Re Federated Clerks Union of Australia, Terence William Sullivan, Kevin John Owens and Justin Gerard Diviny v the Waterside Workers Federation of Australia, Charles Fitzgibbon, Norman Docker and Tom Supple v [1983] FCA 79; 4 IR 25 (29 April 1983)

FEDERAL COURT OF AUSTRALIA

Re: FEDERATED CLERKS UNION OF AUSTRALIA,
TERENCE WILLIAM SULLIVAN, KEVIN JOHN OWENS
and JUSTIN GERARD DIVINY
And: THE WATERSIDE WORKERS FEDERATION OF AUSTRALIA,
CHARLES FITZGIBBON, NORMAN DOCKER AND TOM SUPPLE
V. No. 36 of 1982
Industrial law
4 IR 25

COURT

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
INDUSTRIAL DIVISION
Bowan C.J.
Evatt J.
Northrop J.

CATCHWORDS

Industrial law _ Conciliation and Arbitration _ registered organization _ eligibility for membership of Waterside Workers Federation of Australia _ conditions of eligibility _ meaning of 'waterside worker' _ tally clerk.

Conciliation and Arbitration Act l904 (C'th.) s.l43

HEARING

SYDNEY
29:4:1983

ORDER

THE COURT ORDERS THAT:

The application be dismissed.

DECISION

This is the third of a trilogy of recent cases before the Federal Court raising the question of whether persons within a discrete group of employees are eligible to be admitted as members and remain members of the Waterside Workers Federation of Australia ("the Federation"). In Co-operative Bulk Handling Ltd. v. Waterside Workers Federation of Australia (l980) [1980] FCA 141; 49 F.L.R. 355 ("the Co-op. case") a Full Court held that persons employed in specified classifications by Co-operative Bulk Handling Ltd. at its premises at North Fremantle and at Kwinana were entitled to become and to remain members of the Federation. In Electrical Trades Union of Australia and Anor. v. Waterside Workers Federation of Australia and ors. (l982) 42 A.L.R. 587 (the E.T.U. case) a Full Court held that persons within two groups of skilled workers, namely a group eligible to be members of the Electrical Trades Union of Australia and a group eligible to be members of the Amalgamated Metalworkers and Shipwrights Union respectively, those two groups not necessarily being mutually exclusive, were entitled to become and to remain members of the Federation. The present case raises the question of whether persons within a group of employees who are eligible to be members of the Federated Clerks Union of Australia (the Union) are eligible to become and to remain members of the Federation. In the Co-op. case the proceedings were brought under s.l44 of the Conciliation and Arbitration Act l904 (the Act). In the E.T.U. case and in the present case the proceedings were brought under s.l43 of the Act. In all cases, however, the questions raised were those stated.

The Federation and the Union are each an organization under the Act. The relevant parts of the eligibility rule of the Federation are set out:

'6. Admission to Membership

Any person who intends to follow the occupation of a waterside worker, who is of respectable character and of the age of at least 18 years and not exceeding 45 years and who is reasonably competent and able to perform all the duties of a waterside worker may become a member and be enrolled as such in a Branch of the organization within the Commission ...'

For present purposes, the crucial words are 'any person who intends to follow the occupation of a waterside worker' and the question is whether persons who are employed in a clerical capacity in connection with the loading or unloading of cargo into or from ships are persons who 'follow the occupation of a waterside worker'.

In the Co-op. case the Court, J. B. Sweeney, Evatt and Northrop JJ., at pp.362-72 considered the meaning to be given to the term 'waterside worker' having regard to the common understanding among people concerned with shipping and stevedoring. After a lengthy consideration of a number of statutory provisions and earlier decisions of tribunals the Court said at p.372:

'Without attempting to give an exhaustive definition, in our opinion the term 'waterside worker' in r.6(a) of the rules of the federation includes persons who are engaged in the loading of cargo, including loose bulk cargo, into ships and the prior handling, treating and storing of that cargo at or in the vicinity of a wharf when that handling, treating and storing is to facilitate or is for the purpose of the ultimate shipping of that cargo.'

Without doubt, the essential feature of the occupation of a waterside worker is the loading or unloading of cargo, stores, supplies or fuel into or from ships. The work may be done on a ship, on a wharf or in the vicinity of a wharf. In any one case it is a question of fact to be determined upon the evidence whether the work is being done in the vicinity of a wharf and for the purpose of the loading or unloading of cargo into or from a ship. To adopt the conclusion already quoted, the term 'waterside worker' in r.6 of the rules of the Federation connotes persons who are engaged in the loading or unloading of cargo into or from ships and the prior or subsequent handling, treating or storing of that cargo at or in the vicinity of a wharf when that handling, treating or storage is to facilitate or is for the purpose of the ultimate shipping or discharging of that cargo. In the Co-op. case, the Court at pp.372-6 considered whether the persons employed in the specified classification came within the group or class described by the term 'waterside worker'. That included a consideration of the duties of those persons, the place of their employment and the activities of the employer. In the light of all the circumstances of that case, the Court was satisfied that the relevant persons were entitled to become and to remain members of the Federation.

In the E.T.U. case, different but related questions arose. In that case the Court, Bowen C.J., Evatt and Deane JJ., considered in some detail the essential attributes of a waterside worker which were seen in terms of his relationship to particular functions, namely the loading or unloading of cargo, stores, supplies or fuel into or from ships; see p.592. That function of loading and unloading ships is not restricted to the physical transportation of cargo aboard or ashore; see p.593. The essential question in the E.T.U. case was whether the function or activities of a person engaged in the maintenance of equipment used in the loading or unloading of cargo into or from ships followed 'the occupation of a waterside worker'. The question was stated at p.594:

'The role of the worker with special skills for repairing or servicing complicated machinery has steadily become more important on the waterfront. To some extent that role has been performed by men who acquired skill and training after they had commenced to follow the occupation of a waterside worker. To a significant extent, however, specialized servicing and mechanical work has been performed by qualified or semi-qualified tradesmen who have never been engaged in the immediate physical loading or unloading of ships. It is these men who constitute the relevant mechanics and the relevant electricians in the present case. It is plain that they cannot properly be seen as persons who actually load and unload ships. Can they properly be seen, for relevant purposes, as following the occupation of a waterside worker in that they are engaged in the overall stevedoring operation which takes place at the wharf and which encompasses what is involved in the activity of loading and unloading ships?'

The Court then considered a number of matters and at pp.595-6 concluded:

'In our view, the words 'occupation of a waterside worker', as used in r6 of the Federation's rules, should be construed as encompassing the occupation of any worker whose predominant working activities are based on or in the vicinity of wharves and constitute part of the overall stevedoring operations of loading and unloading ships. Those activities include not only the physical transportation and storing of goods. They include, in the view we take, whatever is necessary, on or in the vicinity of the site of the actual loading and unloading, to prepare and service the mechanical equipment by which loading and unloading operations are effected and to maintain it in the condition necessary for the performance of its stevedoring functions. They include on site electrical and mechanical repair and maintenance work on the machines. They include the activities which predominantly constitute the occupation of the relevant electricians and mechanics.'

In the light of the observations contained in the Co-op. case and in the E.T.U. case it is necessary to turn to the particular facts of the present case. Before doing this, however, it is necessary to repeat the observation made in the E.T.U. case, at pp.594-5, an observation which has equal application to the present case:

'... it is important to bear in mind that the court is not here concerned with a specific demarcation dispute or with the merits of the respective claims of claimants and Federation that particular jobs be filled by their members. Nor is the court concerned with the question whether the relevant electricians and the relevant mechanics can properly be described as 'tradesmen' or whether they are entitled to belong to one or other of the claimaints. It is common ground that they can and are. The question is whether, accepting that they can properly be described as tradesmen and are qualified to be members of one or other of the claimants, the relevant electricians and the relevant mechanics are also properly to be seen as engaged in the overall operation of loading and unloading ships and as being qualified for membership of the Federation by reason of the fact that, for the purposes of the Federation's eligibility provisions, they can be said to follow the occupation of a waterside worker.'

The present proceedings are brought by the Union and three of its members. The respondents are the Federation and three of its members. The applicants in form are seeking an order under sub-section l43(l) of the Act directing the cancellation of the registration of the Federation. However, the applicants have made it clear that in reality they are seeking orders under sub-section l43(3C) that the Federation and the other three respondents perform and observe the rules of the Federation by ceasing to enrol and claim as members employees whom the applicants claim are not eligible to be enrolled and remain members of the Federation. The employees concerned come within a group or class known as tally clerks. Those persons are eligible to be members of the Union and in the past have been members of the Union. The Union has obtained industrial awards under the Act regulating the conditions of employment of those persons. The Federation has purported to enrol a number of tally clerks as members and is claiming those persons to be its members.

Much detailed material was placed before the Court describing the work done by tally clerks. For present purposes the activities of tally clerks may be summarized. Tally clerks are engaged in connection with the movement of cargo either by conventional ships or by container ships. With respect to conventional ships, tally clerks perform their duties in the ships, on the wharf, and in stores adjacent to a wharf. They are employed in a clerical capacity. Their duties are to check the work of persons engaged in the physical activity of loading and unloading ships. Their duties are to account, check, record and, where necessary, weigh cargo and to account, check and record the movement of cargo into and from ships.

With respect to container ships, tally clerks are also employed in a clerical capacity. Their duties vary depending on whether they are performing them in a container terminal or in a container depot. The terminals are situated on or adjacent to a wharf. The duties of tally clerks working in terminals are to check, account, record and, where necessary, weigh the containers being loaded into and from ships and into and from the terminals. Container depots need not be situated on or adjacent to a wharf. In fact, many are long distances from a wharf. Some containers are packed and unpacked at depots. Other containers are packed and unpacked at the premises of the consignor or the consignee respectively. The duties of tally clerks working in depots are to check, account, record and, where necessary, weigh containers into and out of depots, and to check, account, record and, where necessary, weigh goods being packed into and being unpacked from containers in the depots and being carted into and from the depots.

Tally clerks do not engage in manual labour. They are not engaged in the physical activity of loading or unloading ships. Nevertheless, they perform an essential function in the loading or unloading of ships. The loading and unloading of ships cannot, in any industrial or practical sense, be completed without the checking, accounting, and recording of cargo and of cargo movements. The tally clerks are engaged within the overall stevedoring operation which takes place at or in the vicinity of a wharf and which encompasses what is involved in the activity of loading and unloading ships. Traditionally and historically, the Federation has not enrolled tally clerks as members.

Traditionally and historically, the Federation has not obtained industrial award coverage for tally clerks. Traditionally and historically, tally clerks have been members of the Union which has obtained industrial award coverage for them. Counsel for the Union has contended that having regard to the common understanding among people concerned with the stevedoring industry, especially with respect to industrial and related matters, the term 'waterside worker' did not and does not include tally clerks.

The relevant principles to be applied in cases like this have been stated recently by the High Court. In R. v. Williams; Ex parte Australian Building Construction Employees' and Builders' Labourers' Federation (l982) [1982] HCA 68; 57 A.L.J.R. 38, Gibbs C.J., Mason, Wilson, Brennan, Deane and Dawson JJ. in a joint judgment said at pp.39-40:

'The eligibility provisions in the rules of a registered organization of employees serve the function of defining the general area or areas of industry or industrial pursuit from which members can legitimately be drawn and with which the organization can legitimately be concerned (see Reg. v. Dunlop Rubber Australia Ltd.; Ex p. Federated Miscellaneous Workers' Union of Australia (l957), 97 C.L.R. 7l, at p.87; Reg. v. Clarkson; Ex p. Victorian Employers Federation (l973), l3l C.L.R. l00, at pp.lll and ll3; Co-operative Bulk Handling Ltd. v. Waterside Workers' Federation of Australia (l980), [1980] FCA 141; 49 F.L.R. 355, at pp.357-358). Since such eligibility provisions constitute a reference point for courts, commissions, employers, employees and other organizations in determining or ascertaining an organization's proper coverage and field of operation, they must be construed objectively (see Reg. v. Aird; Ex p. Australian Workers' Union (l973), l29 C.L.R. 654, at p.659; Reg. v. Cohen; Ex p. Motor Accidents Insurance Board (l97D), 53 A.L.J.R. 7l9, at pp.720 and 723). In so construing them, however, it is permissible to pay 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 take account of evidence of that common understanding furnished by the previous use of the words in the relevant organization's rules and in statutory provisions, decisions, determinations, awards, reports and other papers concerned with the relevant industry or industries (see, for example, Rex v. Hickman; Ex p. Fox & Clinton (l945)[1945] HCA 53; , 70 C.L.R. 598, at p.6l3; Reg. v. Aird; Ex p. Australian Workers' Union, above, at p.659).'

In support of his contentions counsel for the Union relied upon extensive contemporary material dating from the year l920. This material included applications by the Federation for approval for changes to its eligibility rule and submissions for and against approval being granted, statutory and regulatory enactments, industrial awards and decisions, as well as correspondence. Subsequent to the completion of the hearing of the application, counsel for the Union supplied further material containing references to inquiries and reports into aspects of the stevedoring industry. Counsel for the Federation submitted further material in answer thereto.

Counsel for the Union contended that having regard to all that material, the relevant genus or category of persons engaging in the occupation of waterside workers was limited to persons engaged in the actual moving of goods on to or from a vessel, extending, where necessary, to persons who operate machinery used in the actual moving of the goods. Counsel contended that tally clerks engaged in the checking, accounting, recording and, where necessary, weighing of the cargo and the checking, accounting and recording of the movement of cargo were not moving the cargo and therefore were not engaged in the occupation of waterside workers. A tally clerk was to be treated as being in the same category as a person directing the movement of goods or cargo who, it was said, was a 'boss' and not a waterside worker. This latter analogy does not help in resolving the present application, since the person directing the movement of goods if performing his duties on a ship or on or in the vicinity of a wharf may well be eligible to become a member of the Federation.

In our opinion the material relied upon by counsel for the Union does not support his contention that in the common understanding of persons in the stevedoring industry the term 'waterside worker' does not include tally clerks. Rather, the material is consistent with the proposition that a tally clerk is engaged in the occupation of a waterside worker.

The material relating to the applications for approval of changes to the eligibility rule of the Federation is confused. It does not support the contention of the Union. A perusal of the material discloses that the submissions made seemed to be directed more to the question of award coverage than to eligibility for membership, to the history of award coverage rather than the concept of industrial groups and the role of organizations acting as party principals in relation to industrial groups and to disputation between employers and the Federation. One thing, however, is clear. All the parties to those applications accepted the fact that tally clerks were performing duties and work in or in connection with the stevedoring industry or with stevedoring operations. They were engaged in checking the movement of cargo being performed by members of the Federation and were engaged in duties relating to the loading and unloading of cargo into and from ships and matters incidental thereto. As early as l920, the then Secretary of the Federation was asserting that the Federation had power to enrol tally clerks as members of the Federation but that the Federation did not enrol them because it thought that the proper place for them was in the Union.

The statutory provisions support the view that in the stevedoring industry and in stevedoring operations, tally clerks, unless expressly excluded, are engaged in the occupation of a waterside worker. In the statutory provisions, tally clerks are treated as being engaged in the checking of the work of waterside workers. In the Transport Workers Act l928, as amended by the Transport Workers Act l929, the term 'waterside worker' was defined to mean, unless a contrary intention appears:

'... a transport worker who offers or is engaged for work in the loading or unloading of ships as to cargo, coal, or oil fuel (whether for bunkers or not), and includes (except as otherwise declared by the Minister by notice in the Gazette) persons working in or alongside the ship in connexion with the direction or checking of the work of other waterside workers, but does not include (except as otherwise declared by the Minister by notice in the Gazette) ...'

There is then set out certain specified persons not coming within the meaning of waterside worker. In the same Act the term 'transport worker' was defined to mean:

'... a person offering for or engaged in work in or in connexion with the provision of services in the transport of persons or goods in relation to trade or commerce by sea with other countries or among the States;'

Similar definitions are contained in the Stevedoring Industry Act l947 and the Stevedoring Industry Act l956. Those Acts were concerned with the regulation of persons engaged in the stevedoring industry in stevedoring operations and in the particular tasks of loading and unloading of cargo into or from ships and in the handling or storage of cargo at or adjacent to a wharf by persons who were members of the Federation. In each Act by definition the term 'waterside worker' was defined as meaning, among other things, a person who accepts or offers to accept employment for work in the loading or unloading of cargo into or from ships or in the handling or storage of cargo at or adjacent to a wharf, but excluded:

'... persons working in or alongside a ship in connexion with the direction or checking of the work of waterside workers.'

If the common understanding among persons engaged in the stevedoring industry and in stevedoring operations was that a tally clerk did not follow the occupation of a waterside worker, the exclusive provision would not have been necessary. Further, the exclusion was extended to cover other persons who, on any view, would have been eligible to become members of the Federation; see paragraphs (m) and (n) of the definition of the term 'waterside worker' as contained in s.7 of the l956 Act. See also the definition of the term 'stevedoring operations' as contained in that section.

A consideration of the reports referred to in the additional material submitted on behalf of the Union supports the view that in the stevedoring industry tally clerks were considered to be engaged in stevedoring operations and activities. Those reports were concerned in substance with members of the Federation and the regulation of those members in connection with stevedoring operations within the stevedoring industry. The exclusion of tally clerks from detailed consideration in the reports and in recommendations contained in reports resulted from the terms of reference constituting the inquiries which excluded those persons. Nevertheless, the Union had sought leave, which was granted, to appear before and to make submissions relating to tally clerks to the persons conducting the inquiries. This was based on the view that tally clerks were engaged in duties forming part of the overall stevedoring industry and stevedoring operations.

In our view, the words 'occupation of a waterside worker' as used in rule 6 of the Federation's rules, should be construed as encompassing the occupation of a tally clerk whose predominant working activities are based on a ship, on a wharf or in the vicinity of a wharf and which constitute part of the overall stevedoring operations of loading and unloading ships. Those activities include not only the physical transportation or storing of goods, but include the checking of the work being done by the persons who are engaged in the physical transportation and storing of goods, accounting, recording and, where necessary, weighing of goods and cargo. It follows that in our view tally clerks who perform their duties in a ship or on a wharf or in the vicinity of a wharf are eligible to become and remain members of the Federation. Thus, tally clerks engaged in connection with the loading and unloading of conventional ships come within the class of persons eligible to become members of the Federation. Thus, tally clerks engaged in connection with the loading or unloading of container ships, whether in the ship, on the wharf or in the container terminal come within that class also.

Different considerations apply with respect to tally clerks engaged in container depots. The depots are not necessarily on or adjacent to a wharf. One essential feature of the occupation of a waterside worker is that the person is engaged in the loading or unloading of cargo into or from ships whether in the ship, on the wharf or in the vicinity of the wharf. In any particular case it is a question of fact whether a container depot is on or in the vicinity of a wharf. This Court is not in a position in determining this application to determine which container depots come within that requirement.

For the reasons given in the E.T.U. case supra, at p.596, the words 'reasonably competent and able to perform all the duties of a waterside worker' in rule 6 of the rules of the Federation, do not limit the application of the principles applied in this case.

In all the circumstances the application should be dismissed.