McDowell v Spotless Catering Services Ltd
[1997] IRCA 121
•07 March 1997
DECISION NO:121/97
CATCHWORDS
AWARDS - interpretation of award - Airport Catering (Nationwide Food Services Pty Ltd and Others) Roping-in Award 1984 - Airport Catering Award 1981 - awardgoverning minimum wages and conditions of employment in airport catering operations - whether company is the “successor” to a party to the award
Industrial Relations Act 1988 ss 149, 413
Conciliation and Arbitration Act 1904 s 24
Airport Catering (Nationwide Food Services Pty Ltd and Others) Roping-in Award 1984
Airport Catering Award 1981
RORY McDOWELL v SPOTLESS CATERING SERVICES LTD & ANOR
No QI 96/1020
SPENDER J
BRISBANE
7 MARCH 1997
IN THE INDUSTRIAL RELATIONS
COURT OF AUSTRALIA No QI 96/1020
QUEENSLAND DISTRICT REGISTRY
BETWEEN:Rory McDOWELL
Applicant
AND:SPOTLESS CATERING SERVICES LTD
First Respondent
AND:THE AUSTRALIAN LIQUOR HOSPITALITY AND MISCELLANEOUS WORKERS’ UNION
Second Respondent
CORAM: SPENDER J
PLACE: BRISBANE
DATE: 7 MARCH 1997
MINUTES OF ORDER
The Court declares:
Spotless Services Australia Limited is a party to the Airport Catering (Nationwide Food Services Pty Ltd and Others) Roping-in Award 1984 in respect of the catering services it operates at Brisbane International Airport; and
Spotless Services Australia Limited was bound by the terms of the Airport Catering Award 1981 in respect of the airport catering operations at the Brisbane International terminal from the commencement of those operations in September 1995 until at least 25 June 1996.
Note:Settlement and entry of orders is dealt with in Order 36 of the Industrial Relations Court Rules.
IN THE INDUSTRIAL RELATIONS
COURT OF AUSTRALIA No QI 96/1020
QUEENSLAND DISTRICT REGISTRY
BETWEEN: Rory McDOWELL
Applicant
AND: SPOTLESS CATERING SERVICES LTD
First Respondent
AND:THE AUSTRALIAN LIQUOR HOSPITALITY AND MISCELLANEOUS WORKERS’ UNION
Second Respondent
CORAM: SPENDER J
PLACE: BRISBANE
DATE: 7 MARCH 1997
REASONS FOR JUDGMENT
This is an application filed by Mr Rory McDowell on 2 February 1996, made pursuant to s 413 of what was formerly called the Industrial Relations Act 1988 (‘the Act’) and is now the Workplace Relations Act 1996. The application as originally filed sought an interpretation of an award of the Industrial Relations Commission known as the Airport Catering (Nationwide Food Services Pty Ltd & Others) Roping-In Award 1984 (‘the Roping-in Award’).
In the application as filed, Mr McDowell claimed:
“ On the grounds appearing in the accompanying affidavit the applicant seeks an interpretation of the Award as follows:
A.The Award is a minimum rates Award of the Commission in that it provides for the minimum wages and conditions of employment of employees of employers bound by the award.
B.The Award when made applied to Nationwide Food Services P/L as a named employer party to the Award.
C.The Award now applies to and binds Spotless Catering Services Limited as the successor to the business of Nationwide Food Services P/L.
D.The Award now applies to and binds Spotless Services Limited and is wholly owned entities as the successor to the business of Nationwide Food Services P/L.
EThe scope of the Award includes the business of Spotless Catering Services Limited as the holder of the major food and beverage concession at the Brisbane International Airport.
F.The Award, when made, applied to the Federated Liquor and Allied Industries Employees’ Union of Australia as the named employee organisation.
G.The Award now applies to he Australian Liquor Hospitality Miscellaneous Workers Union as the successor, through amalgamation, to the Federated Liquor and Allied Industries Employee’s Union of Australia.”
Mr McDowell, in an affidavit of 28 February 1996 swears that he is the elected convenor of delegates for The Australian Liquor Hospitality and Miscellaneous Workers’ Union (‘the ALHMWU’) at the Spotless operations at Brisbane International Airport. He deposes that he is employed by Spotless Catering Services Limited, (which changed its name to Spotless Services Australia Limited on 19 June 1995) and that his employment commenced on 11 September 1995.
Mr Timothy Catterall of Level 3, Building B, Sydney International Airport, Mascot, in an affidavit dated 27 February 1996 says that he is employed by Spotless Services Australia Limited, as General Manager Airport Services, and in that capacity has responsibility for, amongst other matters, industrial relations matters in which SSL Airport Services is involved. In an affidavit of 21 March 1996, Mr Caterall says:
“ I am aware that applications have been made by employers respondent to the Airport Catering Award 1981, in matters C No 40077 and 40078 of 1996, for the Airport Catering Award 1981 and the Airport Catering (Airport Retail Enterprises Pty Ltd) Roping-in Award 1984 to be rescinded.”
He says that if the award is rescinded, the application for interpretation by Mr McDowell will be an academic exercise.
On 18 July 1996 the applicant sought and obtained leave to amend the terms of the application “so that the real question before the Court is as follows;
“(a)‘Is the First Respondent, Spotless Catering Services Limited, a party to the award of the Australian Industrial Relations Commission known as the Airport Catering (Nationwide Services Pty Ltd and Others) Roping-in Award 1984 in respect of the catering services it operates at Brisbane International Airport,’
or in the alternative,
(b)‘Is the First Respondent, Spotless Catering Services Limited, bound to, or has been bound at any time, or times, since the operation of on 28th October 1981, the award of the Australian Industrial Relations Commission known as the Airport Catering Award 1981 in respect of the catering services it operates at Brisbane International Airport.’
It is plain that the object of Mr McDowell is to establish is that Spotless Catering Services Limited is a party to the Roping-in Award, or, alternatively, was at some earlier time bound by the Airport Catering Award 1981 in respect of the catering services it operates at Brisbane International Airport.
Relevant to the question of respondency is the question of the corporate relationships between a number of entities.
In his affidavit filed on 21 March 1996, Mr Caterall explains:
” Spotless Services Australia Limited is the corporation which was until 1995 named Spotless Catering Services Ltd. Spotless Services Australia Limited is wholly owned by Spotless Services Ltd. Approximately 70% of Spotless Services Ltd is owned by the Spotless Group Ltd.
SSL Airport Services, which is the employer at Brisbane International Airport, is a registered business name of Spotless Services Australia Limited.
A new terminal at the Brisbane International Airport was opened in 1995. Before the Terminal opened the right to operate food and beverage concessions at the new Terminal was won by Spotless Catering Services Ltd (as it was then called) following a tender process.
SSL Airport Services began to employ persons at the new Brisbane International Airport in 1995. SSL Airport Services did not employ any persons at the old Brisbane International Terminal.
There was no food and beverage services operation at the new Brisbane International Airport before 1995.
Neither Nationwide Food Services Pty Ltd nor Nationwide Holdings Limited nor any other subsidiary of Nationwide Holdings Limited have carried out catering or food service operations at Brisbane International Airport.
On 12 June 1984 Mr Justice Robinson of the then Conciliation and Arbitration Commission made an Award known as the Airport Catering (Nationwide Food Services Pty Ltd and Others) Roping-in Award 1984 (‘the Roping-in Award’). That Award was binding on, inter alia, Nationwide Food Services Pty Ltd.
At the time that the Roping-in Award was made, Nationwide Food Services Pty Ltd was a wholly-owned subsidiary of Nationwide Holdings Limited, which was itself a wholly-owned subsidiary of Spotless Group Ltd.”
In proceedings before Mr Commissioner Palmer in the Australian Industrial Relations Commission (‘the AIRC’) on 4 March 1996, Commissioner Palmer heard an application from the second respondent in these proceedings, in which it was submitted that SSL Airport Services was organisationally respondent to the Airport Catering Award 1981. That respondency arose, it was said, from first, a roping-in award which made members of the Victorian Employers’ Federation (‘the VEF’) organisationally respondent to the award and, secondly, from an allegation that Spotless Services Australia Limited were members of the Victorian Employers Chamber of Commerce and Industry Inc (‘VECCI’).
The Roping-in Award made by consent by Mr Justice Robinson on 12 June 1984 relevantly provided:
“ 1 - TITLE
This award shall be known as the Airport Catering (Nationwide Food Services Pty Ltd and Others) Roping-in Award 1984.
2 - PARTIES BOUND BY AWARD
This award shall be binding upon:
(a)The Federated Liquor and Allied Industries Employees Union of Australia, its branches, its officers and employees (both Federal and State) and its members; and upon
(b)Nationwide Food Services Pty Ltd, D.R. and E.A. Wilson Nominees Pty Ltd., and Adlington Airport Catering in respect to all employees whether same are members of the Federated Liquor and Allied Industries Employees Union of Australia or not.
3 - SCOPE OF AWARD
This award covers employees engaged in any capacity whether permanent, part-time or casual in airport catering operations and covers the serving, dispensing, ordering, preparing, selling or organising of refreshments, food, sandwiches, snacks, meals, drinks and/or beverages of all types throughout the Commonwealth of Australia with the exception of the State of Western Australia, the Australian Capital Territory and the County of Yancowinwa together with any ancillary functions including cleaning and attending to any restaurant, coffee shop, tea room, snack, drink or food bar, liquor booth, vehicle, stand, counter, building or premises providing any of the abovementioned services including the display or provision of food, beverages or goods sold by the employer.
4 - CONDITIONS OF EMPLOYMENT
The rates of pay and conditions of employment of this award shall be as prescribed from time to time by the award of the Australian Conciliation and Arbitration Commission made by Mr Commissioner Mansini on 17 September 1982 and known as the Airport Catering Award 1981.
...”
As is apparent from the terms of the award, the parties to that award are the Federated Liquor and Allied Industries Employees Union of Australia and Nationwide Food Services Pty Ltd, D. R. and E. A. Wilson Nominees Pty Ltd., and Adlington Airport Catering.
Neither the VEF nor VECCI is named in the Roping-in Award.
In an affidavit filed on 3 June 1996, Mr McDowell said:
“ Since 1984 Spotless, up until the present day, have operated continuously in the Airport Catering Industry throughout Australia and have paid their staff under the terms and conditions of the Airport Catering Award the only exception being Perth whereby Spotless, trading as Nationwide Food Services, sought and were granted an exemption from the Award.”
The Federated Miscellaneous Workers’ Union of Australia was registered as an organisation of employees on 10 November 1916, the name of which changed due to amalgamation to ‘The Australian Liquor Hospitality & Miscellaneous Workers’ Union’ (‘the ALHMWU’) on 3 August 1992.
On 29 June 1992, Deputy President Williams of the AIRC fixed 3 August 1993 as the date on which the amalgamation of the Federated Miscellaneous Workers’ Union of Australia and the Federated Liquor and Allied Industries Employees’ Union of Australia (‘the FLAIEU’)was to take effect.
The VEF was registered as an organisation of employers on 13 June 1961, which changed its name on 19 September 1991 to ‘VECCI’. Deputy President Williams of the AIRC on 13 September 1991 consented to that change of name.
The ALHMWU is the successor of the Federated Liquor & Allied Industries Employees’ Union of Australia.
The applicant, Rory McDowell, is and has been a financial member of the second respondent since 4 September 1995.
In an affidavit by Mr McDowell filed 26 July 1996, he deposes:
“ The purpose of a roping-in award is as its name applies (sic) is to rope a party into an existing award. In this case after an application by the Federated Liquor Trades Union it was their intention to seek that Nationwide
“be made a party to the Airport Catering Award 1981 either by variation of that award or by a roping-in award”.
It is relevant to note that the Airport Catering Award 1981 was varied by order of Mr Commissioner Bain on 18 August 1988 by, inter alia, inserting a new clause 9B which provided:
“ 9B - Superannuation Contributions - Spotless Catering Services Limited (formerly Nationwide Food Services Pty Ltd)
(a) Clause 9A of this award will not apply to Spotless Catering Services Limited.
(b) In relation to the employees of Spotless Catering Services Limited superannuation contributions shall be paid by Spotless Catering Services Limited as follows:
....”
The Airport Catering Award 1981 was further amended by order of Commissioner McDonald on 29 October 1991. The previous clause 5 was deleted and in its place the following was inserted:
“ This award covers employees engaged in any capacity whether permanent, part-time or casual in airport catering operation and covers the serving, dispensing, ordering, preparing, selling, or organising of refreshments, food, sandwiches, snacks, meals, drinks and/or beverages of all types throughout the Commonwealth of Australia with the exception of the operations conducted by Spotless Catering Services Limited in the International Passenger Terminal at Perth Airport until 5 November 1997, the Australian Capital Territory and the County of Yancowina...”
The central submission of the applicant is that Spotless Catering Services Limited is bound by the Airport Catering Award 1981. As earlier indicated, Spotless Catering Services Limited changed its name on 19 June 1995 to Spotless Services Australia Limited. The catering services at the Brisbane International terminal are conducted by Spotless Services Australia Limited. That is the company that employs the workers, including the applicant, engaged in the airport catering operation at the Brisbane International Airport.
On 17 February 1984, Spotless Group Limited acquired Nationwide Holdings Limited, the management company for the Nationwide Food Services group of companies, which included Nationwide Food Services Pty Ltd.
On 23 February 1984, an officer of FLAIEU, the predecessor to the ALHMWU, served on Nationwide Food Service Pty Ltd, a log of claims for wage rates and working conditions in the airport catering industry. As is apparent, variants of the name of that company appear in evidence. Mr Justice Robinson, on 11 April 1984, found that a dispute existed between the FLAIEU and Nationwide Food Services Pty Ltd pursuant to s 24 of the Conciliation and Arbitration Act 1904. In making the Roping-in Award, Mr Justice Robinson said:
“ The effect of the roping-in award will be to bind respondents that I have named in the finding of dispute to the Airport Catering Award 1981.”
Those respondents that Robinson J referred to, included Nationwide Food Services Pty Ltd.
Section 149 of the Act relevantly provides:
“ (1) Subject to any order of the Commission, an award determining an industrial dispute is binding on:
(a)all parties to the industrial dispute who appeared or were represented before the Commission;
...
(d)any successor, assignee or transmittee (whether immediate or not) to or of the business or part of the business of an employer who was a party to the industrial dispute, including a corporation that has acquired or taken over the business or part of the business of the employer;
...
(f) all members of organisations bound by the award.”
It seems to me that dealing with the “successor” basis of the applicant’s argument, Spotless Group Limited, through its acquisition of Nationwide Holdings, took over the business of Nationwide Food Services Pty Ltd and it is the “successor, assignee or transmittee” of the business of Nationwide Food Services Pty Ltd. It seems to me that Spotless Group Limited is, by the operation of s149(1)(d) bound by the Roping-in Award. No doubt Spotless Group Limited acquired or took over other businesses as well, but the acquisition or taking over of a number of entities, (or more properly businesses), is an acquisition or taking over of each. However, it does not necessarily follow from that conclusion that Spotless Catering Services Limited is either a party to the dispute found by Robinson J on 11 April 1984 or bound by the Roping-in Award.
There is no direct evidence before me to prove that Nationwide Food Services Pty Ltd changed its name to Spotless Catering Services Limited. However, cl 9B inserted in the Airport Catering Award 1981 is headed “9B Superannuation Contributions - Spotless Catering Services Limited, (formerly Nationwide Food Services Pty Ltd)”.
Having regard to the terms of s 149(1)(a) and the exchange which occurred between Commissioner Bain and Ms C Murphy on 31 May 1988, (who announced her appearance on behalf of “Nationwide Food Services”), it appears, and I accept, that the draft order handed up by Ms Murphy, and the variations to the Airport Catering Award 1981, were made with the consent of Spotless Catering Services Limited. Indeed, it was that company which appeared before the AIRC and handed up the draft which became the order of variation of 18 August 1988.
The evidence, while not direct, establishes that Spotless Catering Services Limited is the same company as the former Nationwide Food Services Pty Ltd.
Whilst it is understandable that uniformity of description, or precision in the identification of the party for whom various advocates before the AIRC appear, does not always occur, there was a proposal for an order by consent (which was not fulfilled) that indicates that Nationwide Food Services Pty Ltd was among the respondents bound by the appendix. Further, the consent order of variation of 29 October 1991 made by Commissioner McDonald inserting a new cl 5 in the Airport Catering Award 1981 (earlier set out) by clear implication recognises that Spotless Catering Services Limited was bound by the Airport Catering Award 1981 except in respect of the operations there specified.
Amongst other instances in the evidence before me, there is a plain admission in proceedings before Deputy President Harrison on 13 March 1992, where Mr G Vahlis said:
“ If it please the Commission, I appear for Spotless Catering Services Limited, trading as Nationwide Food Services.”
Later Mr Vahlis said:
“ We are not here to oppose the finding of a dispute this morning. However, there are some issues that we would be keen to address this morning.
HER HONOUR: Well, just pause there and just indicate again who you appear for.
MR VAHLIS: Interesting. I appear for Spotless Catering Services. The logs have gone to Nationwide Food Services Group which is a trading name of that company.
HER HONOUR: Yes. So it is two of the named parties served with the log, is it?
MR VAHLIS: That is correct.”
There are many other instances, though less clear.
The variations in clauses 5 and 9B, to which reference has been made, are variations that were sought and gained by Spotless Catering Services Limited. It was argued on behalf of the first respondent, contrary to the submissions of the applicant, that the work carried out by employees of the first respondent at Brisbane International Terminal was not within cl 5, the Scope of Award clause of the Airport Catering Award 1981. On the evidence I think it clearly is.
The VEF, its officers and its members employed in airport catering operations are bound by virtue of cl 4 of the Airport Catering Award 1981.
In proceedings before Senior Deputy President Keogh of 2 March 1993, which was an application by the ALHMWU pursuant to s 99 of the Act against Spotless Catering Services Limited & Ors, Ms Dalgleish announced her appearance on behalf of VECCI and indicated that she represented the following employers:
“ ...
Spotless Catering Services;
...”
The names for whom Ms Dalgleish appeared were in a draft document handed up to his Honour and the proceedings, being 30249 of 1993, are proceedings between the ALHMWU and the first respondent. It was said in those proceedings by the advocate for the ALHMWU that:
“ Spotless was a respondent to the Federal Airports Catering Award as well”.
It is not irrelevant to note that there is some material in evidence, albeit secondary, that cl 6.21 of the lease agreement between the Federal Airports Corporation and the first respondent requires the first respondent to:
“ ...abide with all relevant employment award conditions and requirements of the Australian Industrial Relations Commission (including without limitation becoming a party to all relevant awards) and to provide within a reasonable time of request satisfactory evidence of compliance with such awards.”
The evidence before me establishes that the first respondent has been a full member of the VEF and then VECCI from 1 July 1972, at least until its purported resignation said to be effective from 28 March 1996. The first respondent was a full member when it submitted its tender for the concession at the Brisbane International Airport on 6 April 1994, and when employees began employment there on 11 September 1995.
It seems to me that despite its purported resignation from VECCI, the first respondent continued its subscription to VECCI as a “full service subscriber”. It seems that VECCI has only “members” and “associate members”. It may be that there is no such beast as a “full service subscriber”. The first respondent appears to pay the same amount as a member, but it is transparently the hope of the first respondent that its purported resignation would avoid whatever respondency membership that VECCI might bring.
The 1987 annual report of the Spotless Group Limited, speaking of Spotless Services Limited said:
“ This newly listed Company has been successfully launched during 1987.
...
Food Services
The Food Services Division operates under a number of brand names throughout Australia. The Nationwide Food Service activities cover the areas of institutional and industrial catering and management, food vending, and remote field catering....Each of these brands now operate corporately from within Spotless Catering Services Limited, a wholly owned subsidiary of Spotless Services Limited.”
Note 24 to the annual accounts referred to “Subsidiaries dissolved in June 1987(A) -”, which list included “Nationwide Food Service Pty Ltd”. That company, under the heading “Principal Activity” is said to be “non-operating” and the place of incorporation is New South Wales. Later in that note the following appears:
“(A) The assets, liabilities and obligations of each of the following eighteen non-operating subsidiary companies were transferred to other subsidiary companies in the Group on 18th and 29th June, 1987. These steps arose as a consequence of the procedural steps undertaken pursuant to Supreme Court Orders of the Honourable Mr Justice Murphy made on 18th June, 1987 and of the Honourable Mr Justice Cohen made on 29th June, 1987 that the companies be dissolved.”
[emphasis added]
A list there follows which includes Nationwide Food Service Pty Ltd.
The 1987 Annual Report also stated:
“ In addition to these financial results, the Food Services Division made considerable progress towards the integration of staff and management systems between Nationwide and O’Brien activities. It needs to be recalled that Spotless made its entry into food service in February, 1984 (Nationwide), added to this base in December, 1985 (O’Brien) and again with Senter in July, 1987. These acquisitions have added $200 million of new activity on to the $65 million base of the original Spotless Group Limited businesses...”.
I turn now to deal with the submissions of the parties.
I am satisfied that the applicant has standing to bring the present application before the court pursuant to s 413(1)(b) of the Act. The FLAIEU is a named party to both the Airport Catering Award 1981 and the Roping-in Award. Pursuant to the provisions of s 253T of the Act, the ALHMWU is bound. The ALHMWU, through amalgamation, is the successor to the FLAIEU and Mr McDowell is a financial member of the ALHMWU.
The principal submission on behalf of the first respondent is that the application before the court is not an application properly brought under s 413. Further, it is contended that even if the application were reframed as an application for declaratory relief, the factual basis required for the relief here sought is not and can not be made out.
It is submitted that what is sought is not an interpretation of the awards at all. It is said that the questions as they stand after amendment do not identify any words, phrase or clause of the awards which are alleged to be ambiguous. Further, it is said that neither of the questions now before the court can be answered by reference to the text of the awards alone; the court, it is said, is being asked to make findings of fact, or of fact and law, based on external evidence with no demonstrated connection with the awards. This, it was submitted, is not an exercise of the interpretation power.
It was further submitted by the first respondent that if the present application does in fact enliven the power granted to the court under the Act, it could only be an application for declaratory relief, which would properly and could only be sought pursuant to s 417 of the Act.
Section 417 provides:
“ (1) The Court may, in relation to a matter in which it has jurisdiction, make binding declarations of right, whether or not any consequential relief is or could be claimed.
(2) A suit is not open to objection on the ground that a declaratory order only is sought.”
Alternatively, it was submitted that the present application might better be seen as an application properly brought as part of an enforcement proceeding pursuant to s178 of the Act.
In the course of submissions during an earlier part of the hearing of these proceedings, I said:
“ Being realistic about the matter, while there may be some argument directed as to whether interpretation is really what this case is all about, or something else, either here or in the Commission is going to be solved the question of the respondency of Spotless to the 1981 Award and the Roping-in Award. Whether that can sensibly be done by way of an interpretation application, I do not know.”
I later asked:
“ Might it not be possible to say that the question “Who are the persons comprehended by a generic description of ‘the respondent’” is a matter of interpretation... It may in fact be not a question of interpretation at all but a question of factual enquiry.”
In City of Wanneroo v Holmes (1989) 30 IR 362, French J said at 378:
“ The interpretation of an award begins with a consideration of the natural and ordinary meaning of its words: Re Clothing Trades Award (1950) 68 CAR 597 (Aust Indus Ct, Full Ct). The words are to be read as a whole and in context: Australian Timber Workers Union v W Angliss & Co Pty Ltd (1924) 19 CAR 172. Ambiguity if any, may be resolved by a consideration, inter alia, of the history and subject matter of the award: Bpicard v John Heinz & Son Ltd (1924) 35 CLR 1. Resort to such matters as prefatory statements and negotiations is of dubious assistance if admissible at all; Seymour v Stawell Timber Industries Pty Ltd (1985) 13 IR 289 at 290; 9 FCR 241 at 244 (Northrop J) (13 IR at 299; 9 FCR at 254) (Keely J) cf 13 IR at 309; 9 FCR at 265 Gray J). The logs of claim and arbitrator’s reasons for decision may be referred to determine the ambit of the dispute which led to the making of the award so that where there are two possible interpretations, one within the ambit and one without, the former may be preferred. Evidence of the conduct of the parties subsequent to the making of the award however, cannot be relied upon to construe it: Seamen’s Union of Australia v Adelaide Steamship Co Ltd (1976) 46 FLR 444, 446, disapproving Merchant Seamen’s Guild of Australia v Sydney Steam Collier Owners and Coal Stevedores Association (1958) 1 FLR 248. That is not to say the words must be interpreted in a vacuum divorced from industry realities...”
Northrop J in Victoria v ATU (1993) 49 IR 149 at 151 said of an earlier provision corresponding to s 413:
“ It has been held that the provision is designed to enable the Court to give an authoritative decision on the meaning of an award. Essentially the decision is based upon the proper construction of words used in the award. The construction is to have general application and is not directed to the particular facts of any matter in dispute between parties. At the same time it is necessary for the Court to have some background information to constitute a framework within which the award is to be construed.”
In Re Graphic Arts Award (1957) 1 FLR 22, Morgan J held that the Commonwealth Industrial Court will not give an interpretation of an award:
“(1) where such interpretation involves the determination of disputed questions of fact, or
(2)where the Court is asked to determine a hypothetical question, or
(3)where a prosecution has been launched to be heard in a court of petty sessions in respect of the same subject matter.”
As his Honour’s judgment makes plain:
“ The question in fact which it was intended that the Court should determine on the interpretation of the award is whether the work specified when done by a female required the payment of a certain rate prescribed under the award for males or permitted her to be employed at a rate prescribed for females.”
This factual inquiry is different from the nature of the issues that the applicant wishes to agitate in the present proceeding. It seems to me to be one thing to ask whether as a matter of fact the first respondent is bound by either award. It seems to me to be another question to ask, in the events that have occurred, whether there is any entity which is still bound by the award by reference to the expression “Nationwide Food Service Pty Ltd”.
Burchett J, in Short v F W Hercus (1993) 46 IR 128 referred at 133 and following to what might legitimately be looked at by way of history and extrinsic material for the purpose of construing a clause in an award. His Honour referred to the observations of Mason J, as he then was, in K & S Lake City Freighters v Gordon & Gotch (1985) 157 CLR 309, where his Honour, in his dissenting judgment, said at 315:
“ Problems of legal interpretation are not solved satisfactorily by ritual incantations which emphasise the clarity of meaning which words have when viewed in isolation, divorced from their context. The modern approach to interpretation insists that the context be considered in the first instance, especially in the case of general words, and not merely at some later stage when ambiguity might be thought to arise.”
Mr McDowell is quite candid as to the purpose of his application. He said in his submissions:
“ The application is made so as to ensure that there is a clear interpretation as to the scope, and [the parties bound] clauses of the award.”
There is in my opinion real and genuine differences as to the construction and meaning of a number of award clauses in this present application.
Clause 5 of the Airport Catering Award 1981 is earlier set out, but it relevantly reads:
“ This Award covers employees engaged in any capacity...throughout the Commonwealth of Australia with the exception of the operations of Spotless Catering Services Limited in the International Passenger Terminal at Perth Airport until 5 November 1997, the ACT, the County of Yancowinwa and together...”
As a matter of interpretation one could be lead to the conclusion that the first respondent was not exempt from the operations of the award except for its operations at the Perth International Airport for a defined amount of time and for two other nominated places.
The question touching the respondency of the first respondent as to either the Airport Catering Award 1981 award or the Roping-in Award has been the subject of extensive evidence, and of very extensive submission. All parties were given the opportunity to put in further evidence should they be so minded. I am conscious of s 418 of the Act which provides:
“ In every matter before it, the Court is to grant, either absolutely or on such terms and conditions as the Court thinks just, all remedies to which any of the parties appears to be entitled in respect of a legal or equitable claim properly brought forward in the matter, so that, as far as possible, all matters in controversy between the parties may be completely and finally determined and all multiplicity of proceedings concerning any of those matters avoided.”
On balance, I do not think that the application can properly to be considered as an application for the interpretation of an award under s 413. However, having regard first to the way in which the case has been conducted over several stages and to the extensive evidence led and to the opportunity afforded to each party to put evidence before me in respect of the real questions which the applicant wished to canvass, I ought to give effect to s 418 of the Act and answer the two questions which the applicant says are the questions he wishes answered in these proceedings.
In my view, this case can be distinguished from Standish v The University of Tasmania (1988) 26 IR 342, where the applicant sought interlocutory orders for interim relief. Nothrop J said at 346:
“ ...the claim by the applicant is in reality not a claim for an interpretation of an award, but is, in reality, the seeking of an order that the award itself does not apply and to that extent is unable to support any action taken between the date of the making of the award and the date on which it is said that the award was to come into operation.”
Referring to the judgment of the Full Court in Master Builders’ Association of Victoria v Australian Building Construction Employees’ & Builders Labourers’ Federation (1981) 54 FLR 358, Northrop J noted that the application in that case did not “seek substantive orders as between identified parties to an award but seeks the construction of the award itself”.
The questions sought to be agitated by the applicant, even if they do not amount to “an interpretation of an award”, will, on their answering resolve “real and genuine differences between the parties”. The quoted phrase is taken from Victoria v ATU (supra) where the Court said that there were “real and genuine differences between the parties to the interim award as to the construction of cl 3(d) and the Full Court should proceed to hear and determine the appeal”.
The applicant says that the Roping-in Award applies to the first respondent by virtue of s 149(d) of the Act which provides that an award binds:
“ Any successor, assignee or transmittee (whether immediate or not) to or of the business or part of the business of an employer who was a party to the industrial dispute, including a corporation that has acquired or taken over the business or part of the business of the employer.”
The facts of the present case may be distinguished from those in Woodbridge v Yarralumla Auto Accessories Pty Ltd (1984) 68 FLR 357 and Barrow v Masonic Catering Co-operative Society Ltd (1957) AR 736.
In Woodbridge, the later corporation to occupy the site did not purchase the issued capital of the earlier occupier, nor was there a transfer by sale, gift or other disposition or devolution by operation of law of a business from one employer to another.
In Barrow, Mr Barrow had been employed by a catering contractor to the Masonic Temple and other establishments. The trustees agreed to grant to the respondent the catering rights at the temple and subsequently the former caterer sold and delivered certain plant and stock to the Society. The secretary of the Society asked the former caterer to ask his staff to continue with the Society “because they were starting on 2nd January and opening up a new place would be difficult”. The Society in fact “took over” three permanent employees of the former catering contractor, including Mr Barrow. Richards J in the Industrial Commission held that there was no transmission of the three employees to the Society. His Honour said at 739:
“ It is abundantly clear that there was no transmission of a business or a part of a business from Tressider to the Society as Tressider had no business to transfer. The most essential element of his catering business was the right to occupy the catering part of the premises at the Masonic Temple and to supply the persons resorting to the Temple with meals. This right had expired and he had failed to obtain a renewal of the right to cater; the right to cater as from the 1st January 1951, had been given by the Trustees of the Masonic Temple to the Society. In no sense was there any transfer of the catering rights from Tressider to the Society. The only legal transaction between Tressider and the Society was a sale by Tressider of certain plant and stock to the Society and such a transaction cannot be said to be a transmission of a business or a part thereof.””
The difficulty in the present case is the paucity of clear evidence as to the precise circumstances by which Nationwide Food Services Pty Ltd ceased airport catering operations and the first respondent commenced them, and the connection if any between those two events. The applicant and the second respondent rely upon inferences from the application of the principle in Jones v Dunkell (1959) 101 CLR 298 and point to the evidence which indicates, so it is submitted, that the first respondent was the successor to, or of the business, or part of the business of Nationwide Food Services Pty Ltd.
The first respondent pointed to the description of Nationwide Food Services Pty Ltd in the 1987 Annual Report of Spotless Group Ltd as “non-operating” and invited the court to conclude as a consequence that there was no succession, assignment or transmission to or of the business of Nationwide Food Services Pty Ltd to the first respondent, or at least there was insufficient evidence to establish any such succession, assignment or transmission.
At the time that the Roping-in Award was made, Nationwide Food Services Pty Ltd was a subsidiary of Spotless Group Limited. The submission by the first respondent is that since the business of Nationwide Food Services Pty Ltd was already owned by Spotless Group Limited both at the time of serving the log of claims and of the finding of the ‘dispute’, and at the time of the making of the Roping-in Award, then there can be no ‘succession’ under s 149(1)(d).
The evidence of Mr Caterall is that:
‘ At the time the Roping-in Award was made, Nationwide Food Services Pty Ltd employed persons in only one airport, Launceston. On a date before February 1984 it won a right to cater at Launceston.”
It seems to me that, pursuant to s 149(1)(a), Nationwide Food Services Pty Ltd, is “a party to an industrial dispute who appeared or who were represented before the Commission” and is therefore the party bound by the Roping-in Award.
I think that the inference properly to be drawn from all the evidence, including the 1987 Annual Report, and the circumstances leading to the introduction of cl 9B of the Airport Catering Award 1981 entitled “Superannuation Contributions Spotless Catering Services Ltd (formerly Nationwide Food Services Pty Ltd)” is that the first respondent was the successor to Nationwide Food Services Pty Ltd. This conclusion is fortified by the absence of evidence by the respondent to the contrary, notwithstanding the agitation concerning this question in the hearings before the court on 30 July 1996.
The policy behind s 149(1)(d) of the Act was referred to by a Full Bench of the Australian Industrial Relations Commission in Meat and Allied Trades Federation of Australia v Australasian Meat Industry Employees Union (1995) 58 IR at 93-4, where the Commission (Munro J, Maher DP and Hodder C) said:
“ The High Court has given consideration to the predecessors of s 149(1)(d) on a number of occasions (Hillman v Commonwealth (1924) 35 CLR 260; Daily News (Proprietors) v Aust Journalists Association (1920) 27 CLR 532; Shaw v United Felt Hats (1927) 39 CLR 533; George Hudson v Australian Timber Workers Union (1923) 32 CLR 413 ). The essence of the various forms of provision under consideration is the statutory transference of the binding effect of the agreement, or arbitrated obligation relected in an award from its operation in application to the original parties to it to an employer not directly party to the agreement or obligation. As Isaacs J pointed out in George Hudson Ltd v Australian Timber Workers Union the provision had its rationale as an attempt to ensure that some employers ‘within the area of the dispute’ should not escape from the adjusted obligations imposed on other employers and: ‘Parliament knew, moreover, that a successor to a business could not become so without knowing the statutory obligations of his predecessor to his employees’ (32 CLR 435, 455 per Starke J who referred to ‘the ever changing body of persons within the area of the disturbance’).”
It is relevant to this aspect of the matter that the first respondent sought and gained the new cl 9B in 1988 and sought the exemption for Perth in 1991 in the Airport Caterer’s Award 1981.
In relation to the second question involving organisational respondency, cl 4 of the Airport Caterer’s Award 1981 provided, inter alia, that the award shall be binding upon “the Victorian Employers’ Federation, its officers and its members employed in airport catering operations”. A document from VECCI to Mr Caterell of 26 April 1996 stated:
“ It would appear on the available information that the Victorian Employers’ Federation became respondent to the Airport Catering Award 1981 from 28 October 1981 arising from a decision of Mancini C in the matter C No 4736 of 1981 heard on 17 September in Brisbane 1982.”
The evidence suggests that Spotless Catering joined the VEF on 1 June 1972 as a full member and Spotless Services Australia Limited resigned its membership of VECCI by letter dated 27 March 1996 effective “from the earliest date possible from today in accordance with the period required under the organisation’s rules”.
The resignation rule of VECCI, r 10, provides that a notice of resignation from membership of the organisation takes effect in the circumstances of the present case at the expiration of three months after notice is received by the organisation. The evidence before me establishes that the registered organisation of employers, the VEF, changed its name to Victorian Employers’ Chamber of Commerce and Industry with effect from 19 September 1991.
In my opinion, for the period that Spotless Catering Services Limited, which subsequently changed its name to Spotless Services Australia Limited, was a member of VECCI, the provisions of the Airport Catering Award 1981 were binding on that company by operation of s 149(1)(f) of the Act.
I am also of the opinion that the terms of the award extended to the first respondent’s operations at the Brisbane International Airport terminal because those operations were within the meaning of the scope clause of the award and were within the geographical area of operation of the award.
It is contended on behalf of the first respondent that from at least 19 September 1991, which was the date of the decision of Deputy President Williams, that the first respondent cannot have been a member of VECCI at all. It was submitted that, as VECCI did not exist before September 1991, applications to join VECCI can only have been made after September 1991, but in any event, the rules of VECCI, it was said, in particular r 5(a), together with the whole of r 5, do not in fact permit any employer to be a member of VECCI!
I granted leave to VECCI to intervene on the question raised by these submissions by the first respondent. VECCI contended that the first respondent (or a predecessor organisation) joined VECCI (then known as the VEF) effective from 1 June 1972. VECCI submitted that, on the creation of VECCI, the first respondent “became and continued a member of VECCI”.
The gravamen of the first respondent’s submission depends on the fact that r 5 deals with membership and conditions of eligibility and refers to the “Federation” in disconformity with the use of the word “organisation” in r 1. It seems to me plain that what was changed by Deputy President Williams was the name of the registered organisation of employers, not its constitution, its membership or its capacity to represent or bind its members. Rule 5 was present in the rules of the VEF prior to the change of its name to VECCI. Consistent with the principle of construction that eligibility rules should not be construed in such a way as to rob the rules of any meaning or operation, it seems to me plain that the word “Federation” in r 5 of VECCI has the same meaning as “organisation” as used in r 1.
For the above reasons, in my opinion the court should make the following declarations pursuant to s 418 of the Act:
Spotless Services Australia Limited is a party to the Airport Catering (Nationwide Food Services Pty Ltd and Others) Roping-in Award 1984 in respect of the catering services it operates at Brisbane International Airport; and
Spotless Services Australia Limited was bound by the terms of the Airport Catering Award 1981 in respect of the airport catering operations at the Brisbane International terminal from the commencement of those operations in September 1995 until at least 25 June 1996.
I certify that this and the preceding twenty-eight (28 ) pages are a true copy of the reasons for judgment herein of the Honourable Justice Spender.
Associate
Date: 7 March 1997
The applicant appeared in person
Counsel for the first respondent : Mr P Newell
instructed by : South Australian Emloyers’ Chamber of Commerce and Industry
Counsel for the second respondent : Mr N Swancott
instructed by : The Australian Liquor Hospitality and Miscellaneous Workers’ Union
Date of hearing : 30 July 1996
Filing dates of written
submissions : Applicant: 26.7.96, 29.8.96, 16.9.96, 15.10.96
First Respondent: 11.9.96, 10.10.96
Second Respondent: 30.7.96, 27.8.96,
17.9.96
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13
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