ("the terrazzo rule") [181] The terrazzo rule appears in the union's eligibility rules, as follows: 2 CONSTITUTION (A)(A) The Union shall consist of an unlimited number of persons whether male or female (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 and/or (2) who, otherwise than as employees or employers, follow an occupation in or in connection with the industry or industries of: 121 Apollo Shower Screens Pty Ltd v Building and Construction Industry Long Service Payment Corporation (1985) 1 NSWLR 561, 565. 122 Exhibit 10, page 8. 123 T1-35, L 37 to T1-36, L 21. 124 Exhibit 10. -- 40 of 63 -- 41 and/or (3) who, otherwise than as employees or employers, are engaged in the industrial pursuit or pursuits of: (i) carpenters and joiners ... and all ... 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 ...." (Emphasis added) [182] Each of Enco and the respondents relied on expert opinion as to whether the material prepared and/or erected by those workers engaged at the Enco site was of a similar composition to terrazzo. [183] The Macquarie Dictionary defines the word "similar" as "having likeness or resemblance, especially in a general way". The word "composition" is defined in the Macquarie Dictionary as "the act or combining parts or elements to form a whole", "the manner in which such parts are combined", "the resulting state or product", "make-up, constitution" and "a compound or composite substance". [184] The Full Court of the Federal Court has previously considered the terrazzo rule in the context of another precast concrete manufacturing site in Rescrete Industries Pty Ltd v Commissioner Jones of the Australian Industrial Relations Commission (1998) 86 IR 269 ("Rescrete"). [185] Rescrete operated two sites and produced precast concrete products. In approaching the application of the terrazzo rule, the Full Court in Rescrete considered the matter, as follows:125 As earlier noted the contention of the CFMEU which was accepted by the Commission, was that the occupation, calling or industrial pursuit of persons "engaged in the preparation and/or erection of terrazzo or similar compositions" described all or at least some of the employees of Rescrete. This expression contains several elements. The first contentious element is that the employee was engaged in work associated with a material that was or had a similar composition to terrazzo. 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. 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 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, 125 Rescrete Industries Pty Ltd v Commissioner Jones of the Australian Industrial Relations Commission (1998) 86 IR 269, 279. -- 41 of 63 -- 42 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. [186] Rescrete can be distinguished from this matter, to the extent that in this matter, expert evidence was called with respect to the composition of the Enco product and terrazzo. Further, the expert evidence in this matter addressed whether both the Enco product and terrazzo could be reinforced with load bearing steel. [187] I will adopt the approach taken by the Full Court in Rescrete and consider whether the Enco products and terrazzo are composed of elements with similar characteristics to the elements of terrazzo. [188] In adopting this approach, I will consider the following three matters raised by the parties: (a) whether the common elements between the products may be distinguished because of the type of aggregate used; (b) whether, because of the way in which the products are finished, they are not of similar composition; and (c) whether the products are able to be reinforced with steel. 6.5. Common elements – cement, water and aggregate [189] At the outset, I accept that the Enco product and terrazzo are not the same product. I further accept that it is highly unlikely that Enco would ever manufacture its product using terrazzo. However, these are not the issues for me to determine in this matter. The relevant consideration is whether the Enco product is of similar composition to terrazzo. [190] The Enco products are composed of a mixture, in a generic sense, of cement, water and aggregate.126 The composition of terrazzo, in a generic sense, is also cement, water and aggregate.127 To this degree, I find they are of a similar composition. [191] Each of the experts also identified that the size and type of aggregate could differ between the products and each contained admix additives. Enco argues that because of the difference in aggregate used, the Enco product could not be said to be of a similar composition to terrazzo. [192] Mr Alex Milligan produced two reports which were tendered into evidence.128 Mr Milligan's first report,129 in summary, identified that Enco manufactured precast prestressed concrete products for use in the construction industry. He states that130 the 126 T1-78, ll 6-7. 127 T1-78, ll 16-17. 128 Exhibits 10 and 11. 129 Exhibit 10. 130 Exhibit 11, [3.1.1] -- 42 of 63 -- 43 constituents of the concrete used by Enco are Portland cement, water and aggregate. He further states that the aggregate used for plain concrete is a mix of crushed rock/stone which will be naturally occurring gravels such as limestone and granite and typically will be specified as having a maximum particles size of 20 mm. The crushed rock/gravel will be mixed and graded with finer material such as sand. The crushed rock/stone aggregate is plain and non-decorative. In order to achieve the required minimum strength to enable removal of precast elements from formwork within 24 hours, chemical agents may be added by the concrete supplier. [193] Mr Herzog produced a report,131 which was tendered into evidence. His evidence was that concrete is a mix of cement, fine and coarse aggregate particles, water and possibly admix additives. He states that terrazzo is made using cement fine aggregate, desired coarse aggregate and possibly admixes. He further states the coarse aggregate132 will also make up the appearance of the surface after the surface has been finished. [194] Each of the experts accepted that the aggregate used in the Enco product will be of a differing type to the aggregate used in terrazzo. The aggregate used in the Enco product may, for instance, be of a stronger or higher load bearing variety, whereas the aggregate added to the terrazzo may be included for aesthetic reasons. The aggregate that could be added was variable in relation to both products. The aggregate for the Enco product is variable to the extent that it is composed of a variety of gravel, including limestone and granite, which is variable in size, up to a maximum size of 20mm. Further, the Enco product depends upon specifications required by clients of Enco in relation to the strength of the concrete and/or the required look of the Enco product. Similarly, the aggregate included in a terrazzo composition might be included purely for aesthetic purposes and could include an array of aggregates to achieve the desired effect including quartz, marble and glass. Mr Herzog also accepted133 that pigment could be added to the wet cement when making terrazzo if a particular hue was sought. However, under cross-examination, Mr Herzog clarified that the pigment itself does not make the terrazzo product134 and that terrazzo can rely on the natural colour of the concrete.135 [195] The Enco product and terrazzo are each composed of cement, aggregate, water and admix additives. I have concluded that while the type of aggregate used may by variable in terms of type, size or volume, that such a distinction does not detract from a conclusion that the products have a "likeness or resemblance especially in a general way" with respect to their compositions. For this reason, I have concluded that based on the elements of the Enco product and terrazzo, they are of similar composition. 6.6. Finish of the products [196] Enco contends that the key difference between the Enco product and terrazzo was the finish. It was not in dispute between the parties that terrazzo has an exposed aggregate 131 Exhibit 16. 132 For example, quartz or marble. 133 T2-9, L 20. 134 T2-9, L 18. 135 T2-9, ll 30-31. -- 43 of 63 -- 44 finish whereas the Enco product does not. The issue for my consideration is whether the finish to the terrazzo product compared to the Enco product is of such a nature so as to conclude that the products are not of similar composition. [197] Mr Herzog, who specialises in material engineering, expressed a view that a key feature of terrazzo was its finish rather than its composition.136 He described137 the process of finishing terrazzo as follows: A thick block of the mix is then cast, allowed to cure so the required strength is reached. The block of concrete is sliced to the required thickness, ground, honed and sometimes polished to produce the required surface finish. [198] Relevantly, Mr Herzog expressed the view that a terrazzo finish is a particular type of concrete finish.138 The aggregate is not exposed until the concrete is grinded or cut down.139 The Enco product is not grinded or cut down to expose the aggregate. [199] In relation to the Enco product, Mr Milligan described140 that following removal of the hardened concrete from the mould, no secondary finishing operations are undertaken to expose the surface. [200] Enco submitted that the difference between how the products were finished resulted in them not being of similar composition for the purpose of the terrazzo rule. When considering what constitutes "composition", Enco submitted:141 …it depends not just on what goes into it but it also depends on how you go about putting it together. And composition, in our submission, of our client's products is dependent upon the way in which they go about it. In that, the surface of their products is straight off the mould. You don't see the aggregate because the aggregate is mixed through and it's not exposed. And nothing is done post removal of the mould to do anything to affect its composition… [201] In this respect, I have relied on the dictionary meaning of "similar" and "composition". I do not consider that the process of finishing terrazzo after it has cured affects its composition. All that the finishing process does is expose the aggregate from the block of concrete to produce a desired aesthetic. It does not alter the composition of the terrazzo product, to the extent that its composition is not similar to the Enco product. I do not consider that the manner in which terrazzo is finished results in terrazzo and the Enco product not being of similar composition. 6.7. Steel reinforcement [202] Enco contends that a further distinguishing feature between the Enco product and terrazzo, is that the Enco product is reinforced with steel. 136 T2-6, ll 34-35. 137 Exhibit 16, H-H3, pages 21-22. 138 T2-10, ll 1-2. 139 T2-9, ll 9-13. 140 Exhibit 11, [3.1.4]. 141 T3-21, ll 18-23. -- 44 of 63 -- 45 [203] Unlike in Rescrete, I have before me expert opinion in relation to whether terrazzo is able to be reinforced with steel. Mr Herzog accepted,142 that not all terrazzo products, for example terrazzo tiles, were reinforced with steel. He stated that while terrazzo is mostly used as cladding and paving material, it can also be used for load bearing structures.143 [204] When terrazzo is designed and manufactured for structural purposes, the concrete can be steel reinforced and the mix designed to have the required compression strength.144 [205] Whilst under cross-examination, Mr Herzog did refer to some terrazzo panels being reinforced with chicken wire in the context of reinforcing wall panels.145 However, he also referred to the process of making a structural beam whereby the concrete mix would be formulated to provide the slump with the required compression strength that could be poured into a mould with reinforcement.146 This is consistent with the opinion expressed in his written report that terrazzo may be reinforced with steel to be used for load bearing structures. [206] Mr Herzog's opinion that terrazzo, when produced to be load bearing, is reinforced with steel was not disturbed under cross-examination. [207] Neither of Mr Milligan's reports,147 directly expressed an opinion as to whether terrazzo may be reinforced with steel. However, Mr Milligan did accept under cross-examination148 that if terrazzo was used to produce precast wall panels, suspended flooring or driveways, that it would likely to be reinforced with steel.149 [208] Taking into account the expert opinion of Mr Herzog in particular,150 I find that when terrazzo is produced to be load bearing, it may be reinforced with steel. I also find that the Enco product is reinforced with steel. On this basis, I consider that both products are able to be reinforced with steel and, to that extent, are of similar composition. I am not satisfied that the evidence produced by Enco is able to establish that the products are not of similar composition on the basis that they may both be reinforced with steel in order to be load bearing. 142 T2-7, ll 20-21. 143 Exhibit 16, HH3, page 22. 144 Ibid. 145 T2-7, ll 11-18. 146 T2-7, ll 39-43. 147 Exhibits 10 and 11. 148 Although, he did not readily accept whether terrazzo would be used to produce wall panels, suspended flooring or driveways. 149 T1-79, ll 11-12, ll 41-42 and T1-80, ll 4-9. 150 On the basis that he directly expressed an opinion as to whether terrazzo, when produced to be load bearing, may be reinforced with steel. -- 45 of 63 -- 46 6.8. Consideration of the expression "preparation and/or erection" in the context of the terrazzo rule [209] A second limb to the terrazzo rule relevant to this matter, is whether the workers were engaged in the preparation and/or erection of terrazzo or similar compositions. [210] The expression "preparation and/or erection" in the context of the terrazzo rule, was considered in Rescrete. The Full Court relevantly noted151 that it was consistent with the ordinary meaning of "preparation" for it to be treated as a reference to the process of mixing the constituent elements of terrazzo to create the material which either remained on site or was taken to a site and then stored, or to use the language of the rule, "erected". [211] The evidence was that Enco has five precast production lines, although during normal operations it operates three to four production lines a day.152 Typical production cycles are one beam per day, per form. [212] The concrete used by Enco to produce its product is not prepared on site, but rather, is bought to the site by ready mix trucks.153 Once the concrete arrives at the site, it is poured into moulds and cured at the site. Following the period of curing, the completed beams are removed from the form work by the use of the overhead crane. I consider the process of manufacture undertaken by Enco to produce the Enco product, to fall within the meaning of the terms "preparation" and "erection" within the terrazzo rule. I consider that the second limb to the terrazzo rule is established. 6.9. Conclusion regarding the terrazzo rule [213] Based on the evidence before me, I have concluded that the composition of the Enco product and terrazzo are similar. Each of the products are composed of cement, water and aggregate of varying size, admix and are able to be reinforced with steel. I do not consider the fact that the production of terrazzo involves an additional step after the curing of the product, to hone down and/or grind the surface to expose the aggregate, to be a process which distinguishes the Enco product from terrazzo in terms of its composition. [214] I have formed the view that the process of finishing the terrazzo does not alter the make up or constitution of the terrazzo product in such a way that its composition does not have a likeness or resemblance in a general way to the Enco product. [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. 151 Rescrete Industries Pty Ltd v Commissioner Jones of the Australian Industrial Relations Commission (1998) 86 IR 269, 280. 152 Exhibit 2, [12]. 153 Exhibit 10, page 12. -- 46 of 63 -- 47 6.10. Rule 2E - The FEDFA rule [216] A further issue in this proceeding is whether the workers at the Enco site fall within r 2E of the CFMEU's rules ("the FEDFA rule"). The FEDFA rule, relevantly, is in the following terms: (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 workers 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 truck 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 for 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 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. -- 47 of 63 -- 48 (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. [217] The evidence identified four categories of work that potentially could establish that the workers might be eligible to be a member of the union by operation of the FEDFA rule. The categories of work were, as follows: (a) the operation of the bobcat skid-steer; (b) the work of boiler attendants; (c) the operation of the gantry cranes; and (d) the operation of the hydraulic pumps for the purposes of the prestressing process. [218] It is necessary to assess the work performed by the employees to determine if the four categories of work form part of the primary function of the employment. 6.11. The evidence relating to primary function of the workers [219] As noted above, the onus rests with Enco to prove that the workers were not eligible to join the union. The evidence as to the primary function of the employee's employment falls within the control of Enco to produce. [220] In considering the primary function of an employee, it is not simply a question of the employee's title or the way in which the employee or the employer views their duties, but rather, it is determined by looking at what the employee does in the context of the employer's organisation of work.154 The characterisation of the primary function for which work is engaged is one of fact and degree. It is ultimately a value judgment.155 [221] Enco relied on the evidence of Mr James, Mr Duric and Mr Day. Mr Duric is employed as a foreman at the Enco site and Mr Day is employed as the operations manager. Mr Day's evidence156 was that Enco employed approximately 25 employees as general labourers. Mr Day's evidence157 was that the operations manager (Mr Duric), the foreman and three quality officers reported to him. Mr Duric's evidence158 was that Enco has four leading hands, who he delegates tasks to. The leading hands supervise the general labourers. Other 154 Joyce v Christoffersen (1990) FCR 261, 279 (Gray J). 155 Federated Clerks Union of Australia WA Branch v Cary (1977) 57 WAIG 585, 586 (Burt CJ). 156 Exhibit 8. 157 Exhibit 8, [8]. 158 Exhibit 5, [7]. -- 48 of 63 -- 49 than the position description for precast (or general) labourers, Enco did not produce any further position descriptions for the roles performed at the site. [222] The position description tendered described the position as "precast labourers."159 Whilst a job title is not of itself determinative on the question of eligibility, it is something that may be considered.160 The position description of the precast labourer role identified the following tasks: 2.1.11. Precast Labourer May be responsible for the following tasks: • Cleaning and oiling moulds • Assembling moulds • Setting moulds • Placing reinforcing cages • Placing concrete • Tarping product and mould for stream curing • Applying surface retardants and curing agents • Using power tools e.g. drills and grinders • Concrete repair • General shovelling of waste concrete • Cleaning • Occasional use of gantry cranes for small lifts when deemed competent [223] The position description refers to the precast labourers as occasionally using gantry cranes for small lifts when deemed competent. Mr Day provided examples161 of small lifts as "closing moulds, moving rubbish bags, moving reinforcement cages to the production line and installing them and generally assisting with anything that is too heavy for two people to lift." [224] Mr Day162 referred to some of the Standard Operating Procedures used by Enco to train its workers to perform the required tasks Enco produced. Eighteen standard operating procedures were tendered into evidence,163 including the Standard Operating Procedure for Gantry Cranes. 159 Ibid, FD1 page 54. 160 Joyce v Christoffersen (1990) 26 FCR 261, 278. 161 Exhibit 8, [20]. 162 Exhibit 8. 163 Exhibit 8, FD1. -- 49 of 63 -- 50 [225] The respondents submitted that the evidence adduced by Enco was deficient in regard to the following relevant information: (a) the names or classification of the employees employed at the site; (b) the circumstances in which the employees were employed; (c) the nature of the offer extended to them; (d) the detailed nature of the work performed by each employee on a daily basis within the context of the applicant's business; and (e) evidence from any of the employees about the nature of their work on a daily basis. [226] I consider there to be some force to the respondents' submissions in this regard. My determination of this matter would have been assisted by more detailed and direct evidence of the work performed by individual workers, particularly with respect to the pre-cast labourers and the leading hands. [227] The respondents submitted that Enco has relied on generalised assertions from management, as to the type of work performed. Under cross-examination,164 and after agreeing that the purpose of his evidence was to assist the Commission to understand the nature of the work being performed at the workplace, Mr James stated: …the purpose of your evidence is to assist the Commission to understand the nature of the work being performed at the workplace, correct? ---Not in detail. It's to assist, but we certainly don't provide detail because we haven't even talked about distressing of our pre-stress either, and that's the main thing that we do. [228] Similarly, Mr Duric accepted,165 that he had, in his evidence, only given a summary of some of the tasks performed by the precast labourers and that he did not describe how these tasks related to the organisation of work at the Enco site. The evidence produced by Enco was generalised and/or silent in respect to some of the components of work undertaken by the workers. [229] The respondents further submitted that the evidence in relation to the function of the employees was, inter alia, missing key details. Mr Day accepted under cross-examination that Enco had something in the order of 40 standard operating procedures166 yet only 18 standard operating procedures were attached to his affidavit.167 Mr Day further accepted that so far as a standard operating procedure applies to a task that is performed by a worker then that it is an accurate description of the task. It follows from this that there are 164 T1-41, ll 32-36. 165 T1-60, ll 3-13. 166 T1-65, ll 40-45. 167 T1-66, ll 1-2. -- 50 of 63 -- 51 approximately 20 standard operating procedures applying to tasks which have not been tendered before the Commission. [230] The respondents argued that where Enco has chosen not to call any evidence from specific employees or not given evidence about each employee's specific role and duties, the Commission may find itself in the position where no conclusion can be reached about the primary function of each of the workers at the site. It was submitted by the respondents that if that was the case, then the application should be dismissed. I will address these matters further below. 6.12. The operation of the bobcat skid-steer [231] Enco has a bobcat skid-steer on site with various attachments, including a bucket and fork attachment. [232] Enco argued that the FEDFA rule is specific and only entitles the union to cover forklift drivers. [233] The respondents argue that the term "engine"168 is a term of very broad meaning and that it has been held that plant operators fall within coverage of the FEDFA rule.169 The bobcat skid steer is a piece of plant that is operated by workers at the Enco site. I consider that when operating that plant, the workers are potentially eligible to be members of the union pursuant to the FEDFA rule. [234] Enco further submitted that it does not employ anyone as a forklift driver and that all competent employees who operate the bobcat skid-steer do so as an ancillary role to their employment at Enco. [235] Mr James gave evidence170 that the bobcat skid-steer is used approximately one hour per day in the yard by various labourers depending on the tasks required for the day. Under cross-examination, Mr Day accepted that he did not refer to the task of operating the bobcat skid-steer in his affidavit, that the operation of the bobcat skid-steer is a task that is missing from the evidence he provides in his affidavit about the work performed by the workers at the site and there is no reference to operating the bobcat skid-steer in the duties described in the precast labourer position description.171 [236] There was evidence that when the bobcat skid-steer was being used to lift items it could be operated by the store person or a couple of other workers who were deemed competent to use the bobcat skid-steer. 172 The respondents submit that Mr James gave no evidence about the person employed as a store person and further that it can be readily inferred that the driving of the skid-steer (as a forklift) would be a regular part of the duties of a store person. 168 As it appears in the FEDFA rule. 169 See Federated Engine Drivers' & Fireman's Association of Australasia, Re [1958] AR (NSW) 689, 695. 170 Exhibit 3, [14]. 171 T1-67, ll 22-37. 172 T1-74, ll 5-7. -- 51 of 63 -- 52 Mr Day in his evidence,173 agreed that at the Enco site there was a dedicated store person and further accepted that he did not refer to that role in his affidavit. In re-examination, Mr Day stated the following about the role performed by the store person:174 …The situation with the store person is that he monitors the store for deliveries; probably spends two to three hours per day in there, maximum. He assists with concrete testing early in the morning. And he is also being groomed up to be our safety officer as well. [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. 6.13. The work of the boiler attendants [240] The FEDFA rule refers to the following: …any other workers assisting in and about incidental 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… [241] Enco operates a boiler which produces steam to cure the Enco product. The respondents submit176 that the boiler does not generate power but that it utilises power on land, meaning that it would fall within the FEDFA rule. [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.177 Mr Duric holds a ticket deeming him competent to perform this task. The second 173 T1-66. 174 T1-73, ll 13-16. 175 Although, there was a reference to a maintenance person using the sweep to clear the roads. 176 T3-70, ll 43-45. 177 T1-52, ll 45-46. -- 52 of 63 -- 53 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.178 [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.179 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 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. [246] The duties undertaken by the night duty officer appears to be more clearly associated with the operation of the boiler. [247] Mr James did not refer to the role of the night duty officer in his evidence in chief. Under cross-examination, his evidence was that whilst the boiler was automated, the night duty officer plays a role in the regulation of the steam to ensure the Enco product is curing properly. Mr James describes the task of the night duty officer as being a "ramp up process" in the following terms: ---Well he has a – 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. [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. 178 T1-53, ll 8-10. 179 Exhibit 5, GD-1. -- 53 of 63 -- 54 [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. 6.14. The operation of the gantry cranes [250] The relevant provision of the FEDFA rule reads as follows; (E) Without limiting the generality of the foregoing and without being limited thereby the following are eligible to be members of the Union:- An unlimited number of all classes of engine drivers, firemen, crane drivers, mobile crane drivers, … [251] Enco utilises 12 gantry cranes at its site. [252] There are two 63 tonne cranes, two 50 tonne cranes, two 32 tonne cranes, two 16 tonne cranes, two 12.5 tonne cranes and two 4.9 tonne cranes used in the course of the production at the Enco site. [253] Enco argues that operating these cranes does not make the workers eligible to be members of the union pursuant to the FEDFA rule because the workers operate the crane rather than drive the crane, and further, that the operation of the cranes is not a primary function of the workers' employment. [254] In support of its contention that the cranes are operated by crane operaters rather than crane drivers, Enco relied on several authorities which considered the meaning of the word "to drive". [255] In Portlock v Baulderstone Hornibrook Engineering Pty Ltd ("Portlock"),180 the New South Wales Supreme Court was required to consider whether a crane was being driven at the time of the relevant injury in order to determine whether the matter was to to be governed by the provisions of the Motor Accidents Compensation Act 1999 or alternatively, the Workers' Compensation Act 1987. [256] In Portlock, the court considered several authorities with respect to what constitutes "driving", as follows: [69] The question of what constitutes "driving" for the purposes of the Act has recently been considered in the Court of Appeal and in the High Court. In Mercantile Mutual Insurance Australia Ltd v AAMI Ltd (1999) 29 MVR 393 Giles JA said: 'Driving' connotes the activity of driving, and the word is used with that connotation in the Act. The primary meaning in the definition of 'driver' is a person driving, that is, engaging in the activity of driving. When the primary meaning is amplified by the inclusion of a person for the time being in charge of a motor vehicle, the person must be in charge of a vehicle which is being driven 180 [2005] NSWSC 775. -- 54 of 63 -- 55 although not driving it himself. It is necessary that there be a driving of the motor vehicle, since being in charge of a motor vehicle cannot of itself amount to fault. (para 22) That statement of principle makes it clear that there is a distinction between operating the crane as a crane and driving it in the sense of actual control and management of the vehicle while it is moving. [70] Similarly in Insurance Commission of Western Australia v Container Handlers Pty Ltd (2004) 78 ALJR 821 the following comments were made in relation to the concept of driving in the context of this kind of legislation: The Act does not define "driving". The debate regarding the Amendment Bill in the Legislative Council indicates that the word was to have its ordinary English meaning. 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 activity that can be described as "driving" and one that cannot be so described. In any event, neither the decisions nor the reasoning in each case support the proposition that, after the driver has stopped and got out of the vehicle, he or she is still driving it. (McHugh J, para 52) That is the operation of a motor vehicle while it is in the control of a driver in the course of putting it into, keeping it in, or bringing its motion to a conclusion. (Callinan J, para 133) On the true construction of the policy in the light of s 3(7), it will not indemnify the owner or driver in respect of liability for negligence which may be incurred by that owner or driver in respect of death or bodily injury to any person caused by the motor vehicle, unless the death or injury is directly caused by the driving of the vehicle or by its running out of control. The full range of possible causes of injury by the agency of a motor vehicle is cut down to those which can be characterised as being a consequence of its driving or its running out of control, and further cut down by the requirement that the causal relationship must be characterised as being direct and not something wider. Since the language of the Schedule and s 3(7) is plainly intended as a means of narrowing the scope of indemnity, it is further appropriate to construe the word "consequence" as referring to something narrower than the wide ideas often encompassed in law by references to "causation" and its derivatives: "consequence" here refers to a narrower segment of the wider class of "causes". So far as the process of cutting down is effected by the reference to the driving of the vehicle, the expression is preceded by the definite article, and is used in the composite phrase "a consequence of the driving of that vehicle or of the vehicle running out of control". In that context at least, the words "the driving" refer to the actual control and management of the vehicle while it is in locomotion. "The driving" of a vehicle, in at least its core meaning in this context, is the activity conducted by a human being in the driver's seat who manages and directs the course of its movement by operating the controls — preparing to start, starting, accelerating, braking, steering, giving appropriate signals, operating the horn and lights appropriately, stopping and turning the engine off. In contrast, when the vehicle runs out of control, it is because the course of its movement has ceased to be managed and directed by the operation of the controls, or because, -- 55 of 63 -- 56 while stationary, its brakes have failed or it has been struck by another vehicle and it has moved off out of control. (Heydon J, para 153) [257] Mr Murdoch QC, for Enco, submitted181 that the authorities referred to in Portlock refer to circumstances when a crane is being driven as opposed to operated and that the distinction was drawn between driving the crane and the "lifting up and down functions". [258] Mr Murdoch QC accepted the proposition that on Enco's reading of the FEDFA rule, the rule does not apply to a crane on a worksite that is being operated as opposed to being driven on a road.182 [259] The gantry cranes at the Enco site are all single hoist cranes and, as noted above, have varying lifting capacities. They are operated by the use of a remote control by a worker who is on the ground. The remote control is used to perform the lifting mechanism as well as to execute the travel of the crane along the tracks. The crane travels along fixed tracks and may be operated at slow or fast speeds. The remote control includes a means by which the worker can apply the brakes to stop the motion of the crane.183 [260] It is apparent from the above, that the operator is in control of the cranes when, inter alia, it is in motion and travelling along the tracks. I consider that the exercise of control by the operator to put the crane in motion to travel along the tracks at varying speeds and stopping the crane can be described as driving the crane within the meaning of the relevant authorities. In support of this conclusion, I have considered the relevant principles in construing eligibility rules, including that they should be construed liberally rather than narrowly or technically.184 [261] Further, eligibility rules should not be interpreted statically but rather, should be interpreted in association with their appropriate current meaning taking into account changing technologies and methods of work.185 Changing technologies have allowed gantry cranes to be operated or controlled remotely from the ground. However, the crane is still under the control of the operator who remotely puts the crane in motion, controls the speed of travel of the crane and when it stops. [262] Further, Enco's submissions that crane drivers could only relate to cranes whilst they are being driven (for example, on the road) does not have proper regard to the term "crane driver" as it appears within the context of the rule. Following the reference to "crane drivers" in the FEDFA rule is a reference to "mobile crane driver". Thereby, the rule while including both, refers to crane drivers and mobile crane drivers separately. I consider that the FEDFA rule encompasses drivers of both mobile cranes and cranes. The gantry crane would fall within the category of "crane" as it is not a mobile crane. 181 T3-10, ll 33-43. 182 T3-12, L 41 to T3-13, L 15. 183 Exhibit 7, page 2. 184 Electrical Trades Union of Australia v Waterside Workers Federation of Australia No 2 (1982) 42 ALR 587, 595. 185 Co-operative Bulk Handling Ltd v Waterside Workers Federation of Australia (1980) 32 ALR 541, 550. -- 56 of 63 -- 57 [263] Accordingly, I find that a worker who controls the gantry crane is a crane driver for the purpose of the FEDFA rule. [264] The second contention raised by Enco is that the operation of the crane is not a primary function of the workers at the Enco site. [265] Mr James' evidence included a table whereby he calculated the average hours per day the cranes were used at the site. The table relevantly states:186 Crane Number Hoist Serial No Average hours per work day 2 27111 0.279242385 3 26866 0.279242385 7 11079-1 0.010647518 8 11079-2 0.010647518 9 26726-1 0.095648015 10 26726-2 0.095648015 11 27128-1 0.062056271 12 27128-2 0.062056271 13 28022 0.916633105 14 28367 0.352 15 28762-1 0.054272517 16 28762-2 0.115473441 [266] Mr James stated that his calculation was based on the time that the load is lifted. He estimated that the time the crane is in total use would be double the time for cranes 2 and 3 and one and a half times the time for the remaining cranes.187 Taking into account this information, that would mean, for instance, the total use for cranes 2 and 3 would be 0.558485 hours per day, crane 13 would be 1.37495 hours per day and crane 14 would be 0.528 hours per day. [267] The respondents submitted that Mr James' calculations were based on calendar days rather than operating days.188 The respondents provided an alternative calculation, distinguishing the figures provided by Mr James with figures based on the crane's operating days, as follows:189 Crane no. Crane serial no. Average hours per work day specified by Mr James True average hours per work day 2 26866-CR2 0.279242385 0.4248 (1091 hours/ [10.7 years x 240 days operating per year]) 3 27111 0.279242385 0.4248 (1091 hours/ [10.7 years x 240 days operating per year]) 186 Exhibit 2, [37]. 187 Exhibit 2, [39]. 188 See T1-46, ll 5-39. 189 Respondents' Final Submissions dated 5 December 2019, Schedule 1. -- 57 of 63 -- 58 7 11079-1 0.010647518 0.0162 (86 hours/ [22.1 years x 240 days operating per year]) 8 11079-2 0.010647518 0.0162 (86 hours/ [22.1 years x 240 days operating per year]) 9 26726-1 0.095648015 0.1449 (400 hours/ [11.5 years x 240 days operating per year]) 10 26726-2 0.095648015 0.1449 (400 hours/ [11.5 years x 240 days operating per year]) 11 27128-1 0.062056271 0.0945 (236 hours/ [10.4 years x 240 operating days per year]) 12 27128-2 0.062056271 0.0945 (236 hours/ [10.4 years x 240 operating days per year]) 13 28022 0.9165633105 2.0507 (3346.75/ [6.8 years x 240 operating days per year]) 14 28367 0.352 1.0501 (1285.41 hours/ [5.1 years x 240 operating days per year]) 15 28762-1 0.054272517 0.0825 (47.54 hours/ [2.4 years x 240 operating days per year]) 16 28762-2 0.115473441 0.1749 (100.75 hours/ [2.4 years x 240 operating days per year]) [268] I accept that the correct calculation is that which is based on operating days as opposed to calendar days. [269] Given that the calculations are lift loading times, a similar calculation is able to be conducted for the time of the total use of the cranes by using the formula for total use time provided by Mr James. On this basis, cranes 2 and 3 are in use for 0.8496 hours per operating day (lift load time x 2), crane 13 is in use for 3.07605 hours per operating day (lift load time x 1.5) and crane 14 is in use for 1.57515 hours per operating day (lift load time x 1.5). [270] Mr Duric provided in his affidavit,190 a spreadsheet purportedly representing an average day of a precast labourer at the Enco site. The spreadsheet depicts that the labourers operated the cranes sporadically and at limited times. [271] However, Mr Duric accepted under cross-examination, that the spreadsheet only gave a summary of some of the tasks performed by the labourers and that he did not describe how 190 Exhibit 5, GD-1. -- 58 of 63 -- 59 those tasks related to the organisation of work at the Enco site.191 For this reason, I consider that the spreadsheet attached to Mr Duric's affidavit is of limited utility and I prefer to rely on the evidence of the total use of cranes per day identified above. [272] It is clear that the data from the tables identifies that the cranes are used for varying lengths of time per day, with some cranes operating for up to three hours per day, another for one and a half hours per day and the remaining for variable lengths of time of less than one hour per day. [273] The cranes are dispersed around the Enco site where work is performed, including, for instance, at the steel shop area, at various points along the production line, and at the point where the Enco product is stored and later loaded onto trucks.192 Cranes 13 and 14 are located at the commencement of the production lines whereas cranes 2 and 3 are located after the production line. There was no evidence adduced about the type of lifts each of the cranes performed at the various locations. [274] Enco has cranes operating simultaneously across the site. It was explained,193 that the reason why Enco has so many cranes operating is because production still continues whilst trucks are being loaded. This is consistent with the cranes being located at various positions across the site and is also consistent with the conclusion that the operation of cranes is an integral component of production of the Enco product. [275] The gantry cranes enable Enco to not only allow workers to perform small lifts safely but also to enable the production of the Enco product. Without the gantry crane, the Enco product would not be able to, inter alia, be moved along the production line, stored or loaded onto trucks. [276] As noted above, cranes are utilised to perform small lifts and large lifts. Most of the labourers are deemed competent to perform at least the small lifts.194 The large lifts which might include lifting the final Enco product out from the moulds and/or storing it, and/or loading it onto a truck, may involve lifting 20 tonnes or more of Enco product. There are safety risks associated with lifting such a heavy product.195 [277] The lifting of the large lifts using the gantry crane is not referred to within the precast labourer position description.196 It was Mr Duric's evidence, that "a couple of key guys" are used to perform the large lifts.197 There was no further evidence adduced from Enco about the identity of the "key guys" and what role they were employed to perform. An inference could be drawn that because of the absence of any reference in the precast labourer position description to "large lifts" and because of the safety risks associated with conducting the large lifts, that the "couple of key guys" referred to are the leading hands 191 T1-60, ll 3-13. 192 Exhibit 5, GD-1, page 1. 193 Exhibit 5, [25]. 194 T1-43, ll 19-20. 195 T1-43, ll 25-26. 196 T1-71, ll 32-33. 197 Exhibit 5, [24]. -- 59 of 63 -- 60 engaged by Enco. Further, if there are only a couple of employees who perform this work, given the importance of the work to the operations of Enco and the time spent performing the work, an inference is available to be drawn that operating the gantry crane was a primary function of the relevant workers. [278] However, I have ultimately concluded that, on balance, such an inference should not be drawn due to the absence of evidence regarding the identity of the "key guys", the roles they performed and whether they were the employees who were operating the cranes for large parts of the working day. [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. 6.15. The operation of the hydraulic pump [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. [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. -- 60 of 63 -- 61 7. Commissioner of Police v Seiffert & Ors ("Seiffert")198 [284] Following the hearing of this matter, Enco forwarded a copy of the decision of the District Court of Queensland in Seiffert, together with supplementary submissions. I issued Directions providing the respondents with an opportunity to file further supplementary submissions in reply. [285] In Seiffert, the Commissioner of Police sought to appeal the decision of a magistrate, finding that there was no case to answer against each of the defendants. The defendants in that matter included Mr Seiffert. [286] Mr Seiffert and others had been charged with trespass contrary to s 11(2) of the Summary Offences Act 2005 (Qld), when they sought entry into the Enco premises and unlawfully remained on the premises. [287] Mr Seiffert and the other defendants were seeking to exercise a right of entry at Enco under s 118 of the WHS Act. The charge identified the dates of the offence as being 17 December 2018, some many months before the attempted entries and entry considered by me in this matter. I note that during the course of this proceeding and submissions made by the parties, that neither Enco nor the respondents referred to the matter of Seiffert. [288] At first instance, the magistrate determined that upon a proper construction of s 11(3) of the Summary Offences Act 2005 (Qld), an immunity from liability is conferred upon authorised industrial officers who remain at a workplace in order to exercise a right of entry under s 118 of the WHS Act. [289] Rafter DCJ found that the finding of the magistrate ignored the rights of the occupier.199 Rafter DCJ found200 that the magistrate erred in ruling that the respondents had no case to answer and ordered that the appeals be allowed and the orders by the magistrate dismissing the charges be set aside. As the charges were dismissed after the close of the prosecution case, Rafter DCJ found that the respondents did not have an opportunity to give or call evidence and accordingly, remitted the matter to the Magistrates Court to proceed according to law. The decision in Seiffert is subject to an appeal to the Court of Appeal.201 [290] Enco submitted202 that in relation to the current matter, the right of entry permit holders entered the site and were asked to leave. It was further submitted that when they did not comply with the request to leave, the officials were trespassing on the site and that their continued presence as trespassers is a matter relevant to my deliberation of this dispute. [291] In reliance of its position, Enco referred to several passages203 of the Seiffert decision, including [75], where Rafter DCJ states: 198 Commissioner of Police v Seiffert & Ors [2020] QDC 50. 199 Ibid, [59]. 200 Ibid, [140]. 201 Respondents' Further Supplementary Submissions dated 12 May 2020. 202 Supplementary Submissions of the Applicant filed 7 May 2020, [3]. 203 Commissioner of Police v Seiffert & Ors [2020] QDC 50, [38] – [75]. -- 61 of 63 -- 62 Although Mr Ryan contended that it was doubtful that s 142 WHS Act applied to a dispute about the right to remain on premises, I consider that the provision does enable the Industrial Commission to deal with such matters. The fact that s 142(5) WHS Act provides that in dealing with a dispute the Industrial Commission must not confer any rights on the WHS entry permit holder that are additional to, or inconsistent with, rights exercisable by the entry permit holder, is an indication of the broad role of the Commission: see for example Construction, Forestry, Mining and Energy Union (New South Wales Branch) v Acconia Infrastructure Australia Pty Ltd & Ors. The WHS entry permit holder must reasonably suspect that a contravention has occurred or is occurring before entering the workplace. Where that is disputed, the Industrial Commission can deal with the issue under s 142 WHS Act. (Citations omitted) [292] From the above, it appears that Rafter DCJ expressed a view that a right to remain on premises may be a matter the Commission can deal with pursuant to s 142 of the WHS Act. [293] However, a dispute about whether the officials had a right to remain on the premises did not form part of the subject matter of the dispute filed by Enco in this matter. The notice of the dispute filed on 3 September 2019 was stated to be a dispute about the attempt of right of entry pursuant to s 117 of the WHS Act on 3, 4 and 5 September 2019 based on the union's ability to represent relevant workers as defined by s 116 of the same act, and the existence of a reasonable suspicion that a suspected contravention has occurred, or is occurring, that effects a relevant worker. [294] Accordingly, I do not consider that the matters raised by Enco in its supplementary submissions are relevant to my disposition of this matter. I further note, that in any event, the factual circumstances in this dispute may be able to be distinguished from those in Seiffert, because on 3 and 4 September 2019, the inspectors issued improvement notices to Enco, requiring Enco to, inter alia, permit the entry by the right of entry permit holders. 8. Should the relief sought by Enco be granted? [295] I decline to make the orders sought by Enco and dismiss the application. [296] I determine that the jurisdiction of the Commission to assist in the resolution of the dispute, did not extend to whether the right of entry permit holders held the requisite "reasonable suspicion" pursuant to s 117 of the WHS Act for entry, because entry based on that suspicion was affected on 5 September 2019. In case that conclusion was wrong, I considered whether the right of entry permit holders discharged the onus on them to establish that they held a reasonable suspicion before the entry. I conclude that the onus was discharged. [297] I further conclude that the workers are eligible to be members of the union on the basis of the terrazzo rule. I do not accept that the matters relied on by Enco were of such a nature for me to conclude that the Enco product and terrazzo were not of similar compositions. Relevantly, each product is composed of cement, water, aggregate of varying size and admixes and are able to be reinforced with steel. I do not consider that the finishing process -- 62 of 63 -- 63 of grinding or honing the concrete for terrazzo alters the composition so that it is no longer similar to the Enco product. [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. 9. Order [299] The application is dismissed. -- 63 of 63 --