Federated Tobacco Workers Union of Australia v Amalgamated Metal Workers Union
[1988] FCA 120
•25 MARCH 1988
Re: FEDERATED TOBACCO WORKERS' UNION OF AUSTRALIA
And: AMALGAMATED METAL WORKERS' UNION
And: W.D. & H.O. WILLS (AUSTRALIA) LIMITED (INTERVENOR)
No. NSW 18 of 1987
Industrial Law - Words and Phrases
29 IR 263
COURT
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
INDUSTRIAL DIVISION
Northrop(1), Gray(1) and Ryan(1) JJ.
CATCHWORDS
Industrial Law - Conciliation and Arbitration Act - capacity of an organization to enrol employees as members - principles governing construction of an eligibility rule - application of rule to classes of employees.
Words and Phrases - "in or in connection with" - "... and kindred trades" - "engaged" - "industry" - "employed".
Conciliation and Arbitration Act 1904 ss. 132, 143
HEARING
MELBOURNE
#DATE 25:3:1988
Counsel for Applicant : R.W. Parker Q.C. and
B.D. Hodgkinson
Solicitors for Applicant : W.G. McNally & Co.
Counsel for Respondent : J.W. Shaw Q.C. and
S. Crawshaw
Solicitors for Respondent : Turner Freeman
Counsel for Intervenor: Dr. C. Jessup
Solicitors for Intervenor: Messrs. Freehill, Hollingdale
and Page
ORDER
THE COURT ORDERS THAT the application be dismissed.
(Settlement and entry of Orders is dealt with in O.36 of the Rules of Court.)
JUDGE1
The Amalgamated Metal Workers' Union ("the Metal Workers' Union") is an organization of employees under the Conciliation and Arbitration Act 1904 ("the Act"). The Metal Workers' Union is seeking to enrol as members and has purported to enrol as members some persons employed by W.D. & H.O. Wills (Australia) Limited ("Wills"), a company carrying on the business of the manufacture and production of cigarettes and tobacco products at its national manufacturing plant at Pagewood in the State of New South Wales. The Federated Tobacco Workers' Union of Australia ("the Tobacco Workers' Union"), an organization of employees under the Act, is challenging the capacity of the Metal Workers' Union to enrol those persons as members. It has commenced these proceedings under s.143 of the Act seeking an order directing the cancellation of the registration of the Metal Workers' Union as an organization under the Act. In reality, the Tobacco Workers' Union does not seek that order but seeks an authoritative answer to the question of whether the Metal Workers' Union has the capacity to enrol as members the employees at the Wills' plant whom it is seeking to enrol. The answer to that question depends upon the proper construction of the eligibility rule of the Metal Workers' Union and the application of that rule as so construed to the work being done by the persons sought to be enrolled. Wills has been granted leave to intervene in these proceedings and supports the claim made by the Tobacco Workers' Union.
Under its eligibility rule, the Tobacco Workers' Union has the capacity to enrol as members persons employed in or in connection with the following industries or callings:-
"The preparation, manufacture, processing and packaging of tobacco, cigarettes, cigars or allied products in the States of New South Wales and Victoria, together with any person who is an officer of the Union."
Wills is engaged in the industry of the preparation, manufacture, processing and packaging of tobacco, cigarettes, cigars and allied products at its Pagewood plant which is in the State of New South Wales. Thus all its employees at that plant are, subject to the rules of the Tobacco Workers' Union, eligible to become and remain members of that Union. That fact is recognised by the Tobacco Industry (Rothmans and Wills) Interim Award, 1980 ("the Tobacco Industry Award"). By reason of Clauses 3 and 4 of that Award, the Tobacco Industry Award applies, inter alia, to employees in the classifications set out in Annexure B of the Award who are employed in or in connection with the industry of preparation, manufacture, processing and packaging of tobacco, cigarettes, cigars and allied products in the State of New South Wales, the Tobacco Workers' Union and Wills in respect of the employment by it of employees in the classifications set out in Annexure B whether members of the Tobacco Workers' Union or not. Annexure B applies to Wills and includes classifications for its employees at its Pagewood plant. These classifications are placed in groups under general headings. Sub-headings are set out under some of the group general headings. Thus, some of the group headings are "Cigarette Factory", "Tobacco Factory", "Processed Leaf Factory", "Engineering Services", "Bond", "Catering", "Internal Services" and "Any other adult employee." For present purposes, the relevant group is headed "Engineering Services." There are no sub-headings set out under this general heading, but there is set out a number of classifications. The persons who are the subject of the present dispute come within some of those classifications. Those classifications are "Rigger", "Storeman - engineering supplies", "Storeman - building supplies", "Storeman - electrical supplies", "Greaser", "Power house attendant", "Garage attendant", "Assistant storeman" and "Engineering labourer." The Metal Workers' Union claims it is able to enrol as members persons employed in these classifications. The Tobacco Workers' Union and Wills deny the capacity of the Metal Workers' Union to enrol those persons as members.
The eligibility rule of the Metal Workers' Union is contained in Rule 1A of its rules. Rule 1A is long and complicated and reflects the consequences of successive amalgamations of different organizations of employees. For present purposes, it is necessary to set out only paragraphs (a) and (f) of Rule 1A, which we do because of the submissions made and not because all or even most parts of those paragraphs apply to the disputed classes of employees. Those paragraphs are as follows:-
"1A. An unlimited number of persons who are employed or usually employed in or in connection with the following trades or callings or branches thereof:
(a) Smiths, ship smiths, angle iron smiths, drop-hammer smiths, spring smiths, oliver smiths, spring fitters, swaging machine operators, operators on smithing machines similar to swagging machines, nut and bolt makers, windmill erectors, motor, motor cycle, and cycle mechanics, tuners and testers in motor industry, enamellers, typewriter mechanics, well-borers, scale-makers, metal safe makers, locksmiths, forge hammermen, forgemen, strikers, drop-hammer stampers, forging machine workers, forge, iron, and brass furnace-men, ship's plumbers, fitters, turners, grinders, whetstone grinders and glazers, sea-going engineers, shift engineers, roll turners, patternmakers, model makers, millwrights, mechanical draughtsmen, technical assistants, planners, borers, slotters, machine drillers, milling machine workers, shapers, machinists, brass founders, brass finishers, brass smiths and operators of machines in connection with same, coppersmiths, armature winders, equipment examiners, and electrical engineers generally, radio workers, mechanical and scientific instrument makers and optical glassmakers, linotype mechanics, press mechanics, machine joiners employed in the construction of cotton, silk, flax, woollen or other machines, die sinkers, press tool makers and stampers, electroplaters, polishers, electroplate makers up, sheet metal spinners, assemblers, skilled acetylene and electrical welders, aero mechanics, duralium workers, including forgers, fitters, and all other aircraft workers who are employed on the fuselage or engine work, and all workers engaged in the engineering, shipbuilding and kindred trades. ...
(f) All other workers engaged in any metal industry or trade provided that no applicant for membership shall be eligible for membership under this paragraph while there exists in the State in which such applicant is employed a registered organisation operating in the immediate locality of the applicant's work and dealing solely with workers of the particular class of which such applicant is a member unless arrangements can be made for the amalgamation of such organisation with this Union."
By its defence, the Metal Workers' Union identifies those parts of the eligibility rule which it claims entitles it to enrol as members the persons the subject of these proceedings as follows:-
"5. The said employees come within the Respondent's eligibility rule as follows:
(a) they are employed or usually employed in or in connection with the following trades or callings or branches thereof in paragraph 1A(a) of the eligibility rule: fitters, machinists and motor mechanics and/or motor cycle mechanics.
(b) they are workers engaged in the engineering and/or kindred trades within paragraph 1A(a) of the eligibility rule.
(c) They come within paragraph 1A(f) of the eligibility rule in that they are workers engaged in a metal industry or trade and no registered organization exists in New South Wales operating in the immediate locality of the employees' work which deals solely with workers of the particular class of which such employees are members."
For ease of reference, the words set out in paragraphs 5(a) and (b) of the defence have been underlined in the quotation of paragraph (a) of Rule 1A.
The principles to be applied in determining the construction of an eligibility rule are not in dispute. In Food Preservers Union of Australia v. The Manufacturing Grocers' Employees' Federation of Australia, Full Court, Federal Court of Australia, 5 March 1986, unreported, Northrop J. set out those principles as follows:-
"The principles to be applied in determining the construction of an eligibility rule of an organization have been discussed in many authorities. Those principles are summarised in Re Williams; Ex parte Australian Building Construction Employees' and Builders' Labourers' Federation
(1983) 57 ALJR 38 by Gibbs C.J., Mason, Murphy, Brennan, Deane and Dawson JJ. at pp 39-40 as follows:
'The eligibility provisions in the rules of a registered organization of employees serve the function of defining the general area or areas of industry or industrial pursuit from which members can legitimately be drawn and with which the organization can legitimately be concerned (see Reg. v. Dunlop Rubber Australia Ltd.; Ex p Federated Miscellaneous Workers' Union of Australia
(1957), 97 CLR 71, at p 87; Reg. v. Clarkson; Ex p. Victorian Employers Federation (1973), 131 CLR 100, at pp 111 and 113; Co-operative Bulk Handling Ltd. v. Waterside Workers' Federation of Australia (1980), 49 FLR 355, at pp 357-358). Since such eligibility provisions constitute a reference point for courts, commissions, employers, employees and other organizations in determining or ascertaining an organization's proper coverage and field of operation, they must be construed objectively (see Reg. v. Aird; Ex p Australian Workers' Union
(1973), 129 CLR 654, at p 659; Reg. v. Cohen; Ex p Motor Accidents Insurance Board (1979), 53 ALJR 719, at pp 720 and 723). In so construing them, however, it is permissable to pay regard to any common understanding among people concerned with relevant industries and particularly with industrial matters of the ordinary application of the words used and to take account of evidence of that common understanding furnished by the previous use of the words in the relevant organization's rules and in statutory provisions, decisions, determinations, awards, reports and other papers concerned with the relevant industry or industries (see, for example, Rex v. Hickman; Ex p Fox & Clinton
(1945), 70 CLR 598, at p 613; Reg. v. Aird; Ex p Australian Workers' Union, above, at p 659).'
In addition, it must be remembered that eligibility rules should not be construed narrowly or technically; see Electrical Trades Union of Australia v. Waterside Workers' Federation of Australia (No. 2) (1982) 59 FLR 78 (the E.T.U. case), per Bowen C.J., Evatt and Deane JJ. at p 87. Although the construction of an eligibility clause is to be determined by legal considerations, it must be kept in mind that the eligibility rule will have been drawn, more likely than not, by Union officials more familiar with the practical affairs of industries than with the niceties or subtle nuances of language; see R. v. Aird; Ex parte Australian Workers' Union, above, per Barwick C.J. at p 659."
A reference to s.132 of the Act makes it clear that there may be eligible for membership of an organization of employees persons within one of three classes, namely:-
1. A class consisting of employees employed in or in connection with an industry or undertaking of employers; see paragraph 132(1)(b) and the definition of industry in sub-section 4(1);
2. A class consisting of employees in or in connection with an industry of employees without regard to the industry or undertaking of their employers; see paragraph 132(1)(b) and the definition of industry in sub-section 4(1), or a class consisting of employees engaged in industrial pursuits without regard to the industry or undertaking of their employers; see paragraph 132(1)(c); or
3. A class consisting of some employees classified in 1 and some classified in 2 where the eligibility rule is predicated on both an industry or undertaking of employers and an industry or industrial pursuit of employees.
In the present case, members of the Tobacco Workers' Union come exclusively within class 1. Counsel for the Metal Workers' Union contends that persons eligible for membership of the Metal Workers' Union come within class 2, making that Union what is commonly, though misleadingly, referred to as a "craft union."
The primary contention made on behalf of the Tobacco Workers' Union and of Wills was that the words "and all workers engaged in the engineering ... and kindred trades" appearing at the end of Rule 1A(a) of the rules of the Metal Workers' Union, showed that persons eligible for membership of the Metal Workers' Union came within the third class described above. It was contended that, on its proper construction, the eligibility rule makes eligible for membership only those persons who are engaged in one of the trades or callings listed and who are employed by an employer which is, itself, engaged in the engineering industry or a kindred trade. In this context it was argued that the word "trade" has the meaning of an enterprise being carried on by an employer. In this sense, so it was argued, the concluding words are to be treated as words of limitation. It was argued that Wills is not engaged in the engineering industry or in any kindred trade and thus none of the employees of Wills is eligible to be enrolled as a member of the Metal Workers' Union. In support of this contention, counsel referred in detail to the history of the eligibility rule of the Metal Workers' Union.
Counsel for the Metal Workers' Union disputed that primary contention. They argued that persons eligible for membership of the Metal Workers' Union came within the second class described above, that on the true construction of its eligibility rule it was and always had been a craft organization and had the capacity to enrol as a member any person engaged in any of the trades or callings listed in its eligibility rule irrespective of the nature of the enterprise of the employer of that person. The argument went on to contend that the concluding words of Rule 1A(a) are words of expansion embracing each worker engaged in the engineering trade without requiring the worker to be engaged as well in a trade or calling being one of those specifically listed in Rule 1A(a). In support of this contention, counsel relied upon the history of award coverage obtained by the Metal Industry Award.
Before considering those competing contentions, some brief comments should be made. The Tobacco Industry Award does not, by express terms, apply to metal tradesmen employed by Wills at its Pagewood plant. Wills, by reason of its membership of the Metal Trades Industry Association of Australia, an organization of employers, is bound by the Metal Industry Award 1984, Part 1, an Award binding on the Metal Workers' Union, members of that Union and employees employed by any employer bound by the Award engaged in any of the occupations, industries or callings specified in the Award. If the contentions of the Tobacco Workers' Union and of Wills are correct, it would mean that Wills is not bound to accord the wages and conditions of employment stipulated by the Metal Industry Award to metal tradesmen and other employees engaged in the occupations, industries or callings specified in the Award and employed by Wills despite the fact that for many years Wills has acted on the basis that it is bound by that Award and earlier Metal Industry Awards in respect of its metal tradesmen and machinists. It would therefore follow that a long standing acceptance of a legal position would no longer apply. Any construction of an eligibility rule having such drastic results should not be adopted unless the language of the rule compels it.
A reference to the history of the rules of the Metal Workers' Union shows there have been many and varied alterations to the eligibility rule. Some of those alterations, as we have already noted, reflect amalgamations at different times of two or more organizations of employees. The Metal Workers' Union was registered as an organization on 14 July 1905 under the name "The Amalgamated Society of Engineers." It was said to be registered in the engineering industry. At that time, its eligibility rule, called "Constitution of Organization" was as follows:-
"The Society shall consist of members belonging to and earning the rate of wages fixed by the District Committee for the following trades or branches - Smiths ship Smiths angle iron Smiths fitters turners roll turners, pattern makers machinists mill wrights mechanical draughtsmen planers borers slotters machine drillers, milling machine workers shapers and other machine men brass finishers and copper smiths employed in the engineering and ship building trades armature winders and electrical engineers generally, mechanical and scientific instrument makers, machine joiners employed in construction of cotton silk flax woollen or other machinery; die sinkers press tool makers and stampers or drop hammer forgers employed in the engineering and kindred trades."
At that time, s.55 of the Act of 1904 provided for the registration of an organization of employees being "Any association of not less than one hundred employees in or in connexion with any industry." In s.4 the word "industry" was, except where otherwise clearly intended, defined to mean:-
"business, trade, manufacture, undertaking, calling, service, or employment, on land or water, in which persons are employed for pay, hire, advantage, or reward, excepting only persons engaged in domestic service, and persons engaged in agricultural, viticultural, horticultural, or dairying pursuits."
Having regard to that definition, it is accepted that the word "trade" was appropriate to describe the activity of an employer but, at the same time, could be used to describe the activity of an employee. This finding is of importance because of the words "engineering and ship building trades" and "engineering and kindred trades" then appearing in the eligibility rule of the Metal Workers' Union.
It appears that a number of associations of employees became registered as organizations with eligibility rules based upon the activities of the employees irrespective of the enterprises of their employers. Questions arose whether the registration of those associations as organizations was valid. In Federated Engine-Drivers and Firemen's Association of Australasia v. The Broken Hill Proprietary Company Limited (1911) 12 CLR 398, the High Court, in a judgment pronounced on 27 June 1911, held that the word "industry" as defined, meant an enterprise in which both employers and employees were associated and did not include the vocation of employees doing a particular kind of work in connection with several different classes of enterprises of employers. The Court held that the association of employees which the case concerned, being an association of land engine drivers and firemen employed indiscriminately in mines, timber yards, tanneries and diverse other enterprises, was not entitled to be registered as an organization under the Act.
Act No. 6 of 1911, which came into operation on 23 November 1911, overcame the decision of the High Court. Section 3 of the 1911 Act substituted a new definition of the word "industry." The new definition, which for all practical purposes was the same as in the current Act, was inclusive in form and included "any calling, service, employment, handicraft, or industrial occupation or avocation of employees ... and a branch of an industry and a group of industries." Section 4 of the 1911 Act is of some importance and is set out:-
"4. The registration, as an organization under the Principal Act, of any association purporting to be registered before the commencement of this Act shall be deemed to be as valid to all intents and purposes, and to have constituted the association an organization as effectually as if this Act had been in force at the date of the registration."
In Re Lee; Ex parte Harper, Minister for Justice and Attorney-General for the State of Queensland (1986) 160 CLR 430 at pp 468-471, Dawson J. discusses the history and effect of the change in the definition of "industry" in the Act.
On 13 August 1914, the eligibility rule of what was then The Amalgamated Society of Engineers was altered. The existing rule was numbered (a) and there was an increase in the number of callings listed. A new paragraph (b) was added which was in similar form to the present Rule 1A(f).
The Amalgamated Society of Engineers, as it continued to be known, obtained its first federal award in June 1921. The award was made by Higgins J., in his capacity as President of the Commonwealth Court of Conciliation and Arbitration; see 15 C.A.R. 297. The award was made after a lengthy and wide ranging inquiry into all aspects of the employees' industry of engineering where that word is used in its sense of working with metals. Many employers and employer organizations were represented at the inquiry. The reasons for judgment of Higgins J. constitute a useful source of reference for an understanding of the nature of what was to become known as the Metal Workers' Union. Two extracts from those reasons are set out. At p 300, his Honour said:-
"The case presents many and formidable difficulties. The claimant is the well-known craft union of men engaged in the working of metals; and its members are employed not only in engineering undertakings but in undertakings as diverse as those of biscuit manufacturers and quarry owners, gold mining and brick manufacturing, cement manufacturing, electrical works, general providers, and the great steel works of New South Wales. This union has never before approached this Court for general regulation of its conditions. It has had the benefit of State awards and determinations; but these awards and determinations differ so much from one another that they afford me more perplexity than guidance. Representatives of the parties appearing have, at my request, met in conference and endeavoured to reduce by agreement the matters for the Court to determine; but although there is agreement as to some minor points the parties still differ on the main issues. It is my duty, therefore, to try to frame regulations appropriate, from an Australian point of view, to the occupations concerned, making the regulations fit the undertakings of 773 employers carrying on such diverse undertakings. So diverse are they that I have been compelled, in mere justice, to allow no less than eighteen advocates separately to cross-examine the union's witnesses from separate points of view.
The log of claims seeks an award of minimum rates for over 50 different occupations; and one `occupation' - that of `machinist' - comprehends many different types of machinists, and much time has had to be spent in settling the gradations in pay appropriate to the several types. I am always anxious to avail myself in such matters of the practice and experience of employers and employees; but here employers differ, employees differ, awards and determinations differ."
At p 306, his Honour said:-
"The amount of the secondary wage payable for skill and other exceptional necessary qualifications becomes of great importance in the case of a union such as the Amalgamated Society of Engineers, which comprises so many skilled workmen of various grades. There are remarkable differences of opinion among the experts who have given evidence for the employers as to the proper relative positions of the various occupations, in regard to skill. But there is also the difficulty of ascertaining the proper margin of pay between the general labourer and skilled tradesmen of the
(admittedly) first class - such as fitters and turners."
The award prescribed wage rates from General labourers and Tradesmen's helpers to Tradesmen and First class machinists. Employers bound by the award included many which did not carry on engineering undertakings.
From a consideration of that decision and award, it is clear that Higgins J. considered that members of The Amalgamated Society of Engineers came within the second class described above and that it was not necessary for their employers to be engaged in the engineering or a kindred industry before they could be made a party to an award made in settlement of an industrial dispute with the Society. Ever since, that position has been acted upon by the industrial tribunals exercising functions under the Act. The acceptance of this approach has never been questioned in proceedings in the High Court either by employers, employer organizations or by other employee organizations.
It is not necessary to refer to all the subsequent alterations to the rules of the Metal Workers' Union nor to the material relating to the reasons for those alterations. It is clear that the basic notion of the Metal Workers' Union as a craft union comprising employees within the second class described above was accepted and adhered to by the Metal Workers' Union. There was a continuing expansion of the types of callings and industrial pursuits listed within the eligibility rule. In April 1936, the concluding words to Rule 1A(a) first appeared in a form similar to that which appears in the current eligibility rule. The alteration to paragraph (a) of the eligibility rule that came into operation on 3 April 1936 listed a large number of callings and industrial pursuits and then continued "and all male workers engaged in the engineering, shipbuilding and kindred trades." On their face, those words should be read as words of expansion. They have the effect of making all workers engaged in the engineering or a kindred trade eligible to become members of the Metal Workers' Union. The word "engaged" has many different meanings. The authorities show that depending on the context in which it is used, it can have the meaning of "occupied" whether as an employer or an employee. Thus it is quite appropriate to say of an employer that he or it is engaged in the engineering industry. Equally, it is quite appropriate to say of a person employed by an employer engaged in the engineering industry, that the employee is engaged in the engineering industry even though he may be performing work which is exclusively clerical. Equally, it is quite appropriate to say of a person employed by an employer not engaged in the engineering industry, where that employee is performing the tasks of a metal worker, for example, a fitter, that that employee is engaged in the engineering industry, particularly since the wide definition of the word "industry" in the Act must be taken to have an effect on the meaning of that word when used in an eligibility rule of an organization under the Act. These observations go to the real issue between the parties and will be amplified later in these reasons.
The opening words of Rule 1A of the eligibility rule of the Metal Workers' Union first appeared in the current form in January 1972. The alteration, which came into operation on 10 January 1972, resulted from the amalgamation of a number of employee organizations. The opening words of the new eligibility rule were:-
"The Union shall consist of an unlimited number of persons who are employed or usually employed in or in connection with the following trades or callings or branches thereof ... ."
Paragraph (a) was then set out. It consisted of a large number of callings or industrial pursuits concluding as follows:-
"... and all workers engaged in the engineering, shipbuilding and kindred trades."
The opening words, on their face, are words of expansion. In particular, the words "in or in connection with" show that in addition to the listed trades or callings, persons who are "employed" in connection with those trades or callings are eligible to become and remain members of the Metal Workers' Union. In this context the word "employed" is to be read as "engaged." Thus, it is quite appropriate to say of a person who is employed by an employer which is not engaged in the engineering industry, but is employed to assist another employee who is performing the tasks of a metal worker, for example, a fitter, that the first person is engaged, or employed, in or in connection with the trade or calling of that fitter. These words of expansion are separate and distinct from the concluding words of paragraph (a), namely "all workers engaged in the engineering, shipbuilding and kindred trades." The opening words of the new rule, on their face, expand further those concluding words so as to make persons engaged or employed in connection with workers engaged in the engineering or a kindred trade eligible to become and remain members of the Metal Workers' Union.
Counsel for the Tobacco Workers' Union and for Wills contended that the opening words of the new eligibility rule should not be construed as having that expanding effect. They contended that the material relied upon by the amalgamating unions showed that there was no intention on their part to widen the eligibility rules of the organization after amalgamation beyond the combined reach of the existing eligibility rules of each of them. To that end, they referred to and sought to rely upon the applications under s.139 of the Act by the amalgamating organizations for the consent of the Industrial Registrar to the alterations to the eligibility rules of the organizations, the material in support of those applications and the reasons given by the Registrar in consenting to those changes. This was not a case where an attempt was made to lead extrinsic evidence as to the meaning of words which had acquired a special meaning in the industry concerned. It was an attempt to use extraneous material to give a particular construction to words which, on their face, are not uncertain. Such an attempt should not be permitted; see, for example, Federal Firefighters' Union v. Minister of State for the Capital Territory (1982) 62 FLR 341 per Evatt and Northrop JJ. at pp 344-5. In any event, the material relied upon by the Tobacco Workers' Union and by Wills does not support the contention made on their behalf.
It is necessary to construe the eligibility rule of the Metal Workers' Union in its current form. This task of construction is to be undertaken having regard to the matters already discussed. For present purposes, reference is made to Rule 1A(a) only. That rule lists a large number of trades or callings. The trades or callings are all referable to activities being carried out by employees. In the opening paragraph, the words "trades or callings" refer to the industrial occupations of employees listed in Rule 1A(a), not to the trades or callings of employers. Having regard to the definition given by the Act to the word "industry" the words "or branches thereof" are to be read as words of expansion. The words "in or in connection with" are words of expansion and provided that an industrial occupation is engaged in by an employee in connection with one of the listed trades or callings, that employee comes within the eligibility rule of the Metal Workers' Union.
The concluding words of Rule 1A(a) "and all workers engaged in the engineering, shipbuilding and kindred trades" are likewise to be construed as words of expansion. At times when technology is changing, it is not unexpected to see in an eligibility rule of an organization general words which, of necessity, cover specific matters already included in the rule. It would not be surprising to discover that several of the trades or callings listed are not now being followed by anyone. The history of the rule shows that specific trades or callings have been added from time to time. The concluding words obviate the need to continue to do that in the future. Those words refer to the activities of the employee and should be construed accordingly. The opening words expand further the concluding words. The structure of the rule is very different from that considered by the High Court in R v. Coldham; Ex parte The Australian Workers' Union (1984) 59 ALJR 95. In the present case, there is no structure of the eligibility rule of the Metal Workers' Union which permits a construction similar to that adopted by the High Court in construing the eligibility rule of the Australian Workers' Union.
The contentions of counsel for the Tobacco Workers' Union and for Wills on this issue are not compelling. The history of the award coverage obtained by the Metal Workers' Union illustrates clearly that the Commonwealth industrial tribunals have acted on a contrary understanding. For the purposes of these reasons, it has been assumed that Wills is not engaged in the engineering, shipbuilding or a kindred trade. The Court has not considered whether that assumption is correct. Thus nothing said in these reasons is to be taken as supporting the view that Wills is not engaged in the engineering, shipbuilding or a kindred trade. It is noted that Wills is a member of the Metal Trades Industry Association of Australia, an organization under the Act. The eligibility rule of that organization is in evidence before the Court but it would be a difficult task to interpret that rule and to determine, on the facts, whether Wills is eligible to be a member of that organization and, if so, whether its eligibility is limited in any way. If the contentions were accepted, they could have drastic and wide ranging effects upon employers engaged in the engineering, shipbuilding or a kindred trade as well as other organizations of employees. None of those employers and no other organization of employees has been given the opportunity to make submissions with respect to those contentions. It is true that those other organizations and employers cannot be bound by any order made in these proceedings, but expressions of opinion adverse to their interests could be used against them in other proceedings.
For present purposes, it is sufficient to say that on a consideration of Rule 1A(a) of the Metal Workers' Union, there is nothing to support the contention that the words "the engineering, shipbuilding and kindred trades" in the final part of that sub-rule refer to trades of employers. It is accepted that in an appropriate context the word "trade" can refer to the trade of an employer. This is not such a case. A construction which equates "trade" with the occupation of the worker is much to be preferred in a context where listed activities of workers are followed by an extension to "all workers" in the listed trades. The word "trades" appears in the opening part of the rule and in its context is used in the sense of the activity of an employee. There is no warrant for giving a different meaning to the word "trade" in the concluding part of the rule.
Having formed this opinion, it is not necessary to consider the construction and application of Rule 1A(f). Accordingly, attention is directed now to the question of whether the Tobacco Workers' Union has established that none of the persons employed by Wills at its Pagewood plant in any of the classifications listed above is eligible to become and to remain a member of the Metal Workers' Union.
It will be recalled that the question raised by this application is whether persons employed in some of the classifications contained in the Tobacco Industry Award under the group heading "Engineering Services" are eligible to become and remain members of the Metal Workers' Union. The classifications are "Rigger", "Storeman - engineering supplies", "Storeman - building supplies", "Storeman - electrical supplies", "Greaser", "Power House attendant", "Garage Attendant", "Assistant storeman" and "Engineering labourer." The terminology used in the Tobacco Industry Award suggests that those persons are not engaged directly in the preparation, manufacture, processing and packaging of tobacco, cigarettes, cigars and allied products (hereinafter referred to as the "production areas"). The evidence supports the suggestion implicit in that terminology, namely that "engineering services" employees are engaged primarily in the supplying and servicing of equipment used in the production areas although from time to time they may assist actual production in the production areas.
A workshop is set up within each of the production areas. The workshop is responsible for the maintenance and servicing of the many machines in the relevant production area. In addition, there are other workshops not attached to any production area. One of these is described as "the Central Engineering Workshop" which is concerned with major works, especially of a capital nature. In addition, there is a Central Store which stocks a wide range of materials (except material used in the production of the finished products) spare parts and tools. The Central Store is commonly known as the Engineering Store. There are also other workshops such as the Boilerhouse which provides steam and other services to various parts of the plant's operations, the Fitters' Workshop, the Machinists' Workshop, the Electric Workshop, the Plumbers' Workshop, the Conversion Workshop and the Motor Garage. A table exhibited to an affidavit filed on behalf of Wills shows the numbers employed by Wills in various classifications in some of these special areas. The exhibit is reproduced:-
"Tradesmen Apprentices Eng. Riggers Greasers Storemen/ Lab's Assistant Storemen
Central
Engineering
Workshop 16 5 4 1 - -
Tobacco/
Primary Dept. 15 8 6 1 2 -
Making Dept. 21 4 4 - 3 -
Packing Dept. 24 5 3 - 5 -
Motor Garage 3 1 - - 1* -
Boilerhouse 4 2 3 - - -
Conversion
Workshop 6 - - - - -
Central Store - - - - - 12
* Classified as Garage Attendant - same grouping as Greaser."
Apparently, the tradesmen listed in that chart are all members of the Metal Workers' Union and are employed pursuant to the terms of the Metal Trades Award.
The responsibilities of the persons engaged in the workshops set up in various production areas are as follows:-
"(a) repairing and/or replacing broken and/or worn out machine parts;
(b) preventive maintenance on production machinery;
(c) planning and performance of machine lubrication scheduling;
(d) the making of adjustments to operating machines;
(e) the execution of installations on a wide range of machines and equipment; and
(f) the making of modifications to machines and equipment."
The functions of engineering labourers in the Central Engineering Workshop, broadly speaking, are as follows:-
"a. Labouring for tradesmen by lifting, supporting, holding equipment steady, etc;
b. Cleaning the workshop area and machine parts;
c. Messages and deliveries;
d. Moving heavy and/or large machines around within the workshop;
e. Working on loan to other departments on labouring duties required by them."
The Central Store supplies machinery spare parts and materials, general engineering supplies, electrical equipment, stationery, clothing and cleaning materials to all areas. Machine parts are supplied as well to associated overseas tobacco companies. Storemen and assistant storemen are engaged in the Central Store to receive, store and distribute materials kept in the store.
The present application is not directly concerned with particular persons but with groups of persons. Evidence directed to particular individuals is of no real assistance in determining the issue to be considered. From the whole of the evidence before the Court, it is clear that persons engaged in the classifications in issue spend a substantial part of their working time in assisting tradesmen in performing their duties. The evidence does not disclose in detail the work being done by tradesmen in the different workshops but it is apparent that those persons are all eligible to be members of the Metal Workers' Union. The labourers and assistants and persons engaged in the other classifications the subject of these proceedings come within those parts of the eligibility rule of the Metal Workers' Union which extend the class of employees eligible to be members of the Metal Workers' Union. They are persons employed in or in connection with the trades or callings or branches of motor mechanics, fitters, machinists, as well as engaged in engineering and kindred trades.
Counsel for the Tobacco Workers' Union and for Wills contended that it is unusual for any of these persons to spend a majority of his or her working time actually working with a tradesman and that often that work is performed as a result of instructions received from a supervisor engaged in one of the production areas. As has been indicated, it is not necessary to be eligible for membership, that a person spend the whole of his or her time engaged in the activities of the requisite type. The test is based on whether the person is engaged substantially in those activities. In this context it is legitimate to ask whether, if Wills were to contract the whole of its maintenance operations to an outside company, it would find it necessary to employ persons in the disputed classifications. On the material before the Court, the answer to that question is that, in all probability, those persons would be employed by the maintenance contractor. That answer is consistent with the fact that all these classifications come within that part of the current Tobacco Industry Award headed "Engineering Services." That suggests that these classifications come within a discrete area having a close connection with engineering and kindred trades.
In the result, the Court finds that the Tobacco Workers' Union has not made out its case. It should be noted that this application is concerned with the question of whether the Metal Workers' Union has the capacity to enrol as members the persons the subject of these proceedings. The Court is not concerned with the question of which Union should have award coverage with respect to those persons.
The application should be dismissed.
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