Australian Workers' Union v Baiada Farms Pty Ltd and Australasian Meat Industry Employees Union
[2021] FWCFB 6029
•18 NOVEMBER 2021
| [2021] FWCFB 6029 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Australian Workers’ Union
v
Baiada Farms Pty Ltd and
Australasian Meat Industry Employees Union
(C2021/4588)
VICE PRESIDENT HATCHER | SYDNEY, 18 NOVEMBER 2021 |
Appeal against decision [2021] FWCA 3564 of Commissioner Johns at Melbourne on 22 June 2021 in matter number AG2021/5162.
Introduction
[1] On 6 August 2021, the Australian Workers’ Union (AWU) lodged an application for permission to appeal against a decision of Commissioner Johns made on 22 June 2021 1 (decision). In the decision, the Commissioner approved the Baiada Farms Pty Limited Tamworth Farms Enterprise Agreement 2021 – 2025 (the Agreement) and noted, in accordance with s 201(2) of the Fair Work Act2009 (FW Act), that the Agreement covered the AWU and the Australasian Meat Industry Employees Union (the AMIEU). The Commissioner determined, in respect of the AMIEU, that he was required under s 201(2) to note that it was covered by the Agreement on the basis of a finding that it was entitled to represent the industrial interests of employees covered by the Agreement and was therefore entitled to be, and was, a bargaining representative for the Agreement. It is this determination that is the subject of the AWU’s appeal. The AWU contends that the Commissioner erred in finding that the AMIEU was, under its rules, entitled to represent the interest of any employees covered by the Agreement and, accordingly, the AMIEU could not have been a bargaining representative within the meaning of the FW Act.
[2] Rule 56(2) of the Fair Work Commission Rules 2013 provides that a notice of appeal under s 604 must be filed within 21 calendar days after the date of the decision the subject of the appeal or within such further time allowed by the Commission on application by the appellant. The AWU lodged its notice of appeal on 6 August 2021, 45 days after the decision was published and 24 days beyond the 21-day time limit. Accordingly, in addition to permission to appeal, the AWU requires an extension of time pursuant to rule 56(2)(c).
Statutory framework and the AMIEU’s eligibility rule
[3] Section 201 of the FW Act requires the Commission to “note” certain matters when making a decision to approve an enterprise agreement. Section 201(2) provides:
Approval decision to note that an enterprise agreement covers an employee organisation
(2) If:
(a) an employee organisation has given a notice under subsection 183(1) that the organisation wants the enterprise agreement to cover it; and
(b) the FWC approves the agreement;
the FWC must note in its decision to approve the agreement that the agreement covers the organisation.
[4] Section 183 provides:
183 Entitlement of an employee organisation to have an enterprise agreement cover it
(1) After an enterprise agreement that is not a greenfields agreement is made, an employee organisation that was a bargaining representative for the proposed enterprise agreement concerned may give the FWC a written notice stating that the organisation wants the enterprise agreement to cover it.
(2) The notice must be given to the FWC, and a copy given to each employer covered by the enterprise agreement, before the FWC approves the agreement.
Note: The FWC must note in its decision to approve the enterprise agreement that the agreement covers the employee organisation (see subsection 201(2)).
[5] Section 176 set outs the criteria for a person to be a bargaining representative for a proposed enterprise agreement that is not a greenfields agreement. Relevantly, s 176(3)(a) requires that, in order for an employee organisation to be a bargaining representative of an employee who will be covered by the agreement, it must be “entitled to represent the industrial interests of the employee in relation to work that will be performed under the agreement”.
[6] It is not in dispute that the AMIEU gave written notice in accordance with s 183 as a purported bargaining representative for the Agreement. The issue in the appeal is whether the AMIEU satisfied the criterion in s 176(3)(a) to be such a bargaining representative.
[7] The AMIEU contends that it is entitled to represent the interests of employees covered by the Agreement by virtue of the following part of its eligibility rule (rule 4 of its Rules):
The Union shall consist of all persons of good character who are employed in any position in or in connection with, or who are usually employed in, or who are qualified and desire to be employed in:-
4.1 the Butchering and Meat Industry, Refrigerating Industry, or in any kindred industry handling or processing the products of the Meat Industry or of Meat (being defined as any product derived from tissue) in the Commonwealth; …
Factual background
[8] There was no evidence as such bearing upon the question raised by the AWU’s appeal. The facts of the matter may only be gleaned from the documents in the proceedings and the factual propositions contained in the parties’ respective submissions which do not appear to have been contested.
[9] Clause 4.1 of the Agreement provides that it covers all employees within the classifications in clause 14 [sic] “who are employed at the Company’s farms in Tamworth NSW & surrounding districts”. The “Company” is Baiada Farms Pty Ltd (Baiada Farms). 2 The classifications provided for in clause 15 (not 14) are: General Hand, Farm Hand Level 1, Farm Hand Level 2, Stock Hand, Leading Hand, Farm Transporter 1, Farm Transporter 2 and Rural Tradesperson. Clause 15.9 also provides for a “Vaccination Crew” consisting of the classifications of Level 1 and Level 2 Vac Stockhand and Level 3 Vac Leading Hand, and clause 15.10 provides for apprentice Rural Tradespersons. Clause 15 describes the work functions of each classification.
[10] Baiada Farms is part of the Baiada Group, which produces chicken meat for human consumption. In the Tamworth region in New South Wales, companies forming part of the Baiada Group operate three geographically separated facilities: (1) a chicken hatchery; (2) farms at which chickens are raised in sheds; and (3) a meat processing facility at which chickens are slaughtered, butchered and prepared for sale. Baiada Farms is the employing entity at the first and second facilities. Baiada Poultry Pty Ltd (Baiada Poultry) is the employing entity at the third facility. Each facility is covered by a separate enterprise agreement, with the Agreement covering the second facility. All chickens raised at the second facility are sent to the third facility for slaughter; none is sold to third parties. However, beyond this fact, there is no evidence of any interaction or connection between the work performed by employees at the second facility and that performed at the third facility.
The decision
[11] In his consideration of whether the AMIEU was entitled to represent the industrial interests of employees covered by the Agreement, the Commissioner commenced by summarising the principles to be applied to the construction of union eligibility rules in a non-controversial manner. 3 The Commissioner then acknowledged the AWU’s submissions about the traditional distinctions between work on farms and hatcheries and work in meat processing, which distinctions were reflected in modern awards, but considered that this did not confine him in deciding whether Baiada farms is “in” the meat industry or whether the work of the hatching and growing sheds is “in connection” with the meat industry.4 The Commissioner did not regard the fact that the Baiada Group had structured its industrial arrangements in accordance with the traditional industrial distinctions, or that separate legal entities operated the different facilities under separate enterprise agreements, as being determinative.5
[12] The Commissioner concluded that “Baiada’s business is the slaughter of chicken for sale and consumption” and was “undeniably in the meat industry”. 6 He then concluded that if he was wrong in this respect, then employees covered by the Agreement are engaged in connection with the meat industry. The Commissioner reasoned as follows:
“[17] There is a chain of processes before the chook loses its head. That process includes the hatching and growing of chickens. That occurs in the sheds in respect of which the Agreement applies. Without the hatching and growing of chickens there is no roast chook on Sunday.
[18] While I accept that the sheds are geographically separate from the slaughter-house the whole process is vertically integrated. The Baiada Group maintains effective management and control over the entire operation. For these reasons, I reject the AWU’s submission that ‘the work of employees on Baiada’s poultry farms is clearly not referable or significant to the work of employees at the processing facility.’ What I am required to determine is a question of fact, and in this matter the facts do not demonstrate that this is merely the supply of goods or materials between two distinct businesses.”
[13] The Commissioner also regarded an undertaking given by the AMIEU in 2019, whereby it agreed that the insertion of the word “processing” in rule 4.1 of its Rules would not be relied upon to assert coverage over work performed on farms in the agricultural industry, as not determinative of or relevant to the interpretation of the AMIEU’s eligibility rule. 7 The Commissioner was accordingly satisfied that the AMIEU (as well as the AWU) was a bargaining representative for the Agreement.8
Appeal grounds and submissions
[14] The AWU’s notice of appeal states the following grounds of appeal:
1. The learned Commissioner erred in finding that work performed under the Agreement was “in the meat industry” as defined in the rules of the AMIEU.
2. The learned Commissioner erred in finding, in the alternative, that work performed under the Agreement was “in connection with the meat industry” as defined in the rules of the AMIEU.
3. The learned Commissioner erred in finding that the undertaking given by the AMIEU to the appellant in 2019 was not relevant to the construction of the rules of the AMIEU.
[15] In relation to the extension of time it requires to bring the appeal, the AWU relied upon a witness statement made by Stephen Crawford and dated 7 September 2021. In his witness statement, Mr Crawford said that the decision was sent by the Commissioner’s chambers to a single AWU official (Thomas Craven), and not to the AWU official who had carriage of the matter in the Commission (Mr Crawford) or the AWU organiser for the site and bargaining representative identified in Baiada Farms application for approval of the Agreement (Mr Serge Rindo). Nor was it sent to the email address of the National Office, where decisions are generally sent. Mr Craven did not open the email, and the AWU only became aware of the decision on 4 August 2021 when another legal officer came across it on the Commission’s website. The appeal was then filed on 6 August 2021. The AWU submitted that it had satisfactorily explained the reason for the delay, the appeal was filed promptly once the AWU became aware of the decision, the delay did not cause any prejudice, and the interests of justice favour the grant of permission.
[16] The AWU submitted that permission to appeal should be granted in the public interest because the appeal raised a question of law about which the Commissioner was either correct or incorrect, the appeal raises an arguable case of jurisdictional error, and the appeal also raised questions of broader or general application.
[17] As to its appeal grounds, the AWU submitted that:
• the Commissioner failed to properly identify the relevant industry within which the work of the employer and employees under the Agreement operate and consequently erred in the application of the AMIEU’s eligibility rule;
• there is no apparent connection with the work of the employees within the classifications in the Agreement and the slaughter or butchering of poultry for meat or meat processing;
• the “Butchering and Meat Industry” referred to in rule 4.1 of the AMIEU’s rules commenced with the slaughter of the animal, and each and every process thereafter is directly related to the slaughter of the animal in the first instance;
• the work of the Baiada Farms employees was not work “in” the Butchering and Meat Industry, and the Commissioner’s conclusion to the contrary was wrongly directed to the business of the Baiada Group viewed as a whole;
• it was not in dispute that Baiada Group had constructed its operations to reflect the traditional industrial distinction between work on farms and hatcheries and work in meat processing, and this distinction as determinative because it reinforced what is otherwise clear from the ordinary meaning of the words used in the AMIEU eligibility rule, namely that the Butchering and Meat Industry is a different industry to the agricultural or pastoral industry;
• the Commissioner relied on a “but for” connection to conclude that the work of the employees under the Agreement was “in connection with” the Butchering and Meat Industry, but a mere connection of this nature has been repeatedly rejected as establishing the sort of practical and functional connection necessary to extend the reach of a registered organisation’s rules beyond the substantive industry/industries from which they are entitled to enrol members; and
• the work of employees under the Agreement is not referable or significant to the work of butchering and processing chickens, and there is no functional or practical connection between the two categories of work.
[18] The AMIEU submitted, firstly, that the AWU should not be granted an extension of time because its explanation for the delay is manifestly unsatisfactory, the delay was not short and the AWU has poor prospects of obtaining permission to appeal. Secondly, the AMIEU submitted that the AWU was not a “person aggrieved” by the appeal for the purpose of s 604(1) of the FW Act and therefore had no standing to bring the appeal because its rights and interests are not impacted, diminished, negated or adversely affected by the decision, and whether the AMIEU can make an application to enforce the Agreement may only be determined by a court exercising the judicial power of the Commonwealth.
[19] In relation to ground 2 of the appeal, the AMIEU submitted that:
• the words “in connection with the Butchering and Meat Industry” in rule 4.1 of the AMIEU’s rules broadens the scope of the rule beyond employees “in” the industry;
• contrary to the analysis in the AWU’s submissions, rule 4.1 is not a rule which refers to members working “in connection” with nominated callings or occupations, but is an industry rule;
• the phrase “in connection with” in rule 4.1 requires a relation between the work performed by employees under the Agreement and the Butchering and Meat Industry, and this is a question of fact to be answered by reference to all the circumstances of the case;
• this may depend on or be influenced by the substantial character of the activities of Baiada Farms, but is not a substitute for the assessment required by the words of the rule;
• in the present case, the growing of chickens for slaughter at the farms was exclusively for the purpose of the slaughtering and processing of the chickens by Baiada Poultry, the growing work engaged in by employees under the Agreement was anterior to and a prerequisite of the slaughtering work undertaken at Baiada Poultry, and slaughter facility operated by Baiada Poultry were under the same control and management as the farms operated by Baiada Farms and were part of a vertically integrated operation managed by the Baiada Group; and
• in these circumstances, the work at the farms plainly had significance to and/or was referable to the slaughtering work which took place at Baiada Poultry, and this constituted the necessary connection between the work performed under the Agreement and the Butchering and Meat Industry.
[20] The AMIEU submitted that if appeal ground 2 were upheld, there would be no utility in considering appeal ground 1. In any event, it submitted that Baiada Farms’ employees were employed “in” the Butchering and Meat Industry because the Baiada Farms business was integrated in the Baiada Group’s business of slaughtering chickens for sale and consumption as meat and were under the control and management of the Baiada Group. The raison d’etre and sole purpose of the work at the farms was to grow chickens which would be slaughtered and sold to the public, and the work at the farms was a fundamental part of the chicken processing operation.
[21] Consistent with the position it took at first instance, Baiada Farms did not make any submissions in respect of the appeal.
Consideration
Standing to appeal
[22] It is necessary first to consider the AMIEU’s submission that the AWU has no standing to bring an appeal against the decision under s 604(1) of the FW Act. Section 604(1) permits a “person who is aggrieved by a decision” to appeal the decision with the permission of the Commission. The “person aggrieved” formulation for standing to initiate appellate or judicial review proceedings has been assigned a broad meaning. The interest required to be a “person aggrieved” need not be a legal, financial or proprietary interest in the subject matter of the proceedings and may take any of a variety of forms. It is sufficient that the person has a complaint or grievance which they will suffer as a consequence of the decision which is different from the effect on an ordinary member of the public. However, the interest must not be remote, indirect or fanciful, or merely that of an intermeddler or busybody. 9
[23] We consider that the AWU has a sufficient interest to give it standing to appeal under s 604(1) as a “person aggrieved” on three bases. First, as a registered organisation of employees with constitutional coverage of employees in the pastoral sector, its interests are affected by the decision in that the decision may be understood to mean that the AMIEU also has coverage in the pastoral industry to the extent that it supplies livestock and poultry for slaughter in the meat industry. This was not hitherto understood to be the position. Second, if the decision stands, the AWU will be required to share representational rights with the AMIEU under the Agreement, which may be conducive of industrial difficulties. 10 Third, the AWU was heard at first instance in relation to the question of whether the Commission should note that the AMIEU is covered by the Agreement, and its submissions as to that question were rejected by the Commissioner.
Extension of time
[24] The power to grant an extension of time to appeal under rule 56(2)(c) is discretionary in nature. Considerations relevant to the exercise of the discretion include the length of the delay, whether there is a satisfactory explanation of the delay, the nature of the grounds of appeal and the likelihood that one or more of those grounds would be upheld if time was extended, and any prejudice to the respondent if time were extended. 11
[25] In this case, it cannot be said that the delay of 24 days was short. Nor do we consider that the AWU has provided a satisfactory explanation for the delay. The AWU’s Form F18 declaration filed in the proceedings before the Commissioner was made by its official Mr Craven and in this circumstance there was nothing unusual about the decision being sent to him. It is apparent that the delay was the result of an internal communication failure within the AWU, for which the AWU must bear responsibility. We take into account, however, that once the relevant personnel within the AWU became aware of the decision, its appeal was filed very promptly.
[26] Weighing in favour of an extension is that, for the reasons which follow, the AWU’s appeal grounds have substantial merit. It is also clear that the delay has not caused any prejudice to the AMIEU’s capacity to respond to the appeal. Having regard to all these matters, we consider that the AWU should be granted an extension of time until 6 August 2021 to file its appeal.
Permission to appeal
[27] We consider that the AWU should be granted permission to appeal. The decision concerned a question of jurisdiction, namely whether the AMIEU was a bargaining agent to which the obligation upon the Commission imposed by s 201(2) applied and, as earlier stated, we consider that the AWU’s appeal grounds have substantial merit.
Merits of the appeal
[28] The AWU’s appeal concerns the question of whether, on the proper construction of rule 4.1 of the AMIEU’s eligibility rule, the AMIEU had the capacity to represent the industrial interests of employees covered by the Agreement and thereby to act as their bargaining representative. That is a question with only one correct answer. It is not therefore necessary for the AWU to establish specific error in the Commissioner’s reasons; if we consider that the correct answer to the question is other than that determined by the Commissioner, then that will be sufficient to establish error. 12
[29] Rule 4.1 of the AMIEU’s eligibility rule, read together with the chapeau to rule 4, is an industry rule of a familiar type. Generally speaking, an eligibility rule expressed in terms of the industry in which the employee works is to be understood as referring to the industry of the employer. 13 The industry in question here is the “Butchering and Meat Industry”. This can reasonably be regarded as equivalent with the “meat processing industry”, the following definition of which was accepted by a Full Bench of the Australian Industrial Relations Commission in Aberdeen Beef Co Pty Ltd & Ors v AMIEU:14
“The meat processing industry covers a very wide range of activities from the saleyard to the retail butcher shop. Of course, there are many variations in between with different methods of purchasing stock, of slaughtering and processing that stock, of the use made of the various parts of the carcase and the presentation of meat for sale on the domestic and export markets. Each and every process is directly related to the slaughter of the animal in the first instance which is the commencement of a long chain of various activities which are necessary in order to be able to offer an end product for sale and subsequent consumption.”
[30] This definition has also been accepted by the AMIEU as applicable to its eligibility rule in subsequent litigation. 15
[31] The work of the employees covered by the Agreement is plainly not “in” the industry so described. It is not in issue that Baiada Farms, the employer under the Agreement, does not engage in any of the functions referred to at the farms covered by the Agreement, and there is no evidence that it does so anywhere else. In finding that the work of the employees was “in the meat industry”, the Commissioner referred to the wider Baiada Group, which the Commissioner characterised as engaged in “the slaughter of chicken for sale and consumption”, rather than the actual employing entity, Baiada Farms. Even if this was a permissible course, the apparent conclusion made (on scant evidentiary material) that the Baiada Group operates in the meat industry does not mean that it was doing so in respect of its Baiada Farms operations. It is trite that an employer may operate within a number of different industries, and the fact that an employer operates in one industry with respect to one part of its operations does not thereby colour the industrial character of its other operations.
[32] As to the “in connection with” aspect of rule 4.1, it may be accepted that these are words which expand the scope of operation of the rule, but nonetheless there are well-established limits to the degree of expansion thereby effected. In the High Court decision in R v Isaac; Ex parte Transport Workers' Union, 16 Gibbs CJ, with whom Deane and Dawson JJ agreed, said:
“The words ‘in connexion with’ in an eligibility rule connote a relationship between the work of the employee and the industry or calling in question. It is not enough that the products of the worker are used in the industry or that the products of the industry are used by the worker. Thus it has been held that workers employed to produce coke from coal, in a business of iron and steel manufacturers, were not employed in or in connexion with the coal and shale industry: R. v. Hibble; Ex parte Broken Hill Proprietary Co. Ltd ([1921] HCA 15; (1921) 29 CLR 290, especially at pp 297, 302). Similarly, workers who produced the coal in those circumstances could not have been said to be employed in or in connexion with the iron and steel industry (cf. Reg. v. Watson; Ex parte Australian Workers' Union [1972] HCA 72; (1972) 128 CLR 77, at p 95).” 17 (underlining added)
[33] In the above decision, the Court found that the construction of a metalliferous mine was in work in connection with the “reducing and refining of ores” at the said mine and the adjacent treatment plant, and placed emphasis on the fact that the work was part of a single, co-ordinated project carried on at a single location or in close physical proximity.
[34] For the requisite connection to be established, the work of the employees in question must have some functional connection of significance to the work performed in the relevant industry.18 We do not consider, on the limited factual information available, that any such functional connection is established. As earlier stated, the employees covered by the Agreement perform work in a geographically separate business operation and are employed by a legally separate employer. We have earlier set out the classifications of employees covered by the Agreement. In no case do the duties of any classification, as prescribed in the Agreement, have any functional connection with the operations of the meat processing industry (that is, slaughtering, butchering and the preparation of meat for sale), nor did the AMIEU contend otherwise. The duties are concerned entirely with various aspects of the operation of farms that grow and nurture live chickens.
[35] The connection relied upon by the AMIEU is twofold: first, that the chickens grown by Baiada Farms are solely used for slaughter and processing by Baiada Poultry and, second, that Baiada Farms and Baiada Poultry are “under the same control and management” and “were part of a vertically integrated operation managed by the Baiada Group”. As to the first proposition, it is not sufficient for the requisite connection that the produce or output of the employer of the employees in question are used in the relevant industry. As Higgins J said in R. v. Hibble; Ex parte Broken Hill Proprietary Co Ltd 19 in relation to whether workers who produced coke from coal were in the coal and shale industry:
“It is not enough to show that coke is ‘connected with’ coal, or jam with sugar; the employees must be engaged in the industry, or in connection with it (e.g., as surface-men or engineers in connection with coal mining, or as carpenters with jam factories).”
[36] This passage emphasises that the necessary connection must be between the employees, and their work, and the industry in question.
[37] As to the second proposition, it may be inferred from the fact that Baiada Farms and Baiada Poultry form part of the Baiada Group that there is some degree of common overall management and, further, that the use of the chickens grown at Baiada Farms for the production of chicken meat for sale by Baiada Poultry suggests some degree of vertical integration. However, beyond this highly generalised proposition, there was no evidence demonstrating the existence of any single, co-ordinated operation, and the fact that Baiada Farms operates as a separate entity, at separate locations and with separate enterprise agreements, suggests rather that it operates in a substantially distinct and independent manner.
[38] Accordingly, we consider that the none of the employees covered by the Agreement was employed in or in connection with the “Butchering and Meat Industry”.
[39] Our conclusion in this respect is consistent with the longstanding position whereby union coverage of the meat industry and the rural industries which produce livestock for the meat industry have been firmly delineated. This position may most clearly be seen in the 1993 decision of the AIRC (Lawson C) in AMIEU v Oakey Holdings Pty Ltd. 20 In that case, the AMIEU sought a finding of a dispute with a number of employers operating cattle feedlots. The employers objected to such a finding being made, primarily on the basis that the AMIEU’s rules did not permit the recruitment of employees in the cattle feedlot industry. The AMIEU relied upon the “in connection with” aspect of its rule to contend that cattle feedlots “do nothing but supply cattle for slaughter” and that there consequently was a direct relationship between employment in the feedlot industry and meat processing. The AMIEU also referred to the reference to the saleyard in the definition of the “meat processing industry” accepted in Aberdeen Beef Co Pty Ltd & Ors v AMIEU (earlier quoted) and contended that cattle in feedlots were past the point of the saleyard. The AMIEU also pointed to the fact that employers operating feedlots were subsidiaries of meat processing companies.
[40] The AIRC rejected the AMIEU’s case and found that the AMIEU did not have the requisite capacity under its rules to enrol feedlot employees as members. The AIRC said:
“In attempting to define the general area or areas of industry or industrial pursuit from which membership of the union has been traditionally drawn, even applying the most liberal of construction, I remain unconvinced that the union's rules can extend upstream from the abattoir unloading ramps or holding pens to embrace the duties and functions of employees in feedlots. The functions of animal breeding, animal rearing and animal husbandry associated with cattle production all relate to traditional rural-based pursuits. The fact that in some sectors of the cattle production cycle a technological change has occurred involving the holding, the feeding, the rearing and the tending to of cattle in feedlot pens rather than in pastures, does not detract from the fundamental purpose, that is to prepare cattle for subsequent processing into meat and meat products. The duties and functions of employees in that industry have never been embraced within the horizons of the union's registered rules.
. . .
Even by applying the most liberal view of the rules of the union, I have had to have regard for the history of the coverage of awards and the industrial regulation generally of the class of persons concerned. At no point in history has the union sought to extend its rules in the manner sought in these proceedings.
The union is as industrially astute as any major registered organisation of employees. It has a very long industrial association with employers in the meat industry many of whom have traditionally owned, reared and supplied cattle to mutually-owned abattoirs, and yet the union has never contended that its industrial coverage extend upstream into the employer's pastoral interests.”
[41] Previous decisions of the Commission or its predecessors on the construction of words in provisions concerning eligibility for membership of a registered organisation will ordinarily carry considerable weight, particularly where questions of fact and usage are involved. 21 We consider that AMIEU v Oakey Holdings Pty Ltd is demonstrative of the long-established understanding of where the outer limits of the AMIEU’s eligibility rule lie and of the distinction between the meat industry and the pastoral or livestock industry. The Commission’s own modern awards maintain this distinction; thus the Meat Industry Award 2020 covers meat processing, manufacturing and retail establishments, including “the activities of killing, dressing, boning, slicing, preparation, and/or packing of fresh meat and will include any related activities conducted at any place as an ancillary part of such business” (cl 4.2), whereas the Pastoral Award 2020 covers, among other things, the “management, breeding, rearing or grazing of livestock or poultry” (cl 4.2(a)). The undertaking given by the AMIEU to the AWU in 2019 in relation to the alteration of the AMIEU’s eligibility rule, to the effect that the insertion of the word “processing” in rule 4.1 would not be relied upon by the AMIEU to assert coverage over work performed on farms in the agricultural industry, is also we consider consistent with and explained by the well-established position.
[42] For the above reasons, we conclude that the AMIEU was not entitled to represent the industrial interests of employees covered by the Agreement, and was thus incapable of being the bargaining representative of such employees. Accordingly, the Commissioner erred in noting under s 201(2) that the AMIEU was covered by the Agreement, and the appeal will therefore be upheld.
Orders
[43] We order as follows:
(1) Time is extended for the filing of the appeal to 6 August 2021.
(2) Permission to appeal is granted.
(3) The appeal is upheld.
(4) The decision ([2021] FWCA 3564) is varied to delete the notation in paragraph [20] that the Agreement covers the AMIEU.
VICE PRESIDENT
Appearances:
A Howell of Counsel for the AWU.
P Boncardo of Counselfor the AMIEU.
A Bull for Baiada Farms Pty Ltd.
Hearing details:
2021.
Sydney and Adelaide (by video):
October 19.
Printed by authority of the Commonwealth Government Printer
<PR735042>
1 [2021] FWCA 3564
2 Clause 5.1
3 [2021] FWCA 3564 at [12]
4 Ibid at [13]
5 Ibid at [14]
6 Ibid at [15]
7 Ibid at [11], [19]
8 Ibid at [20]
9 Right to Life Association (NSW) Inc v Secretary, Department of Human Services [1995] FCA 33, 56 FCR 50 at 10; Tweed Valley Fruit Processors Pty Ltd v Ross and others [1996] IRCA 407, 137 ALR 70, 65 IR 393 at 90-91; Argos Pty Ltd v Minister for Environment and Sustainable Development [2014] HCA 50, 254 CLR 394 at [48]; Australian Industry Group [2010] FWAFB 4337, 196 IR 125 at [9]- [12]; Transport Workers’ Union of Australia v Coles Supermarkets Australia Pty Ltd[2013] FWCFB 276 at [29]; Australian Mines and Metals Association Inc; Master Builders Australia Limited v Construction, Forestry, Maritime, Mining and Energy Union[2018] FWCFB 3710 at [30]; CFMMEU v JFM Civil Contracting Pty Ltd [2020] FWCFB 4866, 300 IR 122 at [21]-[22]
10 Northern SEQ Distributor-Retailer Authority v CFMEU[2017] FWCFB 3513 at [66]
11 Panayiotou v University of Adelaide [2020] FWCFB 1692 at [8]
12 O’Connor v Setka [2020] FCAFC 195 at [79]
13 Re Federated Liquor and Allied Industries Employees’ Union of Australia; Ex parte the Australian Workers’ Union (1976) 51 ALJR 266 at 268 per Barwick CJ
14 [1990] AIRC 105, 36 IR 476 at 478, affirmed in Re AMIEU; Ex parte Aberdeen Beef Co Pty Ltd [1993] HCA 17, 176 CLR 154
15 AMIEU v Oakey Holdings Pty Ltd [1993] AIRC 983, Print K8917, 25 August 1993
16 [1985] HCA 80, 159 CLR 323
17 Ibid at 333
18 Federated Miscellaneous Workers Union of Australia v Colonial Sugar Refining Co Ltd [1971] CthArbRp 1008, 141 CAR 1385 at 1389
19 [1921] HCA 15, 29 CLR 290
20 [1993] AIRC 983, Print K8917, 25 August 1993
21 R v Isaac; Ex parte Transport Workers' Union [1985] HCA 80, 159 CLR 323 at 330-1 per Gibbs CJ and 343 per Wilson J
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