National Union of Workers v Bervar Pty Ltd T/A Della Rosa Fresh Foods

[2018] FWC 1265

[2018] FWC 1265

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.505 - Application to deal with a right of entry dispute

National Union of Workers
v
Bervar Pty Ltd T/A Della Rosa Fresh Foods
(RE2017/1308)

DEPUTY PRESIDENT GOSTENCNIK MELBOURNE, 3 APRIL 2018

Dispute about the operation of Part 3-4 of the Act; s.484 - entry for discussion purposes; whether NUW has the right to represent the industrial interest of employer’s production employees; construction of union eligibility rules - Rule 5(G); meaning of “cereal foods”; meaning of “Grocers’ sundries”; whether ready-made pizza products are cereal foods; whether such products are Grocers’ sundries; employees engaged in production of ready-made pizza products are engaged wholly or partly in the manufacture both cereal foods and Grocers’ sundries within the meaning of Rule 5(G)(i) of the NUW’s eligibility rules; NUW is entitled to represent the industrial interests of these employees; permit holders who are NUW officials may seek entry under s.484 for the purposes of holding discussions with one or more of these employees.

[1] By its application filed on 13 November 2017, the National Union of Workers (NUW) has applied under s.505(3) of the Fair Work Act 2009 (Cth) (Act) for the Fair Work Commission (Commission) to deal with a dispute about the operation of Part 3 – 4 of the Act, specifically, the operation of s.484. The Applicant is an organisation registered under the Fair Work (Registered Organisations) Act 2009 (RO Act). Bervar Pty Ltd T/A Della Rosa Fresh Foods (Respondent) employs a number of persons at its Campbellfield site in Victoria (Site) whom the NUW assert, are eligible to be members of the NUW.

[2] Certain permit holders who are officials of the NUW have sought entry to the Site for discussion purposes under s.484 of the Act. The Respondent disputes the right of the permit holders to enter the Site to hold discussions with production employees. The issue in dispute is whether the NUW is entitled to represent the industrial interests of the production employees employed by the Respondent at the Site pursuant to the NUW’s eligibility Rules.

Background and factual context

[3] The Respondent manufactures ready-made pizzas which are sold primarily in supermarkets, both domestically and internationally as well as supplying its products to the catering industry. 1 The majority of the Respondent’s employees at the Site are production employees, with a small number working in the warehousing facility.2

[4] On 31 October 2017, certain permit holders of the NUW 3 gave right of entry notices to the Respondent for the purpose of holding discussions with the Respondent’s employees.4 On 1 November 2017, the Respondent wrote to the NUW asserting the NUW was only entitled to hold discussions with the Respondent’s warehousing employees.5 On 2 November 2017, the permit holders exercised right of entry at the Site and upon arrival, were met with security guards and were escorted to a lunch room which was away from the production area of the Site.6 At the conclusion of the warehousing employees’ break, the NUW officials were directed to leave the premises and were unable to hold any discussions with production employees.7

Relevant statutory provisions

[5] The right of entry scheme established by Part 3 – 4 of the Act confers upon a permit holder a statutory right to enter business premises of an employer or occupier. Accordingly, it is an encroachment on the right an occupier or employer would otherwise have to determine who is permitted to enter and who may be excluded from entering premises owned or controlled by the occupier or employer. It also curtails the ability of an occupier or employer to determine which persons at a site might be interviewed or participate in discussions and where such discussions or interview are to be held. Statutory provisions of this kind should therefore be construed so that encroachment is no greater than the statute allows, either expressly or by necessary implication. 8 

[6] The object of Part 3-4 of the Act is to be found in s.480. It provides:

“480 Object of this Part

The object of this Part is to establish a framework for officials of organisations to enter premises that balances:

(a) the right of organisations to represent their members in the workplace, hold discussions with potential members and investigate suspected contraventions of:

(i) this Act and fair work instruments; and

(ii) State or Territory OHS laws; and

(b) the right of employees and TCF award workers to receive, at work, information and representation from officials of organisations; and

(c) the right of occupiers of premises and employers to go about their business without undue inconvenience.”

[7] Section 484 confers on a permit holder a right to enter premises for the purposes of holding discussions with one or more employees who have particular characteristics. It provides:

“484 Entry to hold discussions

A permit holder may enter premises for the purposes of holding discussions with one or more employees or TCF award workers:

(a) who perform work on the premises; and

(b) whose industrial interests the permit holder’s organisation is entitled to represent; and

(c) who wish to participate in those discussions.”

[8] As a Full Bench of the Commission observed in The Australasian Meat Industry Employees Union: 9

“The right of entry given to a permit holder under s.484 of the Act is not a right that is unfettered. A permit holder is not given an untrammelled right to enter the premises of an employer or occupier. The right is subject to express and to implied constraints. For example the right to enter may only be exercised if the permit holder has the prescribed purpose. This is apparent from the express terms of s.484 of the Act. Entry may only be gained during normal working hours. Other constraints include the requirement that notice of entry be given, that entry only occur on the day specified in the notice, that the permit holder complies with a reasonable request by the occupier for the permit holder to comply with an occupational safety requirement that applies to the premises to which entry is sought and that the permit holder not enter any part of the premises that is used mainly for residential purposes. One implied constraint is that the right must be exercised so as to promote the objects of Part 3-4 which are set out in s.480. There may be additional conditions with which the permit holder will need to comply by reason of any conditions imposed on the entry permit or other restrictions on the rights of a permit holder that have been imposed by the Commission.

In Maritime Union of Australia v Fair Work Commission a Full Court of the Federal Court of Australia made the following observations about Part 3-4 of the Act:

“. . . it is important to recognise at the outset that Part 3-4 of the Fair Work Act fundamentally modifies common law rights.

A person granted an entry permit is conferred extensive power. Entry permits confer rights which significantly erode the common law right of occupiers to exclude those to whom they do not wish to grant entry. The Commonwealth legislature has nevertheless long concluded that conferring such powers is necessary in the context of industrial law. But it has also long sought to strike a balance between common law rights and otherwise untrammelled power. When construing a provision of an award and s 42A of the Conciliation and Arbitration Act 1904 (Cth), Keely, Gray and Ryan JJ in Meneling Station Pty Ltd v Australasian Meat Industry Employees’ Union (1987) 18 FCR 51 at 61 to 62 thus observed:

The right of entry contemplated by s 42A of the Act is available at any time during working hours, and for other purposes than the inspection of roster, time and wages records. It is also subject to conditions. Clause 23 has been framed, in our view, to strike a balance between the interest of a union party to an award in monitoring its observance and detecting breaches of it by an employer, and the interest, on the other hand, of an employer in carrying on business without interruption or harassment. A construction of the clause which favours one of those interests to a point where the other can be given scarcely any recognition is, therefore, to be avoided unless the language of the clause compels its adoption. Accordingly, since cl 23 of the Award provides a right to inspect records, it is reasonable to construe it as incidentally conferring a specific, preliminary, right to enter premises for that purpose.

See also: Lane v Arrowcrest Group Pty Ltd (1990) 27 FCR 427 at 439 to 440 per von Doussa J.

Section 480, extracted at [8] above, sets out that the object of Part 3-4 is to establish a framework that balances the right of organisations to represent their members, the right of employees to receive information and representation, and the right of occupiers of premises and employers to go about their business without undue inconvenience. The rights conferred by Part 3-4, including to enter premises and interview persons about suspected contraventions and to hold discussions with employees, have thus been assessed by the legislature as an appropriate balance between the rights of organisations, employees and occupiers. The rights conferred, however, are not “untrammelled” and are subject to both express and implied constraints: Australasian Meat Industry Employees’ Union v Fair Work Australia [2012] FCAFC 85 at [56], [2012] FCAFC 85; (2012) 203 FCR 389 at 405 per Flick J (Tracey J agreeing). The exercise of rights conferred upon a “permit holder” renders lawful that which would otherwise be unlawful: cf. Federal Commissioner of Taxation v Australia and New Zealand Banking Group Limited [1979] HCA 67; (1979) 143 CLR 499 at 540 per Mason J.”

Once a permit holder enters under s.484, the capacity to hold the discussions for which entry was gained is also circumscribed. First, there is the general limitation that the power to enter must be used bona fide for the purposes for which it is conferred and that its exercise not be excessive in the circumstances of a particular case. Secondly, as indicated above, the discussions with employees may only be held during meal times or other breaks.

Thirdly, discussions to be held that are authorised by an entry under s.484 are limited to particular employees. The right of entry is not given for holding discussions with employees generally.  A permit holder is not permitted to hold discussions with any employee who happens to be on the premises at the time of entry. Relevantly, entry under s.484 only authorises the permit holder to hold discussions with the employees who fall within the description in paragraphs (a) – (c) of that section. In other words a permit holder who has entered premises may only hold discussions with employees who perform work on the premises, whose industrial interests the permit holder’s organisation is entitled to represent and who wish to participate in those discussions.” 10 [Endnotes omitted]

[9] In the instant case, there is no dispute about the construction of the relevant right of entry provisions of the Act. Both parties accept, as they must, that entry to the Site by NUW permit holders for the purposes of holding discussions with one or more employees who perform work at the Site and who wish to participate in the discussions, is only authorised if the NUW is entitled to represent the industrial interests of those employees. There is no dispute that the NUW is entitled to represent the industrial interests of the warehousing employees at the site. The issue in dispute concerns the desire of the NUW permit holders to hold discussions with willing participants who are production employees. Whether the NUW is entitled to represent the industrial interests of the production employees, turns on a proper construction of its rules.

NUW Eligibility Rules

[10] The resolution of the dispute requires a consideration of the construction and application of the NUW’s eligibility rules having regard to the work in which the production employees of the Respondent are engaged. In particular, the question requiring determination is whether the NUW is entitled to enrol as members, persons who are production employees of the Respondent working at the Site engaged in the production of the Respondent’s product, ready-made pizzas. If the NUW is so entitled, then it is entitled to represent the industrial interests of those employees. Relevantly, Rule 5(G) provides:

“(i) The Union shall consist of persons who are bona-fide employees, wholly or partly engaged in any capacity in the manufacture or preparing for sale of (a) candles, (b) soap, soap powders and extracts, soda, (c) starch, (d) blue (washing), boot blacking, boot polish, boot paste, boot stains, black lead, charcoal, coal dust, cloudy ammonia, dubbo, ebonite shine, furniture polish, glycerine, greases, harness dressing, harness compounds, ink, knife polish, kindlers, linoleum and oilcloth polish, metal polish, moulders' blacking, oils, phenyle, plumbago preparations, stove polish, vaseline, (e) condiments and cereal foods, and all other articles, goods and preparations usually or commonly known as Grocers’ sundries including arrowroot, baking powder, barley, bicarbonate of soda, bird seed, borax, brose meal, carraway seeds, cassia, castor sugar, chicory, chicorine, chillies, chocolate, cinnamon, citric acid, citron peel, cloves, cocoa, coffee, coffee essence, coriander seed, cornflour, cornina, cream of tartar, cummin seed, curry powder, custard powder, copras oils, condensed milk, dessicated coconut, digestive meal, epsom salts, fennel, fenugreek, flavouring essences, graham flour, groats, ginger, haricot beans, hommell, hemp seed, icing sugar, jellies, lemon peel, lentils, linseed, linseed meal, macaroni, mace, magnesia, meal wheat, malt preparations, maize meal, millet seeds, mustard, nutmegs, oatmeal, oats, orange peel, peas, pepper, pimento, patent foods, rape seed, rice, sago, sago flour, self-raising flour, spices, semolina, sulphur, tapioca, tartaric acid, vermicelli, (f) matches and matchboxes, (g) glucose and all products of maize and all other similar or allied preparations, goods and articles to any of the abovementioned preparations, goods or articles.

(ii) Other than in the Northern Territory and the State of Queensland, all persons engaged in any capacity in or in connection with the Grain Milling Industry.” 11 [Emphasis added]

[11] The NUW contends that the ready-made pizzas produced or manufactured by the Respondent are both ‘cereal foods’ and ‘Grocers sundries’ within the meaning of Rule 5(G)(i), thus entitling the NUW to enrol members and to represent the industrial interests of production employees employed by the Respondent. 12 The Respondent contends to the contrary.

Consideration

Approach to construction of eligibility rules

[12] The task of construing words in eligibility rules of an organisation begins with reading the words having regard to the ordinary meaning of the words and their use in the context of the rule as a whole. Of course a narrow or confined approach to interpretation is to be avoided, a point made in Co-Operative Bulk Handling Ltd v Waterside Workers’ Federation of Australia (Waterside Workers’)  13 in which the Court said:

“In considering the conditions of eligibility for membership of an organization of employees it is necessary to bear in mind that the organization represents the industrial interests of a group or class of employees designated by reference to those conditions of eligibility. It is notorious that there are and have been great changes in all industries including the shipping and stevedoring industries, both in the degree of mechanization and in the bulk handling and shipping of cargo and other goods. During the period of this change it is clear from the statutes relating to the stevedoring industry that there have been vast changes in stevedoring and it seems to us most unlikely that the federation in making changes in its conditions of eligibility intended that the words "waterside worker" should thereafter always retain the meaning that they either then had or originally had. Rather we think it is a case where the words in r. 6 (a) are to be construed in accordance with their current denotation. Unless this is done serious restrictions - would be placed on the effectiveness of organizations and the objects of the Act would be adversely affected.” 14

[13] Ascertaining the scope of an organisations eligibility or proper coverage and field of operation requires the eligibility rules to be construed objectively.

[14] In Food Preservers Union of Australia v Manufacturing Grocers Employees Federation of Australia and Ors (Re Food Preservers Union) 15Northrop J discussed the principles to be applied in construing the eligibility rule of an organisation as follows:

“The principles to be applied in determining the construction of an eligibility rule of an organization have been discussed in many authorities. Those principles are summarised in Re Williams; Ex parte Australian Building Construction Employees' and Builders' Labourers' Federation (1983) 57 ALJR 38 by Gibbs C.J., Mason, Murphy, Brennan, Deane and Dawson JJ. at pp.39-40 as follows:

"The eligibility provisions in the rules of a registered organization of employees serve the function of defining the general area or areas of industry or industrial pursuit from which members can legitimately be drawn and with which the organization can legitimately be concerned (see Reg. v. Dunlop Rubber Australia Ltd.; Ex p Federated Miscellaneous Workers' Union of Australia [1957] HCA 19; (1957), 97 CLR 71, at p 87; Reg. v. Clarkson; Ex p Victorian Employers Federation (1973), 131 CLR 100, at pp 111 and 113; Co-operative Bulk Handling Ltd. v. Waterside Workers' Federation of Australia [1980] FCA 141; (1980) 49 FLR 355, at pp 357-358). Since such eligibility provisions constitute a reference point for courts, commissions, employers, employees and other organizations in determining or ascertaining an organization's proper coverage and field of operation, they must be construed objectively (see Reg. v. Aird; Ex p Australian Workers' Union [1973] HCA 53; (1973) 129 CLR 654, at p 659; Reg. v. Cohen; Ex p Motor Accidents Insurance Board [1979] HCA 46; (1979), 53 ALJR 719, at pp 720 and 723). In so construing them, however, it is permissable to pay regard to any common understanding among people concerned with relevant industries and particularly with industrial matters of the ordinary application of the words used and to take account of evidence of that common understanding furnished by the previous use of the words in the relevant organization's rules and in statutory provisions, decisions, determinations, awards, reports and other papers concerned with the relevant industry or industries (see, for example, Rex v. Hickman; Ex p Fox & Clinton (1945), 70 CLR 598, at p 613; Reg. v. Aird; Ex p Australian Workers' Union, above, at p 659)."

In addition, it must be remembered that eligibility rules should not be construed narrowly or technically; see Electrical Trades Union of Australia v. Waterside Workers' Federation of Australia (No. 2) (1982) 59 FLR 78 (the E.T.U. case), per Bowen C.J., Evatt and Deane JJ. at p 87. Although the construction of an eligibility clause is to be determined by legal considerations, it must be kept in mind that the eligibility rule will have been drawn, more likely than not, by Union officials more familiar with the practical affairs of industries than with the niceties or subtle nuances of language; see R. v. Aird; Ex parte Australian Workers' Union, above, per Barwick C.J. at p 659.” 16

[15] That the eligibility rules of organisations should not be construed narrowly or technically has repeatedly been affirmed. 17

Whether the Respondent’s pizza products are cereal foods

[16] In Lifestyle Bakery Pty Ltd v National Union of Workers; Daycone Pty Ltd ATFT Daycone Trust T/A Tucker’s Natural v National Union of Workers (Lifestyle Bakery/Daycone)  18, a Full Bench of the Commission affirmed a decision of Senior Deputy President O’Callaghan in which he determined that the NUW was entitled to represent employees who were engaged in the manufacture of crackers and various bread products. The Full Bench determined that the ordinary meaning of the expression cereal foods includes food which is made from cereal, where cereal is a foundational or basic ingredient19 and that “the ordinary and natural meaning of the expression “cereal foods” does not lead to an interpretation confining them to raw ingredients, or excluding a finished product such as bread.”20

[17] The NUW relies on the reasoning of the Full Bench in Lifestyle Bakery/Daycone and it contends that the Full Bench intended the definition of cereal foods to stretch beyond bread derivatives. 21

[18] The NUW contends that the Respondent’s pizza product with toppings falls within the expression of ‘bread type products’. 22 Moreover, the NUW submits that the Respondent’s pre-chilled pizzas would not be able to be produced without a cereal food, namely flour, forming as a foundational ingredient.23

[19] The Respondent acknowledges that its pizza products contain a base that is made from flour. However, it contends that that alone does not make the pizza product a cereal food in light of the fact that an array of toppings are added to the base to make a final product. 24 The Respondent contends that the decision in Lifestyle Bakery/Daycone case can be distinguished from this case, because the former involved consideration of bread products and crackers where the principal ingredient was a cereal food, whereas the present case involves a cereal food which only forms part of the component of pizzas manufactured by the Respondent.25

[20] The Respondent also points to the fact that in the Lifestyle Bakery/Daycone case not only was cereal the principal ingredient in the products at issue, but the products themselves once baked constitute the final product ready for consumption by a consumer. 26

[21] In distinguishing the Lifestyle Bakery/Daycone case from the present dispute, the Respondent contends that cereal forms only one component of the pizzas that are manufactured by the Respondent – the bases. 27 It submits that various toppings are then added to the bases and it is only then that the final product is ready for consumption.28 It says that simply because the base is made from a cereal, does not render the final product a cereal food.29

[22] The Macquarie Dictionary defines cereal as follows:

“noun 1. Any gramineous plant yielding an edible farinaceous grain, as wheat, rye, maize, etc. 2. the grain itself. 3. some edible preparation of it, especially a breakfast food made from some grain. - adjective 4. of or relating to grain or the plants producing it.”

[23] The Oxford dictionary definition of cereal is as follows:

“Cereal

Of or pertaining to corn or edible grain.

A name given to those plants of the order Graminacæ or grasses which are cultivated for their seed as human food; commonly comprised under the name corn or grain. (Sometimes extended to cultivated leguminous plants.)”

[24] The addition of the word “foods” following the word “cereal” suggests that the meaning of cereal foods includes edible cereals or grains and foods that are made from cereals or grains. I consider that the pizza products produced or manufactured by the Respondent are “cereal foods” within the meaning of Rule 5(G)(i) of the NUW’s eligibility rule. It seems to me that the term cereal foods is a term describing both foods that are grains, such as wheat, oats, rice, rye, barley, millet, quinoa or corn and food that is made from cereal where cereal is a foundational, basic or significant ingredient. These different grains may be cooked and eaten whole, ground into flour to make a variety of cereal foods such as bread, pasta and noodles, or made into ready-to-eat breakfast cereals. This is consistent with the dictionary definitions of “cereal”.

[25] Grains include wheat, barley, oat, rye, corn, rice, millet and triticale. Wholegrains include wholemeal or wholegrain breads or crispbreads, dark ‘seedy’ breads, wholegrain breakfast cereals, wheatgerm, brown rice, puffed whole grains, bulgur, quinoa, couscous, popcorn and oatmeal.

[26] Cereals or grains may be refined.

[27] Refined cereals include cake, desserts, white bread, pasta, muffins, sweet or savoury biscuits, refined grain breakfast cereals, white rice, pancakes, waffles and pizza. 30

[28] I do not accept the Respondent’s contention that by placing one or more toppings on a pizza base, which is doubtless a cereal food, somehow transforms that which was formerly a cereal food, into something else. The foundational ingredient is before, and remains, after toppings were added, flour.

[29] Mr Luca De Lorso, the National Supply Chain Director of the Respondent gave evidence during the hearing that wheat flour is a significant ingredient in all of the Respondent’s pizza bases 31 but was not able to identify what percentage of the pizza base’s composition is wheat flour.32 Although this does not alter that which I have already determined, an ingredients list must specify the food products that it contains from largest to smallest by weight. On a review of the ingredients panel on two of the Respondent’s pizza products wheat flour is specified as being the largest proportionate ingredient on the nutritional panel. For example, the “Pesto Margherita” pizza manufactured by the Respondent lists the ingredients as follows:

“Pizza Base (52%) [Wheat Flour (Thiamin, Folic Acid), Water, Canola Oil, Olive Oil, Salt, Sugar, Yeast], Tomato Sauce (14%) [Tomato Paste, Sugar, Salt, Canola Oil, Olive Oil, Oregano], Mozzarella Cheese (10%) [Milk, Salt, Starter Culture, Enzyme (Non-Animal Rennet), Anticaking Agent (460), Preservative (200)], Semi-Dried Tomato (8%) [Semi Dried Tomato (90%), Canola Oil, Garlic (Contains Sulphites) (Garlic, Oil, Vinegar, Salt), Herbs], Mozzarella Pearls (5%) [Milk, Salt, Non-Animal Rennet, Starter Culture, Calcium Chloride, Food Acid (330)], Basil Pesto (2%) [Basil Leaves (51%), Canola Oil, Parmesan Cheese (Pasteurized Milk, Started Culture, Non-animal Rennet, Salt, Lipase, Tapioca Starch), Cashews, Vinegar, Garlic, Preservatives (330, 202].”

[30] The “Salami Cacciatore” pizza manufactured by the Respondent contains the following ingredients:

“Pizza Base (51%) [Wheat Flour (Thiamin, Folic Acid), Water, Canola Oil, Olive Oil, Salt, Sugar, Yeast], Mozzarella Cheese (10%) [Milk, Salt, Starter Culture, Enzymes (Non-Animal Rennet), Anticaking Agent (460), Preservative (200)], Tomato Sauce (9%) [Tomato Paste, Sugar, Salt, Canola Oil, Olive Oil, Oregano], Cacciatore Salami (95) [Pork (95%), Salt, Spices, Dextrose, Lactose, Sugar, Skim Milk Powder, Antioxidant (300), Cultures, Preservative (252, 250)], Roasted Peppers (6%) [Red Peppers, Water, Vinegar, Salt, Sugar], Parmesan Cheese (4%) [Milk, Salt, Cultures, Enzymes], Kalamata Olives (4%) [Olives, Water, Sea Salt, Red Wine Vinegar, Sunflower Oil], Grilled Roaster Onions (3%) [Roasted Red Onions, White Wine Vinegar, Preservative (220:Sulphites), Canola Oil, Brown Sugar, Salt, Pepper] & Parsley.

[31] Although additional ingredients are added to the base to make the pizzas ready for consumption, the pizza would not exist without the foundational ingredient – wheat flour, which as I have already determined, is a cereal food.

[32] In the circumstances I consider that the Respondent’s production employees engaged at the Site are wholly or partly engaged in the manufacture of cereal foods within the meaning of Rule 5(G)(i). The NUW is therefore entitled to represent the industrial interests of those employees.

Whether the Respondent’s pizza products are Grocers’ sundries

[33] Although it is strictly not necessary to decide the question whether the Respondent’s pizza products are Grocers’ sundries, as the matter was fully argued, I will express my conclusions. I consider that the Respondent’s pizza products are properly described as a Grocers’ sundry for the reasons which follow.

[34] In Re Food Preservers Union Smithers J observed that the expression Grocers’ sundries is one “embracing a great variety of items mainly for human consumption packaged in sizes and containers convenient for purchase and used by persons conducting domestic establishments”. 33 His Honour continued:

“The submissions of the respondent and the intervenor also proceeded on the basis that the question could be answered by reference to the notion that certain products could be identified as primary or nonprimary items of grocery business. It made the somewhat arbitrary assumption that tea, sugar, salt, butter, cheese, eggs and wheaten flour may be accepted as being the only products in the primary grocery lines category. Not only is this arbitrary, but, on the evidence, much too narrow.

The submissions of the parties reflect ingenuity, but also demonstrate the difficulty of finding, in the lengthy catalogue of products set forth in the conditions of eligibility of the respondent, or in the evidence, rational guidelines by reference to which, on a product basis, either the identity of those products which are primary grocery lines or the scope of the expression "all Grocers’ sundries" may be determined. According to the Shorter Oxford Dictionary a grocer was one who bought and sold "in the gross, a wholesale merchant".

If the matter is to be approached from the standpoint of product lines there must be a resort to artificiality. As a consequence the submissions of the applicant and the respondent and of the intervenor as to what are Grocers’ sundries are not acceptable.

It appears that the expression "Grocers’ sundries" derives from the development of the grocery trade wherein there has been superimposed on the traditional trade in articles in gross or out of bulk, the marketing of all kinds of products of packaged portions of a size suitable for the retail trade.

According to the Encyclopaedia Britannica,

"the name 'Grocer' is a general one for dealers by wholesale, 'engrossers' as opposed to 'regrators', the retail dealers and is found with the commodity attached. Thus 'grossours de vin', 'groser of fysshe'. The specific application of the word to one who deals either by wholesale or retail in tea, coffee, cocoa, dried fruits, spices, sugar and all kinds of articles of use or consumption in a household is connected with the history of the Grocers’ Company of London, the name 'Grocers’ first appearing during 1373 in the records of the company".


It is apparent that lines dealt with by a traditional grocer, which it is suggested may be called primary lines are not to be identified. It is significant that in the reference to grocers quoted above from the encyclopaedia a grocer is regarded as one who in the ordinary course of his business deals with all kinds of articles of use or consumption. It would not be an unnatural development that, in an industry so broadly operating, and historically by wholesale and bulk, those items prepared in packets and containers suitable for the retail domestic market of whatever kind, would become known as sundries and thus as Grocers’ sundries.” 34

[35] Respectfully, the observations of Smithers J reflect the orthodox approach to considering eligibility rules of an organisation. That approach should continue to be applied to the meaning of Grocers’ sundries in the context of Rule 5(G)(i).

[36] In the same case, Northrop J said:

“In the present case, the central words to be construed are "Grocers’ sundries" appearing in the phrase "articles, goods and preparations usual or commonly known as Grocers’ sundries". In this context, it is not permissible to define each of those words separately; compare Co-operative Bulk Handling Ltd v Waterside Workers' Federation of Australia, above, (the Co-operative Bulk Handling Company case), per J B Sweeney, Evatt andNorthrop JJ at 362 and the ETU case at 350; 81-2. The words "Grocers’sundries" are used as a composite expression to describe a class of goodsand that expression does not necessarily have the meaning which a literalinterpretation of each of those words would suggest, namely, all articles,goods and preparations commonly sold by grocers and which are not primarylines. In any event, there remains the difficulty of determining what are primary lines. Likewise, it must be remembered that the eligibility rule of anorganisation must be construed having regard to the changing nature of theindustry within which the eligibility rule is framed. This is particularly sowhere, as in this case, the eligibility rule is framed to include all other similaror allied preparations, goods and articles to those articles, goods andpreparations commonly known in 1915 as Grocers’ sundries; compare the Co- operative Bulk Handling Company case, above, at 363-4 and the ETU case,above at 353; 87.

In the present case, the words under consideration were first inserted into the eligibility rule of the Federation in September 1915. This was a short time after 6 November 1911 when, pursuant to powers conferred by the Factories and Shops Act (Vic), the Governor in Council had appointed a Grocers’ Sundries Board to determine the lowest prices or rates which may be paid to persons or classes of persons "employed in the process, trade or business of manufacturing (except in flour mills) cereal foods, condiments, spices, coffee, chicory or cocoa". That Board had been constituted at the request of the Manufacturing Grocers. The Federation was the union from which the employee members of that Board were appointed.

It is interesting to note the subsequent history relating to the Grocers’ Sundries Board. In 1931, at the request of the Federation, the coverage of the Board was extended by adding after the word "cocoa" the words "or any kind of goods commonly known as Grocers’ sundries". In 1934, the coverage of the Grocers’ Sundries Board was expanded to include what had previously come within the coverage of a number of other Boards, namely, the Candlemakers Board, the Soap and Soda Board, the Starch Board and the Grocers’ Sundries Board. All those Boards had coverage of areas similar to various parts of the eligibility rule of the Federation.

In this context also, brief mention should be made to developments of federal award coverage obtained by the Federation. A certified agreement consented to on 17 October 1917 and reported in (1917) 11 CAR 1062, was made between the Federation and an employer, A C Parkin and Co. The agreement prescribed minimum rates of pay to be paid to members of the Federation "engaged in the manufacture and preparation for sale of the undermentioned articles". There is then set out two Divisions, one headed "Polish" and the other headed "Grocers’ Sundries". Under "Grocers’ Sundries" are set out a number of classifications similar to the groups set out under Division 8 — Grocers’ Sundries, of the 1982 award. Those classifications included "miller", "mixer or blender", "roasters" and "packer". It is interesting to note that a term of the agreement limited the work to be done by juveniles to the following:

"Grocers’ Sundries: Filling, weighing, closing, wrapping, labelling, or casing packets tins bottles or bags for stock or assisting in the manufacture of macaroni, vermicelli or Italian paste."

It should be noted that at that time Italian paste included what is now known as spaghetti.

In 1921, a consent award was made between parties being the Federation and a large number of employers. The award contained a number of Parts including "Part 1, Grocers’ Sundries", "Part 2, Starch", "Part 3, Soap and Soda", "Part 4, Candles", "Part 5, Polish", "Part 6, Maize Products" and "Part 7, Matches". The classifications contained in Part 1, Grocers’ Sundries, were the same as in the consent agreement of 1917 and applied to:

". . . members of the federation engaged in the manufacture and preparation for sale of Grocers’ sundries, comprising cereal foods (except wheaten flour), spices, condiments, coffee, chicory, cocoa, macaroni, vermicelli, Italian paste, and all kinds of goods commonly known as Grocers’ sundries . . . ."

The award contained provisions applicable to classifications similar to those in the agreement. The 1921 award is reported in (1921) 15 CAR 498.

A similar award was made in 1925; see (1925) 22 CAR 855. Additional classifications were included under "Part 1, Grocers’ Sundries". The form of the 1925 award was that agreed to by a majority of the employers who were parties to the dispute in which the award was made. Fred Walker and Co Pty Ltd, a predecessor of Kraft, was named as a respondent to that award.

Another award was made in 1930; see (1930) 29 CAR 69. In giving his reasons for making the 1930 award, Lukin J set out, in summary form, the early agreements and award history involving the Federation: see 69-71. The 1930 award was in a form similar to the 1982 award. In clause 4, Definitions, the phrase "Grocers’ sundries" was defined to mean:

"Cereal foods (except wheaten flour), spices, condiments, coffee, chicory, cocoa, macaroni, vermicelli, Italian paste, and all kinds of goods commonly known as Grocers’ sundries."

By 1982, that definition had been altered to exclude the words "macaroni, vermicelli, Italian paste", leaving the current definition in a form identical with the words used in the Grocers’ Sundries Board appointment in 1911 as varied in 1931. The 1930 award contained seven Divisions including "Division 1, Grocers’ Sundries". That Division applied to "Employees engaged in the Manufacture and Preparation for Sale of Grocers’ Sundries as herein defined". Kraft Walker Cheese Co Pty Ltd, a predecessor of Kraft, was named as a respondent to the Grocers’ Sundries Section of that award.

From this history, it is apparent that between 1911 and 1931, the phrase "Grocers’ Sundries" was in common use among persons engaged in the Manufacturing Grocers’ Industry and that the manufacture and preparation for sale of Grocers’ sundries included the filling, weighing, closing, wrapping, labelling, or casing packets tins bottles or bags for stock as well as the manufacture of macaroni, vermicelli or Italian paste. It is apparent also that Grocers’ sundries were limited to goods, articles and preparations which were suitable for human consumption. This is apparent from the different treatment in the award structures of those goods, articles and preparations coming within pars (a), (b), (c), (d) and (f) of the eligibility rule of the Federation, other than those within par (e). Paragraph (g) is put to one side as being in a special position.

On this material, counsel for the Union contended that Grocers’ sundries should be limited to those articles, goods or preparations which could be described as dry, as opposed to wet. He contended that the definitions of Grocers’ sundries appearing in the appointment of the Grocers’ Sundries Board, the agreements, the awards and the classifications of work being done within those areas, were all directed to dry substances. That contention, to some extent, is weakened by a reference to the activities described in the special provisions relating to juvenile workers which were continued in the awards after the first agreement. On this history, it is impossible to determine whether the contention should be accepted.

In May 1911, the Victorian Grocers’ Association of Victoria commenced the publication of a monthly journal called "The Southern Grocer of Australasia". The journal was described as "A Review of the Grocery and Allied Trades, Retail, Wholesale and Manufacturing". In 1920, "The Southern Grocer of Australasia" was incorporated in a new journal called "The Australasian Grocer" which continued to be published monthly by the Grocers’ Association of Victoria and continued the same type of review. Counsel for the Federation tendered as exhibits a large number of pages from various issues of the two journals which appeared between the years 1910 and 1925 inclusive. Those pages contained advertisements by Manufacturing Grocers extolling the virtues of Grocers’ sundries manufactured or prepared for sale by them and the benefits that would flow to Grocers, retail and wholesale, if they stocked those sundries for eventual sale to the public. In addition, many of the pages contained written reports of activities undertaken by Manufacturing Grocers at Agricultural Shows in which the Manufacturing Grocers displayed their Grocers’ sundries direct to the public. It is not necessary to make a detailed reference to all those exhibits. It is sufficient to say that the range of products which came within the description of Grocers’ sundries was extremely large. Grocers’ sundries were provided to Grocers pre-packed, whether in glass, tin, cardboard or other containers. Contents of the pre-packed containers included both wet and dry products, including sauces, soups, salad oils, pickles, chutneys, fish pastes, meat dishes, fruits, cordials, flour, condiments both dry and wet, spices, honey, jams and many other preparations too numerous to mention. Almost all of the products advertised were designed for human consumption. There was one exception, namely, the report of the stall set up by A & R Ingwersen in the journal of 20 September 1911. That report and the accompanying photographs showed that the products described as Grocers’ sundries manufactured by that company included boot polish, stove polish and eucalyptus oils, although the latter article often was used as a medicine for human consumption. It is interesting to note that in the 1921 award, A & R Ingwersen was named as a respondent bound by the provisions "Part 5, Polish" and not by Part 1, Grocers’ Sundries" of that award. From all this material, it is possible to give a meaning to the expression "Grocers’ sundries", which was first inserted in par (e) of the eligibility rule of the Federation in 1915. Thus, it is possible to determine, for the purposes of that paragraph, what were and what are articles, goods and preparations usually or commonly known as Grocers’ sundries and all other similar or allied preparations, goods and articles to any of them.” 35

[37] Northrop J continued:

“At the request of the Court, counsel for the Union and counsel for the Federation, in the course of their final submissions, formulated a definition of the phrase "Grocers’ sundries". Although called a definition, each formulation, of necessity, comprised a descriptive statement by which to test whether any particular class of articles, goods or preparations was a grocer's sundry. The formulation provided by counsel for the Union was as follows:

"Articles, goods or preparations which were sold in Grocers’ shops, which were not main or principal grocery lines, which were rarely compounds, but if they were, they were simple compounds which were manufactured or prepared for sale and which in their manufacture or preparation for sale required no more than light milling, grinding, simple blending, the filling of packets, unsealed cans or bottles, dry roasting and perhaps some other simple processes which did not require pickling, boiling or steaming, cooking in caldrons, the preparation or cooking of meats and vegetables, canning in sealed cans or any like process."

The emphasis placed on the nature of the articles, goods or preparations should be noted. This was central to the submissions made on behalf of the Union. The wide range of articles referred to as Grocers’ sundries in the extracts from the journals referred to above, showed that Grocers’ sundries were not limited to dry substances or to methods of dry preparations.

The formulation provided by counsel for the Federation was as follows:

"That range of articles, goods and preparations manufactured or prepared for sale and supplied to retail grocers to form part of their general stock but which do not include the primary grocers goods of tea, sugar, salt, butter, cheese, eggs and wheaten flour."

Some comments of a general nature are made about each of those formulations. A reference to dictionaries and encyclopaedias concerning the meaning to be given to the word "Grocer" and the nature of the trade of Grocers shows that historically the primary stock sold by Grocers included tea, coffee, cocoa, spices, cereals (particularly rice), currants, raisins, prunes and similar dried fruits and nuts. Those preparations were sold by measure from bulk supplies kept in the Grocers’ shops. They were not pre-packed for retail sale before delivery to the Grocers’ shops. With the development of new preserving methods, by the end of the nineteenth century many more types of food preparations were being sold in Grocers’ shops, such as jams, sauces, chutneys and pickles. Of necessity, these articles were not sold by measure from bulk supplies kept in Grocers’ shops. Honey was an exception to this general development. At the same time, there was developing a new marketing practice by which the traditional preparations comprising the primary stock sold by Grocers were pre-packed for retail sale before delivery to the Grocers’ shops. This development became even more apparent with the development of the self-service Grocers’ shops and the introduction of supermarkets. The evidence shows that the articles, goods and preparations commonly referred to as Grocers’ sundries were all pre-packed for retail sale before delivery to the Grocers’ shops. This pre-packaging was an essential feature of all Grocers’ sundries. In this context, and as will become apparent later in these reasons, the expressions condiments and cereal foods and each of the other preparations specifically referred to in par (e) of the eligibility rule are not limited to articles, goods and preparations pre-packed before delivery to the Grocers’ shops. Further, it should be noted that each of the formulations by counsel set out above, draws a distinction between principal grocery lines or primary Grocers’ stock on the one hand and Grocers’ sundries on the other. Having regard to the history of the Grocers’ trade, it is impossible to draw such a distinction. It is almost impossible to determine what are principal grocery lines or primary Grocers’ stock. On any view, spices have always been a principal grocery line.

In all the circumstances the following matters should be considered in determining whether articles, goods or preparations are Grocers’ sundries. The articles must be pre-packed for retail sale and must have been so pre- packed before delivery to the retail Grocer. The nature of the container is immaterial, the important fact being that the contents are suitable for human consumption. The containers should be small enough for home use and normally sold by a retail Grocer. Having regard to changes in the retail structure at the present time the sales can take place in Grocers’ shops, supermarkets or smaller stores. The range of the contents of the containers is in reality unlimited, but some limitation must be placed on the extent to which the manufacturing aspect may be traced. Thus, in the manufacture of canned meats, the eligibility rule would not extend to meat works where animals are slaughtered; in the manufacture of jams, the eligibility rule would not extend to sugar refineries on the basis that sugar forms a large proportion of the material used in the manufacture of jams; in the manufacture of flour or self-raising flour, the eligibility rule would not extend to flour mills. In the present case, it is not necessary to denote the limits of par (e) of the eligibility rule of the Federation since the manufacture of the preparations in dispute and the preparing for sale of the preparations in dispute are all done at the final stage before sale to a wholesale or retail outlet or direct to the user.” 36

[38] The Full Court determined in Re Food Preservers Union that Kraft’s pre-packaged curries, meat pies and pre-filled ravioli, amongst other items, fell within the expression of ‘Grocers’ sundries’.
[39] The Respondent says that in construing the term Grocers’ sundries, the starting point is the ordinary meaning of the words and that regard may be had to the context in which the term appears, and in particular the examples of what comprises Grocers’ sundries. 37 According to the Respondent, in Rule 5(G)(i)(e) the examples of what comprise Grocers’ sundries after the word “including” shows that broadly speaking the food items fall into the following categories:

(a) base ingredients, which in combination with other ingredients, may be used to make a finished product – for example, baking powder, bicarbonate of soda, cinnamon, castor sugar, cornflour, flavouring essences, dessicated coconut, macaroni, self-raising flour etc

(b) staple products which may be consumed alone – for example, coffee, jellies, etc;

(c) various items not for human consumption – for example, bird seed, epsom salts, hemp seed, etc. 38

[40] This submission is rejected. It seeks to narrow the meaning of Grocers’ sundries by reference to a list of items inserted into rules long ago and is inconsistent with the approach adopted in Re Food Preservers Union.

[41] It is the Respondent’s position that none of the above items, in isolation, are capable of constituting a fully prepared meal which is ready to consume after being heated, similar to the pizzas which are manufactured by the Respondent. 39 The Respondent says that these items constitute items which may be found in a grocery store or supermarket, to be used in the preparation of food products, or simply things which may be used in households.40 This is in conformity with the ordinary meaning of the words “grocer” and “sundries” set out above, and the combination of these words to form the term Grocers’ sundries’.41

[42] This submission is also rejected. First, the submission advocates a disjunctive rather than composite reading of Grocers’ sundries, which is inconsistent with Re Food Preservers Union. Secondly, the relevant enquiry is whether the Respondent’s pizza products are pre-packaged for retail sale, whether the pizza products were pre-packaged before delivering to, for example, a supermarket, and whether the contents of the package is suitable for human consumption. Relevant also is whether the pizza product is suitable for use or consumption in the home and whether it is normally sold by a grocer which includes a supermarket. The answer to each in the case of the Respondent’s pizza products is clearly yes. That the pizza products are ready made meals, as the Respondent suggests 42 does not alter the result. The ready-made pizzas produced by the Respondent and supplied to supermarkets are Grocers’ sundries within the meaning of Rule 5(G)(i). The Respondent’s production employees are wholly or partly engaged in the manufacture of that which is commonly known as Grocers’ sundries. It follows that the NUW is entitled to represent the industrial interests of the Respondent’s production employees at the Site.
Conclusion

[43] For the reasons given, I consider that the Respondent’s production employees at the Site are engaged wholly or partly in the manufacture of the Respondent’s pizza products which are both cereal foods and Grocers’ sundries within the meaning of Rule 5(G)(i) of the NUW’s eligibility rules. The NUW is therefore entitled to represent the industrial interests of the Respondent’s production employees at the Site and its officials who are permit holders may seek entry under s.484 for the purposes of holding discussions with one or more of those employees.

DEPUTY PRESIDENT

Appearances:

Mr R Payne, Industrial Officer for the National Union of Workers

Mr J D’Abaco, Counsel for Bervar Pty Ltd T/A Della Rosa Fresh Foods

Hearing details:

Melbourne.

7 February.

2018.

<PR600801>

 1   Respondent’s Outline of Submissions dated 2 February 2018 at [1]

 2   Ibid at [2]

 3   Identities of permit holders are not disclosed in either parties submissions or evidence

 4   Applicant’s Outline of Submissions, dated 18 December 2017 at [1] – [2]

 5   Ibid at [3]

 6   Ibid at [5]

 7   Ibid at [6]

 8   See Citibank Ltd v Federal Commissioner of Taxation (1988) 19 ATR 1479 at 1481-1482; Federal Commissioner of Taxation v Citibank Ltd (1989) 20 FCR 403 and Darlaston v Parker and Others (2010) 189 FCR 1 at 13 [44]

 9   [2015] FWCFB 5228

 10   Ibid at [17] – [20]

 11   Rules of the National Union of Workers as at 3 July 2017, 13

 12   Applicant’s Outline of Submissions, dated 18 December 2017 at [10]

 13 (1980) 49 FLR 355

 14   Ibid at 363

 15 (1986) 29 IR 243

 16   Ibid at 252-253

 17   See for example R v Cohen; Ex parte Motor Accidents Insurance Board (1979) 141 CLR 577 at 587; Co-operative Bulk Handling Ltd v Waterside Workers’ Federation of Australia (1980) 49 FLR 355 at 361-2; Electrical Trades Union of Australia v Waterside Workers’ Federation of Australia (No. 2) (1982) 59 FLR 78 at 87; Australian Manufacturing Workers’ Union v ResMed Limited [2014] FWCFB 3501 at [34]; Lifestyle Bakery Pty Ltd v National Union of Workers; Daycone Pty Ltd ATFT Daycone Trust t/a Tucker's Natural v National Union of Workers [2015] FWCFB 6324 at [25]; see also Hon. J W Shaw QC, Interpreting Trade Union Constitution Rules, (1988) 62 ALJ 690 at 692-694

 18   [2015] FWCFB 6324

 19   Ibid at [25]

 20   Ibid at [28]

 21   Applicant’s Outline of Submissions, dated 18 December 2017 at [32]

 22   Ibid at [29]

 23   Ibid at [31]

 24   Respondent’s Outline of Submissions, dated 2 February 2018 at [24]

 25   Ibid at [27] – [28]

 26   Ibid at [27]

 27   Ibid at [28]

 28   Ibid

 29   Ibid at [29]

 30   See   Transcript at PN59

 32   Ibid at PN60

 33   Food Preservers Union of Australia v Manufacturing Grocers Employees Federation of Australia and Ors (1986) 29 IR 243

 34   Ibid at 243 – 244

 35   Ibid at 253 – 256

 36   Ibid at 256 – 258

 37   Respondent’s Outline of Submissions, dated 2 February 2018 at [14] and [17]

 38   Ibid at [17]

 39   Ibid at [18]

 40   Ibid

 41   Ibid

 42   Ibid at [19]

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