Daycone Pty Ltd ATFT Daycone Trust T/A Tucker's Natural
[2015] FWC 2144
•14 JULY 2015
| [2015] FWC 2144 [Note: An appeal pursuant to s.604 (C2015/5030) was lodged against this decision.] |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.505 - Application to deal with a right of entry dispute
Daycone Pty Ltd ATFT Daycone Trust T/A Tucker's Natural
(RE2015/295)
SENIOR DEPUTY PRESIDENT O'CALLAGHAN | ADELAIDE, 14 JULY 2015 |
Alleged dispute concerning frequency of entry - eligibility provisions - frequency of entries.
[1] On 23 February 2015, Daycone Pty Ltd ATFT Daycone Trust T/A Tucker’s Natural (Tucker’s Natural) lodged an application pursuant to ss.505 and 505A of the Fair Work Act 2009 (the FW Act). That application was made following receipt, on 23 February 2015, by Tucker’s Natural of entry notices for National Union of Workers (NUW) officials, Mr Whenan and Ms Ricketts. These entry notices proposed entry for these two officials to the Tucker’s Natural facility at unspecified times on 24, 25, 26, and 27 February 2015.
[2] In its application, Tucker’s Natural questioned the capacity of the NUW to enrol as members, employees of Tucker’s Natural and, subject to this issue, sought to reduce the number of visits to a maximum of one per week between the hours of 10.00 a.m. and 1.30 p.m.
[3] In a telephone conference on 25 February 2015, the NUW confirmed that it had visited the Tucker’s Natural site on 24 February 2015 and that it would not visit the site again that week. Further, the NUW undertook that any future visits to the Tucker’s Natural site would not exceed one per week. Tucker’s Natural reiterated its contention that the NUW did not have the constitutional coverage under its rules, to enrol as members, its employees and sought an interim order to stop the NUW exercising any entry rights pending the resolution of this matter.
[4] In a decision 1 issued on 6 March 2015, I declined to make that interim order largely on the basis of the Full Bench of the Federal Court decision in Re Food Preservers Union of Australia v the Manufacturing Grocers’ Employees’ Federation of Australia; Brendan John Eames; Thomas George Gibbs; Alexander Duffew; Monica Mary Gould; Michael Raymond Rice and Kraft Foods Limited (Re Food Preservers)2 and noted that I expected the NUW to honour the undertaking provided at the 25 February 2015 conference.
[5] At the 25 February 2015 conference, the parties agreed to a program for the provision of written submissions. Both parties provided submissions. The Tucker’s Natural submissions were supported by a statutory declaration made out by Mr Tucker, the Tucker’s Natural Managing Director.
[6] I convened an inspection of the Tucker’s Natural premises on 20 April 2015 with representatives of both Tucker’s Natural and the NUW present. A further statutory declaration was subsequently received from Mr Tucker in which he revised certain of the information he provided in the course of the inspection. A request for a hearing was subsequently made and the matter was heard on 12 June 2015. Mr Duc, of counsel appeared for Tucker’s Natural pursuant to an unopposed grant of permission made under s.596(2)(a) of the FW Act. Ms Barrett and Mr Whenan represented the NUW at this hearing. Subsequent to that hearing I provided to the parties additional authorities and documentation in the form of a Memorandum of Agreement involving the NUW, and provided the parties with the opportunity to make further submissions on that material. Both parties have provided those additional submissions, which I have taken into account.
[7] Before considering the position of the parties, I have summarised the statement of Mr Tucker about the operations of Tucker’s Natural. Mr Tucker is the Managing Director of Tucker’s Natural.
[8] In his initial statement, he explained that Tucker’s Natural manufactures crackers or crispbread style biscuit products on a single production line with 14 full-time and 10 casual employees. He explained the employee duties in the following terms:
“a. Receiving ingredients and materials in to store including raw ingredients, packaging materials and materials used for manufacturing of the products, including flour, delivered to the rear receivable dock and brought into the rear store (Exhibit A),
b. storage of ingredients and materials received by forklift in to store and pallet jacked for internal movements (Exhibit B),
c. weighing ingredients to product recipes, which happens in the mixing room (Exhibit C),
d. mixing of dough and transferring the dough from the mixer to the dough break, also in the mixing room (Exhibit D),
e. sheeting the dough in to rolls which are fed down main production line to form/cut product, which is cut in to tray lengths by an employee using a roller cutter (Exhibit E),
f. transferred on to oven trays and trays are placed in oven racks (Exhibit F),
g. place oven racks in oven to be cooked (Exhibit G),
h. remove racks from oven to be cooled (Exhibit H),
i. once cooled remove product from trays, and staff grade product to meet acceptable quality requirements (Exhibit I),
j. sorted into bakers’ crates and stacked on dollies waiting to be processed on the packing line (Exhibit J),
k. product is packed and weighed (manually in plastic trays for our Gourmet Crackers only and all other products through automatic packaging equipment), then processed through automatic metal detector and weight checker (Exhibit K),
l. packets are then put in to a cardboard inner through an automatic inner erector machine and automatically coded, the inners flow on conveyors to be packed in to an outer carton which is fed by an automatic outer carton erector machine on conveyor, once inners are packed in to the outer carton they are sealed and coded through an automatic tape machine, outer carton is then palletized and transferred into storage, finally orders are dispatched to customers from store (Exhibit L and La),
m. Cleaning is carried out daily.” 3
[9] Mr Tucker advised that:
“10. Staff are split up in to teams with mixing, sheeting and baking of the products done by the higher skilled team members (approximately seven full time employees and two casuals), grading and packing performed by the remaining staff (approximately six full time employees and seven casuals), a store person, and cleaner.” 4
[10] I consider that Mr Tucker’s description of the employee duties is clearly consistent with my observations from the inspection on 20 April 2015.
[11] In his evidence on 12 June 2015 and supplementary statement, 5 Mr Tucker advised that the Tucker’s Natural product was packaged in three forms. Product was packaged in 100 g packs, bulk packs, and portion packs. Mr Tucker advised that, contrary to the advice he provided on an “off the cuff” basis in the course of the inspection on 20 April 2015, the 100 g packs were predominantly sold to retailers and represented approximately 30% of the total manufactured product. The bulk packs were almost exclusively sold to industrial customers and represented 20 to 25% of the total manufactured product. The portion packs were predominantly sold to industrial customers for inclusion in meals prepared by those customers and represented the remainder of the total manufactured product. Examples of the portion pack customers included airline operations, convention centres, and diet food providers.
[12] The Tucker’s Natural submissions addressed three central issues. Firstly, they asserted that the NUW rules do not extend to coverage of the Tucker’s Natural employees. In this respect, Tucker’s Natural relies on the rules themselves, on various decisions addressing these issues, and the definitions of common terms in those rules. Tucker’s Natural asserted that the Eligibility provisions of the NUW rules made no reference to biscuits or similar products and that the Tucker’s Natural product could not be properly described in the terms set out in Rule 5(G)(i).
[13] Secondly, and effectively in the form of an alternative position, Tucker’s Natural sought an order pursuant to s.505A that the NUW entry notices issued for four consecutive days was unreasonable.
[14] Again, effectively as a third position, Tucker’s Natural sought a limitation on NUW entry rights so as to allow only one visit per week.
[15] The NUW position was that its Rule 5(G)(i)(e) established the constitutional capacity to enrol the Tucker’s Natural employees as members. This rule refers to “Grocer’s sundries” and in this respect the NUW relied on the Full Federal Court decision in Re Food Preservers which, it asserted, established that Grocer’s sundries should be taken as “any articles, goods or sundries suitable for human consumption that are pre-packed for retail sale before delivery to Grocer’s shops, supermarkets or smaller stores”. 6Additionally, the NUW position was that Re Food Preservers stood for the proposition that sub-rule 5G(i)(e) should be read broadly so as to incorporate coverage of these employees irrespective of whether they are “grocers’ sundries or not.
[16] The NUW asserted that its coverage of employees engaged by food manufacturers was commonly accepted and well established.
[17] In its supplementary submissions of 13 March 2015, the NUW confirmed the undertaking it provided at the conference on 25 February 2015, to the effect that entry rights would not be sought more frequently than on a weekly basis. 7
Findings
[18] Section 505 of the FW Act states:
“505 FWC may deal with a dispute about the operation of this Part
(1) The FWC may deal with a dispute about the operation of this Part, including a dispute about:
(a) whether a request under section 491, 492A or 499 is reasonable; or
(b) when a right of the kind referred to in section 490 may be exercised by a permit holder on premises of a kind mentioned in subsection 521C(1) or 521D(1), despite that section; or
(c) whether accommodation is reasonably available as mentioned in subsection 521C(1) or premises reasonably accessible as mentioned in subsection 521D(1); or
(d) whether providing accommodation or transport, or causing accommodation or transport to be provided, would cause the occupier of premises undue inconvenience as mentioned in paragraph 521C(2)(a) or 521D(2)(a); or
(e) whether a request to provide accommodation or transport is made within a reasonable period as mentioned in paragraph 521C(2)(c) or 521D(2)(c).
Note 1: Sections 491 and 499 deal with requests for permit holders to comply with occupational health and safety requirements.
Note 2: Section 492A deals with requests for a permit holder to take a particular route to a room or area in which an interview is to be conducted or discussions held.
Note 3: Section 490 deals with when rights under Subdivision A, AA or B of Division 2 of this Part may be exercised.
Note 4: Sections 521C and 521D deal with accommodation in and transport to remote areas for the purpose of exercising rights under this Part.
(2) The FWC may deal with the dispute by arbitration, including by making one or more of the following orders:
(a) an order imposing conditions on an entry permit;
(b) an order suspending an entry permit;
(c) an order revoking an entry permit;
(d) an order about the future issue of entry permits to one or more persons;
(e) any other order it considers appropriate.
Note: The FWC may also deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion (see subsection 595(2)).
(3) The FWC may deal with the dispute:
(a) on its own initiative; or
(b) on application by any of the following to whom the dispute relates:
(i) a permit holder;
(ii) a permit holder’s organisation;
(iii) an employer;
(iv) an occupier of premises.
(4) In dealing with the dispute, the FWC must take into account fairness between the parties concerned.
(5) In dealing with the dispute, the FWC must not confer rights on a permit holder that are additional to, or inconsistent with, rights exercisable in accordance with Division 2, 3 or 7 of this Part, unless the dispute is about:
(a) whether a request under section 491, 492A or 499 is reasonable; or
(b) when a right of the kind referred to in section 490 may be exercised by the permit holder on premises of a kind mentioned in subsection 521C(1) or 521D(1), despite that section; or
(c) whether accommodation is reasonably available as mentioned in subsection 521C(1) or premises reasonably accessible as mentioned in subsection 521D(1); or
(d) whether providing accommodation or transport, or causing accommodation or transport to be provided, would cause the occupier of premises undue inconvenience as mentioned in paragraph 521C(2)(a) or 521D(2)(a); or
(e) whether a request to provide accommodation or transport is made within a reasonable period as mentioned in paragraph 521C(2)(c) or 521D(2)(c).”
[19] Section 505A of the FW Act states:
505A FWC may deal with a dispute about frequency of entry to hold discussions
(1) This section applies if:
(a) a permit holder or permit holders of an organisation enter premises under section 484 for the purposes of holding discussions with one or more employees or TCF award workers; and
(b) an employer of the employees or the TCF award workers, or occupier of the premises, disputes the frequency with which the permit holder or permit holders of the organisation enter the premises.
(2) The FWC may deal with a dispute about the frequency with which a permit holder or permit holders of an organisation enter premises under section 484.
(3) The FWC may deal with the dispute by arbitration, including by making one or more of the following orders:
(a) an order imposing conditions on an entry permit;
(b) an order suspending an entry permit;
(c) an order revoking an entry permit;
(d) an order about the future issue of entry permits to one or more persons;
(e) any other order it considers appropriate.
Note: The FWC may also deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion (see subsection 595(2)).
(4) However, the FWC may only make an order under subsection (3) if the FWC is satisfied that the frequency of entry by the permit holder or permit holders of the organisation would require an unreasonable diversion of the occupier’s critical resources.
(5) The FWC may deal with the dispute:
(a) on its own initiative; or
(b) on application by any of the following to whom the dispute relates:
(i) a permit holder;
(ii) a permit holder’s organisation;
(iii) an employer;
(iv) an occupier of premises.
(6) In dealing with the dispute, the FWC must take into account fairness between the parties concerned.”
[20] The entry notices which gave rise to this dispute relied on s.484 of the FW Act. That section states:
“484 Entry to hold discussions
A permit holder may enter premises for the purposes of holding discussions with one or more employees or TCF award workers:
(a) who perform work on the premises; and
(b) whose industrial interests the permit holder’s organisation is entitled to represent; and
(c) who wish to participate in those discussions.
Note 1: A permit holder, or the organisation to which the permit holder belongs, may be subject to an order by the FWC under section 508 if rights under this Subdivision are misused.
Note 2: A person must not refuse or unduly delay entry by a permit holder, or intentionally hinder or obstruct a permit holder, exercising rights under this Subdivision (see sections 501 and 502).
Note 3: Under paragraph 487(1)(b), the permit holder must give the occupier of the premises notice for the entry. Having given that notice, the permit holder may hold discussions with any person on the premises described in this section.”
[21] Tucker’s Natural manufacture crackers in a range of flavours and styles. The Tucker’s Natural website confirms that these are made from a variety of products, including, but not limited to, flour, dairy products, salt, sugar, eggs, and rice bran. This is consistent with my observations from the inspection. Additionally, I have noted that there is a high level of inter-changeability of staff. No argument has been put to me to the effect that I should regard certain elements of the Tucker’s Natural workforce differently than others. The Tucker’s Natural website also indicates that fruit pastes are manufactured, but there is no information before me about those products.
[22] The evidence of Mr Tucker relative to the functions undertaken by the employees generally indicates that these functions fall into four broad categories. Firstly, employees are variously involved in the receipt, packaging, and handling of materials used to manufacture biscuits. Secondly, employees are involved in mixing, baking, and quality control of the biscuits. Employees are involved in packing and storing the completed product for distribution to retail and other outlets. Finally, employees may be involved in cleaning functions.
[23] There is no dispute that Mr Whenan and Ms Ricketts are permit holders.
[24] Section 484 is within Part 3-4 Right of entry and hence the dispute about the NUW’s entitlement to represent the industrial interests of the Tucker’s Natural employees is able to be dealt with by the Fair Work Commission (Commission). Tucker’s Natural is an employer who is able to make an application under this Part.
[25] In terms of the constitutional coverage of the NUW, I have considered whether I can be satisfied that the NUW is able to enrol as members, employees of Tucker’s Natural on the basis that, if that capacity does not exist, the entries sought are without proper foundation.
[26] I have had particular regard to Rule 5 Conditions of Eligibility. The parties both agree that Sub-Rule 5(G)(i) is central to this issue. This states:
“5 - CONDITIONS OF ELIGIBILITY
....
(G) (i) The Union shall consist of persons who are bona-fide employees, wholly or partly engaged in any capacity in the manufacture or preparing for sale of (a) candles, (b) soap, soap powders and extracts, soda, (c) starch, (d) blue (washing), boot blacking, boot polish, boot paste, boot stains, black lead, charcoal, coal dust, cloudy ammonia, dubbo, ebonite shine, furniture polish, glycerine, greases, harness dressing, harness compounds, ink, knife polish, kindlers, linoleum and oilcloth polish, metal polish, moulders’ blacking, oils, phenyl, plumbago preparations, stove polish, vaseline, (e) condiments and cereal foods, and all other articles, goods and preparations usually or commonly known as Grocers' sundries including arrowroot, baking powder, barley, bicarbonate of soda, bird seed, borax, brose meal, carraway seeds, cassia, castor sugar, chicory, chicorine, chillies, chocolate, cinnamon, citric acid, citron peel, cloves, cocoa, coffee, coffee essence, coriander seed, cornflour, cornina, cream of tartar, cummin seed, curry powder, custard powder, copras oils, condensed milk, dessicated coconut, digestive meal, epsom salts, fennel, fenugreek, flavouring essences, graham flour, groats, ginger, haricot beans, hommell, hemp seed, icing sugar, jellies, lemon peel, lentils, linseed, linseed meal, macaroni, mace, magnesia, meal wheat, malt preparations, maize meal, millet seeds, mustard, nutmegs, oatmeal, oats, orange peel, peas, pepper, pimento, patent foods, rape seed, rice, sago, sago flour, self-raising flour, spices, semolina, sulphur, tapioca, tartaric acid, vermicelli, (f) matches and matchboxes, (g) glucose and all products of maize and all other similar or allied preparations, goods and article.”
[27] Sub-Rule 5(HA) states:
“(HA) In the State of New South Wales the Union shall also consist of persons who are employed or competent to be employed in the pastrycooking or biscuit making industry, or the manufacture of any goods of which flour or sugar forms a part.”
[28] For the sake of completeness, I note that a provision corresponding to Rule 5(HA) applies as Rule 4(H) in the Description of Industry rule.
[29] In considering the eligibility provisions of the NUW Rules, I have adopted a broad approach consistent with the Full Bench decision of the Australian Industrial Relations Commission in Metal Trades Industry Association of Australia v Electrical Trades Union of Australia and Ors 8 in the following terms:
“The fact that the expression ‘electrical industry’ is the singular does not assist greatly in construing that part of the rule. To identify various industries that might be employer industries comprehended by the expression ‘electrical industry’ is simply to disaggregate that which is described by the one expression. There is no reason, in our view, why the expression should not be treated as having a broad meaning ...”
....
The eligibility rules of the ETU were formulated over half a century ago. The union represents employees in areas of industry where technological developments have, in that period, been profound.”
[30] Whilst that approach was articulated relative to the electrical industry, it has general application. I have noted that the significant suite of industries within which the NUW operates has also been subject to substantial change and that the NUW rules reflect drafting which in some measure is around 100 years old and has been modified on a somewhat ad hoc basis to deal with particular situations and union amalgamations.
[31] Sub-Rule 5(G)(i)(e) has operated in this form for many years. It appears to have its genesis in an amalgamation between the NUW and the Manufacturing Grocers’ Employees’ Federation of Australia in 1992.
[32] Whilst the parties referred me to the Full Federal Court decision in Re Food Preservers, in the context of considerations of “grocers’ sundries”I think there is a simpler basis upon which the Tucker’s Natural employees are eligible to be members of the NUW. Sub-rule 5(G)(i)(e) refers to “condiments and cereal foods” before continuing, to refer to “Grocers’ sundries”. I think that Tucker’s Natural crackers, in their various forms, are most appropriately described as a “cereal food”.
[33] A “cereal food” is generally defined as a food made from any of the cereal grasses. Those cereal grasses include wheat and rice. The Macquarie Dictionary definition of cereal states:
“noun 1. Any gramineous plant yielding an edible farinaceous grain, as wheat, rye, maize, etc. 2. the grain itself. 3. some edible preparation of it, especially a breakfast food made from some grain. - adjective 4. of or relating to grain or the plants producing it.” 9 (the underlining is mine)
[34] Consequently, it seems to me that this situation, unlike that which was considered in Re Food Preservers, and, for that matter, various other disputed coverage situations, can be appropriately regarded to be within the NUW eligibility provisions.
[35] Notwithstanding that this component of the NUW Rules has been in effect for a substantial time, I am unable to identify circumstances where the Commission or the Court have been called upon to address the extent to which it can be relied upon to establish membership coverage for the manufacture of a cereal food in the form of crackers. Nevertheless, on the plain words in the rule, and the approach I have applied, a cracker must be regarded as a cereal food and hence the NUW is able to enrol, as members, employees engaged in manufacturing that product. I have concluded that the Australian and New Zealand Standard Industry Classification (ANZSIC) description of the products composed as cereals should not be applied to limit the broader concept of “cereal foods” referenced in the NUW rules. In this respect I do not consider that the ANZSIC descriptors were relevant to the adoption of the rule in question such that they should then be applied to limit the application of this rule. Further, I am not satisfied that the ANZSIC Standard descriptors inherently limit the concept of “cereal foods”. The ANZSIC descriptors identify different categories of cereal foods and in that respect, differentiate various types of cereal food from each other. Consequently, the basis for the use of those ANZSIC descriptors to limit the concept of “cereal foods” in the NUW rule has not been established. It is appropriate that I note that, in the event that the FWC was called upon to determine competing union membership claims, the ANZSIC definitions may become more particularly relevant.
[36] I note that the extent to which this may run counter to traditional union membership arrangements has not been argued to me.
[37] Notwithstanding this conclusion, and in the event that the Tucker’s Natural crackers cannot be regarded as cereal foods, I have considered the decision in Re Food Preservers. It is appropriate to briefly summarise the background to that matter in as much as it involved consideration of a range of products manufactured by Kraft. Those products included Vegemite, Peanut Butter, Salad Preparation, and cheeses. None of those products appear to be directly compatible with the Tucker’s Natural crackers. In considering the nature of the products, Smithers J commented on the difficulty associated with cataloguing products for the purpose of establishing if they were “Grocers’ sundries”. 10Northrop J reviewed the relevant history of the concept of “grocers”.11 His Honour adopted an approach to considering eligibility clauses which was consistent with that which I have set out above. In Re Food Preservers Northrop J made the following observations which were endorsed by Smithers J and Keely J.
“35. In all the circumstances, the following matters should be considered in determining whether articles, goods or preparations are grocers' sundries. The articles must be pre-packed for retail sale and must have been so pre-packed before delivery to the retail Grocer. The nature of the container is immaterial, the important fact being that the contents are suitable for human consumption. The containers should be small enough for home use and normally sold by a retail Grocer. Having regard to changes in the retail structure at the present time the sales can take place in Grocers' shops, supermarkets or smaller stores. The range of the contents of the containers is in reality unlimited, but some limitation must be placed on the extent to which the manufacturing aspect may be traced. Thus, in the manufacture of canned meats, the eligibility rule would not extend to meat works where animals are slaughtered; in the manufacture of jams, the eligibility rule would not extend to sugar refineries on the basis that sugar forms a large proportion of the material used in the manufacture of jams; in the manufacture of flour or self-raising flour, the eligibility rule would not extend to flour mills. In the present case, it is not necessary to denote the limits of paragraph (e) of the eligibility rule of the Federation since the manufacture of the preparations in dispute and the preparing for sale of the preparations in dispute are all done at the final stage before sale to a wholesale or retail outlet or direct to the user.
36. Having given a description of what type of goods come within the concept of grocers' sundries, it becomes necessary to construe the eligibility rule of the Federation and in particular, paragraph (e) thereof. It is apparent that the draftsman of the whole of the rule was a Union official more familiar with the practical affairs of industry than with the niceties or subtle nuances of language. He was aware of what was in the eligibility rule immediately prior to the alterations made in September 1915. He must have been aware of the terms of the appointment of the Grocers' Sundries Board in 1911 to determine "the lowest prices or rates which may be paid to any person ... employed in the process, trade or business of manufacturing (except in flour mills) cereal foods, condiments, spices, coffee, chicory or cocoa". He must have been aware that articles, goods and preparations usually or commonly known as grocers' sundries covered the wide range of articles already discussed and, provided they were supplied to retail Grocers in a pre-packed form ready for sale to the public, articles comprising cereal foods, condiments and spices were known as grocers' sundries. He must have known that with the possible exception of borax and sulphur, all the preparations listed in paragraph (e) of the eligibility rule immediately before its alteration in September 1915 were articles, goods or preparations which, if pre-packed for retail sale, were usually or commonly known as grocers' sundries. He should have known that condiments, cereal foods and spices were words of general description which included many of the particular preparations listed in the then existing paragraph (e) of the eligibility rule. He must have known that spices, chicory, cocoa and coffee were already listed in the existing paragraph (e). He must have intended to ensure that the existing coverage be retained, but should be extended to cover all articles, goods and preparations usually or commonly known as grocers' sundries. The extension was meant to cover the pre-packing for retail sale. In all those circumstances, in the absence of legal skills in drafting, he adopted the rather clumsy form set out in paragraph (e) and the concluding words of the eligibility rule. Condiments and cereal foods had to be included because of the presence of those words in the appointment of the Grocers' Sundries Board. There was no need to include spices, chicory, cocoa or coffee since they were already in paragraph (e), but all items then in paragraph (e) had to be included as well, irrespective of whether they were pre-packed and thus grocers' sundries.
37. Counsel for the Union contended that the form of the opening words of paragraph (e) showed that the use of the words "and all other articles etc." after the words "condiments and cereal foods" should be read ejusdem generis with condiments and cereal foods. That contention is rejected. It can be conceded that the comma appearing after the word "foods" can be disregarded; compare Coward v. Allen [1984] FCA 53; (1984) 52 ALR 320 per Northrop J. at p 330 and the authorities cited therein. Nevertheless, there is no thread common to the words "condiments and cereal foods". They are generic words covering a multitude of different articles, goods or preparations. A grocer's sundry must be a pre-packed article ready for sale to the public. Grocers' sundries are not limited to articles, goods or preparations being condiments or cereal foods. On its proper construction, the words "and all other articles etc." are words of extension, there being no warrant to apply them ejusdem generis with the particular words of general description preceding them. Further, the use of the word "including" after the words "Grocers' sundries" has the effect of keeping within paragraph (e) and thus the eligibility rule of the Federation, all the goods, articles and preparations thereafter listed irrespective of whether they are grocers' sundries or not.
38. It follows, that if the relevant goods, articles or preparations manufactured or prepared for sale by Kraft are articles, goods or preparations usually or commonly known as grocers' sundries or are similar or allied preparations, goods or articles to any of them, the Federation has the ability to enrol as members persons employed by Kraft in any capacity in their manufacture or preparation for sale. In those circumstances, it is not necessary to determine whether those relevant goods came within any one or more of the particular articles, goods or preparations specified in paragraph (e). It is proposed therefore to consider the primary question by reference to each of the six relevant departments of Kraft.” 12
[38] To the extent that the decision in Re Food Preservers incorporates a limitation on the extent to which the NUW is able to enrol as members, employees in manufacturing operations, the nature of the Tucker’s Natural operation as a manufacturer of products for retail sale becomes relevant. In this regard, I have adopted the position set out by a Full Bench of the Australian Industrial Relations Commission in 1989 in the matter of Food Preservers Union and the Manufacturing Grocers’ Employees’ Federation of Australia (Saffries). 13 In that matter, the Full Bench addressed the antecedents of this rule in the following terms:
“In this year 1989 and for many years past, the meaning of the term "grocers' sundries" and what was "usually or commonly" known as such, would rate as a subject for the rather eccentric researcher into the sidelines of socio-commercial history. The term presumably meant something in the second decade of this century when grocers' shops bore little or no resemblance to those of today nor to the retail chains of supermarkets which are central to the shopping chores of families living in this ninth decade.
The perplexity engendered in responsible persons having to make such a research, is manifest in the judgments of the Commonwealth Industrial Court in the Manufacturing Grocers Award 1962 which involved an interpretation of that award. The interpretation depended upon whether a manufacturer of table margarine was covered by a term of the award which brought within its coverage the manufacture of "all kinds of goods commonly known as grocers' sundries."”
[39] The Full Bench then adopted the decision in Re Food Preservers and stated:
“Without limiting the content of the judgment of Northrop J we would ask in the context of the foods the subject of the present appeal, first: what is the particular item? Secondly, is it of a kind which is usually presented for sale in a grocer's shop or supermarket? Thirdly, is it a grocers' sundry in the sense that the phrase was used in its original commercial context.”
[40] In that matter, the Commission was concerned with whether employees engaged in the production of 5 kg packs of pre-cooked and frozen potato chips or french fries were eligible to be members of a predecessor to the NUW. I hasten to point out that there is no suggestion that potato chips or french fries were “cereal foods”. The Full Bench of the Commission reached the following conclusion:
- “Thus far we have covered the case as it relates to the question of whether the five-kilo packs of Safries french fries are grocers' sundries within the rule and for the reasons stated we have decided they are not. However it remains to consider a matter which was not raised for the consideration of Deputy President Riordan involving the concluding part of the eligibility rule of the federation which states:
" and all other similar or allied preparations goods and articles to any of the abovementioned preparations goods and articles."
Notwithstanding that the Safries five-kilo packs are not grocers' sundries, 500 gram, one kilo and even three-kilo packs of pre-cooked, frozen french fries would probably come within that description, judged by the criteria which we have already discussed, were they to be manufactured or prepared by Safries. Can the five-kilo packs therefore be described as goods or articles which are similar or allied to the smaller packs? (4)(1935-36) [1935] HCA 79; 54 CLR 387
In our view they cannot.
Support for this answer is to be found in the judgment of Northrop J in the Kraft Case.
Having found that pre-packed Vegemite was a grocers' sundry he went on to conclude that "Vegex", a similar Kraft preparation, but supplied to producers and not to the public, came within the concluding provision of the rule. Also having found that certain sauces and dressings, when pre-packed by Kraft for retail outlets, were grocers' sundries, he decided that small amounts of the same product when pre-packed in small opaque containers or sachets for use in a single meal in such places as hotels, airlines and hospitals came within the concluding provisions as "similar or allied" preparations.
We consider that "similar or allied preparations" etc. should be read in conjunction with the earlier parts of the federation's rule and not as words of extension thereto. That is to say the concluding phrase is to be read in association with, and not independently of, the six previous heads of articles in respect of which employees engaged in their manufacture or preparation for sale are eligible to be federation members. This conclusion appears to conform with the reasoning of Northrop J that what was a "similar or allied preparation" was intrinsic to, and dependent upon, a finding that the products to which they were similar or allied were themselves grocers' sundries.
In his judgment in the Kraft Case, Northrop J also appears to accept that preparations, goods and articles can only qualify as "similar or allied" if the employer in question is actually producing or preparing the grocers' sundry for which that similarity or alliance is contended. In the absence of compelling argument to the contrary we consider this approach to be an appropriate one for us to adopt on the present appeal, particularly having regard to the fact that the Court in the Kraft Case had before it evidence relating to the history of the federation rule and the meaning of the expression "grocers' sundries".
For the above reasons we must quash the decision under appeal and set aside the finding of dispute and we order accordingly. In doing so we should only be taken as having considered, in general terms, that part of the federation rule which is germane to the present matter. The terms in which it is cast appear to us to warrant a pragmatic approach in the context of the facts of each particular case.”
[42] Alternatively, again, the decision in Saffries appears to support the proposition that a broader approach to the concept of “Grocers Sundries” is appropriate, given the similarity of the products packaged for bulk are for industrial customers, with those packaged by the same employees, for retail sale. On this basis, the Tucker’s Natural products would fall within such a broad consideration.
[43] I have considered the extent to which Sub-Rule 5(HA) should be read as restricting the eligibility provisions for the NUW relative to biscuit making outside of New South Wales. Absent particular circumstances, a provision of this nature, when read in conjunction with Sub-Rule 4(H), could be taken to imply that eligibility relative to biscuit making does not extend outside of New South Wales. However, the particular circumstances under which Sub- Rules 5(HA) and 4(H) were inserted into the NUW Rules must be taken into account. These provisions appear to have arisen from amalgamations between the NUW New South Wales Branch and another New South Wales union, the Pastry Cooks Employees’, Biscuit Makers Employees’ and Flour and Sugar Goods Workers’ Union of New South Wales in the early 1990s. They reflected arrangements and negotiations specific to New South Wales relative to the demarcation of work undertaken relative to biscuit making as a consequence of a union amalgamation process. In 1996, Acton DP (as she then was), as the Designated Presidential Member, noted that objections that had been lodged by a number of other unions to the New South Wales coverage arrangements. 14
[44] A further application, made under s.118A of the Industrial Relations Act 1998, sought to extend those coverage arrangements. Williams DP dismissed that application, 15 fundamentally as a result of concerns associated with unresolved demarcation differences between a number of unions.
[45] The same matter was the subject of further consideration in 1996 when, Acton DP (as she then was) was satisfied that the various objections relative to New South Wales had finally been resolved and confirmed what is now Sub-Rule 5(HA). 16
[46] As a consequence of the extent to which these Sub-Rules reflected a situation specific to New South Wales, I do not consider that it is appropriate to imply, from these particular Sub-Rules, that NUW is not eligible to enrol as members, employees engaged in biscuit making outside of New South Wales. Had those particular Sub-Rules been created to deal with a broader situation, I may have arrived at a different conclusion in this respect.
[47] Equally relevant in this regard is the Memorandum of Agreement which I provided to the parties in this matter. That Memorandum was provided to the Australian Industrial Relations Commission by the NUW on the basis that it reflected the full settlement of the objections to the NUW rules which were ultimately approved by Acton DP on 15 April 1996 in Print N0733. That Memorandum of Agreement was signed by the General Secretary of the NUW and the Joint National Secretary of the then Australian Liquor, Hospitality and Miscellaneous Workers Union in February and March 1996. It stated:
“…. the National Union of Workers hereby undertakings that it will not, as a result of any alterations to its industry and eligibility rules in D. No.30036 of 1995, seek to extend beyond NSW its membership in relation to persons who are employed or competent to be employed in the pastrycooking or biscuitmaking industry, or seek to extend its membership into the traditional areas of membership of the Australian Liquor, Hospitality & Miscellaneous Workers Union, or seek to alter the status quo as to membership and coverage between the National Union of Workers and the Australian Liquor, Hospitality & Miscellaneous Workers Union.” 17
[48] I am not aware of any subsequent arrangements that may have been agreed between the NUW and what is now United Voice. Tucker’s Natural asserted that the Memorandum of Agreement supported its argument that rule 5HA established a broader membership prescription in New South Wales than that which applied elsewhere in Australia. The NUW position is that it is not relying upon rule 5HA as the basis for its capacity to represent these employees, but rather, on the provisions of rule 5(G)(i)(e) which already provided the capacity for that coverage.
[49] There is nothing before me that indicates that United Voice is representing employees of Tucker’s Natural, or that United Voice is disputing the standing of the NUW. Any dispute over union coverage issues can be referred to the FWC pursuant to the provisions of the Fair Work (Registered Organisations) Act 2009. The Memorandum of Agreement would need to be reviewed in that context. However, I am unable to regard that Memorandum as a definitive limitation on the coverage of the NUW rules. It seems to me that the Memorandum is premised on recognition that the NUW rules provide for very broad coverage provisions. There is nothing in the Memorandum which assists in the interpretation of rule 5(G)(i).
[50] Consequently, I have concluded that the NUW is able to enrol as members, employees engaged in manufacturing biscuits at Tucker’s Natural. It follows that I must refuse the Tucker’s Natural argument that an order should be made pursuant to s.505 so as to prohibit further entry rights on the part of the NUW permit holders to the Tucker’s Natural premises on the basis that the NUW is eligible to represent the industrial interests of those employees.
[51] The alternative Tucker’s Natural submission is that an order should be made pursuant to s.505A such that the right of entry notices seeking entry rights at unspecified times over four consecutive days was unreasonable.
[52] I note that s.490 states:
“490 When right may be exercised
(1) The permit holder may exercise a right under Subdivision A, AA or B only during working hours.
(2) The permit holder may hold discussions under section 484 only during mealtimes or other breaks.
(3) The permit holder may only enter premises under Subdivision A, AA or B on a day specified in the entry notice or exemption certificate for the entry.”
[53] I have adopted the position that, given the undertaking provided by the NUW on 25 February 2015 and confirmed in its submissions of 13 March 2015, there is no utility and, arguably no jurisdiction, for a finding that the entry notices issued on 23 February 2015 constituted a breach of any of the provisions of Part 3-4 Right of Entry of the FW Act.
[54] Finally, Tucker’s Natural seeks an order, presumably pursuant to s.505A which would limit the capacity of the NUW to exercise entry rights more frequently than once per week. I have concluded that, whilst s.505A provides the jurisdiction for an order of that nature, the undertaking provided by the NUW makes it unnecessary at the present time. That undertaking was confirmed in the NUW submissions of 13 March 2015 in the following terms:
“12. In any event, the FWC could not be satisfied that the frequency of entry visits by NUW permit holders would have this effect given that the NUW has already provided an undertaking that entry rights will not be sought more frequently than on a weekly basis.”
[55] That undertaking does not deal with the Tucker’s Natural position that the entry rights should only be exercised between 10.00 a.m. and 1.30 p.m. However, given the provisions of s.484 I think a restriction of that nature is unlikely to be of any substantial utility. Nevertheless, to the extent that the times of the day when entry rights might be sought, continues to be a matter of concern, Tucker’s Natural may seek to further pursue this concern.
[56] I note that, in the event that the NUW undertaking is not honoured, Tucker’s Natural may be expected to renew its request for an order pursuant to s.505A, but I have no reason to doubt that the NUW will not honour the undertaking it has given.
[57] The Tucker’s Natural application is dismissed on this basis.
Appearances:
A Duc counsel for the applicant.
E Barrett and M Whenan for the National Union of Workers.
Hearing details:
2015.
Adelaide:
June 12.
1 [2015] FWC 1578
2 [1986] FCA 47
3 Statement of Sam Tucker, 5 March 2015, para 9 (a - m)
4 Statement of Sam Tucker, 5 March 2015, para 10
5 Exhibit A1
6 NUW submissions of 5 March 2015, para 7
7 NUW supplementary submissions of 13 March 2015, para 6
8 [1992] 42 IR 158
9 Macquarie Dictionary, third edition, underline added
10 [1986] FCA 47 (5 March 1986), Re Food Preservers, para6
11 [1986] FCA 47 (5 March 1986), Re Food Preservers, paras 18-29
12 [1986] FCA 47 (5 March 1986)
13 Print H8531, 14 June 1989
14 National Union of Workers, Print K6490, 2 February 1993
15 National Union of Workers, Print M4298, 14 August 1995
16 National Union of Workers, Print N0733, 15 April 1996
17 Memorandum of Agreement, 12 March 1996
Printed by authority of the Commonwealth Government Printer
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