Australian Federated Union of Locomotive Enginemen, Union of Employees v Australian Railways Union [1990] QSCFC 89 [1992] 1 Qd R 121

IN THE SUPREME COURT % Ko rc OF QUEENSLAND FULL COURT APPEAL NO 82 of 1989 BETWEEN : THE AUSTRALIAN FEDERATED UNION OF LOCOMOTIVE ENGINEMEN, QUEENSLAND, UNION OF EMPLOYEES Appellant AND: AUSTRALIAN RAILWAYS UNION OF EMPLOYEES QUEENSLAND BRANCH Respondent THE CHIEF JUSTICE DERRINGTON J de JERSEY J Reasons for judgment delivered by The Chief Justice and Derrington J on the 21st November, 1990. de Jersey J agrees with the reasons of the Chief Justice and Derrington J. The Chief Justice, Derrington J and de Jersey J concurring as to the .orders. "APPEAL ALLOWED. ORDER THE APPLICATION BE REMITTED TO THE FULL INDUSTRIAL COURT FOR ALL NECESSARY ADJOURNMENTS TO BE ENTERED AND FOR THE APPLICATION TO BE DETERMINED ACCORDING TO LAW . ORDER THE RESPONDENT PAY THE APPELLANT 'S COSTS OF AND INCIDENTAL TO THE APPEAL TO BE TAXED. " iolo[1990] QSCFC 89 -- 1 of 25 -- IN THE SUPREME COURT OF QUEENSLAND Appeal No. 82 of 1989 Before the Full Court The Chief Justice Mr. Justice Derrington Mr. Justice de Jersey BETWEEN : THE AUSTRALIAN FEDERATED UNION OF LOCOMOTIVE ENGINEMEN, QUEENSLAND, UNION OF EMPLOYEES Appellant -and- AUSTRALIAN RAILWAYS UNION OF EMPLOYEES QUEENSLAND BRANCH Respondent JUDGMENT - THE CHIEF JUSTICE Delivered the twenty-first day of November, 1990. CATCHWORDS : Counsel: Mr. G.C. Martin for the Appellant. Mr. D. Hall for the Respondent. Solicitors: C.A. Sciacca & Associates for the Appellant. Roberts & Kane for the Respondent. Hearing dates: 17 and 18 October, 1990 -- 2 of 25 -- IN THE SUPREME COURT OF QUEENSLAND Appeal No. 82 of 1989 BETWEEN: THE AUSTRALIAN FEDERATED UNION OF LOCOMOTIVE ENGINEMEN. QUEENSLAND, UNION OF EMPLOYEES AUSTRALIAN Appellant -and- RAILWAYS UNION OF EMPLOYEES QUEENSLAND BRANCH JUDGMENT - Respondent THE CHIEF JUSTICE Delivered the twenty-first day of November, 1990. This appeal arises out of proceedings commenced by the Australian Railways Union of Employees Queensland Branch (A.R.U.) which were designed to prevent the appellant, The Australian Federated Union of Locomotive Enginemen, Queensland, Union of Employees (A.F.U.L.E.) from enrolling in its membership, persons who had been engaged in the State's railway industry as "guards". Orders had been sought to compel the A.F.U.L.E. to comply with its rules and also to cancel, in part, its registered list of callings by striking out words "and all assistants to the foregoing callings" which were appended to a number of nominated callings in that registered list. In the course of the hearing which, for jurisdictional reasons, resulted in what was described by the Court below as a joint sittings of the Full Industrial Court and the Industrial Court the proceedings became transformed into ones in which the making of a declaration upon the right of the A.F.U.L.E. under its existing constitution to enrol "guards" was considered by the Court. It is fair to say that the question as so phrased was -- 3 of 25 -- 2 considered by the Court with the consent of the parties or, at least, their acquiesence. The ruling of the Court on this question of entitlement was adverse to the A.F.U.L.E. and that union now appeals to this Court against it. The respondent challenged the right of the appellant to bring an appeal to this Court referring to s . 8(1) and (4) of the Industrial Conciliation and Arbitration Act 1961-1989 (replaced since the institution of the appeal by an equivalent s. 9.1 of the Industrial Relations Act 1990) saying that the court below in giving its ruling had not made a "decision". It is only from a "decision" that an appeal can be brought to this Court. I wish to express my agreement with the reasons stated by Derrington J. for saying that this submission should not be accepted and that the further more general submission that the new legislation has resulted in the loss of the appellant's right of appeal should also be rejected. On this aspect I would only wish to add that the proceedings, so far as they lay in the Full Industrial Court, were, in the words of s. 8(4) of the old Act "proceedings under sub-paragraph (iv) ... of paragraph (b) of sub-section (1)" of s . 8 that is "proceedings for cancellation ... of the registration of an industrial union". I am of this view even . though, subsequently, the decision given in the proceedings was not one for or against cancellation but was given upon, a matter of interpretation which was thought to by-pass the need for any cancellation to be ordered. I add that I think that the words quoted from s. 8(1)(b)(iv) viz. "proceedings for cancellation ... of the registration of an industrial union" should not be over-narrowly construed since -- 4 of 25 -- 3 there have also to be kept in mind sub-s. 73(1) (a) and sub-ss. 73(1 )(i) and (ii) which give the Full Industrial Court jurisdiction to cancel registration of a union "either wholly or as to one or more of the callings it represents". I would accept that an appeal lies to this Court from partial cancellation orders and I did not understand the parties to argue against that proposition. I think, then, that we have jurisdiction to consider the appeal against the "decision" which has been made by the Full Industrial Court and which is represented by that Court's ruling. Both the consent (or acquiesence) of the parties and, perhaps, the terms of s. 8(3) of the Act which empower the Court to make a decision irrespective of any specific relief claimed or applied for by any party, would seem to have resulted in the Full Industrial Court's giving the decision of the character which it did. I have already stated my view that it was one given "in proceedings" from which an appeal lies to this Court under s. 8(4). We are not concerned that another aspect of the proceedings below, namely the claim for an order for observance of the rules of the A.F.U.L.E., was thought to lie within the jurisdiction of the Industrial Court rather than the Full Industrial Court since no order was made against the appellant in that respect. These various statutory provisions in force when the matter was heard below and when the appeal was instituted mean that we are empowered to consider the appeal. Derrington J. has stated the general background to the matters of substance to be considered on the appeal and the Full Industrial Court in its reasons outlined it also. -- 5 of 25 -- 4 It is sufficient to say here that at one time the employment by the Commissioner for Railways of its employees was organised so that there were three-man train crews, the driver and fireman, both riding on the locomotive, and the guard riding separately in a van which was usually at the rear of the train. Changes to this arrangement came about. The fireman began to be called "locomotive assistant" but this did not bring a change in the essential character his duties although changes in locomotive types no doubt would change them to an extent. Thereafter, two-man crews were introduced and the two men involved both rode on the. locomotive. They were called the "driver" and the "driver's assistant". In this changed world the guard's van was no more and, depending on the point of view taken, it might be said that strictly there was no longer a guard or a locomotive assistant but in place of both a driver's assistant. The potential for conflict between unions who might claim coverage over the callings involved was obvious. It seems likely that it was in an attempt to head off conflict that in agreements entered into between the Commissioner, the A.F.U.L.E. and the A.R.U. dealing with the crewing of two-man trains certain propositions were stated. The latest version of this agreement before the Court appears to be that of April, 1989. It provides, amongst other things, that the Commissioner would continue to employ both guards and locomotive assistants and from their ranks, broadly equally, there would be appointed the driver's assistants. It was also declared that the position of driver's assistant would be a "working" position only and not a classification. -- 6 of 25 -- 5 In dealing with the matter in dispute before it, the Full Industrial Court stated the question which the proceedings were designed to determine as being whether persons appointed to the position of guard were eligible for membership of the A.F.U.L.E. However, with respect, it appears that to accept that as being the true question at issue is to go unduly far along the way of an acceptance of the arguments advanced by the A.R.U. The real question was whether in the changed circumstances which had come about, the A.F.U.L.E.'s registered list of callings covered those persons who had been employed by the Commissioner as guards but who, like those who had been employed as locomotive assistants, became qualified and were appointed as driver's assistants. The question dealt with in the Court was not whether, if the A.F.U.L.E.'s registered list of callings covered persons who had been appointed as guards but now worked as driver's assistants, this constitution position should be permitted to continue. The question dealt with was simply whether the constitution of the A.F.U.L.E. as it presently existed, when properly construed, did cover such persons . It is not surprising that over the period of time since the constitutional coverage of the two competing unions was established, there should have crept in a measure of inappropriateness in the wording when applied to the changed world of train crewing. The simple declaration that the occupation of driver's assistant should not constitute a calling, although recited in the tripartite agreement, might be ineffectual to alter true facts. The constitutional coverage of -- 7 of 25 -- 6 both unions had to be considered as the Full Industrial Court recognised. In the reasons of the Court it is pointed out that the calling of "guard" is included amongst the list of callings comprised in the membership or objects of the A.R.U. and may be regarded as falling within its coverage but it is not among the callings for which the A.F.U.L.E. is registered. Furthermore, neither union has a registered calling "driver's assistant" whether or not such a category should be in strictness regarded as a calling. Before setting out the relevant aspects of the A.F.U.L E.'s constitutional coverage, it is desirable to point out that under s. 44(3)(e) of the now-repealed legislation, applications for registration of industrial unions had to be accompanied by a list of callings comprised in their membership or objects and by s. 46(8), if registration followed, the union remained registered unless registration was duly cancelled. Under s. 64, the registrar, on the application of the union, was empowered to amend the registration in respect of the callings it represented. Reference was made in the proceedings below to the constitution of the A.F.U.L.E. which, by cl. 4, provided as follows :- "The [Union] shall consist of an unlimited number of persons eligible to be employed in the Railway Train Running Industry including Locomotive Driver, Electric Train Drivers, Firemen, Electric-Helpers, Chargemen and Cleaners, Packers and Trimmers, Wash-out Men, Wash-out Men's Assistants, Motor Drivers and any other worker engaged in and about the working or management of or incidental to any Steam Locomotive or Motor driven by electricity or other power used on the Queensland Railway system." -- 8 of 25 -- 7 Reference was also made to the list of callings certified as being comprised in the membership or objects of the A.F.U.L.E. This was the form of the certificate :- "List of Callings comprised in the membership or objects of the Australian Federated Union of Locomotive Enginemen, Queensland, Union of Employees which is registered as an Industrial Union of Employees under the Industrial Conciliation and Arbitration Act 1961-1988:- Locomotive Drivers :- that is, drivers of locomotives such as are driven by steam, electricity, or gas, and running on railways. Locomotive Firemen. Locomotive Cleaners, And all assistants to the foregoing callings." Having set out these matters I can now state my conclusion that the narrow interpretative approach to the question which was extracted from the issues and answered by the Full Industrial Court was one which was inappropriate in the circumstances . The answer sought to the question which the Court posed could only be given after a consideration of a body of evidence. Attention to the form of the registered list of the callings of the A.F.U.L.E. had to be supplemented by assessment of evidence before a decision could properly be given upon the applicability of the nominated categories to the changed circumstances of railway employment. Amongst other things, there would be required a detailed consideration of the tasks performed by a driver's assistant and a comparison made with the work which used to be performed by a fireman or locomotive assistant on the -- 9 of 25 -- 8 one hand and a guard on the other. A decision might be required upon the question whether it must now be accepted that there is in truth a new calling "driver's assistant" containing within its ranks a number of persons in the state system who previously followed callings of locomotive assistant and guard. It may be that such a calling is already established or is establishing itself and it may also be that the name of "driver's assistant" is appropriate for it. On the other hand it may be concluded that the title "driver's assistants" should be regarded as indeed no more than a working position which covers two distinct categories of employees which continue to exist as callings. Part of the answer to this question may be provided by a consideration of the training which is given to the respective categories of locomotive assistant and guard when they are first employed under those names and later when they are being qualified for appointment as driver's assistants. If there is insufficient differentiation in the training it may be hard to regard the old independent callings as continuing to exist. In deciding whether the category of persons employed as "guards" but trained and working as driver's assistants is sufficiently embraced by the currently-registered list of callings of the A.F.U.L.E. it is likely that the registered list of callings of other unions including the A.R.U. will be relevant. It can be expected that such matters will assist in determining the fair ambit of words descriptive of callings found within the industry. It may be that after the necessary factual examination is concluded if the Court decides that the A.F.U.L.E.'s currently -- 10 of 25 -- 9 registered list of callings should be construed as covering driver's assistants regardless of the ranks from which they are recruited attention may have to be given to the question whether some curtailment of that list should be made. The respondent had sought some relief of this kind. That however is strictly a matter for the Court. I would allow the appeal and I agree with the order which has been proposed by Derrington J. for the further conduct of the matter. -- 11 of 25 -- IN THE SUPREME COURT OF QUEENSLAND FULL COURT Appeal No. 82 of 1989 Before the Full Court The Chief Justice Mr. Justice Derrington Mr. Justice de Jersey BETWEEN : - THE AUSTRALIAN FEDERATION UNION OF LOCOMOTIVE ENGINEMEN. QUEENSLAND, UNION OF EMPLOYEES Appellant AND: AUSTRALIAN RAILWAYS UNION OF EMPLOYEES QUEENSLAND BRANCH Respondent JUDGMENT - DERRINGTON J. Delivered the Twenty-first day of November, 1990 CATCHWORDS: Counsel: Mr. G.C. Martin for appellant Mr. D. Hall for respondent Solicitors: C.A. Sciacca & Associates for appellant Roberts & Kane for respondent Hearing dates: 17th and 18th October, 1990 -- 12 of 25 -- IN THE SUPREME COURT OF QUEENSLAND FULL COURT Appeal No. 82 of 1989 BETWEEN : THE AUSTRALIAN FEDERATION UNION OF LOCOMOTIVE ENGINEMEN, QUEENSLAND, UNION OF EMPLOYEES Appellant AND: AUSTRALIAN RAILWAYS UNION OF EMPLOYEES QUEENSLAND BRANCH Respondent JUDGMENT - DERRINGTON J. Delivered the Twenty-first day of November, 1990 In days past the crew of a train operated by the Queensland Railways consisted of a driver, a locomotive assistant (fireman) and a guard, the first two working upon the locomotive and the lastmentioned working from the rear of the train. Because a clear line of demarcation could be seen between those whose work was on and in the operation of the locomotive and those whose work in that respect was if anything, purely incidental there was no difficulty giving rise to the essential issue in the present case. In those circumstances, the appellant, as its name implies, was the Union whose members' work related to the operation of the locomotive. As the Industrial Court's regulations required, the Union's Constitution contained a rule ("the Constitution Rule") which defined its membership. That read as follows:- -- 13 of 25 -- 2 " CONSTITUTION The Division shall consist of an unlimited number of persons eligible to be employed in the Railway Train Running Industry including Locomotive Driver, Electric Train Drivers, Firemen, Electric-Helpers, Chargemen and Cleaners, Packers and Trimmers, Wash-out Men, Wash-out Men's Assistants, Motor Drivers and any other worker engaged in and about the working or management of or incidental to any Steam Locomotive or Motor driven by electricity or other power used on the Queensland Railway system." As it was also required to do, the Union filed with the Court a document called a "List of Callings" identifying the callings, within the definition of the .Industrial Conciliation and Arbitration Act 1961-1988, comprised in its membership or objects. This is a more technical way of describing the various callings of its members in terms identical with those used in awards and other industrial processes but it corresponded in substance with the description of its members contained in the Constitution Rule. The List of Callings read as follows :- "Locomotive Drivers:- that is, drivers of locomotives such as are driven by steam, electricity, or gas, and running on railways . Locomotive Firemen. Locomotive Cleaners, And all assistants to the foregoing callings." Having secured registration on that basis, the appellant was entitled to enrol members whose work answered the description contained in the Constitution Rule and the list of callings, but at that time it did not include guards. Such peaceable simplicity was not to remain. On the 3rd April, 1989 the Commissioner for Railways and the two Unions represented by the appellant and the respondent entered into an -- 14 of 25 -- 3 agreement providing for change in the operation of trains by- reducing the number of crew from three to two. The position of the driver remained unaltered for present purposes, but a dramatic change occurred as the result of the fusion of the duties formerly performed by the locomotive assistant and the guard of a train. There were exceptions to this, namely, in the operation of metropolitan suburban trains in Brisbane, historic steam-trains and the tourist steam-train between Cairns and Kuranda, but the change manifestly encompassed by far the majority of trains. There were also other minor exceptions relating to safety or impracticability which are irrelevant for present purposes. By the agreement, the new position was designated as "Driver's Assistant", and a rate of pay was struck by way of adjustments using the difference between the award rates of drivers and guards. For this reason, no alteration to the awards was necessary and they remain in existence and in force so far as they are applicable in the cases to which they still specifically apply, and of course they are used under the agreement to determine the wage rate for driver's assistants. It follows that although the position of driver's assistant is now objectively in existence, that it is recognised in the agreement between the Commissioner and the Unions, that its wage rate and duties are set and defined by the agreement and its obligation and the working of trains are set out in the Railway By-Laws; but because the agreement also provided that the position of driver's assistant would be a "working" position only and not a classification, there is no industrial award -- 15 of 25 -- 4 specifically applying, to the position with consequential identification of it. The agreement provided that a driver’ s assistant would operate with the driver from the leading locomotive and that the persons to occupy such a status would be drawn from the classifications of locomotive assistant and guard or persons acting in those positions. Significantly it also provided that the work as driver's assistants in all situations State-wide should be shared equally between guards and locomotive assistants, and this tends to imply a confirmation of the continuation of the official distinction between locomotive assistants, guards and driver's assistants, and the continued existence of all categories. More particularly, the position of guard is still recognised by the award and in department policy and practice, and it is not equated with the position of "engineman", which is reasonable, for a guard when acting only as such is certainly not an engineman. Because the new Driver's Assistants performs all of the duties of a locomotive assistant (fireman) as well as all of the duties of a guard and because while the train is running he rides on the locomotive with the driver, the applicant commenced to enrol some guards as members on the basis that they are "engaged in and about the working or management of or incidental to" locomotives within the meaning of the Constitution Rule, and were "assistants to the . . . calling" of locomotive drivers within the meaning of the List of Callings. This constituted a corresponding loss to the membership of the respondent which commence proceedings in the Industrial Court to stop it. -- 16 of 25 -- 5 Because there was no procedure strictly appropriate to such an application, it followed a course traditional in such cases of applying for an order "that the registration of (the appellant) be cancelled in respect of that portion of its registered List of Callings which does not conform with its Constitution Rule (Rule No. 4) and Objects (Rule No. 3) namely - "and all assistants to the foregoing callings, or with the provisions of the Industrial Conciliation and Arbitration Act 1961-1989." This application for a partial cancellation of the registration insofar as it applied to the registered List of Callings did not really conform with the complaint of the respondent that the applicant was enrolling members whose callings were outside the description contained in the List of Callings; but no objection has been taken by the appellant to this time-honoured procedure and because it was so understood and followed by the Court and all parties to the application, nothing will turn upon it. It can however be productive of some difficulty. Being correctly convinced of a suitable intimation by the appellant during the course of the hearing to-abide by-it-rather than require a formal order, the Full Industrial Court made the following findings and determination:- " The constitution rule does not fall for construction in a vacuum. The persons whom it is sought to bring within its purview are persons who are appointed to the position and registered calling 'Guard ’ . They do not cease to be 'Guards ’ when carrying out the duties of a driver's assistant, which duties include duties attributable to the position and calling 'Guard' . They do not cease to be 'Guards' in either the sense of a calling or of appointment upon carrying out the duties of a driver's assistant nor are they thus transformed into a worker engaged in and about the working or management or incidental to any locomotive in terms of A.F.U.L.E.'s constitution rule so as to make them eligible for membership of that Union. -- 17 of 25 -- i So far as the A.F.U.L.E.'s registered list of callings is concerned it was argued for the A.R.U. that the reference in the registered list of callings to 'all assistants to the foregoing callings' lack sufficient precision to constitute a calling. In the circumstances of the present case however that does not seem to be the difficulty. By a parity of reasoning to that which applied in respect of the constitution rule the fact that a person following the calling of and appointed to the position of 'Guard' carries out duties conveniently described as driver's assistant does not thereby transform his calling to that of a locomotive driver's assistant in the sense in which that word is used in the A.F.U.L.E.'s registered list of callings. It follows that persons appointed to and following the registered calling of 'Guard' are not eligible in terms of the A.F.U.L.E.'s constitution or list of callings to be members of that Union. It remains to mention that the A.R.U. complains that the A.F.U.L.E. has been accepting as members persons who by virtue of their appointment and calling were 'Guards' and regarded as eligible to join the A.R.U. It emerged at the hearing there is no occasion to doubt that the A.F.U.L.E. will do other than abide the foregoing determination of eligibility. In the circumstances therefore it is unnecessary to proceed to consider whether the Full Court of the Industrial Court ought to exercise its jurisdiction in respect of the application for cancellation which can stand adjourned to a date to be fixed." From this the appellant appeals to this Court, the thrust of its complaint being that the Court below relied completely upon the appellation of the position of guard and the consequences flowing from that, rather than on the substance of the work performed by persons in that position; and that if the latter were correctly adopted, then because guards now perform work as driver's assistants, they come within the description "all assistants to the foregoing callings" (i.e. to locomotive drivers) in the registered List of Callings. However, before this is considered it is necessary to determine a most unmeritorious preliminary objection to jurisdiction taken by the 6 -- 18 of 25 -- 7 respondent. It takes two lines of argument which are conveniently set out in its outline of submissions as follows: "1 . The appellant is not a person 'aggrieved' as a defendant by a decision -- in proceedings under subparagraph (i)". The only decision made by the Full Industrial Court was to adjourn the matter to a date to be fixed. The Appellant has not sought to fix a date. With the enactment of the Industrial Relations Act 1990 the Appellant is no longer at risk in the adjourned proceedings ." The first line is that the Full Industrial Court made no decision for the appellant to be aggrieved of, which is necessary to an appeal to this Court. It is true that the Full Industrial Court, having correctly understood the intimation by the representative of the appellant that it would abide by the Court's determination, stopped short of making any order, but, as it said itself, it made a "determination". The word "decision", which is the relevant term of the formula giving jurisdiction for an appeal, is defined in the Act which then operated to include a "determination", and although faced with this, learned counsel for the respondent did not attempt to suggest that what was done in the Court below did not amount to a "determination" within the meaning of the definition. Some attempt was made to suggest that support for the proposition that an appeal lay only against a final order comes from dicta in The Federated Miscellaneous Workers' Union of Employees of Australia. Queensland Branch v. Shelberg (1984) 1 Qd.R. 273 at p. 276 where Connolly J. said:- "The word defendant would seem to have been chosen as a compendious term to describe persons against whom orders and convictions have been made and pronounced under the various provisions enumerated." -- 19 of 25 -- 8 However, this citation is taken out of its true context where the point of the discussion was whether an appeal was limited to cases involving something in the nature of an offence rather than including also matters akin to civil proceedings, and the expression adopted was certainly not intended to be exhaustive rather than representative. Learned counsel for the respondent then switched to the second line of challenge to the jurisdiction. This was provoked by the repeal of the Industrial Conciliation and Arbitration Act and its replacement by the Industrial Relations Act 1990 which no longer permits of an application precisely such as that made by the respondent to the Industrial Court. Although the appeal under the former Act was filed in this Court before the repeal of that Act and was otherwise competent in all respects, learned counsel for the respondent said that even if the decision below were be erroneous (which he did not concede) and although his client would be able to use that decision effectively in later proceedings brought under the new Act, this Court should not review it because if the matter were remitted back to the Full Industrial Court his client would now be forced to withdraw the application and to proceed afresh under the new Act. Such an argument ad misericordiam does not sit well on the lips of a party who proposes to take such an unfair course. More importantly it is not a good reason for ousting the jurisdiction of this Court to hear the matter. He then referred to s. 1.5(5) of the new Act which says that "All actions or proceedings instituted before the commencement of this Act under or for the purposes of a provision of any of -- 20 of 25 -- 9 the Repealed Acts and pending at the date of the repeal of the provision may be carried on and prosecuted as if they had been instituted under or for the purposes of the corresponding provision of this Act." He suggests that there is no provision in the new Act corresponding with that under which the application was brought by his client, by his statement as to intended future conduct he implicitly concedes that there is such provision. In any case, there are identical provisions under s. 91 for an appeal to this Court from the Industrial Court which corresponds clearly with the provision of the former Act under which this appeal is prosecuted. This is the relevant proceeding to which the section applies. Consequently there is no validity in the objection to jurisdiction and it remains to consider the merits . Although the Full Industrial Court is correct in the above quoted passage where it says: "They do not cease to be 'guards' in either the sense of a calling or of appointment upon carrying out the duties of a driver's assistant ...", because guards still carry out the full duties of guards while engaged in the position of driver's assistant, there is however at least an infelicitous ambiguity in the next statement which reads: "... nor are they thus transformed into a worker engaged in and about the working or management of or incidental to any locomotive in terms of A.F.U.L.E.'s Constitution Rule so as to make them eligible for membership of that Union." Insofar as it is common ground that they perform all the work formerly done by locomotive assistants, who were unquestionably "engaged in and about the working or management of or incidental to" any locomotive in terms of -- 21 of 25 -- 10 A.F.O.L.E.'s Constitution Rule, they too must be so engaged at least while and to the extent that they are performing such duties . The point is that if, within the meaning of the Constitution Rule, they are "engaged in and about the working or management of and incidental to" locomotives, then they come within that rule irrespectively of what they might formerly have been or what they might still be called, and even though they also perform duties identifiable as those of a guard. By comparison, it could not simply be said that a workman classified as a locomotive assistant is any the less "a worker engaged in and about the working or management of or incidental to any locomotive" while working as a driver's assistant because his duties then also include the duties of a guard; and yet the mix of the respective duties is exactly the same whether the person occupying the position should as it happens be appointed from the ranks of the guards or the locomotive firemen. Because of the direction of the enquiry required by the terms of the Constitution Rule, that is, the nature of the work actually done by a workman whose Union membership is in question, it is obvious that the appellation given to his classification is as irrelevant as the nature of the work which he formerly performed. For example under the new dispensation it may be that the gravamen of his effort and responsibility in the performance of his new duties may be such that he is almost totally "engaged in and about the working or management of or incidental to" the locomotive of the train upon which he is working, and he may be constantly appointed to those duties in which case it would be -- 22 of 25 -- 11 difficult to come to the conclusion that he does not come within the appellant's Constitution Rule. Conversely if he were usually employed as a guard simpliciter and if his duties on those occasions when he acts as a driver's assistant are very predominantly those of a guard, there may well be an argument that he is not a "worker engaged in and about the working or management of or incidental to" locomotives within the meaning of that expression as used in the"Constitution Rule even though some of his duties may answer that description. By parity of reasoning, if one who was formerly a locomotive assistant now always, or almost always, works as a driver's assistant, and if the gravamen of his effort and responsibility is sufficiently confined to that of a guard rather than of one within the description of the appellant's Constitution Rule, it may be possible that he is no longer eligible for membership of the appellant Union. The relevant factors and their weight in such a determination and the meaning of the formula used in the Constitution Rule will determine these things. In this respect, the force and effect of the list of callings upon the construction, including any questions of its artificiality in the light of changed circumstances, must be considered. These matters were not dealt with by the Court below, which is not surprising since they do not appear to have been argued, and suitable evidence was not led. Learned counsel for the respondent advanced the reasonable proposition that the reception of evidence concerning a substantial number of factual matters was essential to the proper determination of these issues and he stressed its absence. However this overlooked the onus of proof -- 23 of 25 -- 12 which lay upon the respondent as the applicant in the proceedings. He then seemed to argue that, deprived of the necessary evidence, the Full Industrial Court was entitled to rely upon the simple proposition that the relevant workmen were classified as guards in the internal administration of the Railway Department; but this classification was artificial because, while apparently it was compatible with that administration, it manifestly did not reflect the true position in that guards and locomotive assistants, both doing exactly the same work, were given different classifications. This then was no suitable foundation upon which to found a determination of an issue which depends upon reality and not artificial classification. No other factual material of a relevant nature was demonstrated. If an application is not supported by the material necessary to its correct resolution, then it cannot be resolved by reference to such inadequate factors as may be made available . No other line of reasoning supporting the application appears upon the face of the judgment nor were any suggested by learned counsel for the respondent. In those circumstances, it can only be said that the conclusion reached below was not available on the material presented or upon the reasoning adopted. Indeed, it appears that the nature of the application both on its face and in its substance as accepted by all parties may have been unsuitable. It may have been necessary to apply for an order that the Constitution Rule of the appellant should be amended so that its effect should be circumscribed, either expressly or by implication, so as to exclude from membership -- 24 of 25 -- 13 persons engaged in the relevant position, if that should be thought to be available. For these reasons, the appeal should be upheld and the application remitted to the Full Industrial Court for all necessary adjournments to be entered and for the application to be determined according to law. The respondent should pay the appellant's costs of and incidental to the appeal to be taxed. -- 25 of 25 --