day? CATCHWORDS Industrial law - Conciliation and Arbitration - registered organization - eligibility for membership or Manufacturing Grocers' Employees' Federation of Australia - meaning of phrase "grocers' sundries" under eligibility rule. Conciliation and Arbitration Act 1904 ss.118A(4B), 143 Trade Marks Act Factories and Shops Act (Vic) R v. Dunlop Rubber Australia Limited and others; Ex parte Federated Miscellaneous Workers' Union of Australia £19571 97 C.L.R. 71 Re Williams; Ex parte Australian Building Construction Employees' and Builders' Labourers' Federation (1983) 57 A.L.J.R. 38 Electrical Trades Union of Australia v. Waterside Workers' Federation of Australia (No. 2) (1982) 59 F.L.R. 78 Rv. Aird; Ex parte Australian Workers' Union (1973) 129 C.L.R. 654 Co-operative Bulk Handling Ltd. v. Waterside Workers' Federation of Australia (1980) 49 F.L.R. 355 Coward v. Allen (1984) 52 A.L.R. 320 FOOD PRESERVERS UNION OF AUSTRALIA Applicant and THE MANUFACTURING GROCERS ' EMPLOYEES ' FEDERATION OF AUSTRALIA, BRENDAN JOHN EAMES, THOMAS GEORGE GIBBS, ALEXANDER DUFFEW, MONICA MARY GOULD and MICHAEL RAYMOND RICE Respondents and KRAFT FOODS LIMITED Intervenor V. No. 32 of 1984 Smithers, Northrop and Keely JJ. -—~ Me Lbourne en cD rc \ 5 March 1986 Co' eth 5 \ 4 ae i -4 nel IN THE FEDERAL COURT UF AUSTRALIA ) ) VICTORIA IGTSTRICT REGISTRY ) V No. ) ) INDUSTRIAL DIVISION BETWEEN : FOOD PRESERVERS UNION OF AUSTRALIA and THE MANUFACTURING GROCERS' EMPLOYERS' FEDEKATION OF AUSTRALIA, BRENDAN JOHN EAMES, THOMAS GEORGE GIBBS, ALEXANDER DUFFEW, MONICA MARY GOULD and MICHAEL KAYMOND RICE and KRAFT FOODS LIMITED COURT: SMITHERS, NORTHROP AND KEELY JJ. DATE: S MARCH 1986 PLACE: MELBOURNE MINUTE OF ORDER 32 of 1984 Applicant Respondents Intervenor THE COURT ORDERS THAT the application be dismissed. (Settlement and entry of Orders 1s dealt with in 0.36 or the Rules ot Court.) IN THE FEDERAL CONFT OF AUSTPALTIA ) ) VICTORIA OTSTPICT PEGISTRY ) V Mo. ' ) INDUSTRIAL DIVISTON Between: And: 32 of 1L4R4 FOOD PRESERVERS JNION OF AUSTRALIA (Applicant) THE MANUFACTURING COURT: Smithers, Northrop and Keely JJ. DATE: 5 March 1986 PLACE: Melbourne REASONS FOR JUDGMENT GROCERS' EMPLOYEES' FEDERATION OF AUSTPALTA, BRENDAN JOHN EAMES, THOMAS GEORGE GIBBS, ALEXANDER DUFFEW, MONICA MARY GOULD and MICHAEL RAYMOND RICE (Respondents) KRAFT FOODS LIMITED (Intervenor) Smithers J.: Io have had the opportunity of reading the reasons tor judgment ot my brother Northrop. observations and conclusions. [ agree with his The really dirricult task in this case was to ascertain the meaning or the expressiton "and all other articles, goods and preparations usually or commonly known as Grocers' sundries" in the context orf para. 'e) or the conditions of eligibility of the respondent. It is clear from the history or the relevant industry potn berore and arter it came under the coverage or the Wonciliation and Arbitration Ach 1904 (the Act) and trom the awards in evidence that in early days persons in the industry have understood quite well what 1s ccmprehended by the term "grocers sundries". Specific derinition 1s missing trom the evidence but 1t 18 apparent that the expression was one embracing a great variety or items mainly ror human consumption packaged in sizes and containers convenient for purchase and use by persons conducting domestic establishments. The submission of the applicant that to qualify asa grocers sundry a product must fall outside the main or Principal lines sold in a grocer s shop, "and if a compound, 1S one which has required only light milling, grinding or the like" owes more to the imagination than the evidence. It introduces tactors or uncertainty inappropriate for a document to be used by practical persons in the industry. To have to unquire as to the deqree of milling or grinding or the like, or a product, to determine its classification would be quite 1mpractical. Also, there are difficulties in determining what ~ Dy products would quaLlry as primary items or the grocery trade. Tnis cannot be resolved trom the great volume of evidence in this case. The submissions of the respondent and the intervenor also proceeded on the basis that the question could be answered by reterence to the notion that certain products could be identified as primary or non-primary items of grocery business. It made the somewhat arbitrary assumption that tea, sugar, salt, butter, cheese, eggs and wheaten tlour 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 or the parties rarlect ingenuity, but also demonstrate the difficulty or finding, 1n the lengthy cataloque of products set forth in the conditions ofr eligibility of the respondent, or in the evidence, rational guidelines by reterence to which, on a product basis, either the identity ot 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 18 to be approached trom the standpoint of product lines there must be a resort to artiticiality. Asa consequence the submissions or the applicant and the respondent and ot the intervenor as to what are grocers Sundries are not acceptable. [It appears that the expression "grocers' sundries" derives from the development or the grocery trade wherein there has been superimposed on the traditional trade in articles in gross or out or bulk, the marketing of all kinds of products or packaged portions or a site suitable ror the retail trade. According to the Encyclopaedia Britannica, "the name 'Grocer' 1S a general one tor dealers by wholesale, 'engrossers' as opposed to 'regrators', the retail dealers and 1s 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, cottee, cocoa, dried truits, spices, sugar and all kinds or articles ot use or consumption in a household 1s connected with the history of the Grocers' Company of London, the name 'grocers first appearing during 1373 in the records or the company." It 15 apparent that lines dealt with by a traditional grocer, which 1t 1s suggested may be called primary lines are not to be identified. It is significant that in the reference to grocers quoted above frrom the encyclopaedia a grocer 1s 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 in the retalrl domestic markeah or whatever kind, would become known aS sundries and thus a3 grocers sundries. This aspect or the problem before the court was not explored by counsel at the hearing. fk has emerged in the perceptive and thorough exposition or the problem by my brother Northrop in his Reasons ror Judgment. In the light so brought to bear upon the problem in this way, the solution which he has propounded, is seen to be correct. I therefore agree with the order proposed by him. I certity that this and the preceding four (4) pages area true copy herein of the Reasons tor Judgment of the Honourable Mr. Justice Smithers. "" , ot ' ' st ee Yi eee Associate Dated: . ' ' 7 £N THE FEDERAL COURT OF AUSTRALIA ) ) VICTORIA DISTRICT REGISTRY ) V No. 32 of 1984 ) ) INDUSTRIAL DIVISION BETWEEN : FOOD PRESERVERS UNION OF AUSTRALIA Applicant and THE MANUFACTURING GROCERS' EMPLOYEES' FEDERATION OF AUSTRALIA, BRENDAN JOHN EAMES, THOMAS GEORGE GIBBS, ALEXANDER DUFFEW, MONICA MARY GOULD and MICHAEL RAYMOND RICE Respondents and KRAFT FOODS LIMITED Intervenor COURT: SMITHERS, NORTHROP AND KEELY JJ. DATE: 5 MARCH 1986 PLACE: MELBOURNE REASONS FOR JUDGMENT NORTHROP J. Kraft Foods Limited ("Kraft") 1s a company carrying on the business of food manufacturing at premises at Salmon Street, Port Melbourne in the State of Victoria. Krart 15 named as a party to and is bound by the Manufacturing Grocers' Consolidated Award 1982 ("the 1982 award"), an award made under the Conciliation and Arbitration Act 1904 ("the Act"). The Manutacturing Grocers' Employees' Federation of Australia ("the Federation") 1s an organization of employees under the Act. The Federation 1s named as a party to and 1s bound by the 1982 award. that the award 1s binding upon Kraft and 1ts employees work 1s or 2S i1n connection with the manuracture preparation for sale or: ta) (b) {c) (d) (e) (f) (g) Candles; Soap, soap powders and extracts, soda; Starch; Blue (washing), boot blacking, boot polish, boot paste, boot stains, blacklead, charcoal, coal dust, cioudy ammonia, dubbo, ebonite shine, rurniture polish, glycerine, greases, harness dressing, harness compounds, ink, knife polish, kindlers, linoleum and o1lcloth polish, metal polish, moulders' blacking, o1is, phenyle, plumbago preparations, stove polish, vaseline; 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, cornitlour, cornina, cream ot tartar, cummin seed, curry powder, custard powder, corpas oiijs, condensed milk, desiccated 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 meal, linseed macaroni, mace, magnesia, meal wheat, mait preparations, maize meal, millet seed, mustard, nutmegs, oatmeal, oats, orange peel, peas, pepper, pimento, patent toods, rape seed, rice sago, sago flour, selt-raising flour, spices, semolina, sulphur, taploca, tartaric acid, vermicelli; Matches and match boxes; Glucose and all products of maize, and all other similar or allied preparations, goods and articles to any of the above-mentioned preparations, goods or articles, and irrespective ot whether the said employees are members of the union or not." Clause 6 of the 1982 award provides whose or Clause ll of the 1982 award prescribes wage rates. That clause 1s divided into seventeen Divisions. Each Division has a heading which identifies types of products referred to in clause 6 of the 1982 award. Thus, Division 1 15 headed "Matches", Division 2 1s headed "Soap, soda, detergents and allied products", Division 4 1s headed "Rice", Division 6 is headed "Breakfast foods" and Division ll is headed "Nut foods". For the purposes or this application, reference 1s made to Division 8 which 1s headed ""Grocers' sundries", Eight groups are listed in Division 8 and a different wage rate 1s prescribed for each of those groups. The groups, as inserted by a variation made in 1984, are defined in the award as follows: "Group 1 Miller (as defined) and/or stonedresser. Group 2 Honey blender. Group 3 Flavouring and colouring mixer. Group 4 Extruder operator. Group 5 Roaster and/or grinder of coffee or chicory and who mixes or blends. Assistant miller (as defined). Coffee essence maker. Icing and/or castor sugar grinder and/or miller. Group 6 Operator of automatic jelly crystal packing machine. Assistant honey blender. Mixer and/or blender of jelly crystals, culinary essences, colouring and flavourings, cordials or fruit juice extracts, dried food mixes. Group 7 Mixer and/or blender of dry stock foods or bird seed mixes. Packerman. General mill hand (as defined). Operator of honey filling and/or sealing Machine. Operator of rilling machine. Employee engaged on bottle and/or can filling machine. Group 8 General hand (i.e., employee not elsewhere classified)." The Port Melbourne plant of Kraft is divided into eight departments as follows: "lL. the Vegemite and Bonox Preparation Department; 2. the Vegemite and Peanut Butter Filling Department; 3. the Salad Preparation Department; - the Meats Department; » the Portions Control Department; 5 6. the Liquid Dressing Lines Department; 7. the Jar Lines Department; . the Cheese Department." The Federation has enrolled as members persons who are employed by Kraft in the six departments numbered 1. to 6. The conditions of employment of those employees however, are regulated by a private agreement between Kraft and the Federation and not by the 1982 award. The classification of employees under the agreement varies greatly from the groupings listed in Division 8 of clause 11 of the 1982 award. The agreement classifications are as follows: "A Pan Evaporator Operator Retort Attendant F/L O/P Store O.C, P.l. P.2. P.3. A/O N/S Cl. "Wet we The Union") is an organization Union is not a party to, nor 1s it bound by, the The Union is challenging the capacity Extract Separator Operator Blendman Fork Lift Operator Order Picker Nut Roaster Nut Roller M/C Op. P.C. Filler Operator Debittering Operator Squeeze Pack Filling M/C Op. Open/Closed Cooker Operator Paste Maker - Meats/Fish Filling M/C Operator Labelling M/C Operator Dough Maker ~ Ravioll1 Mixer & Blender Yeast Receiving Operator Depalletising M/C Operator ( ( Storeman Quality Checker Crimping M/C Operator Cooker ~- Meat Balls & Spaghetti Mincer Operator Peanut Butter Filler Attendant Carton Former (if perm) Vegemite Process Worker - Grade 1 Process Worker - Grade 2 Process Worker - Grade 3 Process Worker N/Shift Cleaner N/Shift "Wet" Cl. " Food Preservers Union of Australia of employees under the Act. ("the The 1982 award. of the Federation to enrol as members persons employed by Kraft in 1ts departments numbered 1. to 6. In an attempt to defeat that challenge, the Federation altered its eligibility rule to include persons employed by Kraft in those s1x departments. Under s.139 of the Act, that alteration could not come into effect until the tndustrial Registrar or a Deputy Industrial Registrar had consented to the alteration. On ll January 1984, a Deputy Industrial Registrar consented to that alteration. Pursuant to the provisions of the Act, the Union appealed from that decision of the Deputy Industrial Registrar. On 14 May 1984, a Deputy President of the Commission, Alley J., allowed the appeal, quashed the consent given by the Deputy Industrial Registrar and refused to consent to the alteration of the eligibility rule of the Federation. In the course of giving his reasons, Alley J. expressed the opinion that very few of the persons employed by Kraft in the six departments were eligible to be members of the Federation. On 12 July 1984, the Union commenced these proceedings under s.143 of the Act seeking an order directing the Industrial Registrar to cancel the registration of the Federation. Under sub-section 118A(4B) of the Act, the application 1s being heard in the original jurisdiction of the Federal Court before a Full Court. In reality, the Union does not seek the de-registration ot the Federation, but seeks an authoritative answer to the question of whether the Federation has the capacity to enrol aS members persons employed by Kraft 1n the six departments named. The answer to that question depends upon the proper construction of the eligibility rule of the Federation and the application of that rule aS so construed to the nature of the products or preparations manufactured or prepared for sale in those s1x departments. This 1s made clear by a reference toR v. Dunlop Rubber Australia Limited and others; Ex parte Federated Miscellaneous Workers' Union of Australia £1957] 97 C.L.R. 71. In the present case, the relevant rules of the Federation had been made before 1957 and it must be remembered that prior to that year it had not been clear what was the proper test to be applied in determining the question or eligibility for membership of an organization. In construing the rules of the Federation, regard must be had to the uncertainty then existing. On 8 October 1984, the Federation commenced proceedings under s.143 of the Act seeking an order directing the Industrial Registrar to cancel the registration of the Union. Those proceedings are identified as being V. No. 34 of 1984. Those proceedings were heard immediately after the conclusion of the hearing of these proceedings and were heard by the same Full Court. In those proceedings, the essential issue is whether the Union has the capacity to enrol as members persons employed by Kraft in its six departments numbered 1. to 6, In determining that issue, the same observations, with the necessary adaptions, set out in the preceding paragraph, apply to those proceedings. Kraft was ' granted leave to intervene in both proceedings. All parties and the antervenor agreed that evidence given in either proceedings could be relied upon in determining each of the proceedings. The reasons for judgment in each proceedings must be read in conjunction. The Federation was first registered as an organization under the Act in March 1908. At that time, its name was "The Federated Candle, Soap, Soda and Starch Employees' Union of Australia". It was registered as an organization of employees in connection with the "Candle, Soap, Soda and Starch Industries". Its eligibility rule was called "Constitution of Organization" and was as follows: "This Union shall consist of all persons who were members of the affiliated associations or branches on January lst 1908 and all employees in any establishments connected with the manufacture or candles, soap, soda, starch, blue, blacking, corntlour or such other articles as may be from time to time made in such places where these manutactures are produced." In 1914, the Federation, with the consent of the Industrial Registrar, altered its name to its present form and altered its eligibility rule to read: "The Federation shall consist of persons who are or who have been 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, blacklead, charcoal, coal dust, cloudy ammonia, dubbo, ebonite shine, furniture polish, glycerine, greases, harness dressing, harness compounds, ink, knife polish, kindlers, linoleum and O1llcloth polish, metal polish, moulders' blacking, oils, phenyle, plumbago preparations, stove polish, vaseline, (e) 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, coifee, coffee essence, coriander seed, cornflour, cornina, cream of tartar, cummin seed, curry powder, custard powder, copras oils, condensed milk, dessicated coconut, digestive meal, fennel, fenugreek, flavoring essences, graham flour, ginger, groats, haricot beans, hommell, hemp seed, icing sugar, jellies, lemon peel, lentils, linseed, linseed meal, macaroni, mace magnesia, meal wheat, malt preparations, maize meal, millet seed, mustard, matches, nutmeg, 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, and all other similar or allied preparations." It should be noted that paragraphs (a) to (d) included all the preparations coming within the description of candles, soap, soda, starch, blue, blacking and similar or allied preparations which had been within the earlier eligibility rule. In that earlier rule, cornflour was the only edible preparation specifically mentioned. In the new rule, it was included among the seventy-five specified items - 10 - listed in paragraph (e). With the exception of borax, matches and sulphur, all the other items listed in that paragraph appear to be edible although some of the 1tems are generic terms covering many varities, for instance, spices, even though a number of specific spices are listed as well. On 15 July 1914, the eligibility rule of the Federation was altered. In paragraph (e) the words "glucose and all products of maize" were added after the word "vermicelli". On 21 September 1915, more drastic alterations were made to the eligibility rule of the Federation. Paragraphs (a), (b), (c) and (d) were unaltered. Paragraph (e) was redrafted, as appears from the next paragraph, but for present purposes i1t is noted that the words "matches" and "glucose and all products of maize" were removed from the list of preparations set out in that paragraph and were anciluded in two new paragraphs numbered (f) and (g) respectively as follows: "(f) Matches and match boxes; (g) Glucose and all products of maize". At the end of the eligibility rule the words "and all other similar or allied preparations" were altered to read "and all other similar or allied preparations, goods and articles to any of the above-mentioned preparations, goods or articles -ll- The current eligibility rule of the Federation is un the same form as adopted in September 1915. In these proceedings, most consideration must be given to paragraph (e). That paragraph now reads: "(e) Condiments and Cereal Foods, and all other articles, goods, and preparations usually or commonly known as Grocers' sundries, including (there 1s then set out the same last of preparations which had been in the unaltered paragraph (e) with the following variations, namely, the insertion of "epsom salts" and the removal of ""matches" and "glucose and all products of maize". It should be noted that the general inclusive words at the end of the eligibility rule included the words "goods and articles" which had not been in the unaltered frule. The insertion of those words can be explained by their use in paragraph (e) in the phrase "and all other articles, goods, and preparations usually or commonly known as grocers' sundries", It should be noted further that apart from punctuation marks, the paragraphs set out in clause 6 of the 1982 award, as set out above, are identical with the eligibility rule of the Federation. In the award, a comma appears in paragraph (e) after the words "goods" and "sundries" but there is no comma appearing after those words in paragraph (e) of the eligibility rule. It should be noted further that the opening words of the eligibility rule show that persons to be eligible for membership of the Federation must be bona~fide employees "wholly or partly engaged in any capacity in the manufacture or preparing for sale of" the specified preparations, goods and articles. Employees of Kraft employed in the six departments move from department to -~12- department as the demand requires, but the parties and the intervenor have agreed that the issues be determined without consideration of that movement and if need be, depending on the opinions expressed in the reasons for judgment, further evidence will be called to determine the application of those words to the facts of these proceedings. Before considering the proper construction of the eligibility rule of the Federation, reference must be made to the preparations, goods and articles manufactured or prepared for sale by Kraft in the six departments. This can be done most easily by reference to each department as set out in a document presented to the Court. This document relates to non-cheese products manufactured or processed for sale at Port Melbourne by members of the Federation: "1. Vegemite & Bonox Preparation Department Vegemite (Yeast Extract) Prepared & Processed Vegex (Yeast Based Product) Prepared & Processed Bonox (Meat Based Product) Processed 2. Vegemite & Peanut Butter Filling Department Vegemite (Yeast Extract) Filled Peanut Butter - Processed and Filled Sandwich Relish ) Miracle Whip ) Real Mayonnaise ) Starch/Oil Based Light N'' Lively Mayonnaise) Products Filled Natural Mayonnaise ) Tartare Sauce ) Coleslaw Dressing ) Other(e.g.Vinegar)/ Thousand Island Dressing ) Oil Based Products Filled - 13 - Salad Preparation Department Miracle Whip Mayonnaise Tartare Sauce Coleslaw Salad M1x Potato Salad Mix Coleslaw Dressing Italian Dressing Rice Salad Dressing Thousand Island Dressing French Dressing Marmalade ) Apricot Conserve ) Strawberry Conserve ) Meats Department Bonox (Meat Based) ) Prepared ) Beef Curry } Beef Steak and Gravy ) Beef Veal and Bacon Paste ) Beef Ham and Tongue Paste ) Beef Ham and Chicken Paste) Beer and Ham Paste ) Meat Pastes ) ) ) ) ) Devilled Beef and Ham Paste Curried Beef Paste Braised Steak and Onions Starch/Oil Based Products Prepared and Processed Other(e.g.Vinegar)/ O11 Based Products Prepared and Processed Prepared to Base Stage from Partially Prepared Fruit Meat Based Products Prepared, Processed and Filled Spaghetti and Meat Balls Purchase Product Plus Meat Balls - Prepared and Filled Ravioli - Purchase Product Plus Meat Sauce - Prepared and Filled Salmon and Shrimp Paste Salmon and Anchovy Paste Salmon Lobster and Tomato Paste Salmon Herring and Tomato Paste Fish Pastes Salmon Crab and Tomato Paste Curried Salmon and Prawn Paste we ee Fish Based Products Prepared and Filled Vegemite Yeast Extract Filled Cheese ) Cheese Sauce ) Filled ~ 14 - 5S. Portion Control Department ~- Mainly purchased product Tomato Sauce - Purchase Product Filled Honey - Purchase Product Filled Marmalade - Pre-Processed Product Processed and Filled Apricot Conserve ) Product Processed Strawberry Conserve ) (Setting Agent) and Filled Mayonnaise ) (Starch/Oil Based Tartare Sauce ) Product) Filled Vegemite (Yeast Extract) Filled Squeeze Pack Tomato Sauce ) Purchase Worcestershire Sauce) Product Filled Squeeze Pack Italian Dressing (0il/Other e.g. Vinegar Based) Filled 6. Liquid Dressing Line Department French Dressing ) Italian Dressing ) Coleslaw Dressing ) Other(e.g.Vinegar)/ Thousand Island Dressing ) Oil Based Products Herb and Garlic Dressing ) Filled ". Catalina and Bacon ) Dressing ) Vegemite is a yeast extract used primarily as a spread, but can be used as a flavouring agent for stews, casseroles, grilis and gravy. Vegemite was first produced by Kraft, or rather its predecessor, in 1923. Since that year, the word "Vegemite" has been a registered mark under the Trade Marks Act, registered by Kraft or its predecessor in respect of vegetable extracts for use asa food or an ingredient in food. It is manufactured by the obtaining of a selected blend of yeast extract which is slurried in water together with salt and natural vegetable extracts. The resulting siurry is concentrated under vacuum and filled into - 15 - containers. Vegex, essentially, 1s similar to Vegemite but 1s sold in bulk to food processors to be used in the course of preparing foods for sale. Bonox was first produced in 1918. It 1s a meat hydrolystate used widely for enhancing the flavour in meat dishes such as stews and casseroles and in soups and gravies. When added to hot water, it can be consumed as a drink. It is a blend of meat extract, predigested meat and spices. Vegemite, Vegex and Bonox are manufactured by Kraft. In addition, they are prepared for sale by Kraft. The salad dressings manufactured and prepared for sale by Kraft are of the viscous-mayonnaise style or the liquid-pourable style. It is not necessary to make reference to the detail of their manufacture since, as will appear later, it is clear that on any view, they are condiments and if necessary, can be described as wet condiments. Miracle Whip, which is a patent food, comes within this category of salad dressing. Peanut butter and the jams are manufactured and prepared for sale by Kraft. They can be used as_ spreads Or in cooking. Honey, tomato sauce and worcestershire sauce are prepared for sale by Kraft. It is not necessary to give details of the manufacture and preparation for sale of the products and preparations coming within the Meats Department. Initially, the Union based its case on contentions that none of the relevant preparations manufactured or prepared for sale by Kraft came within any of the preparations specifically mentioned by name in paragraph (e) - 16 - of the eligibility rule of the Federation. To that end, the Union called an expert witness being a lecturer in the food technology unit of the Royal Melbourne Institute of Technology to give evidence as to whether any of the preparations were condiments, cereal foods, spices or any of the other preparations specifically enumerated in paragraph (e). It is interesting to note that he gave evidence that in his opinion, Vegemite was not a condiment, but that salad dressings were condiments in one sense of the word in that they were manufactured from spices and singular condiments but nevertheless, drew a distinction between salad dressings and pickles since the dressings contained an oil which was a food. The substance of the case put by the Federation and supported by Kraft was that all of the relevant preparations manufactured or prepared for sale by Kraft were articles, goods or preparations usually or commonly known as_ grocers' sundries or other similar or allied preparations, goods or articles. To that end, the Federation produced extracts from a trade journal during the period from 1910 to 1925 to establish the common understanding of persons concerned with the relevant industry of what were articles, goods or preparations usually or commonly known as grocers' sundries. This became necessary because, with the passage of time and new sales techniques, the grocer's shop has disappeared and has been replaced by the self-service supermarket and by the small corner shop selling a wide range of products, not all of which were commonly sold in grocers' shops. There was - 17 - some oral evidence from a person who, as a school girl in the 1940's, helped her father in his grocer's = shop. That evidence however, does not assist in the determination of the issue before the Court on what articles, goods or preparations were usually or commonly known as grocers' sundries. 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 A.L.J.R. 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 Req. v. Dunlop Rubber Australia Ltd.; Ex Pp. Federated Miscellaneous Workers' Union of Australia (1957), 97 C.L.R. 71, at p.87; Req. v. Clarkson; Ex p. Victorian Employers Federation (1973), 131 C.L.R. 100, at pp.ill and 113; Co-operative Bulk Handling Ltd. v. Waterside Workers' Federation of Australia (1980), 49 F.L.R. 355, at pp.357-358). Since such eligibility provisions constitute a reference point for courts, commissions, employers, employees and other organizations in determining or ascertaining an organization's proper coverage and field of operation, they must be construed objectively (see Reg. v. Aird; Ex p. Australian Workers' Union (1973), 129 C.L.R. 654, at p.659; Reg. v. Cohen; Ex p. Motor Accidents Insurance Board (1979), 53 A.L.J.R. 719, at pp.720 and 723). In so construing them, however, it 1s 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 - 18 - 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 C.L.R. 598, at p.613; Reg. v. Aird; Ex p. Australian Workers' Union, above, at p.659)." In addition, 1t 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 F.L.R. 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, 1t 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. In the present case, the central words to be construed are Grocers' sundries appearing in the phrase "articles, goods, and preparations usually 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 and Northrop JJ. at p.362 and the E.T.U. case at pp.81-2. The words grocers' sundries are used as a composite expression to describe a class of goods and that expression does not necessarily have the meaning which a literal anterpretation - 19 - of each of those words would suggest, namely, all articles, goods and preparations commonly sold by Grocers and which are not primary lines. In any event, there remains the difficulty of determining what are primary lines. Likewise, zt must be remembered that the eligibility rule of an organization must be construed having regard to the changing nature of the industry within which the eligibility rule is framed. This is particularly so where, as in this case, the eligibility rule is framed to include all other similar or allied preparations, goods and articles to those articles, goods and preparations commonly known in 1915 as grocers' sundries; compare the Co-operative Bulk Handling Company case, above, at pp.363-4 and the E.T.U. case, above, at p.87. In the present case, the words under consideration were frirst 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. - 20 - It 1s 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 mentian 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 C.A.R. 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 - 21 - 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 anda 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 C.A.R. 498. A similar award was made in 1925; see (1925) 22 C.A.R. 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 - 22 - parties to the dispute in which the award was made. Fred Walker and Co. Pty. ULtd., a predecessor of Kraft, was named as a respondent to that award. Another award was made in 1930; see (1930) 29 C.A.R. 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 pp.69-71. The 1930 award was in aform 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, ~- 23 - 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 1S apparent from the different treatment in the award structures of those goods, articles and preparations coming within paragraphs (a), (b), (c), (ad) and (f) of the eligibility rule of the Federation, other than those within paragraph (e). Pargraph (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, - 24 - Reta1ll, Wholesale and Manufacturing". In 1920, "The Southern Grocer of Australasia" was incorporated ina 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 anddry 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. -~ 25 - 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 otis, although the latter article often was used as a medicine for human consumption. It is aunteresting 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, 1t 1S possible to give a meaning to the expression ""grocers' sundries", which was first inserted in paragraph (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. 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 - 26 - 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 encyclopedias concerning the meaning to be given to the word "Grocer" and the nature of the trade of Grocers shows that historically the primary stock sold by Grocers included tea, coffee, cocoa, spices, cereals (particularly rice), currents, raisins, prunes and similar dried fruits and nuts. Those preparations were sold by measure from bulk supplies kept in the Grocers' shops. They were not pre-packed for retail sale before delivery to the Grocers' shops. With the development - 27 - of new preserving methods, by the end of the nineteenth century many more types of food preparations were being sold 1n 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 ail grocers' sundries. In this context, and as will become apparent later in these reasons, the expressions condiments and cereal foods and each of the other preparations specifically referred to in paragraph (e) of the eligibility rule are not limited to articles, goods and preparations pre-packed before delivery to the Grocers' shops. Further, it should be noted that each of the formulations by counsel set out above, draws a distinction between principal grocery lines or primary Grocers' stock on the one hand and grocers' sundries on the other. Having regard to the history of the Grocers' trade, 1t is 1mpossible to draw such a distinction. It is almost - 28 - impossible to determine what are principal grocery lines or primary Grocers' stock. On any view, spices have always been a principal grocery line. In all the circumstances, the following matters should be considered in determining whether articles, goods or preparations are grocers' sundries. The articles must be pre-packed for retail sale and must have been so pre-packed before delivery to the retail Grocer. The nature of the container is immaterial, the important fact being that the contents are suitable for human consumption. The containers should be small enough for home use and normally sold by a retail Grocer. Having regard to changes in the retail structure at the present time the sales can take place in Grocers' shops, supermarkets or smaller stores. The range of the contents of the containers is in reality unlimited, but some limitation must be placed on the extent to which the manufacturing aspect may be traced. Thus, in the manufacture of canned meats, the eligibility rule would not extend to meat works where animals are slaughtered; in the manufacture of jams, the eligibility rule would not extend to sugar refineries on the basis that sugar forms a large proportion of the material used in the manufacture of jams; in the manufacture of flour or self-raising flour, the eligibility rule would not extend to flour mills. In the present case, it is not necessary to denote the limits of paragraph (e) of the eligibility rule of the Federation since the manufacture - 29 - of the preparations 1n dispute and the preparing for sale of the preparations in dispute are all done at the final stage before sale to a wholesale or retail outlet or direct to the user, Having given a description of what type of goods come within the concept of grocers' sundries, it becomes necessary to construe the eligibility rule of the Federation and in particular, paragraph (e) thereof. It is apparent that the draftsman of the whole of the rule was a Union official more familiar with the practical affairs of industry than with the niceties or subtle nuances of language. He was aware of what was in the eligibility rule immediately prior to the alterations made in September 1915. He must have been aware of the terms of the appointment of the Grocers' Sundries Board in 1911 to determine "the lowest prices or rates which may be paid to any person... employed in the process, trade or business of manufacturing (except in flour mills) cereal foods, condiments, spices, coffee, chicory or cocoa". He must have been aware that articles, goods and preparations usually or commonly known as grocers' sundries covered the wide range of articles already discussed and, provided they were supplied to retail Grocers in a pre-packed form ready for sale to the public, articles comprising cereal foods, condiments and spices were known as grocers' sundries. He must have known that with the possible exception of borax and sulphur, all the preparations listed in paragraph (e) of the eligibility rule immediately before its alteration in September 1915 were articles, goods or preparations which, if - 30 - pre-packed for retail sale, were usually or commonly known as grocers' sundries. He should have known that condiments, cereal foods and spices were words of general description which included many of the particular preparations listed in the then existing paragraph (e) of the eligibility rule. He must have known that spices, chicory, cocoa and coffee were already listed in the existing paragraph (e). He must have iuntended to ensure that the existing coverage be retained, but should be extended to cover all articles, goods and preparations usually or commonly known as grocers' sundries. The extension was meant to cover the pre-packing for retail sale. In all those circumstances, in the absence of legal skills in drafting, he adopted the rather clumsy form set out in paragraph (e) and the concluding words of the eligibility rule. Condiments and cereal foods had to be included because of the presence of those words in the appointment of the Grocers' Sundries Board. There was no need to include spices, chicory, cocoa or coffee since they were already in paragraph (e), but all items then in paragraph (e) had to he included as well, irrespective of whether they were pre-packed and thus grocers' sundries. Counsel for the Union contended that the form of the opening words of paragraph (e) showed that the use of the words "and ail other articles etc." after the words "condiments and cereal foods" should be read ejusdem generis with condiments and cereal foods. That contention is rejected. It can be conceded that the comma appearing after - 31 - the word "foods" can be disregarded; compare Coward v. Allen (1984) 52 A.L.R. 320 per Northrop J. at p.330 and the authorities cited therein. Nevertheless, there 1s no thread common to the words "condiments and cereal foods". They are generic words covering a multitude of different articles, goods or preparations. A grocer's sundry must be a pre-packed article ready for sale to the public. Grocers' sundries are not limited to articles, goods or preparations being condiments or cereal foods. on its proper construction, the words "and all other articles etc." are words of extension, there being no warrant to apply them ejusdem generis with the particular words of general description preceding them. Further, the use of the word "including" after the words "Grocers' sundries" has the effect of keeping within paragraph (e) and thus the eligibility rule of the Federation, all the goods, articles and preparations thereafter listed irrespective of whether they are grocers' sundries or not. It follows, that if the relevant goods, articles or preparations manufactured or prepared for sale by Kraft are articles, goods or preparations usually or commonly known as grocers' sundries or are similar or allied preparations, goods or articles to any of them, the Federation has' the ability to enrol as members persons employed by Kraft in any capacity in their manufacture or preparation for sale. In those circumstances, it is not necessary to determine whether those relevant goods came within any one or more of the particular articles, goods or preparations specified in - 32 - paragraph (e). It is proposed therefore to consider the primary question by reference to each of the six relevant departments of Kraft. 1. Vegemite and Bonox Preparation Department Vegemite is manufactured and prepared for sale by Kraft. Before sale, it is prepared in glass jars, although on one line is in a can. The size of the articles range from 115 grams to 3 kilograms. Vegemite is prepared for delivery to Grocers, supermarkets or other stores pre-packed for sale to the public. Vegemite has all the attributes of a grocer's sundry and comes within the general words of paragraph (e) of the eligibility rule. Vegex is a similar preparation to Vegemite, but is supplied normally to producers of food stuffs and not to the public. It is manufactured and prepared for sale by Kraft. It is a similar or allied preparation to Vegemite and comes within the concluding provisions of the eligibility rule of the Federation. Bonox, although a different preparation to Vegemite, has all the attributes of Vegemite. It is supplied in jars of either 230 grams or 455 grams. Bonox is a grocer's sundry. - 33 - 2. Vegemite and Peanut Butter Filling Department Vegemite filling clearly comes within the eligibility rule. Peanut butter, although a different preparation to Vegemite, has all the attributes of a grocers' sundry. It 1s manufactured and prepared for sale by Kraft. It is supplied in glass jars ranging in size from 200 grams to 780 grams. Clearly, peanut butter is a grocer's sundry. 3. Salad Preparation Department The salad dressings are all grocers' sundries. They are all supplied in glass jars. They have the attributes of grocers' sundries. The preparations listed under this heading are all manufactured by Kraft. The salad dressings are grocers' sundries. As will appear later, the jams likewise, are grocers' sundries. 4. Meats Department The preparations listed under this heading are all preparations manufactured and prepared for sale by Kraft. They are supplied in cans and designed for sale by Grocers, supermarkets and other stores direct to the public. The size of the cans range from small cans for the pastes to 440 grams for the largest of the meat preparations. They have all the attributes of a grocers' sundry. They are grocers' sundries. g g - 34 - 5. Portion Control Department Some small amount of manufacture is done in this department. Most of the work done 1s the preparation for sale of the preparations manufactured elsewhere. The preparations are pre-packed in individual personal serves each being packed in a clear airtight plastic cup and hygienically sealed with a printed foiled top for easy identification. The sauces and dressings are pre-packed in squeeze pack portion control for individual personal serves wrapped in an opaque airtight pouch, hygienically sealed with a printed top for easy identification. The products normally are supplied to companies which provide meals, for example, hotels, motels, airlines and hospitals. They may be sold in supermarkets. The preparations, insofar as they are prepared for sale by Kraft, come within the concluding provisions of the eligibility rule of the Federation as similar or allied preparations to grocers' sundries. 6. Liquid Dressing Line Department These articles are all part of the preparation for sale of grocers' sundries. It follows therefore, that the Federation has the capacity to enrol as members the persons employed by Kraft in the six departments listed. The Court has come to a different conclusion to Alley J. but it must be remembered that the Court has had much more material placed before it - 35 - than was placed before his Honour. That additional material has been of great assistance to the Court in deciding this issue. I would dismiss the application. ? SS EE TT a PN I, uy | foesge, that des and whe thicky-feer (S4) , veh. aes ase a true copy of the Pork) ar ge ara beim of the y cman ate lis Tastice Kear uey> xy n 4 Associate Leer a oe f clalat Lice g Dited: GO [OPO j » wolfe meee — - po es = or vole ped "1 Sot Lo ay os 1 al ' ro reo, ' \ ett : vo . . ea Po peng ms 2 ' ; ' ' ' . 0 ae oh oy ' , " + ' . 1 % ' ' " ' , IN THE FEDERAL COURT OF AUSTRALIA ) ) VICTORIA DISTRICT REGISTRY ) V No. 32 of 1984 ) INDUSTRIAL DIVISTON ) BETWEEN: FOOD PRESERVERS UNION OF AUSTRALIA Applicant AND: THE MANUFACTURING GROCERS" EMPLOYEES' FEDERATION OF AUSTRALTA, BRENDAN JOHN EAMES, THOMAS GEORGE GIBRS, ALEXANDER DUFFEW, MONICA MARY GOULD and MICHAEL RAYMOND RICE Respondents AND: KRAFT. FOODS LIMITED Intervenor CORAM : SMITHERS, NORTHROP and KEELY Jd. DATE : 5 MARCH, 1986 PLACE +: MELBOURNE REASONS FOR JUDGMENT KEELY J. : The conditions of eligibility of the respondent Federation have remained unchanged since 21 September 1915. On that date the Industrial Reqistrar consented to a change of those conditions of eligibility to the following : The ts "The Federation shall consist of persons who are pona-fide employees, wholly or partly angaged in any capacity in the manufacture or preparing for sale of (a) Candles; tb) Soap, Soap Powders and Extracts, Soda; (c) Starch; (d) Blue (washing), Boot Blacxing, Boot Polish, Boot Paste, Bsot Stains, Blacklead, Charcoal, Coal Dust, Cloudy Ammonia, Dubbo, Ebonite Shine, Furniture Folish, 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, Chacorine, Chillies, Chocolate, Cinnamon, Catric Acid, Citron Feel, Cloves, Cocoa, Coffee, Coffee Essence, Coriander Seed, Cornflour, Cornina, Cream of Tartar, Cummin Seed, Curry Powder, Custard Powder, Copras Oils, Condensed Milk, Desiccated Coconut, Digestive Meal, Epsom Salts, Fennel, Fenugreek, Flavouring Essences, Graham Flour, Groats, Ginger, Haricot Beans, Homell, Hemp Seed, Icing Sugar, Jellies, Lemon Peel, Lentils, Linseed, Linseed Meal, Macaroni, Mace, Magnesia, Meal Wheat, Malt Preparations, Maize Meal, Miliec Seed, Mustard, Nutmegs, Oatmeal, Oats, Orange Peel, Psas, Pepper, Pimento, Patent Foods, Rape Seed, Rice, Sago, Sago Flour, Self-raising Flour, Spices, Semolina, Sulphur, Tapioca, Tartaric Acid; Vermicelli; (f) Matches and Match Boxes; (g) Glucose and all products of maize; andall other Similar or allied preparations, goods and articles to any of the above-mentioned preparations, goods or articles, together with such other persons, whether employees in the industry or not as have been appointed officers of the Federation and admitted as members thereof. words emphasised by me in paragraph ({(e) of those conditions of eligibility were inserted in 1915. They not the only alterations to that rule made at that time they are the words to which much of the argument to the Court was directed. were The applicant union submitted that in paragraph (e) the words "Condiments and Cereal Foods" should be read down by reference to the expression "Grocers' sundries" appearing in the same paragraph. In support of that submission the applicant sought to place reliance upon the wording of the "grounds" ain support of the application to change the conditions of eligibility made ain1915, and in particular upon paragraph (3) of those "grounds". In my opinion there are three reasons why that submission should not be upheld. The first is that, in my view, the Court should not place reliance upon the wording of the grounds for such an application (or a statutory declaration in support of it) in deciding the meaning of the conditions of eligibility which had been recorded by the Industrial Registrar. Any such "grounds", or supporting statutory declarations can, at best, be no more than the expression by a layman, of his view of the purpose of, or need for, the proposed change in the conditions of eligibility. I say "at best" because 1t may well be that the "grounds" cannot be elevated to that height; different people are likely to attach different degrees of importance to the degree of care to be taken in the drafting of the grounds. One person may treat them as being of great importance, and draft them carefully and fully. Other persons however - particularly 1f they be laymen - may treat the requirement that "grounds" be placed before the Registrar as mo more than a "technical" or "legal" requirement, that a + some - but not nacessarily all - of the grounds be given and May consider that itis to be dealt with as briefly as possible; such a person may, unfortunately, take little care in the formulation of the grounds, and would certainly be unlikely to be conscious of the importance which might be attached to them by a Court in proceedings some years later. The second reason is that, in the present case, an examination of the exhibits before the Court shows that the Federation's officers were under the mistaken impression that the Federation already had the right to enrol persons "angaged in the manufacture of condiments" - as appears from the letterhead and also from the 1914 application by the Federation. The third reason is that the draftsman of the application upon which the applicant seeks to rely has demonstrated, by the very grounds, that he was not familiar with the existing constitutional coverage held by the Federation; I say that because he included reasons for changing the constitution so as to enable the Federation to cover employees employed in making glucose, whereas the Industrial Registrar's certificate of registration showed that, at the time of the application, the Federation already had the right to enrol those employees - a right which it had obtained in the previous year. As to the main issue, whether the relevant persons employed by Kraft Foods Limited are eligible to be members of the Federation, I nave had the advantage of reading the reasons for judgment of Northrop J.. I agree with the order proposed by him_and in general with nis reasons for that order, including his conclusion as to the matters to "be considered in determining whether articles, goods or preparations are grocers' sundries". I also agree with him that this Court had the benefit of having placed before it much more material than was placed before Alley J.. There are two matters to which I wish to refer briefly. First, notwithstanding my earlier observations as to certain misapprehensions by officers of the Federation in 1915, I should make it clear that, in construing the rule of the Federation, I have not taken anto account "that the eligibility clause will have been drawn, more likely than not, by union officials more familiar with the practical affairs of industry than with the niceties or subtle nuances of language" - per Barwick C.d. in R.v Aird (1973) 129 C.L.R. 654 at 659. I agree with Northrop J. that the relevant principles are those enunciated in the judgment in R. v Williams (1982) 153 C.L.R. 402. Briefly stated they are, as the Full High Court said (at 408) :- it «2. @ligibility provisions ... must be construed objectively ... In so construing them, however, 1t is permissible 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 ..." Second, I have not had regard to any uncertainty which may have existed before the decision of the Full Haigh Court in the Dunlop Rubber Case (1957) 97 C.L.R. 71. The application should be dismissed. I certif; tict this and the Five preced.r, Tages are a tras copy of the Reasons for Judgment herein of the Honoriille Mr. Justice Keely. Dated: 5/3)" Lemecnee. en oo