Manufacturing Grocers Employees Federation of Australia v Food Preservers Union of Australia

Re: THE MANUFACTURING GROCERS' EMPLOYEES' FEDERATION OF AUSTRALIA
And: FOOD PRESERVERS UNION OF AUSTRALIA; NOEL TREHARNE; THOMAS DESMOND RYAN;
LENARD PEACOCK; KEITH THOMPSON; RAYMOND WARN AND JOHN VANSCOLINA
No. V34 of 1984
Industrial Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY
INDUSTRIAL DIVISION
Smithers J.
Northrop J.
Keely J.

CATCHWORDS

Industrial law - Conciliation and Arbitration - registered organization - eligibility for membership of Food Preservers Union of Australia.

Conciliation and Arbitration Act 1904

Federal Firefighters' Union v. Minister of State for the Capital Territory (1982) 62 FLR 341

Re Food Preservers Award (1959) 3 FLR 425

HEARING

MELBOURNE

#DATE 5:3:1986

JUDGE1

The applicant, The Manufacturing Grocers' Employees Federation of Australia, an organization of employees registered under the provisions of the Conciliation and Arbitration Act 1904 (the Act), seeks an order directing the industrial Registrar to cancel the registration of the first named respondent, the Food Preservers Union of Australia, an organization of employees registered under the Act and incidental relief against the second, third, fourth, fifth, sixth and seventh respondents on the ground that the first respondent has sought to enrol as members thereof employees of Kraft Foods Ltd. (Kraft), an intervenor in the proceedings pursuant to leave to intervene granted to it by the Court, such employees not being persons employed in or in connection with the manufacture, preparation, processing or putting up of food substances specified in para. (a) or (b) of the conditions of eligibility specified in the rules of the first respondent.

The employees in question are those employed by Kraft in or in connection with the production of various items of food substances, namely, Vegemite, Vegex, Bonox, Salad Dressings, Miracle Whip, meat pastes, fish pastes, meat based tinned foods, braised steak and vegetables, spaghetti and meat balls, ravioli, peanut butter and tinned pasta.
The applicant contends that employees engaged in or in connection with the manufacture, preparation, processing or putting up of Vegemite, Vegex, Bonox, Salad Dressings, Miracle Whip, meat pastes, fish pastes, meat based tinned foods, braised steak and vegetables, spaghetti and meat balls, ravioli, peanut butter and tinned pasta are not eligible for membership of the first respondent in accordance with the conditions of membership prescribed by its rules. The relevant rule before it was amended in 1948 by a decision of the industrial Registrar was in the following terms:

"The Union shall consist of persons employed in or in connexion with -

(a) The manufacture, preparation or putting up of -

(i) Jams, jellies, honey and preparations used as substitutes therefor,

(ii) Pickles, salt preparations, sauces, vinegar and other wet condiments,

(iii) Soups and other preparations of vegetables and/or animal foods sold in containers,

(iv) Fruit salads.

(b) (Without restricting the interpretation of the foregoing.) The preservation of vegetables and fruits as food,

together with such other persons whether employed in the industry or not as have been appointed officers of the Union or its branches and admitted as members thereof."

After it was amended pursuant to the decision of the Industrial Registrar in 1948 it read as follows:

"The Union shall consist of persons employed in or in connexion with -

(a) The manufacture, preparation, processing or putting up of -

(i) Jams, jellies, honey, pastes, spreads and similar preparations;

(ii) Pickles, salt preparations, sauces, chutneys, vinegar and other wet condiments;

(iii) Soups and other preparations of vegetables and/or food from animals, fish or sea food sold in containers;

(iv) Sliced fruit, fruit salads and nut food;

(v) Pulp, fruit and vegetable juices and cordials whether such are made wholly or in part from fruit or vegetable juices or not;

(vi) Sugar from sugar beet (except in the States of New South Wales and Queensland);

(vii) Fish and sea food of any description and their by-products and the smoking of fish;

Provided that this paragraph shall not extend to persons engaged in or in connexion with the manufacture, preparation, processing or putting up

(1) of fruit juices or cordials;

(2) in the States of Victoria and South Australia of pastes, spreads and similar preparations or preserved meat;

(3) in the State of New South Wales and in the State of Western Australia outside a radius of 30 miles of the General Post Office, Perth, of fish or sea food sold in containers; and

(4) in the States of New South Wales, Victoria and South Australia of nut food

unless the said persons are engaged in establishments where the chief product or products or one of the chief products manufactured in such establishments is otherwise provided for herein.

(b) (Without restricting the interpretation of the foregoing) the preparation and preservation as food of fruit and vegetables, their juices and pulp, meat fish, sea food and the by-products of all of them together with such other persons whether employed in the industry or not as have been appointed officers of the Union or its branches and admitted as members thereof.

Provided that this paragraph shall not extend to persons -

(1) engaged in or in connexion with the manufacture, preparation, processing or putting up of fruit juices or cordials unless the said persons are engaged in establishments where the chief product or products or one of the chief products manufactured in such establishments is otherwise provided for herein; and

(2) in the States of New South Wales, Queensland, South Australia and Western Australia engaged in any establishment where the predominant part of the product of such establishment is the manufacture, preparation or putting up of preserved meat, rabbits or poultry."

It is apparent that employees engaged in Victoria, in processes relating to pastes, spreads and similar preparations or preserved meat or nut food are not eligible for membership of the first respondent unless they are engaged in an establishment where the chief product or products or one of the chief products manufactured in such establishment is, within the meaning of the closing words of the conditions of eligibility, "otherwise provided for herein".
Difficulty has been experienced in the construction of those words. For myself I think the difficulty is resolved if regard is had to the purpose of the proviso. It is apparent from the 1948 application for amendment of its rules by the first respondent that the inclusion by virtue of sub-paras. (i), (iii) and (v) of para. (a) of the amended conditions of eligibility of employees engaged in Victoria in operations relating to pastes, spreads and similar preparations or processed meat was regarded as an addition to the classes of employees theretofore eligible for membership. The same is true of the extension of eligibility to employees engaged anywhere in Australia in operations relating to fruit juices or cordials, and to employees in New South Wales and parts of Western Australia engaged in operations relating to fish or seafood sold in containers, to employees in New South Wales, South Australia and Victoria engaged in relation to such food. And the amendment did enlarge the areas of employment, employees in which were thereafter eligible for membership of the first respondent. Other organizations, including the applicant, had objected to the proposed amendment of rules of the first respondent but their objections had been withdrawn on certain undertakings being given by the first respondent. Reading the proviso with this in mind it is clear that it was intended to provide for the exclusion from eligibility for membership of the first respondent of employees engaged in operations relating to the items referred to in the proviso, at any establishment, unless employees at that establishment were also engaged in operations relating to other items manufactured in such establishment in respect of which they were entitled to membership, and the proportion of employment of employees so engaged was so substantial that it would be unreasonable, from a practical point of view, that the first respondent should be excluded from enrolling and servicing other employees at that establishment whose only entitlement to membership could arise under the extension of the eligibility entitlements effected by the amendment of 1948.
To my mind the final words of the proviso referring to products "otherwise provided for herein" operate quite reasonably and rationally if they are read as referring to products within para. (a) of the amended conditions of eligibility but not the subject of the proviso. I concur in the observations in the reasons for judgment of my brother Northrop concerning the decision in Re Food Preservers Award (1959) 3 FLR 425.
It is to be observed that according to the terms of the proviso, strictly construed, employees within its scope who were engaged, for example, in operations relating to spreads, in an establishment to which the proviso extended, would not be entitled to membership of the first respondent even although the product in relation to which they worked e.g. jam, was one employment in relation to which would create such an entitlement on the basis that the product, although perhaps a spread, was also properly to be regarded as a product engagement in relation to which would entitle the employee to membership under the conditions of membership as they existed prior to the amendment of 1948. The applicant and the intervenor conceded, however, that the amended conditions of eligibility, properly construed, were not to be regarded as disentitling from eligibility to membership of the first respondent any employee engaged in an operation in respect of which engagement he would, prior to the amendment of 1948, have been entitled to membership.
It is convenient at this stage to consider whether, at the Kraft establishment at Port Melbourne, the chief product or products or one of the chief products was, or were, products production of which at the Kraft establishment rendered the proviso inoperative thereat and thus entitled employees to membership of the first respondent according to the conditions of eligibility as though the proviso does not present therein. That consideration involves identification of the chief product or products manufactured at the Kraft establishment. It is conceded that although there are a number of departments at Kraft the whole of the establishment there is to be regarded as one establishment. It appears that at the relevant time the products manufactured at the establishment, namely, Cheese, Vegemite, Peanut Butter, Bonox, Viscous Dressings, Portion Controls, Liquid Dressings and Meats, the percentage of the staff engaged and the percentage of total production was as follows:

% of % of total employees production

Cheese 68 76

Vegemite 7 6

Peanut Butter 4 1

Bonox 1 1

Viscous Dressings 4 5

Portion Controls 6 3

Liquid Dressings 6 4

Meats 5 3

It is said by the applicant that in this situation it is clear that the chief product is cheese and that cheese is not a food substance to be found in the first respondent's conditions of eligibility. Also it is not "otherwise provided for herein" within the meaning of the final words of the proviso.
The respondents contend in the first place, that cheese is a food substance, employment in relation to which, does according to sub-para. (iii) of the conditions of eligibility, entitle the employee to membership of the first respondent. It is said that cheese is an item of food from animals within the meaning of that sub-para. It is contended, secondly, that in any event Vegemite is itself a chief product manufactured at the Kraft establishment within the meaning of that expression in the proviso.
It is pointed out that in terms of percentage of employment and percentage of production, Vegemite production exceeds those of all products of Kraft with the exception of cheese. It follows, so it is contended, that Vegemite is one of the chief products at Kraft and on that basis the proviso is inapplicable to employment at Kraft. At least one of the chief products, namely, Vegemite, manufactured at Kraft is, in the final words of para. (a) of the conditions of eligibility "otherwise provided for herein".
I am unable to accept either the first or second contentions. The first contention involves a problem of interpretation. Clearly enough food from animals is a food substance referred to in sub-para. (iii) of para. (a) of the amended conditions of eligibility. Equally clearly cheese is produced from milk or cream which comes from animals. There is a sense, therefore, in which the expression "food from animals" might encompass cheese. The total expression involved is "preparations of food from animals sold in containers". It is in a context of "soups and other preparations or vegetables and/or food from animals, fish or seafoods sold in containers".
In this collection of words there is an assumption that soups sold in containers are, or include, preparations of vegetables and/or food from animals, fish or seafood. The effect of the words after "soups" is to indicate that employment in connection with preparations of vegetables and/or food from animals, fish or seafood other than those which are soups, but which have characteristics of similar preparations which are soups, entitles the employee to membership of the first respondent. If one has regard to soups, in their manifestation as preparations of vegetables and/or food from animals, fish or seafood, one appreciates that what is referred to are preparations of animals, fish or seafood as such rather than of the produce of animals, fish or seafood. And the animals fish and seafood contained in the preparations would normally be dead or would die when incorporated therein. In the context, food from animals fish or seafood is in a frame of reference different from food from the produce of animals, fish and seafood.
The word "other" in the expression "soup and other preparations of vegetables . . ." in conjunction with the rest of sub-para. (iii) would seem to indicate that that sub-para is concerned with food preparations sold in containers of which soups, of whatever they are made, are an example, and other preparations sold in containers which are made of the specified substances, namely, vegetables or animals or fish or seafood or of which those substances make up a substantial part. If one were engaged in solving a cross word puzzle where the answer was a six letter word and the simple clue was "food from animals", one could well adopt "cheese" as the answer. But the same phrase found in the context of other words in a document to be used by ordinary persons engaged in industry for practical application by them in relation to employment is not to be interpreted in so exotic a manner. It is a reasonable observation that in ordinary parlance one would not refer to cheese as food from animals. And the ordinary reasonable factory proprietor reading that phrase in its context in sub-para. (iii) of para. (a) of the conditions of eligibility would not naturally think that the draftsman was referring to cheese. Had he intended to lay down industrial consequences of employing a person in processing cheese, he would have been expected to say so, in plain language. And the draftsman of the conditions of eligibility in question found no difficulty in referring in plain terms to jams, jellies and honey and pickles and sliced fruit and fruit salads and nut food. It is difficult to think that if he had had in mind a product as significant as cheese he would not have mentioned it by name.
One returns, however, to the basic notion which is, to my mind, presented by the words of sub-para. (iii) that the animal the subject of the relevant preparation has given its body, not the produce of its body. I must therefore reject the notion that cheese in any form is a preparation of food from animals within para (a)(iii) of the conditions of eligibility.
Turning to the second contention, the problem is to identify what is, within the meaning of the final words of the proviso, a chief product manufactured at Kraft or the relevant bundle of chief products. If the question is asked, "who is the chief man in some body of persons?", the immediate response has to be, "from what point of view are you speaking, nominal position or real power?", or "are you speaking in relation to policy or administration?". Similarly, when one is required to enquire what is the chief product or what are the chief products at Kraft, one needs to know from what point of view the enquiry is directed. Is it quantity of production? Is it sale value of what is produced? Is it the number of employees engaged in processing the product? Is it some other quality giving some particular product a special significance or importance? And so, when one comes to the final clause of the proviso which provides an exception to an exclusion, and operates, where applicable, to extend the coverage of the first respondent to various products in establishments where that coverage does not otherwise exist, it is necessary to ask what is the quality which, for the purpose or the exception, will stamp a product as a chief product. It is a reasonable inference that the critical quality will be one which bears upon the reason for the exception from the exclusion. One finds that reason in the notion that where the first respondent already has coverage in relation to a product or products properly characterised as "chief" it should not be excluded from coverage in relation to the products specified in the proviso. It follows from this notion that the quality conferring the description of "chief" upon a product is that it involves employment of a high proportion of the employees at the establishment. The reason for the exception would be the circumstance, where it exists, that the first respondent already has wide coverage in that establishment, the width of that coverage being in the chief product or chief products of the establishment.
Clearly then, the point of view by reference to which the enquiry as to the identity of the chief product or chief products proceeds is the proportion of employees at the particular establishment with respect to whom the first respondent has coverage if the employees engaged in operations relating to the products as specified in the proviso are not taken into account. If the proportion is high, so that it justifies the implication arising from the word "chief", then the coverage extends to the employees engaged in operations relating to the products specified in the proviso. If not, those employees remain excluded from coverage in the conditions of eligibility of the first respondent.
There is of course no product manufactured at Kraft "the extent of employment in which can be regarded as 'high'", in the relevant sense, or from the relevant point of view, other than cheese. The respondents contended that in relation to cheese it is erroneous to regard cheese as one product. It is said that the various kinds of cheese manufactured at Kraft should be regarded as different products. It is said that if this be done then the dominance of cheese as the chief product is greatly reduced. But even if this be a sound view, the division of the product on any rational basis still leaves the proportions of employment and production of the various classes of cheese as follows;

% of % of employees production

Processed Cheddar 32 48

Cheese Spreads 18 15

Natural Cheese 18 13

The nearest other product is Vegemite at 7% of the employees and 6% of the production.

Thus, cheese, however considered, is in one way or another, the chief product, or the various cheese products are the chief products manufactured at Kraft. And cheese is not, in any of its manifestations, a food substance specified in the conditions of eligibility for membership of the first respondent. It is not in any sense a product manufactured at Kraft which is, in the final words of the exception from the exclusion provided for in the proviso, "otherwise provided for herein". And from the point of view of a proportion of employees, which might have any relevance to the identification of a "chief product" at Kraft, neither Vegemite nor any other product is of significance.
There was a suggestion that for the purpose of the proviso a product "put up" in cartons of different sizes ceased to be a single product, each size being a separate product. I regard this suggestion as untenable.
In the result it is my conclusion that the words of the proviso commencing with the word "unless" have no operation in relation to the employment and production situation at Kraft. Accordingly, the exclusionary operation of the proviso is effectual in providing that para. (a) of the conditions of eligibility do not extend to persons engaged in or in connexion with the manufacture, preparation, processing or putting up of the food substances specified in and as classified in the proviso.
Individual Products

Vegemite - The question is whether Vegemite falls within any of the sub-paras of para (a) of the conditions of eligibility.
It is submitted by the respondents, that Vegemite is a product within the product specification in sub-para (a)(i) of the conditions, either as a preparation similar to jams, jellies and honey (the amended rules), or as a substitute therefore (pre 1948 rules). But Vegemite is clearly not a preparation similar to jams, jellies or honey. It is my view also, that, in the context of the conditions of eligibility as in force prior to 1948, Vegemite is not a preparation used as a substitute for jams, jellies and honey. According to the text the product in contemplation is one used as a substitute for, for example, jam. It is not enough that the product is used for the same purposes as those for which jam is used, for example, to spread on bread. Butter and margarine would fall within products used for spreading on bread. A product not having any relationship with jam, and to the use of which jam is in no way relevant, and which is used when it is used only because of its own inherent and individual qualities, cannot be said to be used as a substitute for jam. For something to be a substitute for something else, that something else must stand in a relationship of some kind with the alleged substitute. The relationship of principal and delegate is typical. But there is no relationship between jam and Vegemite. Vegemite is not used because it does the work of jam or has any affinity therewith. It is used for its own taste and nutritional qualities which are far removed from those of jam and, according to many people, much more healthy.
It may be observed that this submission has its origin in the concession of the applicant that the amendments of 1948 were not intended to reduce the existing coverage of the first respondent in any way. Whilst this is acceptable where, upon a reasonable interpretation of the words of the amended rules, all the former coverage of the first respondent is preserved, it would be difficult to give effect to this concession if the words of the amended rule just would not sustain it. Prior to the 1948 amendment, sub-para (i) of para (a) of the conditions specified as relevant products, "jams, jellies, honeys and preparations used as substitutes therefor". But Vegemite not being such a substitute, the corresponding provision of the amended rules which reads, "jams, jellies and honeys, pastes, spreads and similar preparations" repeats, in other words, in this respect the substance of the pre-1948 provision.
It is next said that Vegemite is a wet condiment as specified in sub-para. (ii). In my opinion, it is not a condiment at all. It was submitted by Mr. Kenzie in proceedings V No. 32 of 1984 that a condiment is something of vegetable origin, the primary use of which is to be added to food to improve its flavour, it itself being usually aromatic, sharp or spicy in flavour. I accept that the true quality of a condiment is that it is something the primary use of which is to be added to food to improve its flavour. And I accept the further element deposed to by Dr. Broberg that it is is something added to food at the table. It is true that Vegemite is sometimes used to flavour stews or soups or the like but its primary use is as a food in its own right, principally as a spread. Onions and wine are used as flavouring agents, but, that does not make them condiments. It is the essential nature of a substance which determines its classification as a food, a drink or a condiment. If it were a condiment it would be very doubtful whether it is a wet condiment. Apart from other considerations, I think it an attractive view that the kind of wetness envisaged is that of vinegar, the classification appearing in the context of the products listed as "Pickles, salt preparations, sauces, chutneys, vinegar and other wet condiments".
It follows that Vegemite does not fall within sub-para. (a)(ii) of the conditions of eligibility.
Finally, it is said that Vegemite is a preparation of vegetables within the meaning of that expression in sub-para. (iii) of para. (a) of the conditions of eligibility. This submission rests on the evidence that Vegemite is a yeast extract made by the autolysis of brewers yeast and is a concentrated yeast extract. It is manufactured by obtaining a selected blend of yeast extract which is slurried in water together with salt and natural vegetable flavours. Yeast itself is the aggregated cells of certain minute fungi which appear in saccharine liquids for example, "fruit juices and malt worts etc.) (Macquarie Dictionary). When asked whether Vegemite was animal, mineral or vegetable the witness Chambers answered, "It is microbiological. The closest to it would be vegetable". He expanded, "Vegetable, yes. It is a single cell micro organism". Dr. Broberg described Vegemite as, "an autolysate, the breakdown of the protienaceous matter of the yeast cell by its own enzymes and then the extraction of the cell walls to make a liquid and it is then concentrated, the rest of it is usually salt." I am unable to think that such a product is comprehended within the expression "preparation of vegetables" in its context in sub-para. (iii). What is contemplated is a preparation of real vegetables as normally understood, not a preparation of the microbiological elements contained in yeast. In the expression "preparation of vegetables", the word "of" has significance. The preparation is a preparation of vegetables, vegetables recognizable as such, not of extracts of vegetables. One would expect to find at least something in the nature of that which an ordinary person would regard as a real vegetable as a material part of the preparation.
Vegex
Vegex is a substance very similar to, but different from Vegemite. It is a yeast extract. It is not a spread. Its sole use is as an additive or flavouring agent in the commercial preparation of food. It will not be found on the table nor is it used like a salad dressing in association with food at the table. It is not in my opinion a condiment. Its purpose is rather the flavouring of foods commercially blended in bulk. Accordingly, it is my view that for the same reasons as set out above in relation to Vegemite, Vegex is not comprehended within the conditions of eligibility of the first respondent.
Bonox
Bonox would appear to be a preparation as food of meat. It is not within the proviso in any of its aspects. Accordingly, it is within the conditions of eligibility of the first respondent.
Peanut Butter
Peanut butter is essentially a spread. It is also, as it appears to me, a nut food. In both respects it is within the proviso. It is not a substitute for jams, jellies or honey, nor a similar preparation thereto. Accordingly, those engaged in the processing or manufacture of peanut butter at Kraft are not within the conditions of eligibility of the first respondent.
As to the other items specifically dealt with in the evidence, namely, Miracle Whip, fish pastes, tinned pasta, tinned and canned foods, and salad dressings, the same are not found in the proviso in relation to Victoria and so far as provided for in para. (a) or (b) of the conditions of eligibility of the first respondent they are covered thereby.

JUDGE2

The Food Preservers Union of Australia ("the Union") is an organization of employees under the Conciliation and Arbitration Act 1904 ("the Act"). The Union is seeking to enrol as members persons employed by Kraft Foods Limited ("Kraft"), a company carrying on the business of food manufacturing at premises at Salmon Street, Port Melbourne in the State of Victoria. The Manufacturing Grocers' Employees' Federation of Australia ("the Federation"), an organization of employees under the Act, is challenging the capacity of the Union to enrol as members persons employed in six of the departments being conducted by Kraft at its Melbourne plant. In reality, the Federation does not seek a de-registration of the Union, but seeks an authoritative answer to the question of whether the Union has the capacity to enrol as members persons employed by Kraft in the six departments. The answer to that question depends upon the proper construction of the eligibility rule of the Union and the application of that rule as so construed to the nature of the manufacture, preparation, processing or putting up of products or preparations by Kraft in those six departments.

These proceedings were heard immediately after the conclusion of the hearing of the proceedings identified as being V. No. 32 of 1984 in which the Union challenged the capacity of the Federation to enrol as members persons employed by Kraft in the same six departments. In order to understand the reasons for judgment in the present proceedings, being V. No. 34 of 1984, it is necessary to have read the reasons for judgment in proceedings being V. No. 32 of 1984 since, as was said in those reasons, all parties and the intervenor in both proceedings agreed that evidence given in either proceedings could be relied upon in determining each of the proceedings. The reasons for judgment in each proceedings must be read in conjunction. The findings of fact made in the reasons for judgment in proceedings being V. No. 32 of 1984 and the statements of principle therein set out apply equally to these reasons for judgment. They will not be repeated.
In order to determine the present matter, further facts must be set out. The Union was first registered as an organization under the Act in March 1911. At that time, its name was "The Jam, Sauce, Pickles and Food Preserving Employees' Union of Australia". It was registered as an organization of employees in or in connexion with "The Jam, Sauce, Pickle and Food Preserving Industry". Its eligibility rule was called "Constitution" and was as follows:

"This Union shall consist of any person employed in the jam, pickle, sauce and food preserving industry throughout the Commonwealth, together with such other persons whether employed in the industry or not as have been appointed officers of the Union or its branches and admitted as members thereof."

By the year 1925, the Union, with the consent of the Industrial Registrar, altered its name to its present form.
In the year 1913, the Union, with the consent of the Industrial Registrar, changed its eligibility rule to the following:

"This Union shall consist of any persons of good character employed in the Jam, Pickle and Food Preserving Industry throughout the Commonwealth."

In the year 1933, the Union, with the consent of the Industrial Registrar, changed its eligibility rule to the following:

"The Union shall consist of persons employed in or in connexion with -

(a) The manufacture, preparation or putting up of -

(i) Jams, jellies, honey and preparations used as substitutes therefor,

(ii) Pickles, salt preparations, sauces, vinegar and other wet condiments,

(iii) Soups and other preparations of vegetables and/or animal foods sold in containers,

(iv) Fruit salads.

(b) (Without restricting the interpretation of the foregoing.) The preservation of vegetables and fruits as food,

together with such other persons whether employed in the industry or not as have been appointed officers of the Union or its branches and admitted as members thereof."

Hereinafter, this rule is called the 1933 eligibility rule.

In the year 1948, the Union, with the consent of the Industrial Registrar, changed the description of industry in connexion with which it was registered to the following:

"The jam, sauce, pickle, wet condiments, beet sugar, cordial and the fruit, vegetable, meat, fish and other food substances preparing, processing and preserving industry."

In the same year and at the same time, the Union, with the consent of the Industrial Registrar, changed its eligibility rule to the following:

"The Union shall consist of persons employed in or in connexion with -

(a) The manufacture, preparation, processing or putting up of -

(i) Jams, jellies, honey, pastes, spreads and similar preparations;

(ii) Pickles, salt preparations, sauces, chutneys, vinegar and other wet condiments;

(iii) Soups and other preparations of vegetables and/or food from animals, fish or sea food sold in containers;

(iv) Sliced fruit, fruit salads and nut food;

(v) Pulp, fruit and vegetable juices and cordials whether such are made wholly or in part from fruit or vegetable juices or not;

(vi) Sugar from sugar beet (except in the States of New South Wales and Queensland);

(vii) Fish and sea food of any description and their by-products and the smoking of fish;

Provided that this paragraph shall not extend to persons engaged in or in connexion with the manufacture, preparation, processing or putting up -

(1) of fruit juices or cordials;

(2) in the States of Victoria and South Australia of pastes, spreads and similar preparations or preserved meat;

(3) in the State of New South Wales and in the State of Western Australia outside a radius of 30 miles of the General Post Office, Perth, of fish or sea food sold in containers; and

(4) in the States of New South Wales, Victoria and South Australia of nut food unless the said persons are engaged in establishments where the chief product or products or one of the chief products manufactured in such establishments is otherwise provided for herein.

(b) (Without restricting the interpretation of the foregoing) the preparation and preservation as food of fruit and vegetables, their juices and pulp, meat fish, sea food and the by-products of all of them together with such other persons whether employed in the industry or not as have been appointed officers of the Union or its branches and admitted as members thereof.

Provided that this paragraph shall not extend to persons -

(1) engaged in or in connexion with the manufacture, preparation, processing or putting up of fruit juices or cordials unless the said persons are engaged in establishments where the chief product or products or one of the chief products manufactured in such establishments is otherwise provided for herein; and

(2) in the States of New South Wales, Queensland, South Australia and Western Australia engaged in any establishment where the predominant part of the product of such establishment is the manufacture, preparation or putting up of preserved meat, rabbits or poultry."

Hereinafter, this rule is called the 1948 eligibility rule.

In the year 1974, the Union, with the consent of the Industrial Registrar, further changed its eligibility rule. It is not necessary to set out the new, and current, eligibility rule of the Union since in all material respects it is in the same form as the 1948 eligibility rule, but it should be noted that one of the alterations made in 1974 was the deletion of the number and words "(1) of fruit juices or cordials" appearing in the first proviso to the 1948 eligibility rule.
In the absence of the proviso to paragraph (a) of the 1948 eligibility rule, it is obvious that the Union has the capacity to enrol as members persons employed in the six departments. This is illustrated by a reference to the products or preparations which are manufactured, prepared, processed or put up in each of those departments.
1. The Vegemite and Bonox Preparation Department

Vegemite is a spread and comes within paragraph (a)(i) of the 1948 eligibility rule. Vegex, although not a spread, is a similar preparation to Vegemite. Vegemite can be used as a flavouring agent in the preparation of foods. Vegex is used as a flavouring agent in food preparations. Vegex comes within paragraph (a)(i) of the 1948 eligibility rule. Vegex may come within paragraph (a)(ii) of the 1948 eligibility rule as being a wet condiment. Bonox is a preparation of food from animals sold in containers and comes within paragraph (a)(iii) of the 1948 eligibility rule. Further, Bonox may be a wet condiment.
2. The Vegemite and Peanut Butter Filling Department

Peanut butter is a spread and comes within paragraph (a)(i) of the 1948 eligibility rule. The other preparations dealt with in this department are either spreads or come within paragraph (a)(ii) of the 1948 eligibility rule as being wet condiments.
3. The Salad Preparation Department

All the preparations dealt with in this department are either wet condiments or jams and come within paragraphs (a)(i) or (ii) of the 1948 eligibility rule.
4. The Meats Department

All the preparations dealt with in this department are either pastes or spreads within paragraph (a)(i) or preparations of vegetable and/or food from animals, fish or seafood sold in containers and thus come within paragraph (a)(iii) of the 1948 eligibility rule.
5. The Portion Control Department - mainly purchased product

All the preparations dealt with in this department are either sauces, spreads, jams or wet condiments and come within paragraphs (a)(i), (ii) or (iii) or the 1948 eligibility rule.
6. The Liquid Dressing Line Department

All the preparations dealt with in this department come within paragraph (a)(ii) of the 1948 eligibility rule.
Counsel for the Federation and counsel for the intervenor did not dispute that the Union had the capacity to enrol as members persons engaged in the manufacture, preparation, processing or putting up of a number of the preparations dealt with in the six departments and in particular, did not dispute the capacity of the Union to enrol as members those employees handling the salad dressings. They did dispute however, the capacity of the Union to enrol as members persons employed in the handling of pastes, spreads and similar preparations and preserved meat including all the preparations handled in the Meats Department. In particular, they disputed the capacity of the Union to enrol as members persons connected with the handling of Vegemite, Vegex, peanut butter, the fish and meat pastes and the meats.

It thus becomes necessary to determine the proper construction of the 1948 eligibility rule of the Union before applying that rule to the nature of the manufacture, preparation, processing or putting up of the products or preparations handled in the six departments of Kraft. Counsel for the Federation contended that in principle, paragraph (a) of the 1948 eligibility rule should be construed in such a way that in the States of Victoria and South Australia, the Union could enrol as members only those persons employed in or in connexion with the manufacture, preparation or putting up of:

(a) pastes, spreads and similar preparations;

(b) nut foods and

(c) cordials,

where the employees performing the work worked in establishments where the chief product or products or one of the chief products manufactured in that establishment was covered by the 1933 eligibility rule of the Union. In support of that contention, counsel relied upon the terms of an agreement in writing between the Union and the Federation dated 6 September 1947 and entered into during the hearing of the application by the Union for consent to change its eligibility rule from the 1939 eligibility rule. The terms of the agreement were in the form set out earlier in this paragraph.

There are grave difficulties involved in accepting this contention. In a decision given on 16 February 1948, the Industrial Registrar gave his consent to the 1948 eligibility rule of the Union. In his decision, the Industrial Registrar referred to the history of the application for consent to the change of the eligibility rule of the Union and the fact that a number of organizations, including the Federation, the Australasian Meat Industry Employees' Union and the Federated Cold Storage and Meat Preserving Employees' Union of Australasia had objected to the consent to the alteration of the 1933 eligibility rule of the Union in the form proposed by the Union. During the course of negotiations prior to the giving of consent, the Union and the Federation reached the agreement set out above. The Union and the Australasian Meat Industry Employees' Union and the Federated Cold Storage and Meat Preserving Employees' Union of Australasia respectively, reached similar agreements. Under the agreement with the Australasian Meat Industry Employees' Union, the Union agreed that it would not, in the States of New South Wales, Queensland, South Australia and Western Australia, enrol as members persons engaged in any establishment where the predominant part of the product of such establishment is the manufacture, preparation or putting up of preserved meat, rabbits or poultry. That agreement did not affect the State of Victoria. Under the agreement with the Federated Cold Storage and Meat Preserving Employees' Union of Australasia, the Union agreed that it would not, in the States of Victoria or South Australia, enrol as members persons employed in or in connexion with the manufacture, preparation or putting up of preserved meat provided that the Union would be entitled to enrol as members persons performing the work in establishments where the chief product or products or one of the chief products manufactured in such establishment are covered by the 1933 eligibility rule of the Union. The similarity in the agreements affecting the Federation and the Federated Cold Storage and Meat Preserving Employees' Union of Australasia is apparent. Each was limited to the two States of Victoria and South Australia and contained matters in relation to the chief product or one of the chief products being manufactured in an establishment. The Industrial Registrar, in his reasons, referred to the fact that the alterations sought to the 1933 eligibility rule of the Union constituted "a considerable extension of the sphere at present occupied" by the Union. He referred to the agreements set out above and said:

"The applicant Union and the objectors, The Manufacturing Grocers' Employees' Federation of Australia, The Australasian Meat Industry Employees' Union and The Federated Cold Storage and Meat Preserving Employees' Union of Australasia, were able to compose their differences and the order I propose to make will, I think, be consistent with the agreements made."

The Industrial Registrar then considered objections by other persons and formulated the 1948 eligibility rule of the Union in a way which he considered gave effect to the agreements of the three named objectors and in accordance with the rulings he made in relation to the other objections. He gave his consent to the 1948 eligibility rule which was in a form different to the alteration previously made by the Union. Despite having their attention drawn to this matter and the question of whether the Industrial Registrar had power to do what he did, neither of the parties nor the intervenor desired to rely upon any invalidity in the 1948 eligibility rule of the Union. No appeal was taken against the consent of the Industrial Registrar with respect to the 1948 eligibility rule.

It must be remembered that the Court has to determine the proper construction of the 1948 eligibility rule. Reference has been made to the history of these matters relating to that change because of the strong reliance placed upon that history by counsel for the Federation. With respect to a similar submission, in Federal Firefighters' Union v. Minister of State for the Capital Territory (1982) 62 FLR 341, Evatt and Northrop JJ. said at pp 344-5:

"In support of his contentions, counsel for the union tendered and sought to rely upon material from which the award is derived as well as the logs of claim on which the award is based. He contended that that material formed a matrix of facts by which the award should be construed. He relied upon the opinion expressed by Lord Wilberforce in Prenn v. Simmonds (1971) 1 WLR 1381. The material was of interest but not of assistance in considering cl. 23 of the award. The material itself used words and expressions which were unclear and confused. In reality the material was unhelpful. In this respect, it is important to note that Lord Wilberforce said, at pp. 1384-1385: 'There were prolonged negotiations between solicitors, with exchanges of draft clauses ultimately emerging in clause 2 of the agreement. The reason for not admitting evidence of these exchanges is not a technical one or even mainly one of convenience, (although the attempt to admit it did greatly prolong the case and add to its expense). It is simply that such evidence is unhelpful. By the nature of things, where negotiations are difficult, the parties' positions, with each passing letter, are changing and until the final agreement, though converging, still divergent. It is only the final document which records a consensus. If the previous documents use different expressions, how does construction of those expressions, itself a doubtful process, help on the construction of the contractual words? If the same expressions are used, nothing is gained by looking back; indeed, something may be lost since the relevant surrounding circumstances may be different. And at this stage there is no consensus of the parties to appeal to.'"

The present case illustrates the wisdom of that approach. The agreements themselves are not clear and a difficult question would arise in their construction. On no view do the terms of the agreement between the Union and the Federation have the same meaning as the alteration consented to by the Industrial Registrar. The history was of interest but not of assistance in construing the 1948 eligibility rule of the Union. In reality, the history was unhelpful. What must be construed is the 1948 eligibility rule of the Union. In construing that rule, regard may be had to the 1933 eligibility rule and the alterations contained in the 1948 eligibility rule. The latter rule must be construed in accordance with the principles referred to in the reasons for judgment in matter V. No. 32 of 1984.
In accordance with normal principles, it is proposed to consider in the first case the proper construction of the rule without reference to authority.
Each of the 1933 and 1948 eligibility rules comprise two paragraphs. Initially, reference need be made to paragraph (a) only in each of those rules. In the 1933 eligibility rule there were four sub-paragraphs numbered (i) to (iv). In the 1948 eligibility rule there are the same four sub-paragraphs, with some alterations, plus three additional sub-paragraphs numbered (v) to (vii). Thus sub-paragraph (i) was altered from "Jams, jellies, honey and preparations used as substitutes therefor" to "Jams, jellies, honey, pastes, spreads and similar preparations". Sub-paragraph (ii) was altered to include "chutneys" so that the sub-paragraph now reads "Pickles, salt preparations, sauces, chutneys, vinegar and other wet condiments". Sub-paragraph (iii) was altered by changing the words "animal foods" to "food from animals" and adding the words "fish or sea food" so that the sub-paragraph now reads "Soups and other preparations of vegetables and/or food from animals, fish or sea food sold in containers". Sub-paragraph (iv) was altered by adding "Sliced fruit" and "nut food" so that the sub-paragraph now reads "Sliced fruit, fruit salads and nut food". Sub-paragraphs (v) to (vii) were not in the 1933 eligibility rule. Those sub-paragraphs are:

"(v) Pulp, fruit and vegetable juices and cordials whether such are made wholly or in part from fruit or vegetable juices or not;

(vi) Sugar from sugar beet (except in the States of New South Wales and Queensland);

(vii) Fish and sea food of any description and their by-products and the smoking of fish;".

Note the area limitation contained in sub-paragraph (vi) and the reference in sub-paragraph (vii) to "Fish and sea food of any description and their by-products" and the reference in sub-paragraph (iii) to "fish or sea food sold in containers". Note further that the words "preserved meat" do not appear in any of the sub-paragraphs.

It is clear that sub-paragraphs (i) to (vii) of paragraph (a) of the 1948 eligibility rule are intended to widen the capacity of the Union to enrol employees as members when compared to the 1933 eligibility rule. The proviso to paragraph (a) in the 1948 eligibility rule has the effect of limiting the width of that capacity as expressed in sub-paragraphs (i) to (vii). It is noted that the proviso is limited to the capacity conferred by paragraph (a). Thus the opening words of the proviso are "Provided that this paragraph shall not extend to persons . . . ". In order then to construe the proviso, prima facie, it must be read as being a proviso to the areas of eligibility contained in paragraph (a). It is noted further that the opening words of the proviso adopt the opening words of the 1948 eligibility rule except that the word "engaged" is used instead of the word "employed". Thus the proviso excludes from eligibility "persons engaged in or in connexion with the manufacture, preparation, processing or putting up . . . ". In this context, the word "engaged" must be construed as meaning "employed". The proviso then contains four paragraphs numbered (1) to (4) specifying products or preparations which are to be excluded from categories of products or preparations which otherwise come within sub-paragraphs (i) to (vii) of paragraph (a) of the 1948 eligibility rule. Thus "(1) of fruit juices or cordials" correspond to part of sub-paragraph (v) of paragraph (a) of the 1948 eligibility rule, namely "fruit . . . juices and cordials", but this paragraph was deleted in 1974. Thus "(2) in the States of Victoria and South Australia of pastes, spreads and similar preparations" correspond to the new parts of sub-paragraph (i) of paragraph (a) of the 1948 eligibility rule, namely "pastes, spreads and similar preparations". The words "preserved meat" in paragraph (2) of the proviso are difficult to explain. Those words do not appear in any of the sub-paragraphs of paragraph (a) of the 1948 eligibility rule. Those words did not appear in any part of the 1933 eligibility rule. The words "preserved meat" do not appear in the eligibility rule of the Federation. The meaning and application of those words will be considered later in these reasons. Thus paragraph (3) of the proviso corresponds to the words "preparations of . . . fish or sea food sold in containers" appearing in sub-paragraph (iii) of paragraph (a). Thus paragraph (4) of the proviso corresponds to the words "nut food" appearing in sub-paragraph (iv) of paragraph (a). In both these instances the relevant words had not appeared in the 1933 eligibility rule.
The clause of the proviso commencing with the word "unless" is designed to enable the Union to have capacity to enrol as members classes of employees who otherwise come within the proviso and thus are excluded from being eligible for membership of the Union. The clause can be described as an exception clause creating an exception to the exclusive provisions of the proviso. To come within the exception clause, the employees must come within the class of "persons engaged in or in connexion with the manufacture, preparation, processing or putting up" of any of the products or preparations specified in paragraphs (1) to (4) of the proviso. This is made clear by the words "said persons" in the exception clause. The exception clause is limited to persons engaged in specified types of establishments. Both parties and the intervenor agreed that in this context the whole of the Kraft plant at Salmon Street, Port Melbourne was the one establishment. I express no opinion on whether that agreement was justified. The exception clause is to apply where in the one establishment, "the chief product or products or one of the chief products manufactured" is "otherwise provided for herein". Debate took place as to the meaning of the phrase "otherwise provided for herein", namely whether the word "herein" referred to the products or preparations specified in paragraphs (1) to (4) of the proviso or to the products or preparations specified in sub-paragraphs (i) to (vii) of paragraph (a) as well as those specified in paragraphs (1) to (4) of the proviso.
In my opinion, the words "otherwise provided for herein" must be read as "other than those in the proviso". In other words, the word "herein" is to be read as referring to the products and preparations specified in the proviso only.
Paragraph (a) of the 1948 eligibility rule extended the capacity of the Union to enrol persons as members. That extended capacity was limited to take account of objections by other organizations. That limitation was not to apply where the chief product or products or one of the chief products manufactured in an establishment was a product or preparation coming within any of the sub-paragraphs (i) to (vii) except those products referred to in paragraphs (1) to (4) of the proviso. Thus, if in an establishment in Victoria, the chief product manufactured was, say, pickles, the Union would have capacity to enrol as members persons employed in that establishment even though those persons were engaged in the manufacture, preparation, processing or putting up of a spread within the meaning of sub-paragraph (i) of paragraph (a) and which was not a jam, jelly or honey. This construction is consistent with the purpose of paragraph (a) and the proviso to paragraph (a).
The alternative construction, namely that the word "herein" in the exception clause applies to all products and preparations mentioned in sub-paragraphs (i) to (vii) of paragraph (a) as well as paragraphs (1) to (4) of the proviso, would make a mockery of the purpose of paragraph (a) and the proviso to that paragraph. Thus if in an establishment in Victoria the chief product manufactured was, say, pastes and spreads within the meaning of sub-paragraph (i) of paragraph (a) and which were not jams, jellies or honey and which were not products or preparations coming within any of the sub-paragraphs (ii) to (vii) of paragraph (a), the Union would have capacity to enrol persons employed in that establishment even though no other product or preparation was manufactured in that establishment. On this construction, the proviso would have very limited application if any.
The conclusion reached as to the proper construction of the exception clause is consistent with normal methods of construction. The exception clause is an exception to an exclusive clause contained in the proviso. Normally in that context, the word "herein" should refer to the proviso only. The context of the words "otherwise provided for" must refer to a subject matter not provided for in the proviso. The subject of the proviso is the class of persons engaged in or in connexion with the manufacture, preparation, processing or putting up of the products or preparations specified in paragraphs (1) to (4) of the proviso. The subject matter of the exception clause is the class of persons engaged in the manufacture, preparation, processing or putting up of the products or preparations specified in sub-paragraphs (i) to (vii) of paragraph (a) except those specified in the proviso. The exception clause excludes from the proviso the class limited by reference to the description in the exception clause, the eligibility for membership for the Union being found at all times in sub-paragraphs (i) to (vii) of paragraph (a). Grammatically, effect must be given to the word "otherwise" as well as the word "herein". This can be done only by reading the relevant phrase as "other than those in the proviso". That is the proper construction of the proviso and the exception clause.
Counsel for the Federation relied strongly on the reasons for judgment in Re Food Preservers Award (1959) 3 FLR 425, a decision of the Commonwealth Industrial Court constituted by Spicer C.J., Dunphy and Morgan JJ. In that case, an organization of employers and an employer, as applicants, sought an interpretation of an award pursuant to s. 110 of the Act. The employer organization and the employer were bound by the Food Preservers Award 1955. The Union was a party to that award. The incidence clause of the award provided that the award as applied to the Meat Preserving section, applied to the employment of persons employed in "preserving of meat, meat pastes, meat and vegetables, and meat and cereal in any form provided that such work forms part of a general production of food preserving as provided in the constitution of the Food Preservers Union of Australia". The 1948 eligibility rule of the Union, prior to the alterations made in 1974, was the relevant constitution. It is difficult to see why paragraph (b) of the 1948 eligibility rule of the Union was not the appropriate rule to be construed. The applicants sought an interpretation that under the incidence clause, the award applied to the employment of persons employed by the employer at its establishment in Victoria in the section of the works carrying out the process of canning meat, meat and vegetables and meat and cereals. During the course of the hearing, it became apparent that the applicants sought an interpretation that the award applied even though in the establishment no other product was manufactured. At the hearing of the application, the same counsel appeared for the Union and the Federated Cold Storage and Meat Preserving Employees' Union of Australasia. Thus there could have been no issues arising between the two organizations of employees. The reasons for judgment do not indicate whether the relevant employees at the establishment were members of the Union, members of the Federated Cold Storage and Meat Preserving Employees' Union of Australasia or possibly members of both.
In many respects, the reasons for judgment are unsatisfactory. The actual interpretation given appears to be correct but the reasoning which leads to that interpretation, with great respect, is doubted. From the reasons, it does not appear whether the Union disputed the interpretation sought. The Federated Cold Storage and Meat Preserving Employees' Union of Australasia was not a party to the award and thus that Union could not have been bound by the award. From the reasons for judgment, it appears that the Union argued that in the exercise of its discretion, the Industrial Court should refrain from giving an interpretation. Spicer C.J., with whose reasons Dunphy J. agreed, and Morgan J. rejected that argument. From the reasons for judgment of Morgan J. it appears that in support of its submission to have the discretion exercised in its favour, the Union argued that orders should be sought under s. 108 of the Act to determine whether the award or whether state determinations applied and that if the interpretation sought was made it would have the effect that the Federated Cold Storage and Meat Preserving Employees' Union of Australasia, which was not a party to the dispute in settlement of which the award was made, would be bound by the award. It is difficult to see the validity of the latter submission. It should be noted that nowhere in the reasons for judgment is it stated that the Union argued that it did not have capacity to enrol as members the relevant employees.

From the reasons for judgment of Morgan J., it appears that the Court took the view that all the products or preparations in question came within sub-paragraph (iii) of paragraph (a) of the 1948 eligibility rule, namely that they were "preparations of vegetables and/or food from animals . . . sold in containers". The Court, while accepting that view, nevertheless considered that those products or preparations were "preserved meat" within the meaning of those words appearing in paragraph (2) of the proviso. Therefore, the Court had to decide whether the proviso applied or whether the "preserved meat" even though coming within sub-paragraph (iii) of paragraph (a) came within the exception clause. On this point, Morgan J. said:

"I confess that I find this question one of some difficulty. But on the whole I think that the grammatical meaning of the phrase 'otherwise provided for herein' in this connexion is closer to 'covered in one of the pars. (i) to (vii) above' than to 'one of the foodstuffs covered in one of the sub-pars. (i) to (vii) above which is not one of the foodstuffs mentioned in sub-pars. (1) to (4) above'. I incline therefore to the view that the employees concerned fall within par. (a) of the 'constitution'."

Spicer C.J. said at p. 428:

"I reach this conclusion having regard to what I think is the purpose of the proviso to cl. (a) read in its context. It is I think concerned to render eligible for membership of the union those who are employed in the processes referred to in the proviso when they are engaged in an establishment in which either the product referred to in the relevant proviso or some other product referred to in cl. (a)(i) to (vii) is the chief product or one of the chief products manufactured in the establishment. Where however neither it nor any other of the products referred to in cl. (a)(i) to (vii) is the chief product or one of the chief products then I think those engaged in the process are not eligible for membership."

As a result, the Court gave an interpretation that the award applied inter alia to the employment of persons employed by any employer in an establishment in the State of Victoria in the preserving of meat, meat and vegetables and meat and cereals, but no other product. It is interesting to note that no reference was made in that interpretation to the need for the preparations of vegetables and/or food from animals to be sold in containers.
With great respect, the reasoning behind that interpretation cannot be accepted although the interpretation itself is, in my opinion, correct insofar as it depends upon the application of sub-paragraph (iii) of paragraph (a) of the 1948 eligibility rule. The reasoning of the Industrial Court is based on the assumption that the products and preparations mentioned in sub-paragraph (iii) of paragraph (a) are "preserved meat" within the meaning of those words in the proviso. That assumption is not accepted. In some contexts the word "preserved meat" may include meat sold in containers but in the context of the 1948 eligibility rule, that construction is not open. The words "the . . . preservation as food of . . . meat" and "preserved meat" first appeared in the 1948 eligibility rule of the Union. Those words appear in paragraph (b) of the 1948 eligibility rule and in the proviso to paragraph (a). It is easy to list instances of preserved meat not sold in containers, for example, preserved sausages such as strasburg; compare what was said by Morgan J. at p. 433. In the context of the 1948 eligibility rule there is much to be said for the view that preparations of meat sold in containers and coming within sub-paragraph (iii) of paragraph (a) are not to be treated as "preserved meat" within the proper construction of that phrase. The words "preserved meat" in the proviso to paragraph (a) are to be equated with the products or preparations described in paragraph (b) as "the . . . preservation as food of . . . meat" and "preserved meat". Unless this construction is adopted, it would mean that the unrestricted class of persons coming within sub-paragraph (iii) of paragraph (a) of the 1933 eligibility rule would become a class restricted by the proviso to paragraph (a) of the 1948 eligibility rule. Thus persons employed in or in connexion with the manufacture, preparation or putting up of "preparations of vegetables and/or animal foods sold in containers" and being eligible for membership of the Union under the 1933 eligibility rule, could cease to be eligible for membership of the Union even though still employed in or in connexion with the manufacture, preparation, processing or putting up of "preparations of vegetables and/or food from animals . . . sold in containers" under paragraph (2) of the proviso if the products or preparations so handled are to be treated as "preserved meat" unless the exception clause applied. I do not accept that result.
The reasons for judgment in Re Food Preservers Award do not prevent me from construing paragraph (a) and its proviso as contained in the 1948 eligibility rule in the manner expressed earlier in these reasons.
One further matter remains to be considered. Counsel for the Federation contended that the words "pastes, spreads and similar preparations" appearing in the proviso to paragraph (a) of the 1948 eligibility rule were absolute in their operation and that unless the exception clause applied, prevented the Union having capacity to enrol as members persons engaged in the manufacture, preparation, processing or putting up of any of the products or preparations referred to in sub-paragraphs (ii) to (vii) of paragraph (a) if those products or preparations were pastes, spreads or similar preparations. Thus counsel contended that fish pastes sold in containers, even though coming within sub-paragraph (iii) of paragraph (a) nevertheless were pastes and thus came within the proviso. Logically, the same result would apply to jams since in one sense, jams are spreads and on the acceptance of the contention made on behalf of the Federation would come within the proviso. Counsel however, did not make that contention.
The contention by counsel for the Federation is rejected. The draftsman of the 1948 eligibility rule, the Industrial Registrar, was not a member of the Union. He has been very particular in the framing of the rule. The class of persons eligible to become members of the Union as a result of the consent to the 1948 eligibility rule was much greater than the class that had been eligible to become members of the Union under the 1933 eligibility rule. A limitation however, was placed upon that extended class of employees. That limitation was expressed in accordance with the proviso to paragraph (a) but there was an exception clause to the proviso. The draftsman was very careful to use the same words to describe the extended capacity and the limitation on that extended capacity contained in the proviso. Thus the words "pastes, spreads and similar preparations" are used in both sub-paragraph (i) of paragraph (a) and paragraph (2) of the proviso. Similarly, with respect to sub-paragraph (v) and paragraph (1) of the proviso, sub-paragraph (iii) and paragraph (3) of the proviso and sub-paragraph (iv) and paragraph (4) of the proviso. This careful use of language shows that the draftsman intended the paragraphs of the proviso to have application only where the same words appeared in any of the sub-paragraphs of paragraph (a) and then only with respect to the particular sub-paragraph involved. Thus paragraph (2) of the proviso is limited to pastes, spreads and similar preparations introduced for the first time by the alteration to sub-paragraph (i) of paragraph (a). It follows that if a product or preparation comes within another sub-paragraph of paragraph (a), then, in the absence of a corresponding exclusion in the proviso, that product or preparation does not come within the proviso even if the product or preparation is a paste or spread. Thus meat and fish pastes being preparations of food from animals, fish or sea food sold in containers come within sub-paragraph (iii) of paragraph (a), and do not come within paragraph (2) of the proviso. Likewise, "preserved meat" in paragraph (2) of the proviso applies only to preserved meat introduced for the first time in paragraph (b) of the 1948 eligibility rule. Likewise, with respect to the other products or preparations specified in the proviso. On this construction, even though jams are spreads, they are not excluded because, for the purpose of paragraph (2) of the proviso, they are not to be treated as pastes or spreads.
There is no doubt that the chief product or preparation or at least one of the chief products or preparations manufactured by Kraft at its establishment at Port Melbourne is cheese. Counsel for the Union attempted to avoid the difficulties arising from the construction of the proviso to paragraph (a) of the 1948 eligibility rule by contending that in any event the Union had capacity to enrol as members persons engaged in the manufacture, preparation, processing or putting up of cheese. He contended that the words "food from animals" in sub-paragraph (iii) of paragraph (a) of the 1948 eligibility rule included milk and that since cheese was made from milk, cheese was a preparation of food from animals. In one sense, that contention is correct, but in the context of both the 1933 eligibility rule and the 1948 eligibility rule, the contention has no foundation whatsoever. In the 1933 eligibility rule, the relevant words were "preparations of . . . animal foods sold in containers". Although on a first reading this might suggest preparations of pet foods, in the context of the 1933 eligibility rule it could have no such meaning. What is covered by that rule are foodstuffs suitable for human consumption and the words "animal foods" must refer to flesh of animals suitable for human consumption. In the 1948 eligibility rule, the same meaning must be given to the words "food from animals". What is being considered there is flesh from animals suitable for human consumption and in that context there can be no warrant to hold that the phrase includes milk from animals.
On the proper construction of the 1948 eligibility rule, including the proviso to paragraph (a) thereof, the only difficulty arising in the application of the rule to the manufacture, preparation, processing or putting up of the products and preparations handled in the six departments of Kraft is with respect to Vegemite, Vegex and peanut butter. All the products and preparations handled in the Meats Department come within sub-paragraph (iii) of paragraph (a) of the 1948 eligibility rule. The proviso does not apply to any of those products. Counsel for the Union submitted that Vegemite came within sub-paragraph (i), (ii) and (iii) of paragraph (a) and paragraph (b) of the 1948 eligibility rule. It is clear that Vegemite is a spread. Insofar as it comes within sub-paragraph (i) of paragraph (a), it comes within the proviso also. Counsel submitted that Vegemite came within the exception clause to the proviso. I have rejected already the contention that the manufacture, preparation, processing or putting up of cheese comes within sub-paragraph (iii) of paragraph (a) and cheese, being the chief product manufactured by Kraft at its establishment at Port Melbourne, enables the Union to the benefit of the exception clause to the proviso. As an alternative submission, Counsel for the Union contended that in the proviso the use of the word "product" instead of the word "preparation" required each product to be considered. They argued that each type of cheese and each size of packet of each type of cheese should be treated as a separate product. On that basis, counsel argued that there were some seventy different products of cheese. On a production basis, some 48% of the cheese preparations were processed cheddar, some 15% were cheese spreads and some 13% were natural cheese. On that basis, cheese products or preparations constituted some 76% of the total products or preparations produced at the Kraft establishment at Port Melbourne. The remaining 24% of production comprised the non-cheese products, namely Vegemite, 6% including about .75% of Vegex, peanut butter, 3%, Bonox, less than 1%, viscous dressings, 5% Portion Controls, 3%, liquid dressings, 4% and meats 3%. On an employee basis, 68% were engaged in cheese handling and 32% engaged in non-cheese handling.
In my opinion, this further contention should be rejected. In the context of the proviso, the meaning to be given to the word "product" is that which is produced by any action, operation or work. In one sense, each different package can be said to be a product but that meaning is not appropriate to be adopted for the purpose of the exception clause. Paragraph (a) commences with the words "The manufacture, preparation, processing or putting up". The word "preparations" is used in sub-paragraph (i), (ii) and (iii). The word "preparation" is the action or special process of putting something into proper condition for use; dressing up and serving up of food. The word also means a substance specially prepared as food. In paragraph (a) the word "preparations" means substances specially prepared as food or as edible substances. In this sense, there is little if any difference between the word "product" and the word "preparation". In these reasons, except where a contrary intention appears, the two words have been used as being synonymous. The opening words of the proviso use the words "the manufacture, preparation, processing or putting up". Different words are used in the exception clause. The word "product" is used for the first time and it is used in connexion with the word "manufacture" only and not the words "preparation, processing or putting up". This seems to suggest that the exception clause has limited application, but it is not necessary to determine that question in these proceedings at the present time. On any view, it must be said that the chief product manufactured at the establishment of Kraft at Port Melbourne is cheese. It is not permissible to treat each separate package of each separate type of cheese as being a separate product for the purpose of applying the exception clause to the proviso. In reality and in truth, the chief product is cheese. It follows that the Union is not entitled to the benefit of the exception clause to the proviso to paragraph (a) of the eligibility rule.
Counsel further contended that Vegemite came within that part of sub-paragraph (i) of paragraph (a) which refers to "Jams, jellies, honey . . . and similar preparations". This contention is rejected for two reasons. First, if a preparation is a spread, the preparation should be considered as a spread and not be included under the guise of the general provision contained in sub-paragraph (i). Secondly, vegemite lacks the degree of sweetness common to jams, jellies and honey and thus cannot be said to be a similar preparation to them.
Counsel for the Union contended that Vegemite was a wet condiment. Essentially, a condiment is a substance of pronounced flavour used as a relish or to stimulate the appetite. In most cases, a condiment is a substance added to food at the table. The expert witness, Mr. Chambers, had difficulty in giving a definition of the word "condiment". He said the word meant a spice or a component of a spice or pickled foodstuff or the product obtained by the use of mixed spices and other singular condiments. It was in that sense that he said that salad dressings were condiments in the secondary sense. He said that a condiment was primarily used as an additive or flavouring to a meal. He said that Vegemite was not a condiment. It is true that Vegemite can be, and often is, used as a additive or flavouring agent in the preparation of foods. Its essential use however, is as a spread. On all the evidence I find that Vegemite is not a condiment and thus is not a wet condiment. Vegemite does not come within sub-paragraph (ii) of paragraph (a) of the 1948 eligibility rule.
Reference to the nature of Vegemite has been made in the reasons for judgment in matter V. No. 32 of 1984. The registered mark, Vegemite, is in respect of vegetable extracts for use as a food or an ingredient in food. In the early years of its sale, Vegemite was sold in jars, the labels of which said Vegemite was a vegetable extract. The word Vegemite is based on the word vegetable. In reality, it is manufactured from a blend of yeast extract. Yeast is essentially a form of fungi. Yeast is a living organism, a single cell organism. It is realised that mushrooms are fungi and often are used as a vegetable, but in ordinary language yeast is not considered a vegetable. I am not satisfied that Vegemite is a preparation of vegetables within the meaning of those words appearing in sub-paragraph (iii) of paragraph (a) of the 1948 eligibility rule.
Finally, counsel contended that Vegemite came within paragraph (b) of the 1948 eligibility rule. The relevant part of that paragraph is "the preparation and preservation as food of . . . vegetables, their juices and pulp". This contention is rejected. Yeast is not a vegetable for the purpose of the paragaph. More importantly, even if yeast is a vegetable, it cannot be said that Vegemite is a preservation as food of a vegetable. Yeast is not prepared and preserved as food. It is not a substance similar to the preservation of vegetables by freezing or drying. The yeast is processed to produce a different substance.
Vegex is a substance very similar to, but different from, Vegemite. It is a yeast extract. It is not a spread. Its sole use is as an additive or flavouring agent in the commercial preparation of food. For reasons similar to those given with respect to Vegemite, Vegex does not come within sub-paragraph (iii) of paragraph (a) or paragraph (b) of the 1948 eligibility rule. The main use of Vegemite is as a spread. The only use of Vegex is as an additive or flavouring agent in the commercial preparation of food. The main purpose of curry powder is as an additive or flavouring agent in the preparation of food. Curry powder consists of spices and is a condiment. It is true that curry powder can be added to other foods as a condiment, for example, on savouries or in curried egg sandwiches. Nevertheless, the main purpose of curry powder is as an additive or flavouring agent in the preparation of food. Vegex is not composed of spices, but in my opinion, is a condiment in the secondary sense of that word in the same way as curry powder is a condiment in the primary sense of the word while salad dressings are condiments in the secondary sense of that word. Vegex is not a dry substance, it is not a powder. In my opinion, Vegex is a wet condiment and thus comes within sub-paragraph (ii) of paragraph (a) of the 1948 eligibility rule.
For the reasons expressed with regard to Vegemite, in my opinion, peanut butter is not included in the class of products or preparations coming under sub-paragraph (i) of paragraph (a) of the 1948 eligibility rule. Peanut butter is a paste or spread. It is not a nut food. In the context of sub-paragraph (iv) of paragraph (a) the expression "nut food" is to be construed as meaning a food made from nuts and intended primarily to be eaten by itself as a food such as sliced fruit and fruit salad. A nut food may be used for other purposes including cooking, but peanut butter is intended to be used primarily as a paste or spread. Even if peanut butter is a nut food, the proviso prevents the operation of sub-paragraph (iv), giving capacity to the Union to enrol persons handling peanut butter and peanut butter does not come within the exception clause to the proviso for the reasons given with respect to Vegemite.

In the result, in my opinion, with the possible exception of Vegemite and peanut butter, the Union has the capacity to enrol as members persons employed by Kraft in the six departments, the subject of these proceedings. I use the expression "possible exception" advisedly. Although the position is not clear, it appears that at the present time neither the Federation nor the Union has enrolled as members persons employed by Kraft in the manufacture and handling of cheese. These two proceedings have been limited to operations carried on within the six departments. There is movement of employees between those departments and between the functions performed in those departments depending upon the varying work loads arising in the departments. Evidentiary material relating to this aspect has been deferred pending the publication of reasons on the preliminary matters. In the peculiar circumstances of these two proceedings, questions arise whether the agreement as to the meaning to be given to the word "establishment" in the exception clause to the proviso to paragraph (a) of the 1948 eligibility rule is correct. It may be that in this case, the "establishment" should refer to the six departments only. If that view is correct, nice questions arise as to whether the products comprising the salad dressings and the products handled in the Meats Department constitute chief products manufactured by Kraft in that establishment. If they did, it may well be that Vegemite and peanut butter would come within the exception clause. Such a result would be practicable and in accord with the purpose of the proviso and the exception clause. A reference to the preparations handled in each of the six departments illustrates the undesirability of artificial divisions of organization membership between persons performing identical or similar duties in any one or more department. For instance, Vegemite is handled in four of the six departments while peanut butter is but one of a number of other preparations handled in the Vegemite and Peanut Butter Filling Department. The determination of these matters should be deferred to enable the parties and the intervenor to consider their positions and then take such further steps in these proceedings as is considered necessary or desirable.

JUDGE3

I have had the advantage of reading both the reasons for judgment prepared by Smithers J. and those prepared by Northrop J.. I agree with the conclusions of Smithers J. and with his reasons for them and with the observations of Northrop J. as to the decision of the Commonwealth Industrial Court in Re Food Preservers Award (1959) 3 FLR 425. I agree with the order proposed by Northrop J.

[1986] FCA 76

05 MARCH 1986