JUDGMENT Hy, | FORK SS, 1S Sag CATCHWORDS INDUSTRIAL LAW - Conciliation and Arbitration Act - capacity of an organization to anrol amployees as members principles governing construction of an eligibility rule application of rule to classes of amployees. NORDS AND PHRASES - "in or in connection with" - "... and Kindred trades" - ""angaged" - "industry" - "amployad". . FEDERATED TOBACCO WORKERS' UNTON OF AUSTRALIA T. AMALGAMATED METAL WORKERS' UNION and W.D. & 4.9. WILLS (AUSTRALTA) LIMITED (Intervencr} NORTHROP, GRAY AND RYAN JJ. 25 MARCH 19982 MET SCURNE IN THE FEDERAL COURT GF AUSTRALIA ) } NEW SOUTH WALES DISTRICT REGISTRY } N.S.W. No. 18 of 1987 } } INDUSTRIAL DIVISION BETWEEN : AMALGAMATED METAL NORRERS' UNTOMW Respondant and ALD. 2 Hid. NILLS (AUSTRALTA: ZIMITED intesvenor COURT. NORTHROT, GRAY AND RIAN dg. DATE : 25 MARCH 1588 PLACE: MELBOURNE MINUTE OF ORDER THE COURT ORDERS THAT the application 3e dismissed. = ac = (Settlement and entry of Orders is dealt with in 0.36 oF the Rules of Court.) it IN THE FEDERAL COURT OF AUSTRALIA ) ) NEW SOUTH WALES DISTRICT RECTSTRY ) N.S.W. No. 18 of 1987 ) } INDUSTRIAL DIVISION BETWEEN o FEDERATED TOBACCO WORKERS' UNION OF AUSTRALTA Applicant and AMALGAMATED METAL WORKERS' UNION Intervence COURT: NORTHROP, GRAY AND RYAN Jd. DATE : 25 MARCH 1385 PLACE: MELBOURNE REASONS FOR JUDGMENT THe COURT The Amalgamated Metal Workers Union ,"the Metal Workers' Union") is an organization of employees under the Conciliation and Arbitration Act 1904 ("the Act"). The Metal Workers' Union is seeking to enrol as members and has ce purported to enrol as members some persons amployed by W.D. & H.0. Wills (Australia) Limited ("Wills"), a company carrying on the business of the manufacture and production of cigarettes and tobacco products at its national manufacturing plant at Pagewood in the State of New South Wales. The Federated Tobacco Workers' Union of Australia ("the Tobacco Workers' Union"), an organization of employeas under the Act, is challenging the capacity of the Metal Workers' Union toa persons as members. It nas commenced these FS enrol those proceedings under 5.143 of the Act seeking an ordar directing the cancellation of the registration af the Metal Workers' Union as an organization under the Act. In reality, the Tobacco Workers' Union does not seek that order but seeks an authoritative answer to the question of whether the Metal Workers' Union has the capacity to enrol as members the amployaes at the Wills' plant whom it 15 seeking to anrol. The answer to that question depends upon the proper FS construction of the eligibility rula of the Metal Workers Union and the application of that rule as 30 construed to the work being dene by the persons sought to be anrollad. Wills has been granted leave to intervene in these proceedings and gS He te an. Supports the claim mada by the Tobacco Workers' Under 105 eligibility rules, the Tobacco Workers' Union has the capacity to enrol as mempers persons employed in or in connection with the following industrias or callings:- "The preparation, Manurtacture, processing and packaging of tobacco, cigarettes, cigars or allied products in the States of New South Wales and Victoria, together with any person who is an officer of the Union." ~e i Wd ' Wills 21s engaged in the industry of the preparation, manufacture, processing and packaging of tobacco, cigarettes, cigars and alliad products at its Pagewood plant which is in the State of New South Wales. Thus all its' employees at that plant are, subject to the rules of the Yohacco Workers' Union, eligible to become and remain members of that Union. That fact is recognised by the Tobacco Industry \Rothmans. and Wills) Interim Award, 1980 ("the Tobacco Industry Award"). By ceason of Clauses 3 and 4 of that aAward, the Tobacco industry Award applies, inter alia, to amployees in the Classifications set out in Annexure 8 of Fhe Award who ara employed in or in connection with the industry of preparation, manufacture, peocessing and packaging or kobaceco, cigarettes, cigars and alliad praducts in the State of New South Wales, the Tobacco Workers' Union and Wills in respect of the employment by it of employees in the classifications set gut in Annexure B whether members of the if] , Tobacco Norkers' Union oy not. Annexure B applies ta Willis and includes classifications for its employees at lts Pagewood plant. These classifications are placed in groups under general headings. Sub-headings are set sut under some of the group general headings. Thus, some of the group headings are "Cigaratta Factory", ""Tobacca Factory", "Processed Leaf Factory", "Engineering Sarvices", "Bond", "Catering", "Intarnal Services" and "Any other -adult amployas." For present purposes, the velavant group Ls headed "Engineering Services." There are no sub-headings set. out under this general heading, but there is set out a number" + of classifications. The persons who are the subject of the present dispute come within some of those classifications. Those classifications are "Rigger", "Storeman - angineering supplies", "Storeman ~- Building supplies", "Storeman - electrical supplies", "Greaser", "Power house attendant", "Garage attendant", "Assistant storeman" and 'Engineering labourer." The Metal Workers' Union claims it is able fo th 1eations. be tH ub enrol as members persons employed in these class The Tobacco Workers' Union and Wills deny the capacity of the Metal Workers' Union to enrol those persons as members. The aligibility rule of the Metal Workers' Union is contained in Rule LA of its rules. Rule 1A is iong and complicated and retlaects the consequences of successive amalgamations of differant organizations oF employees. For present purposas, 16 is necessary to set out only paragraphs {a) and (f) of Rule JA, which we do because of che those paragraphs apply tc the disputed classes sf amployees. Those paragraphs are as Follows:- "1A. An unlimited number of persons who ara employed of usually employed in oor in connection with the following trades or callings or branches bheresof: (a) £) Smiths, ship smiths, angle iron smiths, drop-hammer smiths, spring smiths, oliver smiths, spring fitters, swaging machine Operators, operators on smithing machines similar to swagging machines, nut and bolt makers, windmill erectors, motor, motor cycle, and cycle mechanics, tuners and testers in motor industry, anamellers, typewriter mechanics, well-borers, scale-makers, metal sare makers, locksmiths, forge hammermen, forgemen, strikers, drap-hanmer stampers, forging machine workers, forge, iron, and brass furnaca-men, shir's plumbers, fitters turners, rinders whetstone FAA L AE Fy , ~ grinders and glatars, sea-going engineers, shift engineers, roll turners, patternmakers, model makars, millwrights, mechanical adraughtsmen, technical assistants, planners, bSorars, szlobters, machine drillers, milling machine WOLKELS, shapers, machinists, Brass founders, brass finishers, brass smiths and operators of machines in ccnnection with same, coppersmitns, armature winders, equipment examiners, and electrical engineers generally, radio workers, mechanical and scientific instrument makers and optical glassmakers, linotype mechanics, press mechanics, machine joiners employed in the construction of cotton, silk, flax, woollen ce other machines, die sinkers, press tool Makers and stampers, electropliaters, polishers, electroplate makers up, sheet metal spinners, assemblers, skilled acetylene and electrical welders, aera mechanics, duralium workers, including forgers, fitters, and all other aircraft workers who area employed on FEhe Fuselage or engine work, and all workers engaged in the engineering, shipbuilding and kindred Erac]s. ... All other workers engaged in any metal industry or trade provided that no applicant for membership shall be eligible for membership under this paragraph while there exists in the State in which such applicant is employed a registered organisation operating in the immediate locality of the applicant's work and dealing solely with workers of the particular class of which such applicant is a member unless arrangements can be made for the amalgamation of such organisation with this Union." By its defence, the Metal Workers' Union identifies those parts of the eligibility rule which it claims antitles 1t to eanrol as members the sersons the subject of these procesdings as rollows:- "Ss. The said amployaes come within the - Respondent's aligibility rule as Tollows: (a) they ara employed or usually employed in os in connection with the llaowing Por ease and (b) of the defence have been underlined in the (b) they are Ac of { on | paragraph IA(a)} of tha eligibili fitters, machinists and motor and/or motor cycle mechanics. = trades or callings or branches th i fc workers I anginsering and/or kindr paragraph lAlta} of the e Are. ney come within paragraph 1A(f) of ligibility rule in that they area workers ngagéed in a metal industry or trada and ragis ad organization exists in New Operating in the immediate work which h WOrkears or ba at hk employ } if wi ip u - we m Pg feat ou we h Bip oa Cc cr eu by i cr} veference, the words set sut in paragraphs of paragraph (a) of Rule lA. 5(a) quotation The principies tob construction of an eligibility @ applied in daetarmining the cula are not in dispute. In Food Preservers Union of Australia v. The Manufacturing Grocers' Employses' Faderstion cf Austvalia, Full Court, Federal Court of Australia, 5 March 1586, unreported, Northrop J. set out those principles as follows:- "Tne principlas 25 Se agplisd in determining the construction of an eligibility rule of an organization have deen discussed in many authorities. Those principles are summarised in Re Ailliams; Ex parte Australian Building Constructisn Employess'' and Buriners' fabourers' Faderation (1983) S7 a.l.d.R. 38 by Gibbs ¢.0., Mason, Murphy, Brannan, Deane and Dawson dg. at op.39-40 as Follows: "The aligibility oerovisiosns in the fules Gf a fegist=red organizaticn of -employsss serve the function of defining the general area or areas of industry or industrial pursuit from which members can Legitimately be dra ith which th organization can mately 2 concerned (see lop Rubber Australia itd. ; Federated Misca2lianzous Work {1957), 97 C.L.R. of Australia Clarkson; aed Han Hatt side a Fed aria 9350), 42 355 58). Since elt s1ons constitute a rar courts, commissions, amp yees and other Org. datarmining or ascer arganization's proser coverage and iel cf operation, they must be construed obiectively (see Reed. v. Aivd; Ex vo. Australian Workers' Union (1973), 129 C.L.R. o5¢, at 5.659; Rea. v. Cohen; Ex 0. Motor Accidents Insurance Board (1373), 53 A.L.gT.R. 719, at pp.72 and 723). In 50 construing them, however, it is permissable to pay regard to any common understanding among people relevant industrial matters of application of the concerned with particularly with the ordinary industrias and words - Gane used and to take account of avidence of that common understanding furnished by the previous use of the words in the yelavant organization's rules and in statutory provisions, decisions, determinations, awards, rcaports and ather papers concerned with the ralevant industry or industries (see, for example, Rex v. Hickman; Ex op. Fox & Clinton (1945), 70 C.L.R. 598, at 9.013; Rag. v. Aird; Ex » Australian Workers' Union, 12] above, at 9.659).' In addition, it must be remembered chat eligibility rulas should not be construed narrowly or technically; see Electrical Trades Union sf Australia vv. Watearsids Wockers' Federation 3 Australia (No. 2) (1992) 59 F.L.R. 78 (the E.T.U. case), per Bowen (.d., Evatt and Deane JJ. at 9.27. Aithough the construction of an eligibility clause is cto be determined by legal considerations, it must be xept in mind that the eligibility rule will have Been deawn, more Likely than not, by Union officials mora familiar with the practical affairs of industries chan with the niceties or subtie nuances of language; see Rk. v. Aired; Ex sarte Australian Workers Union, above, per Barwick C.J. at 9.6359." t A veference to 3.132 of the Act makes 1t clear that there may be eligible for membership of an organization of employees persons within one of three classes, namely:- 1. A class consisting of employees employed in or an connection with an industry of undertaking of employers; see paragraph 132(1)(b) and the fuinition of industry in sub-section 1(1); ie a 2. A class consisting of amplcoyees in of in connection with an industry of employees without regard to the industry or undertaking of their employars; 388 paragraph 132(1){d) 4+(1), or a class consisting of employees engaged in industrial pursu1rts without regard to the industry or undertaking of theic amployers; see paragraph 132(1)(c¢)}; of 3. A glass consisting of some amployess classified in 1 and some classified in 2 where the eligibility rule is predicated on both an industry or undervaking of employers and an industry of industrial pursuit of employees. In the praesent case, members of the Tsbacco Workers Union come exclusively within class l. Counsel for the Metal dorkers' Union contends that persons eligible for membershiy of the Metal Workers' Union come within class 2, making that Bnion what is commonly, though misleadingly, referred to as a "crart union." The orimary contention made on behalf of the Tobacco Workers' Union and of Wills was that the words and all workers angaged in the engineering ... and kindred trades" appearing at the end of Rule I1A(a) of the rules of the Metal Workers' Union, showed that sersons eligible for membership of the Metal Workers' Union came within the third Class described above. It was contendad that, on its proper Construction, the eligibility rule makes eligible for membership only those persons who are angaged in one of the trades or callings listed and who are employed by an employer which is, itself, engaged in the angineering industry or a kindred trade. In this context it was argued Ehat the word "trade" has the meaning of an anterprise being carried on- by an employer. In this sense, so it was argued, the concluding words are to be Eraated as words of limitation. Tt was argued that Wills 1s not sngaged in the engineering industry or in any kindred trada@ and thus none of the employees of Wills 15 aligible to be enrolled as a member of the Metal Workers' Union. In support of this contention, counsel referred in detail to the history of the eligibility rule of the Metal Workers' Union. Counsel for the Metal Workers' Union disputed that primary contention. They argued that sersons eligible for membership of the Metal Workers' Union came within the second Class described above, that on the Erus construction of wuts elig2zbility yule it was and always had been a care ig] organization and had the capacity to enrol as a member any cr i ra person engaged in any of Che trades or callings listed i 3 eligibility rule irrespective of the mature of the enterprise of the employer of that person. The argument went on to contend that the concluding words of Rule JA(a) are words of expansion embracing sach worker engaged in the engineering trade without requiring the worker to be engaged as well ina trade or calling being one of those specifically listed in ~ 1L- Rule 1lA(a). In support of this contention, counsel relied upon the history of award coverage obtained by the Metal Industry Award. Befor2 considering those competing contentions, some brief comments should be made. The Tobacco Industry Award does not, by express terms, apply to metal tradesmen employed by Wills at its Pagewood plant. Wills, by reason of its membership of the Metal Trades Industry Association of Australia, an organization of employers, is bound by the Metal Industry Award 1984, Part 1, an Award binding on the Metal Workers' Union, members of that Union and employees amployed by any smployer bound by the Award engaged in any of the occupations, industries or callings specified in the Award. If the contentions of the Tobacco Workers' Union and of Wills are correct, it would mean that Wills is not bound to accord the wages and conditions sf employment stipulated by the "Metal-Wedustry aAward to metal tradesmen and other employees engaged in the occupations, industries or callings speciltied in the Award and amployed by Wills daspite the fact Chat for many years Wills has acted on the basis that it 1s bound by thac Award and e@arlier Metal Industry Awards in raspect of its metal tradesmen and machinists. It would therefore follow that a long standing acceptance of a legal position would no longer apply. Any construction of an eligibility rule having such drastic rasults should not be adopted unless the language of the rule compels it. A reference to the history of the rules of the Metal Workers' Union shows there have been many and varied alterations to the eligibility rule. Some of those alterations, 25s we have already noted, reflect amalgamations at different times of two or more organizations of employees. ' The Metal Workers' Union was registered as an organization on 14 Juiy 1305 under the name "The Amalgamated Society~- of Engineers." It was said to be registered in the engineering industry. act that time, its eligibility rule, called "Constitution of Organization" was as follows:- "The Society shall consist of members belonging to and earning the vate of wages Fixed by the District Committee for the following trades ar branches - Smiths ship Smiths angle iron Smiths fitters turners roll turners, pattern makers machinists mill wrights mechanical draughtsmen planers borers slottears machine driilars, milling machine workers shapers and other machine men brass finishers and copper smiths employed in the engineering and ship building trades armature winders and electrical angineers generally, mechanical and scientific instcument Makers, Machine joiners smployed in construction of cotton silk flax woollen or other machinery; die sinkers press tool makers and stampers or drop hammer forgers employed in the engineering and kindrad trades." Ac that time, 5.55 of the Act of 1304 provided for the registration of an organization of amployees being "Any association of not less than one hundred amployees in or in connexion with any industry." In s.4 thea word "industry" was, except where otherwise clearly intended, defined to meani:i~ "business, trade, manufacture, undertaking, calling, service, Or employment, on land or water, in which persons are amployed for pay, hire, advantage, or reward, excepting only persons engaged in domestic service, and persons engaged in agricultural, viticultural, horticultural, or dairying pursuits." Having regard to hat definition, ut is accepted ra that the word "trade" was appropriate cto describe the activity of an amployer but, at the same time, could be use to describe the activity of an employee This finding is of importance because of the words ""angineering and ship building trades" and "angineesring and kindrad trades" then appearing in the eligibiiity rule of the Metal Workers' Union. Tt appears Chat a number of associations of employees became ragisterad as organizations with eligibility rules based upon the activities of the employees irrespective of the enterprises of their employers. Questions arose whether the registration or those associations as organizations was valid. In Federated Engine-Drivers and Firemen's Association of Australasia v. The Broken Hill Proprietary Company Limitad (1911) 12 C.0.R. 399, the High Court, wn a judgment pronounced on 27 June 191i, heid that us the word "industry" as defined, meant an enterprise in which both employers and amployees were associated and did not include the vocation of employees doing a particular kind of work in connection with several different classes of enterprises of employers. The Court held that the association of employees which the case concerned, being an - 14 - association of land engine drivers and firemen employed ~ indiscriminately in mines, timber yards, tanneries and : diverse other enterprises, was not antitled to be registered aS an organization under the Act. to lel Act No. 5 of 1911, which came into operation on November 1911, overcame the decision of -Ehe High Cour fa FS Section 3 of the 1911 Act substituted a new definition of the word "industry." The new definition, which for all practical purposes was the same as in the current Act, was inclusive in ' form and included "any calling, services, employment, Nandicraftt, or industrial occupation or avocation or employees ... anda branch of an industry and a group of industries." Section + of the 1911 Act is of some importan n and is sat out:- -— -. rm fu r se pe fe cr 3 sOS 4 fu rh an organizat any associat a Ai wn purporting ts t nefora tha commenceme of -his Ack deemed to be as valid to intents and purposes, and toa have constituted association an organization as effectually as this Act had been in forca at the date of registration." under the Pr yeoaod cr tHtheaany cr pi ps ra In Re Lee; Ex parte Harper, Minister for Justice and Attorney-General for tha State of Queensland (1986) 160 C.L.R. 430 at pp.168-471, Dawson J. discusses the history and effect of the change in the definition of "industry" in the Act. On 12 August 1914, the eligibility rule of what was then The Amalgamated Society of Engineers was altered. The existing rule was numbered (a) and there was an increase in the number cf callings listed. A new paragraph (b) was added which was in similar form to the present Rule LA(T). cr The aAmalgamated Gociety of Engineers, as "i continued to be known, obtained its first federal award in June 192i. The award was made by Higgins J., in his capacity as President of the Commonwealth Court of Conciliation and Arbitration; sae 15 C.A.R. 297. The award was made after a lengthy and wide ranging inquiry into all aspects of the employees' industry of engineering whera that word is used in its sense of working with metals. Many amployers and amployer organizations were raoresented at the inquiry. The yeasons for judgment of Higgins J.,comstitute a useful source of reference for an understanding of the nature of what was to become known as the Metal Workers' Union. Two extracts from those reasons are set out. At 9.300, nis Honour said:- "The case presents many and formidable difficulties. The claimant is the well-known craft union oF men engaged in the working of metals; and no» its members ar2 employed not only in engineering undertakings Sub in undertakings as diverse as those of biscuit manufacturers and quarry owners, gold mining and brick manufacturing, cement manufacturing, electrical works, ganeral providers, and the great steel works of New South Wales. This union has never before approached this Court for general regulation of its conditions. It has had the benefit of State awards and determinations; but these awards and determinations differ so much from one another that they afford me more perplexity than guidance. Representatives of the parties appearing have, at my request, met in conference and endeavoured to reduce by agreement the matters for the Court ta determine; hut although there is et ra agreement as to some minor points the varties still differ on the main tussues. It is my duty, therefore, to try to frame ragqulations appropriate, From an Australian point of view, to the occupations concerned, making the regulations fit the undertakings of 773 amployers carrying on such diverse undertakings. So diverse are they that I nave been compelled, in mere justice, to allow no less than @ighteen advocates separately to cross-examine Che union's witnesses from separate points of view. The log of claims seeks an award of minimum vates for over £0 different occupations; and one 'occupation' - that of 'machinist' - comprehends Many different types of machinists, and much time has had to be spent in settling the gradations in pay appropriate to the several types. I am always anxious to avail myself in such matters of ths practice and experience of employers and employees; but here employers diifer, amployees differ, awards and determinations differ." .306, his Honour said:- "The amount of the secondary wage payable for skill and other exceptional necessary Qualifications becomes of graat importance in cwase of a union such as the Amalgamated Society of Engineers, which comprises so many skilled wor'csmen of various grades. Thera ara remarkable diffarances of opinion among the experts who have given avidence for the employers as to the proper relative positions of the varicus cccupations, in regard to skill. Sut there is also the difficulty or ascertaining the proper margin of vay between the general labourar and skilled tradesmen of the (admittedly) first class - suchas fitters and turners." The award prescrihed wage rates from General lLahourers and Tradesmen's helpers to Tradesmen and First class machinists. Employers bound by the award included many which did not carry on engineering undertakings. - 17 - From a consideration of that decision and award, it is clear that Higgins J. considered that members of The Amalgamated Society of Engineers came within the second class described above and that it was not necessary for their employers to be engaged in the engineering or ai kindrad industry before they could ba made a party to an award made In settlement of an industrial disputes with the <Soaclety. Ever since, that position has been acted upon by the industrial tribunals exercising functions under the Act. The acceptance of this approach has never bean questioned in proceedings in the High Court either by employers, employer organizations or by other employee organizations. Tt 15 not necessary to rafer to all the subsequent alterations to the rules of the Metal Wockers' Union nor to the material relating to the raasons for those alterations. It is clear that the basic notion of the Metal Workers' Union as a craft union comprising eamployees within the second class described above was accepted and adhered to by the Metal Workers' Union. There was 4 comtinuing expansion of the types of callings and industrial pursuits listad within the eligibility rula. In April 1936, the concluding words to Rule lA(a) ficst appeared in a form similar to that which appears in the current aligibility cule. The alteration to Daragraph (a) of the eligibility rule that came into operation on 3 April 1936 listed a large number of callings and industrial pursuits and then continued "and all male workers engaged in the engineering, shipbuilding and kindred trades." On their face, those words should be read as words -1e- or expansion. They have the affect of maxing all workers engaged in the engineering or a kindred trade eligible to become members of the Metal Workers' Union. The word "engaged" has many different meanings. The authorities show that depending on the context in which it is usad, it can have the meaning of "occupied" whether as an employer or an @ to say of an eamployer cr a ro amployee. Thus it is quite apprcepr that he or it is engaged in the engineering industry. Equally, it is quite appropriate to say of a person employed by an amployer engaged in thea angineéering industry, that the employee is engaged in the engineering industry aven though he may be performing work which is exclusively clerical. a fi] Equally, it is quita agpropriate to say of a reson amployed my by an employer not engaged in the angineering industry, where that employee is yerforming the tasks of a metal worker, for example, a fitter, that that amployee is engaged in the engineering industry, particularly since the wide definiticn of the-word "industry" in the Act must be taken to have an effect on the meaning of that word when used in an eligibility rule of an organization under the Act. These cbservations go to the real issue between the parties and will be amplified later in these raasons. The opening words of Rule 1A of the eligibility rule of 'the Metal Workers' Union first appeared in the current form in January 1972. The alteration, which came into operation on 10 January 1972, resulted from the amalgamation of a number of employee organizations. The opening words of the new eligibility rule were:- "The Union shall consist of an unlimited number of persons who are employed or usually employed in or in connection with the following trades of callings or branches thereof ... ." Paragraph (a) was then set out. [It cansisted of a large number of cailings or industrial pursuits concluding as follows: - «.. and all workers engaged in the angineering, shipbuilding and kindred trades." The opening words, on their face, are words of @xXpansion. In particular, the words "1n or in connection with" show that in addition to the listed trades or callings, in connection with those trades or callings ara i fo become and ramain members of the Metal Workers' Union. In this context the word "employed" is to be read as "engaged." Thus, it is quite appropriate to or om Wu Say oF a per who is amployed by an employer which 1s not engaged in the engineering industry, but is amployed ta assist another employes who is performing the tasks of a metal worker, for example, a fitter, that the first person is engaged, or amployed, in or in connection with the trade or calling of that fitter. These words of expansion are separate and distinct from the concluding words of paragraph (a), namely "ail workers engaged in the engineering, shipbuilding and kindred trades." The opening words af "the new rule, on their face, expand further those concluding words s0 as to make persons engaged or amployed in connection - 20 - with workers engaged in the engineering or a kindred trade eligible to become and remain members of the Metal Workers' Union, Counsel for the Tobacco Workers' Union and for Wills contended that the opening words of the new eligibility cule should noc be construed as having that axpanding effect. They contended that the Material relied upon by the amalgamating unions showed that there was no intention on of the organization mi or Eheir part to widen the eligibility; rul after amalgamation beyond the combined reach of the axisting ligibility rules of seach of them. To that end, they iD d to and sought to rely upon the applications under ry eterr iu 3.139 of the Act by the amalgamating organizations for the consent of the Industrial Registrar to the alterations to the eligibility rules of the organizations, the material in support of those applications and the reasons given by the nting to those changes. This was not a re] Registrar in conse case where an attempt was made to lead extrinsic avidence as to the meaning of words which had acquired a special meaning in the industry concerned. It was an attempt to use extraneous material to give a particula construction ta words which, on their faces, ara nob uncertain. Such an attempt should not be permitted; see, for example, Federal Firefighters' Union v. Minister of State for bhe Capital Tarvvitory (1982) 62 F.L.R. 341 per Evatt and Northrop JJ. at pp.344-5. In any event, the material relied upon by the Tobacco Workers' Union and by Wills does not support the contention made on the1r behalf. ke It is necessary to construe the eligibility rule sf the Metal Workers' Union in its current form. This task of construction is to be undertaken having regard to the matters fu already discussad. For present purposes, referance is mad to Rule LA(a) only. That rule lists a large number of trades of callings. The tradas or callings are ali rafarable to activities being carried out by employees. In the opening paragraph, the words "trades or callings" refer toa the industrial occupations of employees listad in Ruiae 1A(a), not to the trades or callings of employers. Having regard to the definition given by the Act to the word "industry" the words "or branches thereof" are to be read as words of expansion. The words "in of in connection with" are words of expansion and provided thar an industrial occupation is engaged in by an amployee in connection with one of the listad trades or callings, that amployes comes within the eligibitity rule af be 13) the Metal Workers' Union. The concluding words of Ruis 1A(a) "and all workers engaged in the engineering, shipbuilding and kindred trades" are likewise to be construed as words of expansion. At times when technology is changing, it is not unexpected to see in an eligibility rule of an organization general words which, of necessity, cover specific matters already included in the rule. & would not be surprising to discover that several of the trades or callings listed are not now being followed by anyone. The history of the rule shows that specific teades or caliings have been added from time to time. The concluding words obviate the need to continue to do that in the future. Those words refer to the activities of the employee and should be construed accordingly. The opening words expand further the concluding words. The structure of the rule is very differsnt from that considersd by Ehe High a ce Court in R v. Coldham; Ex parte Tne Australian Workers' Union ta 384) 59 A.L.dSL.R. 95. In the present case, there is- no dw ( structure of the eligibility rule of the Metal Workers' Union which permits a construction similar to that adopted by the High Court in construing the eligibility rule of the Australian Workers' Union. r The contentions of counsel for the Tobacco Workers Union and for Wills on this issue are not compelling. The history of the award coverage obtained Sy the Metal Worxers' Union illustrates clearly that the Commonwealth industrial tribunals have acted ona contrary undarstanding. For the purposes of these reasons, it has been assumed that Wills is not engaged in the engineering, shipbuilding cra «indrad trade. The Court has not considerad whether that assumpbion 15 correct. Thus nothing said in these reasons is to he taken as supporting the view that Wills is not engaged in the engineering, shipbuilding or a kindred trade. Tb is noted that Wills is a member of the Metal Trades Industry Association cf Australia, an organization under the Act. The eligibility rule of that organization is in evidence before the Court but it would be a difficult task to interpret that rule and to determine, on the facts, whether Wills is eligible to be a member of that organization and, if so, whether its eligibility is limited in any way. If the contentions were accepted, they could have drastic and wide vranging effects upon amployers engaged in the engineering, shipbuilding or a kindred trade as well as other organizations of amployees. None of those amplioyers and no other organization of employees has been given the opportunity to make submissions with vespect to those contentions. It 15 true that those other organizations and employers cannot be bound by any order made in these procesdings, But axpressions of opinion adverse co their interests could be used against them in other vroceedings. For present purposes, 1t is sufficiant to say that + he Metal Workers' ba] or on a consideration of Rule 1A{a) a Union, Chere is nothing to supsort the contention that the words "the anginsering, shipbuilding and xindred trades" in the final part of that sub-rule refer to trades of amplovers. It is accepted that in an appropriate contaxt the werd "btrad2"" fan vafer to the trade of an employer. This is mot such a case. A construction which equates "trade" with the occupation of the worker is much to he preferred in a context where listed activities of workers are followed by an axtension to "all workers" in the Listed trades. The word "trades" appears in the opening part of the rule and in -its context is used in the sense of the activity of an eamployee. There is no warrant for giving a different meaning to the word "trade" in the concluding part of the rule. ~ 24 - Having formed this opinion, it is not necessary ta consider the construction and application of Rule I1A(f}. Accordingly, attention is directed mow to the question of whether the Tobacco Workers' Jnion has established that none of the persons emplicyed by Wills at its Pagewood plant in any at of the classifications listed above is aligible to become and to remain a member of the Metal Workers' Union. It will be recalled that the question raised by this application 15 whether persons employed in some of the classifications contained in the Tobacco Industry Award under the group heading "Engineering Services" are eligible to hecome and remain members of the Metal Workers' Union. The classifications are "Rigger", "Storeman - engineering supplies", "Storaman - building supplies", "Storeman - @lectrical supplies", "Greaser", "Power House attendant", "Garage Attandant", "Assistant storeman" and "Engineering labouceér." The terminology used in the Tobacco Industey Award suggests that those sersons are not engaged directly in the preparation, manufacture peocessing and packaging of ~ tobacco, cigarattes, cigars and alliad sroducts (hereinafter eveferred to as 'he "production are2as"). The evidence supports the suggestion implicit in that terminology, namely that "engineering services" employees are engaged primarily in the supplying and servicing of equipment used in' the production areas although from time to time they may assist actual production in the production areas. - eee | bw LA A workshop is set up within each of the production areas. The workshop is responsible for the maintenance and servicing of the many machines in the relavant production area. In addition, there are other workshops not attached to any ovroduction araa. One of these is describec as "th Central Engineering Workshop" which is concerned with major works, aspeciaily of a capital nature. In addition, there is a Central Store which stocks a wide range of materials (except material used in the production of the finished products) spara parts and fools. Tne Central Store is commonly known as the Engineering Store. Tnare ara alsa other workshops such as the Boilerhouse which provides stean and other services to various parts of the plant Operations, the Fitters' Workshop, the Machinists the Electric Workshop, the Plumbers' Workshop, tha Conversion Workshop and the Motor Garage. A table exhibited to an affidavit filed on behalf of Wills shows the numbers employed by Wills in various classifications in some of these special areas. The axhidirt is raoroduced:- - 26 - "Trades- Appren- Eng. Riggers Greasears Storemen/ men tices Lab' s Assistant Storemen Central Engineering Workshop 16 5 4 1 - - Tobacca/ Primary Dept. 15 8 i=) 1 2 - Making Dept. 2 4 4 - 3 - Packing Dept. 24 5 3 - 5 - Motor Garage 3 L - - i+ - Boilerhouse 4 2 3 - - - Conversion Workshop 6 - - - - - Central Store - - 7 - - 12 *& Classified as Garage Attandant - same grouping as Greasar," Apparently, the tradesmen listed in that chars are ail members of the Metal Workers' Union and are employed pursuant to the terms of the Metal Trades Award. The responsibilities of the persons engaged in ne ul workshops set up in various production arsas are as follow ae {a) vepairing and/or seplacing broken and/or worn oUt Machine parts; (b) preventive maintenance on producticn machinery; (c) planning and performance of machine Lubrication scheduling; (d) the making of adjustments to operating machines; fe) the execution of installations on a wide range of machines and equipment; and (£) the making of modifications to machines and equipment." The functions of engineering iabourers in the Central Engineering Workshop, broadly speaking, are as follows:- "A. Labouring for Eradesman by lifting, supporting, holding equipment steady, atc; b. Cleaning the workshop area and machine parts; c. Messages and deliverias; dad. Moving heavy and/or large machines acound withia bhe workshop; a. Working on loan toa other departments on labouring duties required by them." The Central Store supplies machinery ayare parts and materials, general angineering supplies, alectrical equipment, stationery, clothing and cleaning materials to all areas. Machine parts ara supplied as well to associated overseas tobacco companies. Storemen and assistant storemen re engaged in Che Cantral Store to recaive, store and diastribute materials kept in the store. The present application is not dir wt cély concerned with particular persons but with groups of persons. Evidence directed to particular individuals i5 of no real assistance in determining the issue to be considerad. From the whole of the evidence before the Court, it is clear that persons angaged in the classifications in issue spend a substantial part of their working time in assisting tradesmen in performing their duties. The avidence does not disclose in detail the work being done by tradesmen in the different workshops but it is apparent that those persons are all eligible to be members of the Metal Workers' Union. The labourers and assistants and persons engaged in the other iT ty Classifications the subject of these proceedings come within those parts of the eligibility rule of the Metal Workers' Union which extend the class of employees eligible to he members of the Metal Workers' Union. They are persons employed in or in connection with Ehe trades or callings or branches of motor mechanics, fitters, machinists, as well as engaged in engineering and kindred trades. Union and for . Counsel Foc the Tobacco Workers Wills contendad that 1t is unusual for any of these persons to spend amajority of his or her working time actually working with a tradesman and that often that work is performed as a result of instructions received from a Supervisor engaged in one of the production areas. As has been indicated, it is not necessary to be eligible for membership, that a person spend the whole of his or her time engaged in the activities of the requisite type. The test is based on whether the person is angaged substantially in those activities. In this context it is legitimate to ask whether, if Wills were to contract the whole of its maintenance operations to an outside company, it would find it necessary to employ persons in the disputed classifications. On the material before the Court, the answer to that question is that, wn all probability, those persons would be employed by - 29 - the maintenance contcactor. That answer is consistent with the fact that all these classifications come within that part of the current Tobacco Industry Award headed "Engineering Services." That suggests that these classifications come within a discrete area having a close conmection with In the result, the Court finds that the Tobacco Workers' Union has not made out its case. It should be noted that this applic fit Siom is concerned with the quastion of whether the Metal Workers' Union has the capacity to enrol as members the versons the subject of these proceedings. The Court is not concernad with bthe question of which Union should havea award coverage with respect to those versons. The application should be dismissed. rg . | certify that this and the Twenty - eight (22> preceding pages are a true copy of the Reasons for Judgment herein of the "Honoursble-Me—luctioe Full Court Sharm P dun Associate Dated? 25 March I%S2 ro Pederatad Tobacco Workers' Union of Austcalia +. Amalgamatad Metal Workers Union. WD. & HO. Wills (Austyalia) Limited (intervenor) Title of Action File Number : N.E.N. No. 18 of 1987 Dates of Hearing : 9-12 November 1387 Judgment Delivered : 25 March 1989 founsel for Applicant : RIN. 3.0. Solicitsers for Applicant : WG. McNally & 2a. Counsel for Respondent : J.A. Shaw Q.C. and S. Crawshaw Solicitors for Respondent ; Turner Freeman Counsal for Intes-renor : Or. C. Jassup Solicitors for Intervenor : Messrs. Frachill, Hollingdale and Page ociate . Sarew. f. 30 25 March 15388 AS a