Lifestyle Bakery Pty Ltd v National Union of Workers
[2015] FWCFB 6324
•30 OCTOBER 2015
| [2015] FWCFB 6324 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
v
National Union of Workers
(C2015/4887)
Daycone Pty Ltd ATFT Daycone Trust t/a Tucker's Natural
v
National Union of Workers
(C2015/5030)
VICE PRESIDENT HATCHER |
|
Appeal against decisions [2015] FWC 4720 and [2015] FWC 2144 of Senior Deputy President O'Callaghan at Adelaide on 14 July 2015 in matter numbers RE2015/837, B2015/595 and RE2015/295.
Introduction
[1] On 14 July 2015, Senior Deputy President O’Callaghan issued two decisions concerning the issue of whether employees involved in the manufacture of certain food products were eligible to be members of the National Union of Workers (NUW). The decision the subject of the appeal by Lifestyle Bakery Pty Ltd 1 (Lifestyle Bakery decision) arose from two applications lodged by the NUW. The first application was one made under s.505 of the Fair Work Act 2009 (FW Act) in which the NUW sought an order permitting it to enter Lifestyle Bakery’s workplace. The second application was for a majority support determination under s.236 of the FW Act. In respect of both applications, the critical issue was whether the NUW had the constitutional capacity to enrol as members Lifestyle Bakery’s employees (that is, whether the NUW had “coverage” of them). The Senior Deputy President found that the NUW did have coverage. He declined to make a right of entry order at that time, but indicated that he was prepared to make such an order subject to consideration of the question of the frequency of site visitations. In respect of the majority support determination application, the Senior Deputy President determined that a secret ballot of employees should be conducted by the Australian Electoral Commission in order to determine the extent of employee support for enterprise bargaining. The Senior Deputy President separately made directions on 14 July 2015 to facilitate the conduct of such a ballot (Directions).
[2] On 24 July 2015 Lifestyle Bakery lodged a notice of appeal in which it sought permission to appeal and appealed the Lifestyle Bakery decision and the Directions. The notice of appeal also sought a stay of that decision and the Directions pending the hearing and determination of Lifestyle Bakery’s appeal. A stay was granted on 30 July 2015 2.
[3] The decision the subject of the appeal by Daycone Pty Ltd ATFT Daycone Trust t/a Tucker's Natural (Tucker’s Natural decision) 3 concerned an application by Tucker’s Natural for right of entry orders pursuant to ss.505 and 505A of the FW Act. Tucker’s Natural sought to prevent the NUW from exercising rights of entry under the FW Act because it did not have coverage of Tucker’s Natural’s employees. Again, the Senior Deputy President found that the NUW did have coverage, and dismissed Tucker’s Natural’s application. A notice of appeal against the Tucker’s Natural decision was lodged on 4 August 2015.
[4] Because both decisions concerned the same parts of the NUW’s eligibility rule, and because the appellants had common legal representation and intended to advance similar arguments with respect to both appeals, the two appeals were directed to be heard together on 10 September 2015.
[5] The appeals are brought under s.604 of the FW Act, which provides:
604 Appeal of decisions
(1) A person who is aggrieved by a decision:
(a) made by the FWC (other than a decision of a Full Bench or an Expert Panel); or
(b) made by the General Manager (including a delegate of the General Manager) under the Registered Organisations Act;
may appeal the decision, with the permission of the FWC.
(2) Without limiting when the FWC may grant permission, the FWC must grant permission if the FWC is satisfied that it is in the public interest to do so.
Note: Subsection (2) does not apply in relation to an application for an unfair dismissal (see section 400).
(3) A person may appeal the decision by applying to the FWC.
[6] Factors that might invoke the public interest have been held to include where there is an error of law, a matter raises issues of importance and general application, where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counterintuitive, or the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters 4.
The decisions under appeal
[7] The portion of the NUW’s eligibility rule considered by the Senior Deputy President in both decisions was rule 5(G)(i), which provides (with relevant parts emphasised):
“(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 or articles.”
[8] In both decisions under appeal, the Senior Deputy President took a “broad” approach to the interpretation of the relevant parts of the NUW eligibility rule. In the Lifestyle Bakery decision, the Senior Deputy President said:
“[17]Any consideration of the capacity of the NUW to enrol employees must depend on its rules. The approach to consideration of those rules then becomes critical. The FWC approach to the consideration of union rules was developed in a very different legislative environment where union membership could, in many instances, determine employment conditions. The FW Act operates from a different premise in that awards operate on industry or occupational definitions and agreements are approved arrangements between employers and employees. That different legislative environment lends further support to the application of a broad meaning to the terms in the relevant rules.
[18]The requirement for that broad approach was articulated in 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 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.”
[19]Just as the ETU rules were over 50 years old at that time, so too the NUW rules are the culmination of around 100 years of drafting reflective of union amalgamations and compromises. Additionally, there can be no doubt that many of the products and commercial structures identified in those rules have been superseded by changed practices and approaches.” 5
[9] In the Lifestyle Bakery decision, the findings of fact made by the Senior Deputy President concerning the products manufactured by Lifestyle Bakery and the work of employees in relation to such products were in summary:
- Lifestyle Bakery manufactures “bread and bread type products”; 6
insofar as most of the products were gluten-free; they had “as significant components, cereals which include rice, flour and maize starch” 7;
- all Lifestyle Bakery employees were involved in either manufacturing, packing or baking functions; 8 and
the bread and bread type products were primarily produced for sale in supermarkets, and were pre-packed for retail sale and human consumption. 9
[10] In the Tucker’s Natural decision, the Senior Deputy President’s findings were as follows:
“[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.”
[11] In both decisions, the Senior Deputy President first considered whether the products manufactured by the appellants were “cereal foods” within the NUW eligibility rule. In both matters the employer submitted that the products were not cereal foods because they did not fall within the Australian and New Zealand Standard Industrial Classification (ANZSIC) definition of “Cereal, Pasta and Baking Mix Manufacturing”. In both decisions the Senior Deputy President rejected this submission. In the Lifestyle Bakery decision the Senior Deputy President concluded as follows:
“[25]The Oxford dictionary definition of cereal foods states:
“cereal … of corn or edible grain … kind(s) of grain used for human food; food made from wheat, maize, or other cereal ….”
[26]I am satisfied that, on a broad application of rule 5(G)(i)(e), bread and bread type products should be regarded as cereal foods. Those bread type products have as significant components, cereals which include rice, flour and maize starch. That conclusion is consistent with the dictionary definition of cereal foods. I do not consider that the ANZSIC description of the products composed as cereals and its qualification of the term “bread” should 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 that rule. Further, I am not satisfied that the ANZSIC Standard descriptors inherently limit the concept of “cereal foods”. It seems to me that the ANZSIC descriptors identify different categories of cereal foods and in that respect differentiate the manufacturing of fresh or frozen bread dough and bread manufacturing from other forms of cereal foods. Consequently, the basis for the use of those ANZSIC descriptors to limit the concept of “cereal foods” in the NUW rule has not been made out. Notwithstanding this conclusion it seems to me that the ANZSIC descriptors may yet provide a useful insight into the various elements of cereal food manufacturing in the event that the FWC is required to consider competing union membership claims. I return to this issue later in this decision.”
[12] In the Tucker’s Natural decision, the Senior Deputy President similarly regarded a “cereal food” as “a food made from any of the cereal grasses”, and proceeded on the basis of the Macquarie Dictionary definition of “cereal” to conclude that “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”. Likewise he also rejected that any relevant limitation on the expression “cereal food” could be derived from the ANZSIC definition relied upon by Tucker’s Natural. 10
[13] In both decisions the Senior Deputy President then considered the alternative or additional submission advanced by the NUW that the relevant products were “Grocers’ sundries” within its eligibility rule. In both decisions the Senior Deputy President made reference to a decision of a Full Court of the Federal Court of Australia in Food Preservers Union of Australia v Manufacturing Grocers Employees Federation of Australia and Ors. 11 In that decision the Court considered whether various products manufactured by Kraft Foods Limited were grocers’ sundries for the purpose of the eligibility rule of the Manufacturing Grocers’ Employees Federation of Australia (Federation). Subsequent to the decision the Federation entered into an amalgamation with the entity now known as the NUW, with the result that its eligibility rule was incorporated into the NUW’s eligibility rules as rule 5G(i) quoted above. In that decision Northrop J, with whom Smithers and Keely JJ agreed, said (in a passage partially quoted by the Senior Deputy President in both decisions12):
“Some comments of a general nature are made about each of those formulations. A reference to dictionaries and encyclopedias concerning the meaning to be given to the word "Grocer" and the nature of the trade of Grocers shows that historically the primary stock sold by Grocers included tea, coffee, cocoa, spices, cereals (particularly rice), currents, raisins, prunes and similar dried fruits and nuts. Those preparations were sold by measure from bulk supplies kept in the Grocers' shops. They were not pre-packed for retail sale before delivery to the Grocers' shops. With the development of new preserving methods, by the end of the nineteenth century many more types of food preparations were being sold in Grocers' shops, such as jams, sauces, chutneys and pickles. Of necessity, these articles were not sold by measure from bulk supplies kept in Grocers' shops. Honey was an exception to this general development. At the same time, there was developing a new marketing practice by which the traditional preparations comprising the primary stock sold by Grocers were pre-packed for retail sale before delivery to the Grocers' shops. This development became even more apparent with the development of the self-service Grocers' shops and the introduction of supermarkets. The evidence shows that the articles, goods and preparations commonly referred to as grocers' sundries were all pre-packed for retail sale before delivery to the Grocers' shops. This pre-packaging was an essential feature of all grocers' sundries. In this context, and as will become apparent later in these reasons, the expressions condiments and cereal foods and each of the other preparations specifically referred to in paragraph (e) of the eligibility rule are not limited to articles, goods and preparations pre-packed before delivery to the Grocers' shops. Further, it should be noted that each of the formulations by counsel set out above, draws a distinction between principal grocery lines or primary Grocers' stock on the one hand and grocers' sundries on the other. Having regard to the history of the Grocers' trade, it is impossible to draw such a distinction. It is almost impossible to determine what are principal grocery lines or primary Grocers' stock. On any view, spices have always been a principal grocery line.
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.
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.
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.
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)…” 13
[14] In the Lifestyle Bakery decision, having regard to the evidence that Lifestyle Bakery’s products were packaged for retail sale and were intended for human consumption at home, the Senior Deputy President found on the basis of Northrop J’s analysis that the relevant products were grocers’ sundries for the purpose of the NUW’s eligibility rule. 14 In the Tucker’s Natural decision, the position was somewhat more complex because a significant portion of the company’s products were not sold for retail consumption but rather to other businesses (such as airlines) as a component of meals served to customers. Nonetheless the Senior Deputy President found that the products were grocers’ sundries such as to make the employees involved in their manufacture eligible for membership of the NUW:
“[41] The adoption of that methodology confirms that a significant but minority proportion of the overall Tucker’s Natural product is packaged for retail sale and hence falls clearly within the concept of “Grocers sundries”. To the extent that a significant proportion of the Tucker’s Natural product is prepared for use by other businesses as a component of meals provided by them, it seems to me that the antiquated words in the rule must be read in a practical manner, on its words and in the context of the decisions which have dealt with it. In this respect, the sale of crackers to businesses that then repackage those crackers as part of, for instance a dietary meal provision which is sold to customers means that the dietary meal provider is in effect acting as a grocer in terms of distribution of the product to the end user. Consequently, given the extent to which the same employees are involved in the preparation and packaging of products that are prepared for direct retail sale and for sale to other “grocers” together with wholesale providers, I think a commonsense application of the approach in Re Food Preservers leads to a conclusion that, even if the Tucker’s Natural crackers were not regarded as a cereal food, they should be regarded as “grocers sundries”.”
[15] In both decisions the Senior Deputy President rejected a submission that rule 5G(i) should be read down by reference to rule 5(HA), which gave the NUW coverage in New South Wales of “persons who are employed or competent to be employed in the pastrycooking or biscuitmaking industry, or the manufacture of any goods of which flour or sugar forms a part.” The ultimate conclusion reached by the Senior Deputy President in the Lifestyle Bakery decision concerning the NUW’s coverage was as follows:
“[35]Consequently, I have concluded that the NUW is able to represent the industrial interests of employees, engaged as bakers and process workers employed by Lifestyle Bakery. It follows that NUW permit holders are able to access the Lifestyle Bakery premises consistent with the entry rights and obligations established under Part 3-4 of the FW Act.”
[16] In the Tucker’s Natural decision, the equivalent conclusion was that “the NUW is able to enrol as members, employees engaged in manufacturing biscuits at Tucker’s Natural”. 15
Submissions
[17] As is often the case, the appellants made a number of legal and other submissions which appear not to have been put to the Commission at first instance. In addition, in the Lifestyle Bakery appeal, the appellant sought to challenge the finding of fact made by the Senior Deputy President that Lifestyle Bakery’s products had “as significant components, cereals which include rice, flour and maize starch”. 16 This challenge was substantially advanced by way of assertions made from the bar table rather than by reference to the evidence adduced at first instance. When the appropriateness of this course was raised with the appellant, an application was made to adduce new evidence in the appeal. That application was opposed by the NUW. We decided to refuse the application. Our reasons for that decision, which were given ex tempore, were as follows:
“The appellant in the Lifestyle Bakery appeal has made an application to adduce new evidence relating to the extent, by reference to percentages, that the cereal components have in the products manufactured. We have determined to decline that application, principally for two reasons. Firstly, we can't see any reason why that evidence could not have been adduced at first instance. And indeed, on one view of the transcript there was an attempt to adduce it, but the relevant witness failed to give the appropriate answer. And secondly, no notice of the application or the evidence proposed to be adduced has been given to the respondent, with the result that if the application was granted, it would undoubtedly lead to an adjournment of the matter, which we consider to be unduly prejudicial to the respondent in the circumstances. Accordingly, the application is refused.” 17
[18] The specific appeal grounds in each appeal, and the submissions advanced in support of each ground, were in substance the same. These submissions are summarised as follows.
Appeal Ground 1
[19] The appellants submitted that completed products - that is, products ready for consumption - are not covered by either the “cereal foods” or “Grocers’ sundries” components of the NUW’s rules. The appellants further submitted 18 that their respective products are neither “cereal foods” nor “Grocers’ sundries” for that reason, that the specifically identified items in 5(G)(i) are directed at the pre-packing of items that are either “condiments or cereal foods” or “Grocers’ sundries”, and that there was no extension to other products that are completed products.19 The NUW submitted that the union’s coverage extended to at least those employees engaged in a “final stage” manufacturing process, that is, manufacturing which occurs immediately before sale of the product to a wholesale or retail outlet or direct to the customer20.
Ground 2
[20] In relation to “cereal foods” the appellants submitted that while the interpretation of rules should be “broad”, the Senior Deputy President’s interpretation of the rules was “too broad.” It submitted that the actual constituent ingredients of a product such as rice, flour and maize starch is the cereal food, while the finished product is not, and the question asked as to whether there was a “significant” component of such ingredients in the finished product represented an incorrect approach. It submitted that whether a product contains “significant” cereal components is irrelevant. The NUW submitted again that the manufacturing of the completed product is included in rule 5(G)(i).
Ground 3
[21] In relation to “Grocers’ sundries”, the appellants submitted that a product cannot be both a cereal food and a grocers’ sundry, and that the Commission erred in finding to the contrary. They submitted again that a completed product is not a grocers’ sundry. 21 The NUW submitted that the reference to “condiments and cereal foods” in paragraph (e) is separate and not limited by the reference to “grocers’ sundries”.22
Ground 4
[22] In relation to dictionary definitions of ‘cereal’, the appellants submitted that the Commission erred in using the dictionary definition of cereal. They submitted that the phrase “cereal foods” is a composite one. They submitted that food is not a completed food such as bread, but a component product that can be used in cooking, a “raw ingredient”. 23 The respondent submitted that the reference to “foods” means that cereal foods must refer to any food made from edible grains, including where other ingredients are used, and including where the grains have been cooked or otherwise transformed.24
Grounds 5-7
[23] The appellants submitted that the Commission had erred in interpreting and applying the Federal Court Full Court decision in Re Food Preservers Union 25 and the Australian Industrial Relations Commission Full Bench decision in Food Preservers Union of Australia v Manufacturing Grocers’ Employees’ Federation of Australia26. This was rejected by the NUW.
Consideration
[24] In the decision in Re Food Preservers Union to which reference has earlier been made, Northrop J summarised the principles to be applied in determining the construction of an eligibility rule of an organisation 27:
“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] HCA 19; (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] FCA 141; (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] HCA 53; (1973) 129 CLR 654, at p 659; Reg. v. Cohen; Ex p Motor Accidents Insurance Board [1979] HCA 46; (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.”
[25] The principle that the eligibility rules of organisations should not be construed narrowly or technically has repeatedly been affirmed. 28 In the decisions under appeal, it is clear that the Senior Deputy President expressly followed that approach. Given the absence of any restrictive language in the relevant part of the NUW’s eligibility rule, the Senior Deputy President gave the expression “cereal food” the full breadth of its ordinary meaning. We agree with the Senior Deputy President that the ordinary meaning of the expression includes food which is made from cereal, where cereal is a foundational or basic or significant ingredient.
[26] In relation to Lifestyle Bakery, we consider that the evidence made available the Senior Deputy President’s finding that cereal was a significant ingredient in the company’s bread and bread-related products, including its gluten-free products. Lifestyle Bakery’s own online advertising material made it clear that that was the case in respect of a number of the products. For example, in relation to its Spelt Loaf, spelt was (not surprisingly) identified as the critical ingredient. Spelt is also identified as a base ingredient in Lifestyle Bakery’s Spelt & Chia Seed Loaf, Rye & Spelt Loaf (together with rye, another type of cereal grain), Ancient Grain Loaf (together with khorasan, also a type of cereal grain), All Natural Spelt Chia & Quinoa Loaf and All Natural Spelt Linseed & Rye Loaf. 29 The managing director of Lifestyle Bakery, Michael Horrocks, gave evidence whilst being cross-examined that the company’s gluten-free white bread product, as well as its Soft’n’Light Chia and Quinoa Loaf, its white rolls and its gluten-free breadcrumbs all contained rice flour and maize starch (rice and maize being types of cereals) as part of a total of 15 ingredients30. When re-examined he said that it would be difficult to answer the question of how much of the ingredients that go into the product would be described as cereal31.
[27] In the Tucker’s Natural appeal, the appellant agreed that cereal was a significant component of the company’s products 32.
[28] The appellants’ argument that “cereals foods” and “grocers’ sundries” did not include “completed products” ready for human consumption did not rise above the level of assertion. It was not founded on any analysis of the text or the historical context of the rule itself and no case authority was cited which supported it. The ordinary and natural meaning of the expression “cereal foods” does not lead to an interpretation confining them to raw ingredients, or excluding a finished product such as bread. The word “food” in “cereal foods” indicates that it does include a finished product such as bread, which is food according to the ordinary and natural meaning of the word, or similar goods. In relation to “grocers’ sundries”, we are bound by the Federal Court Full Court decision in Re Food Preservers Union. The analysis of the expression “grocers’ sundries” in that decision, which we have earlier quoted, made no reference to there being any exclusion for “completed goods”, and indeed the analysis is inconsistent with the posited exclusion. The Court in that case went on to find that products such as Vegemite, peanut butter and canned meat dishes - all of which could be characterised as “completed products” ready for consumption at home - were grocers’ sundries. In the Australian Industrial Relations Commission decision in Food Preservers Union of Australia v Manufacturing Grocers’ Employees’ Federation of Australia 33, the Full Bench applied the Federal Court decision to find that the rule did not extend to cover employees engaged in the manufacture of 5 kilogram packs of frozen fries. The decision was based not on the fact that they were finished products, but on the basis that there was no evidence that they were produced for retail sale and the bags were too large for home use.
[29] We therefore consider that the Senior Deputy President’s conclusion in the Lifestyle Bakery decision that the bread and bread type products produced by Lifestyle Bakery were both “cereals foods” and “grocers’ sundries” for the purpose of the NUW’s eligibility rule, with the result that employees engaged in their manufacture were eligible for membership of the NUW, was correct. In relation to the Tucker’s Natural decision, we also agree with the Senior Deputy President’s conclusion that the biscuit products produced by Tucker’s Natural were “cereal foods” and that, to the extent that they were packaged for sale in retail stores, were also “grocers’ sundries”. To the extent that the biscuit products were sold to businesses to be used as a component of meals served by them, they would also come within the scope of the rule as “similar or allied preparations, goods and articles” since they are the same products as those sold pre-packaged to retail stores.
[30] It follows that no error of fact or law has been demonstrated in either of the appeals. We refuse permission to appeal. We refer the matters to the Senior Deputy President to be finalised. In the Lifestyle Bakery decision, the NUW asked us to release it from an undertaking which it provided in the course of the proceedings before the Senior Deputy President concerning the frequency of exercise of rights of entry under the FW Act. We do not regard that matter as properly before us. In any event we consider that the Senior Deputy President will be in a better position than us, having received the undertaking, to determine this matter. The NUW may raise the issue before the Senior Deputy President when the Lifestyle Bakery matters return to him.
[31] We order as follows:
(1) We refuse permission to appeal in respect of both appeals.
(2) We remit the matters the subject of the appeals to Senior Deputy President O’Callaghan for further determination.
VICE PRESIDENT
Appearances:
A. Duc of counsel for the appellants
J. Fetter of counsel with E. Barrett for the respondents
Hearing details:
2015.
Adelaide:
10 September.
1 [2015] FWC 4720
2 [2015] FWC 5199, PR569980
3 [2015] FWC 2144
4 GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343, 197 IR 266
5 The equivalent passage in the Tucker’s Natural decision is at [29]-[30]
6 Lifestyle Bakery decision at [5]
7 Lifestyle Bakery decision at [26]
8 Lifestyle Bakery decision at [28]
9 Ibid
10 Tucker’s Natural decision at [33]-[35]
11 (1986) 29 IR 243
12 Lifestyle Bakery decision at [27]; Tucker’s Natural decision at [37]
13 (1986) 29 IR 243 at 257-259
14 Lifestyle Bakery decision at [28]
15 Tucker’s Natural decision at [50]
16 Lifestyle Bakery decision at [26]
17 Transcript PN98
18 Submissions of the Appellants, Ground 1, paragraphs 6-12
19 Submissions of the Appellants, Ground 1
20 Submissions of the Respondent, paragraph 8
21 Submissions of the Appellants, Ground 3
22 Submissions of the Respondent, paragraph 8(a)
23 Submissions of the Appellants, Ground 4
24 Submissions of the Respondent, paragraphs 8, 12-15
25 (1986) 29 IR 243
26 Coldham J, Moore DP, Cross C, Print H8531, 14 June 1989, [1989] AIRC 395
27 (1986) 29 IR 243 at 252-253
28 R v Cohen; Ex parte Motor Accidents Insurance Board (1979) 141 CLR 577 at 587; Co-operative Bulk Handling Ltd v Waterside Workers’ Federation of Australia (1980) 49 FLR 355 at 361-2; Electrical Trades Union of Australia v Waterside Workers’ Federation of Australia (No. 2) (1982) 59 FLR 78 at 87; Australian Manufacturing Workers’ Union v ResMed Limited [2014] FWCFB 3501 at [34]; see also Hon. J W Shaw QC, Interpreting Trade Union Constitution Rules, (1988) 62 ALJ 690 at 692-694
29 Exhibit N2 Attachment 5
30 Transcript at PNs640-647
31 Transcript at PNs660-661
32 Transcript PN195
33 Coldham J, Moore DP, Cross C, Print H8531, 14 June 1989, [1989] AIRC 395
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