UATCHAORNS Industrial law - Conciliation and Arbitration - registered organization - eligibility for membership of Food Preservers Union of Australia. Conciliation and Arbitration Act 1904 c Federal Firefighters' Union v. Minister of State for the Capital Territory (1982) 62 F.L.R. 341 Re Food Preservers Award (1959) 3 F.L.R. 425 THE MANUFACTURING GROCERS' EMPLOYEES Applicant FEDERATION OF AUSTRALIA and FOOD PRESERVERS UNION OF AUSTRALIA, NORL TREHARNE, THOMAS DESMOND RYAN, LENARD PEACOCK, KEITH THOMPSON, RAYMOND WARN and JOHN VANSCOLINA Respondents and KRAFT FOODS LIMITED Intervenor V. No. 34 of 1984 Smithers, Northrop and Keely JJ. Melbourne 5 March 1986 fy yaad IN THE FEDERAL COURT OF AUSTRALIA ) VICTOPIA DIETRICT REGTSTRY > V No. 34 of i984 INDUSTE TAL DIVISieM ) to Applicant AND FOOD PRESERVERS UNION OF AUSTRALIA, NOEL TREHARNE, THOMAS DESMOND RYAN, LENARD PEACOCK, KEITH THOMPSON, RAYMOND WARN and JOHN VANSCOLINA Respondents CORAM - SMITHERS. NOPTHPOP and KEELY JJ. DATE 5 MARCH, 195s PLACE MELBOURNE Ihave nad the advantage of reading both the reasons for judgment prepared by Smithers J. and those prepared by Nortnrop J.. I agree with the conclusions of Smitners J. and with his reasons for them and with the observations of Nortnrop J. as to the decision of the Commonwealth Industrial Court in Re Food Preservers Award (1959) 3 F.L.R 425, I agree with the order propose by Northrop J.. I certify that this page is a true copy of the Reasons for Judgment herein of the Honourable Mr. Justice Keely. Between: THE MANUFACTURING GROCERS EMPLOYEES FEDERATION of AUSTPALTA (Applicant) Ana: FOOD PRESEPVERS UNIGN OF AUSTRALIA. NOEL TEHARNE THOMAS DESMOND RYAN, LENARD PEACOCK, KEITH THOMPSON, RAYMOND WARN ana JOHN VANSCOLINA 'Resvondents) nd: aPAPT FOODS CIMITED (Intervenor) COUPT: Smithers, Northrop and Keely JJ. DATE: 5 March 1936 PLACE: Melbourne REASONS FOR JUDGMENT Smithers J.: The applicant, The Manufacturing 'Grocers' Emp Lovees Federation er Australia, an organization ofr employees registered under the provisions or the Conciliation and Arbitration Act 1904 (the Act), seeks an order directing prhe stndustrial Peyistrat eo a ancel the ¢ Of gistration or the Eiese named respondent, ct rh) 7% bay ocd Preservers Onion ofr Austealia, an organization of employees registered under the Act ang incidental relilet against the second, third, fourth, rifeh, suxth and seventh respondents on the ground that the Tirst respondent has sought to enrol as members thereot employees or Krart Foods Led. (Kratt)., an intervenor in the proteedings pursuant to leave to intervene granted to ut by Ehe Vourt, such employees not being persons amployed in or in connection with the manuracturs, preparation, processing or putting up of tood supstances speciried in para. (a) or (b) of the conditions or eligibility specified in the rules of the Tirst respondent. The employees in question are those employed by Krart in or 2m connection with the production of various items of food substances, namely, Vegemite, Vegex, Bonox, Salad Dressings, Miracle Whip, meat pastes, tish pastes, meat based tinned toods, braised steak and vegetables, spaghetti and meat balls, ravioli, peanut butter and tinned pasta. The applicant contends that employees engaged in or in connection with fhe manuracture., preparation, processing or putting up or Vegemite, Vegex, Bonox, salad Dressings, Miracle Whip, meat pastes, tish pastes, meat based tinned foods, braised steak and vegetables, spaghetti and meat balls, ravioli, peanut butter and tinned pasta are not eligible for membership or the first respondent in accordance with the comarzcions of member snip prescribed by Les ruses relevant yules percra th was amended in 1545 ov a2 decisic the [ndusteial Pegistrae was in the rollowing terms: 'The Union shall consist ot sersons employed in or in connexion with - 'a) The manutacture, preparation or putting up of - (12) Jams, jeliles, honey and preparations usea as substitutes therefor, 411) Fickles, salt preparations, sauces, Vinegar and other wet mondiments, (111) Soups and other preparations or vegetables and/or animal foods sold in containers, CLV) Frurt salads. (b) (ALthout restricting the interpretation ftyr1ce1 or the foregoing.) Ths preservation ot vegetables and rruits as rocd, together with such other persens whether employed the industry of not as have been appointed officers of the Union or its beanches and admitted bers thereor." After ait was amended pursuant to the decision of Industrial Registrar in 1948 1t read as rollows: 'The Union shall consist of persons employed zn or in connexion with - ta) The manuracture, préparation, processing Or putting up of - (1) Jams, jellies, honey, pastes, spreads and similar preparations; (11) Pickles, salt preparations, sauces, chutneys, Vinegar and other wet condiments; {111) Soups and other preparations of vegetables and/or tood from the animals, tish or s$@a rosd sold in ccntilners; rv) Sliced frurt, tCruit salads and nut rood, uy Puls, treuit ana veqekable juices and cordials whether such ar® made wholly or in part crrom fruit or vegetable yulrees of not; (v1) Sugar rrom sugar best texcept in the States or New Soutn Wales and Queensland); (vii) Push and sea rood or any aescription and their by-products and the smoking or fish; Frovided that this paragraph shall not extend fo persons engaged in or in connexion with the manuracture, preparation, processing or putting up- tl) or fru1rce juices or cordials; (2) an the States of Victoria and South Australia of pastes, spreads and similar preparations or preserved meat; (3) in the ,State of New Soutn Wales and in the State of Western Austrailia outside a gadius ot 30 miles of the General Post Office, Perth, or fish or sea food sold in containers; and (4) un the States ot New South Wales, Victoria and South Australia of nut food unless the said persons are engaged in establishments where the chief product or producrs or one of the chier products manufactured in such establishments 1s otherwise provided for herein. (b) (Wathout restricting the interpretation of the froregoing) the preparation and preservation as rood ot fruit and vegetables, their juices and pulp, meat fish, sea rood and the by-products or all or them together with such other persons whether employed ain the industry or not as have been appointed otficers of the Union or 1ts branches and admitted as members thereor. Provided that this paragraph shall not extend to persons - fp tl) engaged in oor itn connexion with the manuracturs, oresaraition, pr t SUtting up of rruLt juices unless ty] said persons ar ts where the oni fay b 8stabiishmen er producr oF groducts or one or the chief products Manuractured ain such establishments 135 otherwise provided for nerein; and (2. ain tne States or New south Wales, Queensland, South Australla and Western Australia ergaged in any establishment where the predominant part or the product of such establishment 15 the manufacture, preparation or pubbting up of ovoreserved meat, rabbits or poultry." ct H ul apparent that employees engaged in Victoria, in processes celating to a stes, spreads and similar preparations a D ui yo opr yved meat or mut rood are not eligible tor membecship oO I the frirst respondent unless they are engaged in an establishment where tne chief proauct or products or one of the chiet sreducts manuractured in such #stablishment 1s, within the meaning of the closing words ofr the conditions of eliaibility, "otherwise provided for herein". Difficulty has been experienced in the construction of those words. For myselr I think the difficulty 1s resolved if regard 1s had to the purpose or the proviso. It 18 apparent Teom the 1948 application for amendment of its rules by the tTirst respondent that the inclusion by virtue of sub-paras. '2, (221) and (v) of para. (a) or the amended conditions ot eliqibility ot employees engaged in Victoria tin cperations relating to pastes, spreads and similar preparations or processed meat was regarded as an addition to the classes of employees theretorore eligible tor membership. The same 15s Lay true or tne e2xtensian Sf sliyiorlity to eamplovess angqadqed anyner2e in Australia in ogeracians relating fo rruLk juress or rtordials, ana bo employees in New soutn Wales and parcs : QO Dad Western Australia engaged in opera wt 21an i relating ro tish or searcod s0id in containers, to employees in New South Wales, Soutn Australia and Victoria engaged in relation to such food. And che amendment did enlarge the areas of employment, emetoyees in whicn were therearter eligible tor membership or the first respondent. Uther organizations, including the applicant, nad objected to the proposed amendment of rules of the tirst respondent but the1r objections had been withdrawn on certain undertakings being given by the first respondent. Reading the proviso with tnis in mind 1t 1s clear that 1t was intended to provide for the exclusion from eligibility for membershio of the frirst respondent of employees engaged in operaticns relating to tne items rererr2ad to in tne proviso, at any establishment, unless employees at that estaplishment were also engaged in operations relating to other items manuractured in such establishment in respect of which they were entitled to membership, and the proportion of employment of employees so engaged was so substantial that 1t would be unreasonable, from a practical point of view, that the first respondent should be excluded from enrolling and servicing other employees at that establishment whose only entitlement fo membership could arise under the extension of the eligibility entitlements effected by the amendment orf 1948. To my mind the final words of the proviso rererring to products "otherwise provided for herein" operate quite rererring to AS read Or ir they are bEhe amended conditions Io concur in and rationally provVLso. yeasonabLly 'ad OL within para subyect the products ro oner the or the reasons tor jJudament of my brorher Preservers Award y bu Tw tat rli servations in the decision in ke Food Le) lig: rhe a concerning nrop > FLR 425, ft the (1954) 3 that according to the terms 9 within its scope whe ie observed mp.oyees 5, strued, operations relating to in cpe proviso extended, would not prea ti) Uh n n ie] were engaged, ter example, establishment to which the the first respondent even in an antitled to membership tne product iain relaticn to which they ne employment in relation to which would create such although perhaps worked e.g, of be althougn product WAS O btitiement on the basis that the product, regarded asa properly to be entitle the employee to to which would conditions ot membership as they existed the under the amendment of 1948, The applicant and that the amended conditions of regarded as however, were not to be the f1rse en was also in celation engagement membership prior to the conceded, construed, membership of intervenor eligibility, properly from eligibility to engaged in an operation in respect o£ or 1948, disentitling amendment respondent any employee would, prior to the engagement he whicn have been entitled to membership. to consider whether, at the chief productr convenlrent at this stage were, Tt ais the Krart establishment at Port Melbourne, the chief products was, or products or one of or preeducts production or which at the Frat 2 Bstablishment rend2rac the proviso aineseranive thereat and thus entitled empily2]2s "Q membership or the rirst respondent according to the conditions or eligibility as though the proviso does not Present therein. That consideraticn involves identification of the chief product or products manufactured at the Kraft estaolisnment. Te 1s conceded that although there are a number of departments at Keath the whole or the estaplishment there 1s to pe regarded as ons estaplishment. It appears that atc the relevant time the products manufactured at the heese, Vegemite, Peanut Butter, Boncz, Viscous Oressings, Portion Vontrols, Liquia Oressings and Meats, the cercentage or the start engaged and the percentage or total preduction was az rtollows: % Or % of total employees production Cheese 4B 76 Vegemite 7 6 Feanut Butter 4 1 Bonox 1 L Viscous Dressings 4 5 Portion Controls 6 3 Liquid Dressings h 4 Meats 5 3 It 1s said py the applicant that in this situation it 15 clear that the chiet product 1S cheese and that cheese 15 not a rood substance to be found inthe tirst respondent's morditions af eLlarbrlity. Also if 15 nok "otherwise provided Toe herein' wltsaln the meaning of the final words or the The respondents contend ain the firsk place, that cheese 15 A Toced substance. employment in celation to which, does accoreing =o sub-rara. (111) of the conditions of eligibility, entitle tna2 employes to mempership ot the tirst respondent. It 15 saia that cneese 15 an item or rood from animals within tne meaning of tnat sub-para. It 1s contended, secondly, that in any evant Vegemite is itself a chier product manufactured at the Kratt establishment within the meaning of that expression in the proviso. Tbk 13 pointed out that an tFerms of percentage or employment ana percentage or production, Yegemite production exceecs tnose of ali products of Kratt with the exception of Cheese. [nr rallows, so 1t 12s contended, that Vegemite 1s one I othe chie oO Hn Ry rs Q pn c a] ts at Krart and on thak basis the proviso 1S inapplicable to employment at Krart. At least one or the chiet products, namely, Vegemite, manuractured at kKratt is, in the final words or para. (a) or the conditions or eligibility "otherwise orovided ror herein". IT am unaple to accept either the first or second contentions. The tirst contention involves a problem ot interpretation. Clearly enough food from animals is a food substance referred to in sub-para. (111) of para. (a) of the amended conditions of eligibility. Equally clearly cheese is La, producta from milK of cream which csmes trim animal3. There 1S & Fense, thererore, in which the expression ""tooa from animals' aight encompass mneese. The total expression inveived 15 "preparations or foced From animals sold in containers". ft 1S in a context or "soups and other pr2parations or vegetables and/or food from animals, fish or searooas sold in containers". Tn this collection otf words there 1S an assumption that W cups soid 1m containers are. or aunclude, preparations or vegetabies and/or food from animals, fish or searood. The effect or the words arter ""soups" 15 to andicate that employment. in connection with preparations 3st vegetables and/or trao¢d rrom animals, tish of searcad other than those whicn are soups, but which have characteristi ie] ul Oo my, ua pPP rR iat a) preparations which are soups, entitles the employee to membersnip or the first responaent. {ff one has regard to s0uDS, ain thelr manifestation as preparations of vegetables and/or fooa From animals, fish or searsod, one appreciates that what 1s rererred to are preparations of animals, fish or seatood as such rather than of the produce of animals, fish or searood. And the animals fish and seafood contained in the preparations would normally be dead or would die when incorporated therein. In the context, fooa trom animals fish Or s@arcod 15 1n a frame of reference different from food from Ehe produce ot animals, tish and seafood. The word "other" in the expression "soup and other preparations or vegetables ..." in conjunction with the rest ll. Of sub-cara. 111) would seem tao indicate that tnat sub-para 18 concerred vith food preparations seld ain containers of wnlcn Sours. af Whatever they are made, are an exampie, and other sra@paratisns sold in containers which are made or the Specified sunstances, namely, vegetables ar animals or risn or searood oar o: which those substances make up a substantial pare. 'rt one were engaged in solving a cross word puzzle where the answer was a six letter word and the simple clue was "rood from animals", one coula well adopt "cheese" as the answer. Buc the same pnrase found ain the context of other words in a document to be used by ordinary persons engaged in inaustry ror practical application by them in relation to employment 1s not to be interpreted in so exotic a manner. it 1S a séeasonable observation that in ordinary parlance one would mot réfer to cheese as food from animals. And the ardinacy reasonaple ractory proprietor reading that phrase in 1US context in sub-para. (111) of para. (a) of tne conaitions er eligibility would not naturally think that the draftsman was celerring to cheese. Had he intended to lay down industrial consequences of employing a person in processing cheese, he woula have been expected to say so, in plain language. And the draftsman or the conditions of eligibility in question round no difficulty in referring in plain terms to jams, jellies and honey and pickles and sliced fruit and fru1t Salads and nut food. It is difficult to think that if he had had in mind a product as siqnificant as cheese he would not have mentioned 16 by name. One returns, however, Fo the basic notion which 1s, to my mind, resented oy the words .f sub-para. (122) that the a animai the susjeck of the relevant preparation has given its body, not the preduce of its bodv. I must theretore reject tne notion that cheese 1n any form 1i3 aA preparation or food Trom animais within para (a)i1i1) or the conditions of Turning to the second contention, the problem is to identity what 1s, within the meaning or the final words of the proviso, a chier product manuractured af Kraft or the relevant bundle of chier products. If the question is asked, "who 15s cr h fi) Qa hier man ain some body of persons?"", the immediate response nas to be, "trom what point of view are you speaking, nomina position or real power?", or "are you speaking in relation to policy or adiminstration?". Similarly, when one ls required to enquire what 1s the chief product or what are the chier products at Kraft, one needs to know from what point oF view the enquiry 1s directed. Is it quantity of production? Is 1b sale value of what is produced? Is 1t the numoer ot employ2e a engagea in processing the product? rs 1t some other quality giving some particular product a special Signirticance 3 importance? And 30, when one comes to the Final clause or the proviso which provides an exception to an exclusion, and operates, where applicable, to extend the coverage or the first respondent to various products in establishments where that coverage does not otherwise exist, it 1s necessary to ask what is the quality which, for the l-. pursose st the eaxception, will stamp a produck as a chier produck. in iS a reasonacle inference thah the crikical quaibey owiil oe sne which bears upon the reasen ror the 5 Pi exception rcrom fhe exclusion. Une tinds that reason in the notion tnat where the First respondent already has coverage in relation tc a product or products properly characterised as "chier" it should not be excluded from coverage in relation to the products specified in the proviso. {It follows from this notion that the quality conrerring the description of "chief" upon a product is that it involves employment of a high proportion of the employees at the establishment. The reason Tor the exception would be the circumstance, where 1t exists, that tne rirst respondent already has wide coverage in that establishment, the widtn or that coverage being in the chief product or chiert products or the establishment. h cr a Clearly n, the point or view by rererence to which the enquiry as to the identity or the chief product or chief products proceeds 15 the proportion of employees at the Particular establishment with respect to whom the first respondent has coverage if the employees engaged in operations relating to the products as specified in the proviso are not taken anto account. Ir the proportion 21s high, so that it justifies the implication arising From the word "chiet", then the coverage extends to the employees engaged in operatons relating to the products specified in the proviso. If not, those employees remain excluded from coverade in the conditions or eliqibility of the tirst respondent. ld. There 15 of course no preduct manufactured at Kraft "the extent of emetoyment in which can be regarded as 'high'", in tne relevant cense, ac rron the relevant point or view, other than cheese Tne respondents contended that in relation to cneese 1b 15 2rroneous to vregqara cheese as one product. It 1s Said that the various kinds oct cheese manutactured at Krare shoula be regarded as dirrerent products. I[t 15 said that uf this b= done then the dominance or cheese as the chief producer 1s greatly reduced. Bur even if this be a sound view, the division or the product on any rational basis still leaves the proportions orf employment and production of the various classes ot cheese as rollows; % of % of employees production Processed Cheddac 32 48 Cheese Spreads 18 L5 Natural Cheese 18 13 The nearest other produck 15 Vegemite at 7% or the employees and 6% of the production. Thus, cheese, however considered, is in one way or another, the chier product, or the var1lous cheese products are the chief products manutactured at Krart. And cheese is not, in any of its manitestations, a rood substance specified in the conditions or eligibility for membership of the first respondent. It 1s not in any sense a product manufactured at Kraft which 1s, in the rianal words of the exception rrom the exclusion provided for in the proviso, "otherwise provided tor hecein". And trom fae point of view of a proportion of emslovyess, woaich might have any celevance ta the identification of a "chief product" at Krart, neither Vegemite nor any other product 15 of significance. There was a suggestion that for the purpose or the coviso a product 'put up" im cartons or different sizes a) eeasead to pe a sinvie product, each site being a separate product. f[ regard this suggestion as untenable. In the result 1t 15 my conclusion that the words or the Proviso commencing with the word "uniess" have no operation in relation to the employment and production situation at Krart. Accordingly, the exclusionary operation of the rroviso 15s effectual in providing that para. (a) ot the conditions of eligibility do not extend to persons engaged in or in connexion with the manutacture, preparation, processing or putting up or the food substances specified in and as classified in the proviso. Individual Products Vegemite - The question 18 whether Vegemite ralls within any of the sub-paras of para (a) or the conditions or eligibility. It 18 submitted by the respondents, that Vegemite 15 a product within the product specitication in Sub-para (a)(1) of the conditions, either as a preparation similar to jams, jellies and noney 'the amended rules), or as a substitute thererar (pre 1948 rules). But Vegemite 1s clearly nota preparation similar to jams, jellies or honey. feo ois my view also, that, un the context or the conditions or eligibility as in Torce prior to LigtR, Vegemite 15 nok a preparation used as a substitute for jams, jellies and honey. According to the od fy) Y t tne product in contemplation 15 one used as a substitute £ D cr, tor example, jam. I 1s not enough that the product is used for the same purposes as those for which jam 1s used, for example, to spread on bread. Sutter and margarine would fall within products used for spreading on bread. A product not having any relationship with jam, and to the use of which jam 135 in no way relevant, and which 15 used when 1t 1s used only because of aits own inherent and individual qualities, cannot be said to be used as a sunpstitute for jam. For something to be a substitute ror something else, that something else must Stand ain a relationship or some kind with the alleged substitute. The relationship of principal aand delegate 1s typical. But there 1s no relationship between jam and Vegemite. Vegemite 1s not used because it does the work or jam oc has any affinity therewith. It 15 used ror its ow faste and nutritional qualities which are far removed from those ot jam and, according to many people, much more healthy. It may be observed that this submission has 1ts origin in the concession ot the applicant that the amendments ot 1948 were not 1ntended to reduce the existing coverage of the tirst respondent in any way. Whilst this 1s acceptable where, upon a reasonable interpretation of the words of the amended rules, ali the former coverage or the first respondent 1s preserved, tt wou1rd oe dirficult te give effect to this concession 1f the words or the amended rule just would not sustain it. Prior to the i:948 amendment, sup-para (1) of para (a) of the conditions specitiea as relevant products, "jams, jellies, honeys and preparations used as substitutes thereror". But Vegemite not being such a substitute, the corresponding provision or the amended rules which reads, "jams, Jellies and honevs, pastes, spreads and similar preparations" repeats, in other words, in cT » rm iv) respect the substance or the pre-1948 provision. It 18 next said that Vegemite 15 a wet condiment as specified in sub-paca. (11). In my opinion, it 1s nota condiment at all. It was submitted by Mr. Kenzie in proces nm i ings V No. 32 of 1984 that a condiment 18 something of vegetable origin, the primary use ot which 1s to be added to fooa to improve its tlavour, 1t itself being usually aromatic, sharp or spicy in flavour. I accept that the true quality of a cendiment is that 1t 15 something the primary use of which 15 to be added to tood to improve its flavour. And I accept the curther element deposed to by Dr. Broberg that 1t is 25 something added to food at the table. It us true that Vegemite 15 sometimes used to flavour stews or soups or the like but 1ts primary use 15 as a rood in i1ts own right, principally as a spread. Onions and wine are used as rlavouring agents, but, that does not make them condiments. It 1s the essential nature or a substance which determines its classification as a food, a drink or a condiment. If 1t were @ condiment it would be very doubtful whether it is a wet condiment. Apart trom ether considerations, | think Lk an w Tt rad oy active view that the kind of wetness envisaged is that or vinegar, tne classification appearing in the context of the products tisted a5 "Pickles, salt preparations, sauces, chutneys, vinegar and other wet condiments". It follows that Vegemite does not fall within sub-para. 'ad(i1z) of the conditions or eligibility. Finally, 1t is said that Vegemite 1s a preparation of vegetaples within th2 meaning of that expression in sub-para. (121) of para. (a) of the conditions of eligibility. This submission rests on the evidence that Vegemite 1s a yeast extract made by the autolysis of brewers yeast andis a concentrated yeask extract. It 15 manutactured by obtaining a selected blend ot yeast extract whicn 135 slurried in water together with salt and natural vegetable flavours. Yeast itself 1s the aggreqated ceils of certain minute fungi which appear 1n saccharine liquids for example, "fru1rt juices and malt worts etc.) (Macquarie Dictionary). When asked whether Veqemite was animal, mineral or vegetable the witness Chambers answered, "It 1s microbiological. The closest to it would be vegetable". He expanded, "Vegetable, yes. It 1s a single cell Micro ordanism". Dr. Broberg described Vegemite as, "an autolysate, the breakdown ar the protienaceous matter of the yeast cell by 1ts own enzymes and then the extraction or the cell walls to make a liquid and 1t 1s then concentrated, the rest or 16 15 usually salt." Jf am unabie to think that sucha product is comprehended within the expression "preparation ot yegekables' ain 2ts context 1m Sub-parn. (111). What 1s contemplated 15 a preparation cr real vegetables as normally understood, not a preparation or the microbiolcaical elements contained ain yeast. In the expression "preparation of vegetaples', the word "or" has signiticance. The preparation 1S a preparation or vegetables, vegetables recognizable as eucn, not or extracrks or vegetables. une would expect to rand at least something in the mature or that which an ordinary person would reqard as a real vegetable as a material part or the preparation. Veqex Vegex 1s a substance very similar to, but different from Vegemite. {t 1s a yeast extract. ft 15 not a spread. Its sole use 1S as an additive or tlavouring agent in the commercial preparation of food. I[t will not be tound on the table nor is 1t used like a salad dressing in association with food at the table. It 125 not 1n my Opinion a condiment. [ts purpose is rather the flavouring or foods commercially blended an bulk. Accordingly, 1t 18s my view that for the same reasons as set out above in relation to VYegemite, Vegex 1s not comprehended within the conditions ot eligibility ot the first respondent. Bonox Bonox would appear to be a preparation as food of meat. It ais not within the proviso in any of 4a1ts aspects. " rea) wa Accordingly, 16 135 within the coraitions of PLrazbility ar the Peanut butter ius essentially a spread. It is also, as 1t appears to me, a nuk tood. In both respects it 1s within the proviso. It 1s not a substitute for jams, jellies or honey, nor a similar preparation thereto. Accordingly, those engaged in the processing or manuracture of peanut butter at Kraft ar2 not within the conditions of eligibility of the first respondent. As to the other 1tems specifically deait with in the avidence, namely, Miracle Whip, rish pastes, tinned pasta, tinned and canned foods, and salad dressings, the same are not found in the proviso in relation ta Victoria and so far as provided ror in para. (a) or (b) of the conditions of eligibility of the tirst respondent they are covered thereby. I certify that this and the previous nineteen (19) pages are a true copy ot the Reasons for Judament herein of the Honourable Mr. Justice Smithers. \ / t a4 ft Nee iit Associate IN THE PeDoSAL CUURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V. No. 34 of 1984 INDUSTRIAL DIVISTCN BETWEEN : THE MANUFACTURING GROCERS' EMPLOYEES' FEDERATION OF AUSTRALIA Applicant and FOOD PRESERVERS UNION OF AUSTRALIA, NOEL TREHARNE, THOMAS DESMOND RYAN, LENARD PEACOCK, KEITH THOMPSON, RAYMOND WARN and JOHN VANSCOLINA Respondents and KRAFT FOODS LIMITED Intervenor COURT: SMITHERS, NORTHROP AND KELLY JJ. DATE: 5 MARCH 1986 PLACE: MELBOURNE REASONS FOR JUDGMENT NORTHROP J. The Food Preservers Union of Australia ("the Union") wus an organization of employees under the Conciliation and Arbitration Act 1904 ("the Act"). The Union 1s seeking to enrol as members persons employed by Kraft Foods Limited ("Kraft"), a company carrying on the' business of food manufacturing at premises at Salmon Street, Port Melbourne 1n the State of Victoria. The Manufacturing Grocers' Employees' Tederation of Australia ("the Federation"), an organization or employees under the Act, 15 challenging tne capacity of the Union to enrol as members persons employed in six of the departments being conducted by Krart at its Melbourne plant. in reality, the Federation does not seek a dé-registration or the Union, but seeks an authoritative answer to the question of whether the Union has the capacity to enrol as members persons employed by Kraft in the six departments. The answer to that question depends upon the proper construction of the eligibility rule or the Union and the application of that rule as so construed to the nature or the manuracture, preparation, processing or putting up or products or preparations by Kraft in tnose six departments. These proceedings were heard immediately after the conclusion of the hearing orf the proceedings identified as being V. No. 32 of 1984 in which the Union challenged the capacity or the Federation to enrol as members' persons employed by Krart 1n the same six departments. In order to understand the reasons for judgment in the present proceedings, being V. No. 34 of 1984, it 15 necessary to have read the reasons ror judgment in proceedings being V. No. 32 of 1984 since, as was said in those reasons, all parties and the intervenor in both proceedings agreed that evidence given 1n either proceedings could be relied upon in determining each of the proceedings. The reasons for judgment 1n each proceedings must be read 1n conjunction. The findings of fact made in the reasons for judgment in proceedings being V. No. 32 of 1984 and the statements of principle therein set out apply equally to these reasons for judgment. They will not be repeated. In order to determine the present matter, frurther facts must be set cut. The Union was first registered as an organization under the Act in March L91L. At that time, tuts name was "The Jam, Sauce, Pickles and Food Preserving Employees' Union or Australia". It was registered as an organization or employees 1n or 1n connexion with "The Jam, Sauce, Pickle and Food Preserving Industry". Its eligibility rule was called "Constitution" and was as follows: "This Union shall consist of any person employed in the jam, pickle, sauce and food preserving industry throughout the Commonwealth, together with such other persons whether employed in the industry or not as have been appointed officers of the Union or 1ts branches and admitted as members thereof." By the year 1925, the Union, with the consent of the Industrial Registrar, altered its name to its present rorm. In the year 1913, the Union, with the consent of the Industrial Registrar, changed its eligibilty rule to the rollowing: "This Union shall consist of any persons of good character employed in the Jam, Pickle and Food Preserving Industry throughout the Commonwealth." In the year 19433, the Union, with the consent of the incustrial Registrar, changed its eligibility rule to the rollowing. "The Union shall consist of persons employed in or in connexion with - (a) The manufacture, preparation or putting up or - (2) Jams, jellies, honey and preparations used as substitutes thereror, iii) Pickles, salt preparations, sauces, Vinegar and other wet condiments, (211) Soups and other preparations of vegetables and/or animal foods sold in containers, (iv) Fruit salads. (b) (Without restricting the interpretation of the foregoing.) The preservation of vegetables and fruits as food, together with such other persons whether employed an the industry or not as have been appointed officers of the Union or its branches and admitted as members thereor." Hereinafter, this rule is called the 1933 eligibility rule. In the year 1948, the Union, with the consent of the Industrial Registrar, changed the description of industry in connexion with which 1t was registered to the following: "The jam, sauce, pickle, wet condiments, beet sugar, cordial and the fruit, vegetable, meat, fish and other food substances preparing, processing and preserving industry." an In the same year and at the same time, the Union, with the consent of the Industrial Registrar, changed its eligibility rule to the following: "The Union shall consist of persons employed in or in connexion with - \a) The manufacture, preparation, processing or putting up of - (i) Jams, jellies, honey, pastes, spreads ana similar preparations; (11) Packles, salt preparations, sauces, chutneys, vinegar and other wet condiments; (111) Soups and other preparations of vegetables and/or food from animals, fish or sea food sold in containers; (iv) Sliced fruit, fruit salads and nut Food; (v) Pulp, Fruit and vegetaple juices and cordials whetnec such are made wholly or in part from fruit or vegetable juices or not; (v1) Sugar from sugar beet (except in the States of New South Wales and Queensland); (vii) Fash and sea Tood or any description and their by-products and the smoking of fish; Provided that this paragraph shall not' extend to persons engaged in or in connexion with the manufacture, preparation, processing or putting up- (1) of fruit juices or cordials; (2) an the States of Victoria and South Australia of pastes, spreads and similar preparations or preserved meat; (3) an the State of New South Wales and in the State of Western Australia outside a radius of 30 miles of the General Post Office, Perth, of fish or sea food sold in containers; and (4) ain the States or New South Wales, Victoria and South Australia of nut food unless the said persons are engaged in establishments where the chief product or products or one of the chiei products manufactured in such establishments 1s othecwise provided for herein. (b) (Without restricting the interpretation of the foregoing) the preparation and preservation as food of fruit and vegetables, thelr juices and pulp, meat fish, sea food and the by-products of all of them together with such othec persons whether employed in the industry or not as have been appointed officers ot the Union or its branches and admitted as members thereot. Provided that this paragraph shall not extend to persons - (1) engaged in or in connexion with the manuracture, preparation, processing or putting up of fruit juices or cordials unless the said persons are engaged in establishments where the chief product or products or one of the chief products manufactured 1n such establishments is otherwise provided for herein; and (2) an the States or New South Wales, Queensland, South Australia and Western Australia engaged in any establishment where the predominant part of the product of such establishment is the manufacture, preparation or putting up of preserved meat, rabbits or poultry." Hereinafter, this rule is called the 1948 eligibility rule. In the year 1974, the Union, with the consent of the Industrial Registrar, further changed its eligibility rule. It is not necessary to set out the new, and current, eligibility rule of the Union since in all material respects 1t 15 in the same form as the 1948 eligibility rule, but it should be noted that one of the alterations made in 1974 was the deletion ot the number and words "(1) of fruit juices or cordials" appearing in the first proviso to the 1948 eligibility rule. In the apsence of the proviso to paragraph (a) of the 1948 eligibility rule, 1t 15 obvious that the Union has the capacity to enrol as members persons employed in the 51x departments. This is illustrated by a reference to the products or preparations which are manufactured, prepared, processed or put up in each of those departments. l. The Vegemite and Bonox Preparation Department Vegemite is a spread anda comes within paragraph (a)(i) of the 1948 eligibility rule. Vegex, although not a spread, is a similar preparation to Vegemite. Vegemite can be used as a flavouring agent in the preparation of foods. Vegex is used as a flavouring agent in food preparations. Vegex comes within paragraph (a)(i) of the 1948 eligibility rule. Vegex May come within paragraph (a)(ii) of the 1948 eligibility rule as being a wet condiment. Bonox is a preparation of food from animals sold ain containers and comes within paragraph (a)(i1i) of the 1948 eligibility rule. Further, Bonox may be a wet condiment. 2. The Vegemite and Peanut Butter Filling Department Peanut butter 1s a spread and comes within paragraph (a)(i) of the 1948 eligibility rule. The other preparations dealt with in this department are either spreads or come within Paragraph (a)(i1) of the 1948 eligibility rule as being wet condiments. 3. The Salad Preparation Department All the preparations dealt with in this department are either wet condiments orf jams and come within paragraphs (a)(1) or (11) of ~Ehe 1948 eligibility rule. 4. The Meats Department Ali the preparations dealt with in this department are either pastes or spreads within varagraph (a)(i) or preparations of vegetable and/or food from animals, fish or seafood sold in containers and thus come within paragraph (a)(1i1) of the 1948 eligibility rule. 5. The Portion Control Department - mainly purchased product All the preparations dealt with in this department are either sauces, spreads, jams or wet condiments and come within Paragraphs (a)ti), (11) or (i11) or the 1948 eligibility rule. 6. The Liguid Dressing Line Department All the preparations dealt with in this department come within paragraph (a)(11) of the 1948 eligibility rule. Counsel for the Federation and counsel for _ the untervenor did not dispute that the Union had the capacity to enrol as members persons engagec in the manufacture, preparation, processing or putting up of a number of the preparations dealt with in the s1x departments and in particular, did not dispute the capacity of the Union to enrol as members those employees handling the salad dressings. They did dispute however, the capacity of the Union to enrol as members persons employed in the handling of pastes, spreads and similar preparations and preserved meat including all the prepacations handled in the Meats Department. Jin particular, they disputed the capacity of the Union to enrol as members persons connected with the handling of Vegemite, Vegex, peanut butter, the fish and meat pastes and che meats. It thus becomes necessary to determine the proper construction of the 1948 eligibility rule of the Union before applying that rule to the nature or the manufacture, preparation, processing or putting up of the products or preparations handled in the six departments of Kraft. Counsel for the Federation contended that in principle, Paragraph (a) of the 1948 eligibility rule should be construed in such a way that in the States of Victoria and South Australia, the Union could enrol as members only those -~ 13 - Federation. With respect to a Similar submission, in Federal Firefighters' Union v. Minister of State for the Capital Territory (1982) 62 F.L.R. 341, Evatt and Northrop JJ. said at pp. 344-5: "In support of his contentions, counsel for the union tendered and sought to rely upon material from which the award is derived as well as the logs of claim on which the award 1s based. He contended that that material formed a matrix of facts by which the awacd should oe construed. He relied upon the opinion expressed by Lord Wilberforce in Prenn v. Simmonas £19713 1 W.L.R. 1381. The material was of interest but not of assistance in considering cl.23 of the award. The material itselF used words and expressions which were unclear and coniused. In reality the material was unhelpful. In this respect, 1t 15 important to note tnat Lora Wilberforce said, at pp.1384-1385: 'There were prolonged negotiations between solicitors, with exchanges of draft clauses ultimately emerging 1n clause 2 of the agreement. The reason for not admitting evidence of these exchanges 1s not a technical one or even mainly one of convenience, (although the attempt to admit 1t did greatly prolong the case and add to its expense). ft is simply that such evidence 15 unhelpful. By the nature of things, where negotiations are difficult, the parties' positions, with each passing letter, are changing and until the final agreement, though converging, still divergent. It is only the final document which records a consensus. ff the previous documents use different expressions, how does construction of those expressions, itself a doubtful process, help on the construction of the contractual words? Ir the same expressions are used, nothing 15 gained by looking back; indeed, something may be lost' since the relevant surrounding circumstances may be different. And at this stage there 1S no consensus of the parties to appeal to.' " The present case illustrates the wisdom of that approach. The agreeements themselves are not clear and a difficult question would arise in their construction. On no view do the terms of the agreement between the Union and the Federation have the same meaning as the alteration consented to by the Industrial Registrar. The history was of a Registrar, in his reasons, referred to the fact that the alterations sought to the 1933 eligibility rule of the Union constituted "a considerable extension of the sphere at present occupied" by the Union. He referred to the agreements set out above and said: "The applicant Union and the objectors, The Manufacturing Grocers' Employees Federation of Australia, The Australasian Meat Industry Employees' Union and The Federated Cold Storage and Meat Preserving Employees' Union of Australasia, were able to compose their differences and the order I propose to make will, I think, be consistent with the agreements made." The Industrial Registrar then considered objections by other persons and formulated the 1948 elagibility rule of the Union in a way which he considered gave effect to the agreements of the three named objectors and in accordance with the rulings he made in relation to the other objections. He gave his consent to the 1948 eligibility rule which was ina form different to the alteration previously made by the Union. Despite having their attention drawn to this matter and the question of whether the Industrial Registrar had power to do what he did, neither of the parties nor the intervenor desired to rely upon any invalidity in the 1948 eligibility rule of the Union. No appeal was taken against the consent or the Industrial Registrar with respect to the 1948 eligibility rule. It must be remembered that the Court has to determine the proper construction of the 1948 eligibility rule. Reference has been made to the history of these matters relating to that change because of the strong reliance placed upon that history by counsel for the persons employed in or in connexion with the manufacture, preparation or putting up of: (a) pastes, spreads and similar preparations; (b) mut foods and tc) cordials, where the employees performing the work worked in establishments where the chier product or products or one of the chier products manufactured in that establishment was covered by the 1933 eligibility rule of the Union. In support or that contention, counsel relied upon the terms of an agreement in writing between the Union and the Federation dated 6 September 1947 and entered into during the hearing of the application by the Union for consent to change its eligibility rule from the 1939 eligibility rule. The terms of the agreement were in the form set out earlier in this paragraph. There are grave difficulties involved in accepting this contention. In a decision given on 16 February 1948, the Industrial Registrar gave his consent to the 1948 eligibility rule of the Union. In his decision, the Industrial Registrar referred to the history of the application for consent to the change of the eligibility rule of the Union and the fact that a number of organizations, including the Federation, the Australasian Meat Industry Employees' Union and the Federated Cold Storage and Meat Preserving Employees' Union of Australasia had objected to the consent to the alteration of the 1933 eligibility rule of the Union in the form proposed by the Union. During the - ll - course Or negotiations prior to the giving of consent, the Union and the Federation reached the agreement set out above. The Union and the Australasian Meat Industry Employees' Union and the Federated Cold Storage and Meat Preserving Employees' Onion of Australasia respectively, reached Similar agreements. Under the agreement with the Australasian Meat Industry Employees Union, the Union agreed that it would not, in the States of New South Wales, Queensland, South Australia and Western Australia, enrol aS members persons engaged 1n any establishment wnere the predominant part of the product or such establishment is the manufacture, preparation or putting up of preserved meat, rabbits or poultry. That agreement did not aifect the State of Victoria. Under the agreement witn the Federated Cold Storage and Meat Preserving Employees' Union of Australasia, the Union agreed that 1t would not, in the States of Victoria or South Australia, enrol as members persons employed in or in connexion with the manufacture, preparation or putting up of preserved meat provided that the Union would be entitled to enrol as members persons performing the work in establishments where the chief product or products or one of the chiet products manufactured in such establishment are covered by the 1933 eligibility rule of the Union. The similarity in the agreements affecting the Federation and the Federated Cold Storage and Meat Preserving Employees' Union of Australasia 1S apparent. Hach was limited to the two States of Victoria and South Australia and contained matters in relation to the chief product or one of the chief products being manufactured 1n an establishment. The Industrial -~ 13 - Federation. With respect to a similar submission, in Federal Firefighters' Union v. Minister of State for the Capital Territory (1982) 62 F.L.R. 341, Evatt and Northrop JJ. said at pp.344-5: "In support of his 'contentions, counsel for the union tendered and sought to rely upon material from which the award 1s derived as well as the logs of claim on which the award 1s based. He contended that that material formed a matrix or facts by which the award should be construed. He relrec upon the opinion expressed by Lora Wilbecrorce in Prenn v. Simmonds £19713 1 W.L.R. 1381. The material was of interest but not of assistance in considering ¢l.23 of the award. The material itself used words and expressions which were unclear and coniused. In reality the material was unhelpful. In this respect, 1¢ 15 important to note tnat Lord Wilberforce said, at pp.138¢-1385: 'There were prolonged negotiations between solicitors, with exchanges of draft clauses ultimately emerging 1n ciause 2 of the agreement. The reason "for not admitting evidence of these exchanges 1s not a tecanical one or even mainly one of convenience, (although the attempt to admit 1% did greatly prolong the case and add to its expense). ft 1s simply that such evidence 15 unhelpful. By the nature of things, where negotiations are difficult, the parties' positions, with each passing letter, are changing and until the final agreement, though converging, still divergent. It 1s only the final document which records a consensus. If the previous documents use different expressions, how does construction of those expressions, itself a doubtful process, help on the construction of the contractual words? If the same expressions are used, nothing 1s gained by looking back; undeed, something may be lost since the: relevant surrounding circumstances may be different. And at this stage there 1s no consensus of the parties to appeal to.' " The present case illustrates the wisdom of that approach. The agreeements themselves are not clear and a difficult question would arise in their construction. On no view do the terms of the agreement between the Union and the Federation have the same meaning as the alteration consented to by the Industrial Registrar. The history was of 14 - interest but not of assistance in construing the 1948 eligibility rule of tne Union. In reality, the history was unhelpful. Wnat must be construed 15 the 1948 eligibility rule of the Union. fn construing that rule, regard may be had to the 1933 eligibility rule and the alterations contained in the 1948 eligibility rule. The latter rule must be construed in accordance with the principles referred to in the reasons for judgment in matter V. No. 32 of 1984. In accordance with normal principles, 1t is provosed to consider in the first case the proper construction of the rule without reference to authority. Hach of the 1933 and 1948 eligibility rules comprise two paragraphs. Initially, reference need be made to paragraph (a) only in each of those rules. In the 1933 eligibility rule there were four sub-paragraphs numbered (i) to (iv). In the 1948 eligibility rule there are the same Tour sub-paragraphs, with some alterations, plus three additional sub-paragraphs numbered (v) to (vii). Thus sub-paragraph (1) was altered from "Jams, jellies, honey and preparations used as substitutes therefor" to "Jams, jellies, honey, pastes, spreads and similar preparations". Sub-paragraph (1i) was altered to include "chutneys" so that the sub-paragraph now reads "Pickles, salt preparations, sauces, chutneys, vinegar and other wet condiments". Sub-paragraph (ii1) was altered by changing the words "animal foods" to "food from animals" and adding the words "fish or sea food" so that the sub-paragraph now reads "Soups and - 15 - other preparations of vegetables and/or food from animals, fish or sea food sold in containers". Sub-paragraph (1v) was altered by adding "Sliced fruit" and "nut food" so that' tne sub-paragraph now reads "Sliced fruit, fruit salads and nut Food". Sub-paragraphs (v) to (vil) were not inthe = 1933 eligibility rule. Those sub~paragraphs are: "(v) Pulp, fruit and vegetable juices and cordials whether such are made wholly or in part from fruit or vegetable juices or not; (vi) Sugar from sugar beet (except in the States of New South Wales and Queensland) ; (vil) Fish and sea food of any description and their by-products and the smoxing of Fuso; " Note the area limitation contained in sub-paragraph (v1) and the reference in sub-paragraph (vi1) to "Fish and sea food of any description and their by-products" and the reference in sub-paragraph (iii) to "fish or sea food sold in containers". Note further that the words "preserved meat" do not appear in any or the sub-paragraphs. It 1s clear that sub-paragraphs (1) to (vii) of paragraph (a) of the 1948 eligibility rule are intended to widen the capacity of the Union to enrol employees as members when compared to the 1933 eligibility rule. The proviso to paragraph (a) in the 1948 eligibility rule has the effect of limiting the width of that capacity as expressed in sub-paragraphs (i) to (vii). It 1s noted that the proviso is limited to the capacity conferred by paragraph (a). Thus the opening words of the proviso are "Provided that this Paragraph shall not extend to persons ... ". In order then to construe the proviso, prima facie, it must be read as - 16 - being a proviso to the areas of eligibility contained in paragraph (a). It 1s noted further that the opening words of the proviso adopt the opening words of the 1948 eligibility rule except that the word "engaged" 15 used instead of the word "employed". Thus the proviso excludes from eligibility "persons engaged in or in connexion with the manufacture, preparation, processing or putting up ... ". In this context, the word "engaged" must be construed as meaning "employed". The proviso then contains four paragraphs numbered (1) to (4) specifying products or preparations which are to be excluded from categories of products or preparations which otherwise come within sub-paragraphs (1) to (vil) of paragraph (a) of the 1948 eligibility rule. Thus "(1) of fruit juices or cordials" correspond to part of sub-paragraph (v) of paragraph (a) or the 1948 eligibility rule, namely "fruit ... juices and cordials", but this Paragraph was deleted in 1974. Thus ""(2) in the States of Victoria and South Australia of pastes, spreads and similar preparations" correspond to the new parts of sub-paragraph (1) of paragraph (a) of the 1948 eligibility rule, namely "pastes, spreads and similar preparations". The words "preserved meat" in paragraph (2) of the proviso are difficult to explain. Those words do not appear in any of the sub-paragraphs of paragraph (a) of the 1948 eligibility rule. Those words did not appear in any part of the 1933 eligibility rule. The words "preserved meat" do not appear zn the eligibility rule of the Federation. The meaning and application of those words will be considered later in these reasons. Thus paragraph (3) of the proviso corresponds to the words "preparations of ... fish or sea food sold in containers" appearing in sub-paragraph (111) of paragraph (a). Thus paragraph (4) of the proviso corresponds to the words "nut food" appearing in sub-paragraph (1v) of paragraph (a). fn both these instances the relevant words had not appeared in the 1933 eligibility rule. The clause of the proviso commencing with the word "unless" 1s designed to enable the Union to have capacity to enrol as members classes of employees who otherwise come within the proviso and thus are excluded from being eligible for membership of the Union. The clause can be described as an exception clause creating an exception to the exclusive provisions of the proviso. To come within the exception clause, the employees must come within the class of "persons engaged in or in connexion with the manufacture, preparation, processing or putting up" of any of the _ products or preparations specified in paragraphs (1) to (4) of the Proviso. This 1s made clear by the words "said persons" in the exception clause. The exception clause is limited to persons engaged in specified types of establishments. Both parties and the intervenor agreed that in this context the whole of the Kraft plant at Salmon Street, Port Melbourne was the one establishment. I express no opinion on whether that agreement was justified. The exception clause 1s to apply where in the one establishment, "the chief product or products or one of the chief products manufactured" is "otherwise provided for herein". Debate took place as to the meaning of the phrase "otherwise provided for herein", namely - 18 - whether the word "herein" referred to the products or preparations specified in paragraphs (1) to (4) of the proviso or to the products or preparations specified in sub-paragraphs (1) to (vii) of paragraph (a) as well as those specified in paragraphs (1) to (4) of the proviso. In my opinion, the words "otherwise provided for herein" must be read as "other than those in the proviso". In other words, the word "herein" is to be read as' referring to the products and preparations specified in the proviso only. Paragraph (a) of the 1948 eligibility rule extended the capacity of the Union to enrol persons as members. That extended capacity was limited to take account of objections by other organizations. That limitation was not to apply where the chief product or products or one of the chief products manufactured in an establishment was a product or preparation coming within any of the sub-paragraphs (i) to (vii) except those products referred to in paragraphs (1) to (4) of the proviso. Thus, if in an establishment in Victoria, the chief product manufactured was, say, pickles, the Union would have capacity to enrol as members persons employed in that establishment even though those persons were engaged in the manufacture, preparation, processing or putting up of a spread within the meaning of sub-paragraph (i) of paragraph (a) and which was not a jam, jelly or honey. This construction is consistent with the purpose of paragraph (a) and the proviso to paragraph (a). The alternative construction, namely that the word "herein" in the exception clause applies to all products and preparations mentioned in sub-paragraphs (1) to (vii) of paragraph (a) as well as paragraphs (1) to (4) of the proviso, would make a mockery of the purpose of paragraph (a) and the proviso to that paragraph. Thus if in an establishment in Victoria the chief product manufactured was, say, pastes and spreads within the meaning of sub-paragraph (i) of paragraph (a) and which were not jams, jellies or honey and which were not products or preparations coming within any of the sub-paragraphs (ii) to (vii) of paragraph (a), the Union would have capacity to enrol persons employed an that establishment even though no other product or preparation was manufactured in that establishment. On this construction, the proviso would have very limited application if any. The conclusion reached as to the proper construction of the exception clause is consistent with normal methods of construction. The exception clause is an exception to an exclusive clause contained in the proviso. Normally in that context, the word "herein" should refer to the proviso only. The context of the words "otherwise provided for" must refer to a subject matter not provided for in the proviso. The subject of the proviso 1s the class of persons engaged in or in connexion with the manufacture, preparation, processing or putting up of the products or Preparations specified in paragraphs (1) to (4) of the proviso. The subject matter of the exception clause 1s the class of persons engaged in the manufacture, preparation, processing or putting up of the products or preparations specified in sub-paragraphs (1) to (v1i1)} of paragraph (a) except those specified in the proviso. Tne exception clause excludes from the proviso the class limited by reference to the description in the exception clause, the eligibility for membership for the Union being found at all times in sub-paragraphs (i) to (vii) of paragraph (a). Grammatically, effect must be given to the word "otherwise" as well as_ the word "herein". This can be done only by reading the relevant phrase as "other than those in the proviso". That 1s the proper construction of the proviso and the exception clause. Counsel for the Federation relied strongly on the reasons for judgment in Re Food Preservers Award (1959) 3 F.L.R. 425, a decision of the Commonwealth Industrial Court constituted by Spicer C.J., Dunphy and Morgan JJ. In that case, an organization of employers and an employer, as applicants, sought an interpretation of an award pursuant to s.l10 of the Act. The employer organization and the employer were bound by the Food Preservers Award 1955. The Union was a party to that award. The incidence clause of the award provided that the award as applied to the Meat Preserving section, applied to the employment of persons employed in "preserving of meat, meat pastes, meat and vegetables, and meat and cereal in any form provided that such work forms part of a general production of food preserving as provided in the constitution of the Food Preservers Union of - 21 - Australia". The 1948 eligibility rule of the Union, prior to the alterations made in 1974, was the relevant constitution. It as difficult to see why paragraph (b) of the 1948 eligibility rule of the Union was not the appropriate rule to be construed. The applicants sought an interpretation that under the incidence clause, the award applied to the employment of persons employed by the employer at wuts estaplishment in Victoria in the section of the works carrying out the process of canning meat, meat and vegetables and meat and cereals. During the course of the hearing, 1t became apparent that the applicants sought an interpretation that the award applied even though in the establishment no other product was manufactured. At the hearing of the application, the same counsel appeared for the Union and the Federated Cold Storage and Meat Preserving Employees' Union of Australasia. Thus there could have been no issues arising between the two organizations of employees. The reasons for judgment do not indicate whether the relevant employees at the establishment were members of the Union, members of the Federated Cold Storage and Meat Preserving Employees' Union of Australasia or possibly members of both. In many respects, the reasons for judgment are unsatisfactory. The actual interpretation given appears to be correct but the reasoning which leads to that interpretation, with great respect, is doubted. From the reasons, 1t does not appear whether the Union disputed the interpretation sought. The Federated Cold Storage and Meat Preserving Employees' Union of Australasia was not a party to - 22 - the award and thus that Union could not have been bound by the award. From the reasons for judgment, it appears that the Union argued that in the exercise of its discretion, the Industrial Court should refrain from giving an interpretation. Spicer C.J., with whose reasons Dunphy J. agreed, and Morgan J. rejected that argument. From the reasons for judgment of Morgan J. 1t appears tnat in support of its submission to have the discretion exercised in its favour, the Union argued that orders should be sought under s.108 of the Act to determine whether the award or whether state determinations applied and that 1f the interpretation sought was made it would have the effect that the Federated Cold Storage and Meat Preserving Employees' Union or Australasia, which was not a party to the dispute in settlement of which the award was made, would be bound by the award. It ais difficult to see the validity of the latter submission. It should be noted that nowhere in the reasons for judgment is it stated that the Union argued that it did not have capacity to enrol as members the relevant employees. From the reasons for judgment of Morgan J., it appears that the Court took the view that all the products or preparations in question came within sub-paragraph (111) of paragraph (a) of the 1948 eligibility rule, namely that they were "preparations of vegetables and/or food from animals ... sold in containers". The Court, while accepting that view, nevertheless considered that those products or preparations were "preserved meat" within the meaning of those words appearing in paragraph (2) of the proviso. Therefore, the ~ 23 - Court had to decide whether the proviso applied or whether the "preserved meat" even though coming within sub-paragraph (i121) of paragraph (a) came within the exception clause. On this point, Morgan J. said: "I confess that I find this question one of some difficulty. But on the whole I think that the grammatical meaning of the phrase 'otherwise provided for herein' in this connexion is closer to 'covered 1n one of the pars. (1) to (v1i) above' than to 'one of the foodstuffs covered in one the sub-pars. (1) to (vii) above which is not of one ot the foodstuffs mentioned in sub-pars. (1) to (4) above'. I incline therefore to the view that employees concerned fall within par. (a) of 'constitution'. " Spicer C.J. said at p.428: the the "T reach this conclusion having regard to what I think is the purpose of the proviso to cl. read in its context. It is I think concerned (a) to render eligible for membership of the union those who are employed in the processes referred to the proviso when they are engaged in in an establishment in which either the product referred to 1n the relevant proviso or some other product referred to incl. (a)(i) to (vi1) is the chief product or one of the chief products manufactured in the establishment. Where however neither it nor any other of the products referred to in cl. (a)(i) to (vii) is the chief product or one of the chier products then I think those engaged in the process are not eligible for membership." As a result, the Court gave an interpretation the award applied inter alia to the employment of that persons employed by any employer in an establishment in the State of Victoria in the preserving of meat, meat and vegetables and meat and cereals, but no other product. It 15 interesting to note that no reference was made in that interpretation to the need for the preparations of vegetables and/or food from animals to be sold in containers. - 24 - Witn great respect, the reasoning behind that interpretation cannot be accepted although the interpretation 1tself 1s, 1m my opinion, correct insofar as 1t depends upon the application of sub-paragraph (111) of paragrph (a) of the 1948 eligibility rule. The reasoning of the Industrial Court 1s based on the assumption that the products and preparations mentioned in sub-paragraph (111i) of paragraph (a) are "preserved meat" within the meaning of those words in the proviso. That assumption 1s not accepted. In some contexts the word "preserved meat" may include meat sold in containers but in the context of the 1948 eligibility rule, that construction 1s not open. The words "the ... preservation as food of ... meat" and "preserved meat" first appeared in the 1948 eligibility rule of the Union. Those words appear in paragraph (b) of the 1948 eligibility rule and in the proviso to paragraph (a). It 1s easy to list instances of preserved meat not sold in containers, for example, preserved sausages such as. strasburg; compare what was said by Morgan J. at p.433. In the context of the 1948 eligibility rule there 1s much to be said for the view that preparations of meat sold in containers and coming within sub-paragraph (i11) of paragraph (a) are not to be treated as "preserved meat" within the proper construction of that phrase. The words "preserved meat" in the proviso to paragraph (a) are to be equated with the products or preparations described in Paragraph (b) as "the ... preservation as food of ... meat" and "preserved meat". Unless this construction 1s adopted, it would mean that the unrestricted class of persons coming within sub-paragraph (111) of paragraph (a) of the 1933 - 25 - eligibility rule would become aoclass restricted by the proviso to paragraph (a) of the 1948 eligibility rule. Thus persons employed in or in connexion with the manufacture, preparation or putting up of "preparations of vegetables and/or animal foods sold in containers" and being eligible for membership of the Union under the 1933 eligibility rule, could cease to be eligible for membership of the Union even though still employed in or in connexion with the manufacture, preparation, processing or putting up of "preparations of vegetables and/or food from animals ... sold in containers" under paragraph (2) of the proviso 1f the products or preparations so handled are to be treated as "preserved meat" unless the exception clause applied. I do not accept that result. The reasons for judgment in Re Food Preservers Award do not prevent me from construing paragraph (a) and its proviso as contained in the 1948 eligibility rule in the manner expressed earlier in these reasons. One further matter remains to be considered. Counsel for the Federation contended that the words "pastes, spreads and similar preparations" appearing in the proviso to paragraph (a) of the 1948 eligibility rule were absolute in thelr operation and that unless the exception clause applied, prevented the Union having capacity to enrol as members persons engaged in the manufacture, preparation, processing or putting up of any of the products or preparations referred to in sub-paragraphs (ii) to (vii) of paragraph (a) if those - 26 - products or preparations were pastes, spreads or similar preparations. Thus counsel contended that fish pastes sold in containers, even though coming within sub-paragraph (111) of paragraph (a) nevertheless were pastes and thus came within the proviso. Logically, the same result would apply to jams since in one sense, jams are spreads and on the acceptance or the contention made on behalf of the Federation would come within the proviso. Counsel however, did not make that contention. The contention by counsel for the Federation is rejected. The draftsman of the 1948 eligibility rule, the Industrial Registrar, was not a member of the Union. He has been very particular in the framing of the rule. The class of persons eligible to become mempers of the Union as a result of the consent to the 1948 eligibility rule was much greater than the class that had been eligible to become members of the Union under the 1933 eligibility rule. A limitation however, was placed upon that extended class of employees. That limitation was expressed in accordance with the proviso to paragraph (a) but there was an exception clause to the proviso. The draftsman was very careful to use the same words to describe the extended capacity and the limitation on that extended capacity contained in the proviso. Thus the words "pastes, spreads and similar preparations" are used 1n both sub-paragraph (1) of paragraph (a) and paragraph (2) of the proviso. Similarly, with respect to sub-paragraph (v) and paragraph (1) of the proviso, sub-paragraph (iii) and paragraph (3) of the proviso and sub-paragraph (1v) and paragraph (4) of the proviso. This careful use of language shows that the draftsman intended the paragraphs of the proviso to have application only where the same words appeared in any of the sub-paragraphs of paragraph (a) and then only with respect to the particular sub-paragraph involved. Thus paragraph (2) of the proviso 1s limited to pastes, spreads and similar preparations introduced for the first time by the alteration to sub-paragraph (i) of paragraph (a). It follows that if a product or preparation comes within another sub-paragraph of paragraph (a), then, in the absence of a corresponding exclusion 1n the proviso, that product or preparation does not come within the proviso even if the product oc preparation is a paste or spread. Thus meat and fish pastes being preparations of food from animals, fish or sea food sold in containers come within sub-paragraph (1ii) of paragraph (a), and do not come within paragraph (2) of the proviso. Likewise, "preserved meat" in paragraph (2) of the proviso applies only to preserved meat introduced for the first time in paragraph (b) of the 1948 eligibility rule. Likewise, with respect to the other products or preparations specified in the proviso. On this construction, even though jams are spreads, they are not excluded because, for the purpose of paragraph (2) of the proviso, they are not to be treated as pastes or spreads. There is no doubt that the chief product or Preparation or at least one of the chief products or preparations manufactured by Kraft at its establishment at ~ 28 - Port Melbourne 1s cheese. Counsel for the Union attempted to avoid the difficulties arising from the construction of the proviso to paragraph (a) of the 1948 eligibility rule by contending that in any event the Union had capacity to enrol as members persons engaged in the manufacture, preparation, processing or putting up of cheese. He contended that the words "food from animals" in sub-paragraph (i1i1) of paragraph (a) of the 1948 eligibility rule included milk and that since cheese was made from milk, cheese was a preparation of food from animals. In one sense, that contention 1s correct, but in the context of both the 1933 eligibility rule and the 1948 eligibility rule, the contention has no foundation whatsoever. In the 1933 eligibility rule, the relevant words were "preparations of ... animal foods sold in containers". Although on a first reading this might suggest preparations of pet foods, in the context of the 1933 eligibility rule it could have no such meaning. What 1s covered by that rule are foodstuffs suitable for human consumption and the words "animal foods" must refer to flesh of animals suitable for human consumption. In the 1948 eligibility rule, the same meaning must be given to the words "food from animals". What is being considered there 1s flesh from animals suitable for human consumption and in that context there can be no warrant to hold that the phrase includes milk from animals. On the proper construction of the 1948 eligibility rule, including the proviso to paragraph (a) thereof, the only difficulty arising in the application of the rule to the manufacture, preparation, processing or putting up of the products and preparations handled in the six departments of Krart 1s with respect to Vegemite, Vegex and peanut butter. All the products and preparations handled in the Meats Department come within sub-paragraph (111) of paragraph (a) of the 1948 eligibility rule. The proviso does not apply to any of those products. Counsel for the Union submitted that Vegemite came within sub-paragraph (i), (11) and (111) of paragraph (a) and paragraph (b) of the 1948 eligibility rule. It is clear that Vegemite 1s a spread. Insofar as it comes within sub-paragraph (1) of paragraph (a), 1t comes within the proviso also. Counsel submitted that Vegemite came within the exception clause to the proviso. I have rejected already the contention that the manufacture, preparation, processing or putting up of cheese comes within sub-paragraph (1i1) of paragrapn (a) and cheese, being the chief product manufactured by Kraft at its establishment at Port Melbourne, enables the Union to the benefit of the exception clause to the proviso. As an alternative submission, Counsel for the Union contended that in the proviso the use of the word "product" instead of the word "preparation" required each product to be considered. They argued that each type of cheese and each size of packet of each type of cheese should be treated as a separate product. On that basis, counsel argued that there were some seventy different products of cheese. On a production basis, some 48% of the cheese preparations were processed cheddar, some 15% were cheese spreads and some 13% were natural cheese. On that basis, cheese products or preparations constituted some 76% of the total products or preparations produced at the Kraft - 30 - establishment at Port Melbourne. The remaining 24% of production comprised the non-cheese products, namely Vegemite, 6% including about .75% of Vegex, peanut outter, 3%, Bonox, less than 1%, viscous dressings, 5 oe , Portion Controls, 3%, liquid dressings, 4% and meats 3%. On an employee basis, 68% were engaged in cheese handling and 32% engaged in non-cheese handling. In my opinion, this further contention should be rejected. In the context of the proviso, the meaning to be given to the word "product" is that which is produced by any action, operation or work. In one sense, each different package can be said to be a product but that meaning is not appropriate to be adopted for the purpose of the exception clause. Paragraph (a) commences with the words "The manufacture, preparation, processing or putting up". The word "preparations" is used in sub-paragraph (i), (ii) and (iii). The word "preparation" is the action or special process of putting something into proper condition for use; dressing up and serving up of food. The word also means a substance specially prepared as food. In paragraph (a) the word "preparations" means substances specially prepared as food or as edible substances. In this sense, there is little 1f any difference between the word "product" and the word "preparation". In these reasons, except where a contrary intention appears, the two words have been used as being synonymous. The opening words of the proviso use the words "the manufacture, preparation, processing or putting up". Different words are used in the exception clause. The word - 31 - "product" is used for the first time and it 1s used in connexion with the word "manuracture" only and not the words "preparation, processing or putting up". This seems to suggest that the exception clause has limited application, but it 1s not necessary to determine that question in these proceedings at the present time. On any view, it must be said that the chief product manufactured at the establishment of Kraft at Port Melbourne 1s cheese. It 15 not permissible to treat each separate package of each separate type of cheese as being a separate product for the purpose of applying the exception clause to the proviso. In reality and in truth, the chief product is cheese. It follows that the Union is not entitled to the benefit of the exception clause to the proviso to paragraph (a) of the eligibility rule. Counsel further contended that Vegemite came within that part of sub-paragraph (i) of paragraph (a) which refers to "Jams, jellies, honey ... and similar preparations". This contention is rejected for two reasons. First, if a preparation is a spread, the preparation should be considered as a spread and not be included under the guise of the general provision contained in sub-paragraph (i). Secondly, vegemite lacks the degree of sweetness common to Jams, jellies and honey and thus cannot be said to be a_ similar preparation to them. Counsel for the Union contended that Vegemite was a wet condiment. Essentially, a condiment 1S a substance of pronounced flavour used asa relish or to stimulate the - 32 - appetite. Tn most cases, a condiment 1s a substance added to food at the table. The expert witness, Mr. Chambers, had difficulty in giving a definition of the word "condiment". He said the word meant a spice or a component of a spice or pickled foodstuff or the product obtained by the use of mixed spices and other singular condiments. It was in that sense that he said that salad dressings were condiments in the secondary sense. He said that a condiment was primarily used as an additive or flavouring to a meal. He said that Vegemite was not a condiment. It is true that Vegemite can be, and often is, used as a additive or flavouring agent in the preparation of foods. Its essential use however, 1s as a spread. On all the evidence I find that Vegemite is not a condiment and thus is not a wet condiment. Vegemite does not come within sub-paragraph (ii) of paragraph (a) of the 1948 eligibility rule. Reference to the nature of Vegemite has been made in the reasons for judgment in matter V. No. 32 of 1984. The registered mark, Vegemite, is in respect of vegetable extracts for use as a food or an ingredient in food. In the early years of its sale, Vegemite was solid in jars, the labels of which said Vegemite was a vegetable extract. The word Vegemite 1s based on the word vegetable. In reality, it is manufactured froma blend of yeast extract. Yeast 1s essentially a form of fungi. Yeast is a living organism, a single cell organism. It is realised that mushrooms are fungi and often are used aS a vegetable, but in ordinary language yeast is not considered a vegetable. Io am not - 33 - satisfied that Vegemite 1S a preparation of vegetables within the meaning or those words appearing in sub-paragraph (111) of paragraph (a) of the 1948 eligibility rule. Finally, counsel contended that Vegemite came within paragranoh (b) of the 1948 eligibility rule. The relevant part of that paragraph is "the preparation and preservation as food of ... vegetables, their juices and pulp". This contention 1s rejected. Yeast is not a vegetable for the purpose of the paragraph. More importantly, even if yeast 15 a vegetable, 1t cannot be said that Vegemite is a preservation as food of a vegetable. Yeast 1s not prepared and preserved as food. It 1s not a substance similar to the preservation of vegetables by freezing or drying. The yeast is processed to produce a different substance. Vegex is a substance very similar to, but different from, Vegemite. It is a yeast extract. It is not a spread. Its sole use is as an additive or flavouring agent in the commercial preparation of food. For reasons similar to those given with respect to Vegemite, Vegex does not come within sub-paragraph (iii) of paragraph (a) or paragraph (b) of the 1948 eligibility rule. The main use of Vegemite is as a spread. The only use of Vegex is as an additive or flavouring agent in the commercial preparation of food. The main purpose of curry powder 1S as an additive or flavouring agent in the preparation of food. Curry powder consists of spices and is a condiment. It is true that curry powder can - 34 - be added to other foods as a condiment, for example, on savour1es or in curried egg sandwiches. Nevertheless, the main purpose of curry powder is as an additive or flavouring agent 1n the preparation of food. Vegex 1s not composed of spices, but 1n my opinion, is a condiment in the secondary sense of that word in the same way as curry powder is a condiment 1n the primary sense of the word while. salad dressings are condiments in the secondary sense of that word. Vegex is not adry substance, it 1s not a powder. In my opinion, Vegex is a wet condiment and thus comes within sub-paragraph (ii) of paragraph (a) of the 1948 eligibility rule. For the reasons expressed with regard to Vegemite, in my opinion, peanut butter 1s not included in the class of products or preparations coming under sub-paragraph (i) of paragraph (a) of the 1948 eligibility rule. Peanut butter is @ paste or spread. It is not a nut food. In the context of sub-paragraph (1v) of paragraph (a) the expression "nut food" is to be construed as meaning a food made from nuts and intended primarily to be eaten by itself as a food such as sliced fruit and fruit salad. A nut food may be used for other purposes including cooking, but peanut butter is intended to be used primarily as a paste or spread. Even if peanut butter us a nut food, the proviso prevents' the operation of sub-paragraph (iv), giving capacity to the Union to enrol persons handling peanut butter and peanut butter does not come within the exception clause to the proviso for the reasons given with respect to Vegemite. In the result, in my opinion, with the possible exception of Vegemite and peanut butter, the Union has_ the capacity to enrol as members persons employed by Kraft in the six departments, the subject of these proceedings. I use the expression "possible exception" advisedly. Although the position 1s not clear, 1t appears that at the present time neither the Federation nor the Union has enrolled as members persons employed by Kraft in the manufacture and handling of cheese. These two proceedings have been limited to operations carried on within the six departments. There 15 movement of employees between those departments and between the functions performed in those departments depending upon the varying work loads arising in the departments. Evidentiary material relating to this aspect has been deferred pending the publication of reasons on the preliminary matters. In the peculiar circumstances of these two proceedings, questions arise whether the agreement as to the meaning to be given to the word "establishment" in the exception clause to the proviso to paragraph (a) of the 1948 eligibility rule is correct. It may be that in this case, the "establishment" should refer to the six departments only. If that view 1s correct, nice questions arise as to whether the products comprising the salad dressings and the products handled in the Meats Department constitute chief products manufactured by Kraft in that establishment. If they did, it may well be that Vegemite and peanut butter would come within the exception clause. Such a result would be practicable and in accord with the purpose of the proviso and the exception - 36 - clause. A reference to the preparations handled in each of the six departments illustrates the undesirability of artifical divisions of organization membership between persons performing identical or similar duties in any one or more department. For instance, Vegemite 1s handled in four of the six departments while peanut butter is but one of a number of other preparations handled in the Vegemite and Peanut Butter Filling Department. The determination of these matters should be deferred to enable the parties and the intervenor to consider their positions and then take such further steps in these proceedings as is considered necessary or desirable.