Daycone Pty Ltd ATFT Daycone Trust T/A Tucker's Natural

[2015] FWC 1578

[2015] FWC 1578

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, 6 MARCH 2015

Alleged dispute concerning frequency of entry and entry rights - request for interim order refused.

[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 has not yet been resolved and Tucker’s Natural has sought an Interim Order which would suspend the entry rights for NUW Officials pending final resolution of the application. This decision deals with that request.

[2] The application was made following receipt, by Tucker’s Natural of entry notices purportedly made under Regulation 3.27, by Mr Whenan and Ms Ricketts of the National Union of Workers (NUW). Those notices were served on Tucker’s Natural by email on 23 February 2015 and advised of proposed entries to the Tucker’s Natural facility at unspecified times on 24, 25, 26 and 27 February 2015.

[3] The application was the subject of conferences on 24 and 25 February 2015. Whilst the NUW did not participate in the 24 February 2015 conference, it was a participant in the 25 February 2015 conference with Ms Beynon and Mr Whenan in attendance. Mr Duc, of counsel represented Tucker’s Natural pursuant to a grant of permission made under s.596(2)(a). Mr Tucker, the Managing Director of Tucker’s Natural was also present.

[4] At this conference the parties discussed the circumstances under which the entry notices had been issued. Whilst there was no agreement about these relevant circumstances, I note that the NUW confirmed that its officials had visited the Tucker’s Natural facility on 24 February 2015 and would not attend again that week. Further, the NUW undertook not to visit the Tucker’s Natural site on anything more than a weekly basis. Finally, and given the objection made by Tucker’s Natural to its coverage, the NUW undertook not to seek to exercise of entry rights until the week commencing 9 March 2015.

[5] In the conference on 25 February 2015 the parties also discussed the frequency of the NUW entry visits. No agreement was reached on this issue given the Tucker’s Natural position that the NUW did not have the constitutional coverage to enrol, as members, employees of Tucker’s Natural.

[6] Both parties have provided initial written submissions relative to the matters in dispute. Those submissions also address the interim order sought by Tucker’s Natural to stop the NUW exercising any entry rights pending a final decision.

[7] In accordance with the advice I provided to the parties at the 25 February 2015 conference, I have considered this material in reaching a decision about the Interim Order sought.

[8] The submissions established that Tucker’s Natural manufactures biscuits and crackers. It employs some 24 employees who undertake a variety of tasks including, but not limited to, receiving and storing ingredients, manufacturing biscuits and crackers, and packing and storing the completed product.

[9] Relative to the coverage issue Tucker’s Natural asserts that the NUW has no constitutional coverage such that employees of this nature could be members. In support of its position, Tucker’s Natural has relied on a number of decisions which reviewed the NUW eligibility provisions. 1

[10] The NUW position is that it’s Rule 5(G)(i) establishes that it is entitled to represent the industrial interests of employees of Tucker’s Natural. The NUW relied on the Full Federal Court decision in Re Food Preservatives Union of Australia v the Manufacturing Grocer’s Employee’s Federation of Australia; Brendan John Eames; Thomas George Gibbs; Alexander Duffew; Monica Mary Gould; Michael Raymond Rice and Kraft Foods Limited 2 (Re Food Preservatives) in this respect.

Findings

[11] Rule 5(G)(i) of the NUW Rules 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, phenyle, 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 articles to any of the abovementioned preparations, goods or articles.”

[12] As the NUW has observed, in Re Food Preservatives, Northrop J defined “Grocer’s sundry’s” in the following terms:

“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.”

[13] On the approach applied by the Federal Court, the material before me does not establish a basis upon which an Interim Order stopping the NUW from exercising any entry rights pursuant to Part 3-4 of the FW Act could be made.

[14] My conclusion in this respect may give rise to a review of the final orders sought by Tucker’s Natural. If this is the case, and there is a request for further discussions relative to the frequency of entry rights, the manner in which those are sought, and the information to be included in any entry notices, I am prepared to arrange a further conference, albeit before another Member of the Fair Work Commission.

[15] Alternatively, and consistent with the directions I issued on 25 February 2015, my final decision on the various matters in dispute will be reached on the material yet to be provided to me.

Conclusions

[16] For the reasons I have specified, I am not persuaded that an Interim Order stopping the NUW from exercising any entry rights pursuant to Part 3-4 of the FW Act should be made.

[17] I expect the NUW to honour its undertaking of 25 February 2015 to the effect that entry rights will not be sought more frequently than on a weekly basis.

Appearances (by telephone):

A Duc counsel for Daycone Pty Ltd ATFT Daycone Trust T/A Tucker’s Natural.

I Beynon and M Whenan for the National Union of Workers.

Hearing (Conference) details:

2015.

Adelaide:

February 24 and 25.

 1   see Tucker’s Natural submissions of 5 March 2015, paras 16 - 18

 2 (1986) FCA 47

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