Industrial Relations Commission of New South Wales CITATION: AFMEPKI Union and Bevco Pty Ltd [2006] NSWIRComm 1037 NOTIFIER Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union PARTIES: RESPONDENT Bevco Pty Ltd FILE NUMBER(S): 6684 of 2004 CORAM: Stanton C CATCHWORDS: Industrial dispute - Award coverage - Aerated waters and food industries - Area and Incidence - Award interpretation - Related proceedings in the Commission - Principles of Award interpretation - Condonation - History and purpose of the Awards - Importance of actual words used considered in their context - Purpose considered. Held - Aerated Waters (State) Award appropriate award to cover respondent's operations Industrial Relations Act 1996 Workplace Relations Act (Cth) 1996 LEGISLATION CITED: Customs Tariff Act (Cth) 1995 A New Tax System (Goods and Services Tax) Act (Cth) 1999 Sales Tax Assessment Act (Cth) 1992 Environment Protection Act (SA) 1993 Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union and ors v Qantas Airways Limited [2001] 106 IR 307 Barrier Industrial Council and Broken Hill Chamber of Commerce Inc [2005] NSWIRComm 249 Bryce v Apperley (1988) 82 IR 448 City of Wanneroo v Holmes (1989) 30 IR 362 Codelfa Construction Proprietary Ltd v State Rail Authority of New South Wales [1982] 149 CLR 337 CASES CITED: Construction, Forestry, Mining and Energy Union (New South Wales Branch) v Delta Electricity [2003] NSWIRComm 135 Cooper Brooks (Wollongong) Pty Ltd v Commissioner of Taxation (Cth) [1981] 147 CLR 297 Fire Brigade Employees Union and New South Wales Brigades [2003] NSWIRComm 55 Kellog (Aust) Pty Ltd v National Union of Workers, New South Wales Branch [1998] 89 IR 391 Re Hospital Employees Conditions of Employment (State) Award (2000) IR 245 Seamen's Union of Australia v Adelaide Steamship Co Ltd [1976] 46 FLR 444 Zoological Parks Board of New South Wales v The Australian Workers' Union, New South Wales [2004] 135 IR 56 HEARING DATES: 09/08/2005; 10/08/2005 DATE OF JUDGMENT: 03/24/2006 NOTIFIER Mr A Nielson Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union LEGAL REPRESENTATIVES: RESPONDENT Mr P M Kite, Senior Counsel SOLICITORS P Brown, Solicitor Baker & McKenzie Solicitors DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: STANTON C 24 March 2006 Matter No. IRC 6684 of 2004 Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union and Bevco Pty Ltd Notification of a dispute under s 130 of the Industrial Relations Act DECISION [2006]NSWIRCOMM 1037 BACKGROUND 1 There is a long history to this matter. A dispute notification was filed by the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (the Union) on 16 November 2004. 2 The question, dispute or difficulty was stated in the following terms: 1) The Applicant has members engaged by the respondent as employees. 2) The respondent is a small fruit juice manufacturer located in Mudgee, New South Wales. The respondent pre-dominantly manufactures fruit juice with a small proportion of production dedicated to still water manufacture. 3) The respondent employs approximately thirty employees. 4) It has recently sought to have an agreement certified pursuant to s 170LK of the Workplace Relations Act. This proposed Agreement was held in abeyance after the Union sought to intervene in the proceedings on behalf of its membership. 5) The respondent has since indicated that it will offer Australian Workplace Agreements to those employees who choose to accept them. 6) The Applicant has raised concern with the respondent about the Award under which it currently pays its production employees. The respondent is not a known member of any federally registered employer organisation. It is not a direct respondent to any federally registered Award. 7) As such it is bound by an Award of the State of New South Wales. The respondent currently pays its employees under the terms and conditions of the Aerated Waters (State) Award. 8) The Applicant believes that the correct Award to cover the respondent's production employees is the Food Preservers (State) Award. 9) As a result of being paid under the terms of the Aerated Waters (State) Award, the employees have suffered financial loss. 10) The Applicant seeks that the Commission exercise its powers pursuant to s175 of the Industrial Relations Act ("Act") to determine the correct Award for the purposes of these employees. The Commission is empowered to deal with a small claim application under s 380 and can issue the appropriate orders under s 136 of the Act. 3 A small claim application pursuant to s 380 of the Industrial Relations Act 1996 (the Act) concerning the alleged underpayment of wages claim was filed on 18 November 2005. 4 Simply put, the Union contends Bevco Pty Ltd (the respondent) incorrectly applies the terms and conditions of the Aerated Waters (State) Award, (the Aerated Waters Award) to regulate the terms and conditions of employees engaged at the respondent's Mudgee site. The Union believes the appropriate award for the regulation of the terms and conditions of these employees is the Food Preservers (State) Award, (the Food Award). 5 The dispute was listed for hearing before McLeay C on 19 November 2004 and was adjourned to allow the Union to hold discussions with the respondent. 6 Mr A Neilson appeared for the Union and Mr P Brown, Solicitor, Baker and McKenzie, appeared for the respondent. 7 The matter was subject to further hearing and report back on 24 December 2004 and 28 January 2005. Directions for filing and serving of affidavit evidence, an outline of submissions and the small claim application were issued on 22 February 2005. 8 On 20 May 2005, the respondent filed an application for a declaration pursuant to s 154(1) of the Act. The declaratory order sought was that on its proper construction, the Aerated Waters Award applies to the work performed by employees of the respondent engaged as production and/or stores employees at its Mudgee site. 9 That matter was listed for mention before Staff J on 27 May 2005 in IRC 2605 of 2005. His Honour ordered the application for declaratory orders stand adjourned until completion of proceedings in this matter and any proceedings arising therefrom. His Honour subsequently made a further direction for the respondent to file and serve material upon which it wished to rely following the respondent's default with the directions made by McLeay C on 22 February 2005. 10 The matter was allocated to the Commission as presently constituted on 3 June 2005 and set down for programming on 15 June 2005. 11 A certificate of attempted conciliation pursuant to s 135 of the Act was issued on 9 August 2005. 12 The matter was subject to arbitration on 9 August 2005. Mr Neilson appeared for the Union. Mr PM Kite SC appeared for the respondent. 13 Agreement exists between the parties that the small claim should not be considered until the core issue of award application is determined. POSITION OF THE PARTIES 14 For its part, the Union contends the respondent is a fruit juice manufacturer. The Aerated Waters Award cannot be applied to the work undertaken by the respondent because it simply does not "aerate" its products, particularly fruit juice. Accordingly, it is the Union's view that on its proper construction, the Food Award applies to fruit juice processing by the respondent, including bottling. The Respondent 15 It is the respondent's view that on its proper construction, the Aerated Waters Award applies to work performed by the respondent's production and stores employees at its Mudgee facility. The respondent maintains it is principally engaged in the processing, packaging, storage and distribution of soft drinks, in particular, fruit juices and spring waters. The fruit juice is manufactured from fruit concentrate acquired as a raw material from a range of suppliers. 16 Prior to July 2004, the respondent had applied the Food Award for a number of years. More recently, the respondent had purchased a business in Queensland where the relevant Queensland State aerated waters award was applied. Accordingly, the respondent subsequently sought advice concerning the application of the Aerated Waters Award to its Mudgee operations. That advice determined that the Aerated Waters Award was an award capable of covering the work of production and stores employees engaged at the Mudgee facility. RELEVANT AWARD PROVISIONS Food Award 17 The relevant provisions of the Food Award (consolidated 16.11.01 incorporating variations published 15.08.03) relied upon by the Union are set out under clause 47, Area, Incidence and Duration: 47.2 Subject to the exceptions, limitations and further provisions contained in this clause, this award shall apply to the employment of all persons employed in or in connection with - (1) the manufacture, preparation or putting up of fruit and vegetables preparing and/or canning, candied-peel making, fruit crystallising, fruit mince and fruit or vegetable spreads and fruit-butter making in factories; (2) the manufacture, preparation or putting up and/or canning bottling of jams, marmalades, jellies, fruits and vegetables, vinegar, pickles, sauces, soups, chutney and wet condiments in factories; (3) fruit juice or vegetable juice processing and/or concentrating and cordial making, including bottling and/or canning in factories; Aerated Waters Award 18 The relevant provisions of the Aerated Waters Award (consolidated 22.2.02 incorporating variations published 11.3.2005) relied upon by the respondent are set out under Clause 26, Area, Incidence and Duration: (a) This award shall apply to aerated waters and beverage makers, bottlers, washers, carters, grooms, stablepersons, yardpersons, motor wagon drivers, and labourers employed in or in connection with the manufacture and/or distribution of aerated water, other soft drinks, fruit juices, cider, cordials, ginger beer, hop and other non-intoxicating beers and/or similar types of beverages with or without alcoholic content within the State excluding the County of Yancowinna. ... Aerated Waters, &c (State) Industrial Committee Industries and Callings Aerated waters and beverage makers, bottler, washers, carters, grooms, stablemen, yardmen, motor-wagon drivers, and labourers employed in connection therewith, in the State, excluding the County of Yancowinna. RELEVANT PRINCIPLES OF AWARD INTERPRETATION 19 Awards are statutory instruments and consequently they must be interpreted in the light of the rules applicable to such instruments. The Commission's power to interpret the provisions of an industrial instrument is found at s 175 of the Act: 175 Powers of Interpretation The Commission may, for the purpose of exercising its functions in connection with a matter before it, determine any question concerning the interpretation, application or operation of any relevant law or instrument (including the industrial relations legislation and any industrial instrument). 20 Section 8 of the Act defines an industrial instrument in the following terms: In this Act, industrial instrument means an award, an enterprise agreement, a public sector industrial agreement, a former industrial agreement, a contract determination or a contract agreement. 21 The approach to the determination of the proper construction of a provision of an award in this jurisdiction is both settled and longstanding. The starting point of award interpretation therefore is to examine the terms of the award itself to find what the words mean in their ordinary and natural significance or, their clear commonsense English meaning: City of Wanneroo v Holmes (1989) 30 IR 362 at 378; Bryce v Apperley (1988) 82 IR 448 at 452. 22 In New South Wales Fire Brigade Employees Union and New South Wales Brigades [2003] NSWIRComm 55, Boland J observed: In approaching the task of interpreting an award the starting point is the actual words of the award itself and their plain, ordinary English meaning: City of Wanneroo v Holmes (1989) 30 IR 362 at 378; Bryce v Apperley (1998) 82 IR 448 at 452. If the language of the award provision is clear and unambiguous and is consistent and harmonious with the other provisions of the award and can be intelligibly applied to the subject matter with which it deals, it must be given its ordinary and grammatical meaning even if it leads to a result that may seem inconvenient or unjust (see Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (Cth) (1981) 147 CLR 297 at 305 per Gibbs CJ). Although he was concerned with statutory provisions, the observations of the Chief Justice apply with equal force to an award: Bryce v Apperley at 453. However, as French J observed in City of Wanneroo, "That is not to say the words (of an award) must be interpreted in a vacuum divorced from industrial realities." French J referred to the decision of Street J in Geo A Bond & Co Ltd (in liq) v McKenzie [1929] AR (NSW) 498 at 503 where his Honour said: [I]n construing an award, one must always be careful to avoid a too literal adherence to the strict technical meaning of words, and must view the matter broadly, and after giving consideration and weight to every part of the award, endeavour to give it a meaning consistent with the general intention of the parties to be gathered from the whole award. 23 The Full Bench of the Commission in Bryce v Apperley (1988) 82 IR 448 at 452 adopted the following approach: In our view, in construing the true meaning of an industrial award, like any other instrument with legal force, the task requires an approach according to the actual words used and their plain, ordinary English meaning. As was said by Kelleher J in Re Dispute between Broken Hill Pty Co Ltd and the Federated Ship Painters and Dockers' Union of Australia, New South Wales Branch, Re Tank Tops (1961) AR (NSW) 312 at 314: The meaning is to be ascertained primarily from a consideration of the words actually used and, while it is proper to pay regard to the surrounding circumstances and the purposes for which the provision was intended, this cannot justify a meaning being given to the words which they are not fairly capable of bearing. Particular words or expressions, having a special trade significance, however, may need to be construed in that light. 24 The principles in Bryce were reaffirmed by the Full Bench in Zoological Parks Board of New South Wales v The Australian Workers' Union, New South Wales (2004) 135 IR 56 where, at paragraph 43 the Commission held: The relevant principles to be applied when interpreting industrial instruments are well settled: for example, Kingmill Australia Pty Ltd t/a Thrifty Car Rental v Federated Clerks' Union of Australia, New South Wales Branch (2001) 106 IR 217 and Construction, Forestry, Mining and Energy Union (New South Wales Branch) v Delta Electricity [2003] NSWIRComm 135 at [44] - [46]. Broadly speaking, the primary consideration in such matters is the actual words used (and these should be given their plain, ordinary meaning) and the context in which the words are used. 25 The Full Bench then went on to consider the ability of the Commission to consider the history of the relevant instrument in conjunction with an analysis of the plain and ordinary meaning of the words used stating at [44]: The construction of an award may include the history of the instrument in some circumstances. The words must be considered in the context of the instrument as a whole although in a practical sense, some parts of the documents will be very significant and others less significant or of no moment at all. We note, in this respect, the observations of Walton J, Vice-President in Fox v GIO Australia Ltd (2002) 56 NSWLR 512, 120 IR 401 at [46] as follows: The modern approach to statutory interpretation insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and uses "context" in its widest sense to include such things as the existing state of the law and the mischief which, by reference to legitimate extrinsic material such as explanatory memoranda and law reform reports, one may discern the statute was intended to remedy: CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408. 26 Approaching Award interpretation from that premise, the primary factor the Commission must take into account is the plain and ordinary meaning of the words used in the Award, the history of the Award and its surrounding circumstances. In Zoological Parks Board of New South Wales, the Full Bench made reference to the decision of Mason J in Codelfa Construction Proprietary Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337 at 348 as follows: On the other hand, it has frequently been acknowledged that there is more to the construction of the words of written instruments than merely assigning to them their plain and ordinary meaning - see, for example, the remarks of Knox C.J. in Life Insurance Co. of Australia Ltd. v. Phillips (1925) 36 CLR 60, at p 69. This has led to a recognition that evidence of surrounding circumstances is admissible in aid of the construction of a contract. So Lord Wilberforce in L. Schuler A.G. v. Wickman Machine Tool Sales Ltd. [1974] AC 235, at p 261 was able to state the broad thrust of the rule in this way: The general rule is that extrinsic evidence is not admissible for the construction of a written contract; the parties' intentions must be ascertained, on legal principles of construction, from the words they have used. It is one and the same principle which excludes evidence of statements, or actions, during negotiations, at the time of the contract, or subsequent to the contract, any of which to the lay mind might at first sight seem to be proper to receive. 27 Further, at 352 Mason J said: The true rule is that evidence of surrounding circumstances is admissible to assist in the interpretation of the contract if the language is ambiguous or susceptible of more than one meaning. But it is not admissible to contradict the language of the contract when it has a plain meaning. Generally speaking facts existing when the contract was made will not be receivable as part of the surrounding circumstances as an aid to construction, unless they were known to both parties, although, as we have seen, if the facts are notorious, knowledge of them will be presumed. 28 It is sufficient to observe that the relevant provisions of the Aerated Waters and Food Awards are to be read as a whole with the words used therein being given their ordinary and natural meaning. Extrinsic material may only be relied upon as an aid to interpretation when applying the ordinary and natural meaning of the language if any ambiguity remains. THE EVIDENCE Union Ms Michelle Burgess 29 The Union relied upon an affidavit deposed by Michelle Burgess, NSW State Secretary of the Food and Confectionary Division filed on 15 March 2005 and an affidavit in reply filed on 16 June 2005. 30 Ms Burgess deposed she was the official responsible to service the Union's members employed by the respondent. 31 As Divisional Secretary, Ms Burgess deposed she was directly responsible for the implementation of policy and direction within the Division as required and permitted by the Union's rules and policies. She has been an official of the Union for seven years and the Divisional Secretary since 2001. 32 Ms Burgess deposed the Division covers workers in a range of fields relating to ice cream production, confectionary manufacturing, frozen food production and, the manufacture, concentrating, bottling, making and canning of fruit juices. 33 The Union has a number of members employed in the fruit juice industry in New South Wales and the Food Award is applied by the relevant fruit juice manufacturers. Ms Burgess acknowledged the "counterpart" Federal Food Award is applied by some companies operating in NSW. 34 Ms Burgess deposed that Berri Juices, Australia's largest fruit juice producer, operates a site in Smithfield, New South Wales that produces fruit juice and a small amount of spring water in a similar fashion to the respondent. No fruit or vegetables are processed into juice at this site. Berri Juices also operate a site in Leeton, New South Wales, where oranges are crushed and squeezed in season. At all other times this company, like the respondent, relies upon suppliers for the provision of bulk juice and concentrate. It was Ms Burgess' evidence that Berri Juices applies the Federal Food Preservers Award to the work undertaken at these sites. 35 With the exception of P&N Beverages, an aerated waters producer whose production includes a small proportion of dedicated fruit juice manufacture, it was Ms Burgess' evidence that she was not aware of any non-carbonated fruit juice manufacturer that applied the Aerated Waters Award. She maintained the Aerated Waters Award was the appropriate award to regulate the soft drink and carbonated beverage industries, but not fruit juice producers and bottlers. 36 Ms Burgess also confirmed P&N Beverages operated under the Aerated Waters Award and that Award underpins Australian Workplace Agreements operating within that company. To the best of her knowledge, that company's production would be 80 percent soft drinks and 20 percent fruit juice. 37 Ms Burgess stated she had sought to represent the Union's members in enterprise bargaining negotiations with the respondent since September 2004. 38 On or about 21 September 2004, Mr Etherington advised her the respondent was negotiating a Certified Agreement pursuant to s 170LK of the federal Workplace Relations Act 1996 with employees engaged at the Mudgee site. Mr Etherington sought from Ms Burgess the names of any individual employees who wished to be represented by the Union. 39 Ms Burgess deposed she was aware that the respondent had also sought to offer Australian Workplace Agreements to employees. 40 On 23 September 2004, Ms Burgess met with Ms S Leonard, the respondent's human resources manager who advised her that the Union was ineligible to represent the employees because it was not party to the Aerated Waters Award. The respondent asserted that the Aerated Waters Award was the correct award to regulate wages and conditions of its employees engaged at the Mudgee site. 41 It was Ms Burgess' evidence that clause 47, Area, Incidence and Duration of the Food Award is relevant to the work performed by the respondent's production and stores employees, particularly with respect to fruit juice processing and bottling: 3) fruit juice or vegetable juice processing and/or concentrating and cordial making, including bottling and/or canning in factories; 42 Ms Burgess stated she was aware that subclause (a) of clause 26, Area, Incidence and Duration of the Aerated Waters Award, described coverage of employees engaged in the manufacture and/or distribution of fruit juices in so far as they are within the industries and callings of the Aerated Waters & c (State) Industrial Committee defined as being "Aerated waters and beverage makers, bottlers, washers, carters, grooms, yardmen, motor-wagon drivers, and labourers employed in connection therewith in the state, excluding the county of Yancowinna." 43 It was Ms Burgess' evidence that the industries and calling of the Aerated Waters & c (State) Industrial Committee specifically limited the operation of the Aerated Waters Award to the making of "aerated waters and beverages", which may include fruit juice that is aerated. 44 To the best of Ms Burgess' knowledge and based upon her observations, the respondent does not produce any aerated products at its Mudgee site, nor does it produce aerated fruit juice. 45 The registered rules of the Union in New South Wales enable it to enrol, as members, persons engaged in or in connection with "Fruit juices and cordials..." 46 Classifications set out under the Food Award, such as labelling machine operator, filling and closing machine operators responsible for packaging products in bottles or single unit serves, mixing and/or blending machine operators, shrink wrap packaging operators and bottle closer operators are relevant to the work and of production employees engaged at the respondent's Mudgee site. Ms Burgess further deposed that the Food Award could also cover equipment cleaning and materials handling. 47 It was Ms Burgess' evidence that the Aerated Waters Award cannot apply to the respondent because the work of the respondent's employees does not fall within the jurisdiction of the Aerated Waters Industrial Committee. She contended the proper award was the Food Award which in her opinion applied to all persons employed in or in connection with fruit juice processing, including bottling, however the juice is manufactured. 48 Ms Burgess believed technological change and the trend away from crushing juice on site towards a reliance upon suppliers to provide fruit juice raw materials should not prevent the application of the Food Award to the respondent's Mudgee operations. Respondent Mr Scott Etherington 49 The respondent relied upon an affidavit deposed by Mr Scott Etherington, Manager, filed on 6 June 2005. Mr Etherington was appointed Manager in April 2000. He was involved in the negotiation of the proposed certified agreement and the proposal to offer Australian Workplace Agreements to employees engaged at the Mudgee site. 50 The respondent is a family owned business that has operated from the Mudgee site since 1876. Upon ceasing to package milk products in 1992, the respondent has been primarily engaged in processing, packaging, storing and distribution of drinks including fruit juices, fruit drinks and bottled spring water. Eighty per cent of products manufactured at and distributed from the Mudgee site are fruit juice products. The remainder is bottled spring water. 51 It was Mr Etherington's evidence that fruit juice is manufactured from fruit concentrate and whole juice pulp. The respondent does not manufacture the concentrated fruit juice nor does it crush fruit to make juice. It does not deal with raw fruit and has no equipment to produce fruit juice. Mr Etherington affirmed the respondent purchased all of its fruit juice concentrate requirements from suppliers that process raw whole fruit to make fruit juice and fruit juice concentrate. 52 Mr Etherington deposed the Mudgee site employed 38 employees, including 18 production employees, 11 stores employees, 5 drivers and 4 administration employees. Production employees are primarily involved in the processing and bottling of concentrated fruit juice, whole fruit juice and spring water. Stores employees engaged at the Mudgee site are primarily involved in the receipt and storage of raw materials and despatch of finished products. 53 Production employees, according to Mr Etherington's evidence, are involved in the mixing of whole juice, concentrate or pulp in a mixer, adding water, sugar, preservatives or colours as required. Production employees are also involved in refilling the bottle sorter and cap blower, operating and maintaining the labelling, filling and shrink wrapping machines, equipment cleaning and packaging. 54 Mr Etherington deposed Stores employees collected pallets of product for cold room storage or despatch, rotated cool room stock, packed orders, unloaded raw materials, loaded finished product, and undertook general materials handling and cleaning. 55 Supplies of concentrated fruit juice are usually packaged in 200 litre drums. The concentrate is normally frozen and requires thawing. Concentrate is extracted by hose in the mixing room and pumped to a mixing tank where production employees add water, sugar, preservatives, colours and flavours as required. Mixed product is subsequently pasteurised and placed in a 10,000 litre holding tank. 56 In contrast, Mr Etherington stated whole fruit juice arrived packaged in 1,000 litre bags. The juice is extracted by hose and either pumped into a pasteuriser or directly into a 10,000 litre holding tank after the ingredients are mixed. No water is added. 57 Spring water is brought to the Mudgee site by truck, pumped to a holding tank and is subsequently submitted to a filtration, pasteurisation and ultra violet filter process. 58 Mr Etherington contends that award coverage under clause 26, Area, Incidence and Duration of the Aerated Waters Award is appropriate to the respondent's Mudgee site operations and further, applies to the manufacture and distribution of soft drinks and fruit juices whether aerated or not: (a) This award shall apply to aerated waters and beverage makers, bottlers ...employed in or in connection with the manufacture and/or distribution of aerated water, other soft drinks, fruit juices... 59 Mr Etherington deposed that production and stores employees of the respondent were properly covered by Classification 9 under the Aerated Waters Award: Employees engaged on bottling or canning line operations including operating bottle washer, removing empty bottles from cases, or placing empty bottles on conveyors, sight inspecting, filling cases with full bottles, and stacking cases on pallets, fruit juice extracting cordial and/or syrup room (other than in classification No. 1,2 and 5), loader on or off motor trucks, cleaner, storeman and warehouse employee, store assistant (as defined), plastic blow moulding machines operator and/or employee attending, feeding or operating shrink wrap machine. 60 Mr Etherington stated an application for the certification of the proposed Bevco Pty Ltd New South Wales Certified Agreement 2004 was listed for hearing before the Australian Industrial Relations Commission on 4 November 2004. The matter was subsequently adjourned at the request of the respondent following a decision in October 2004 to offer employees Australian Workplace Agreements. 61 Mr Etherington stated that in response to a view expressed by the National Union of Workers that production and stores employees engaged at the Mudgee site were covered by the Storeman and Packers (State) Award, the respondent approached the NSW Department of Commerce's Office of Industrial Relations to confirm the appropriate and applicable state award. The Office of Industrial Relations subsequently confirmed the Aerated Waters Award may be the appropriate award to cover the respondent's Mudgee site production and stores employees. 62 It was Mr Etherington's evidence that the Office of Employment Advocate had approved Australian Workplace Agreements filed by the respondent on behalf of production and stores employees who had signed them. 63 Mr Etherington deposed that he was aware the Office of Employment Advocate had applied the Aerated Waters Award for the purpose of assessing the 'no disadvantage test'. He denied its application was adopted to ensure a proposed certified agreement or Australian Workplace Agreement satisfied the relevant no disadvantage tests. 64 Mr Etherington stated that he understood Berri Juices applied the Food Award to its operations on the basis the company handled and processed whole fruit. 65 In cross examination, Mr Etherington stated the respondent applied the Food Award when he was appointed Manager in April 2000. Following the acquisition of a plant in Queensland which applied the relevant State Aerated Waters Award, the respondent sought advice concerning appropriate award coverage in New South Wales and was subsequently advised that the Aerated Waters Award "was probably the more relevant award." 66 The respondent has applied the Aerated Waters Award at the Mudgee site since July 2004. 67 Mr Etherington confirmed that the respondent's production and product type had remained unchanged between 2000 and 2004. Mr Etherington also confirmed the respondent does not produce any aerated products at the Mudgee site. 68 Mr Etherington acknowledged that in his evidence in chief, his reference to the Aerated Waters Award - Area, Incidence and Duration set out under Clause 26, did not include the reference that the award applied to "aerated waters and beverage makers... " 69 In re-examination, Mr Etherington stated fluids can be aerated by means other than carbonation. It was Mr Etherington 's evidence that the injection of air or gas into a fluid would render it aerated and some fluids are aerated to assist with mixing. SUBMISSIONS The Union 70 Mr Neilson submitted the respondent had applied the Food Award for some years up until July 2004 when it was advised by a third party that the Aerated Waters Award was more appropriate to its operations. The respondent did not produce soft drinks nor did it treat any product with carbon dioxide. Accordingly, the Food Award must apply to the respondent to the exclusion of the Aerated Waters Award. 71 The Union contended that the Food Award provides a clear description of the type of work the award seeks to cover and specifically, Clause 47.2.3 - Area, Incidence and Duration applies to all persons employed in or in connection with: fruit juice or vegetable juice processing and/or concentrating and cordial making, including bottling and/or canning ... 72 Mr Nielson submitted that Clause 47, Area, Incidence and Duration, particularly the words "fruit juice ... processing and ... concentrating ...including bottling" reflects the respondent's Mudgee site operation described at paragraphs 8 of Mr Etherington's Affidavit as follows: the production employees are primarily involved in the processing and bottling of the raw materials of concentrating fruit juice, whole fruit juice and spring water. 73 Mr Neilson contended that on the evidence it is clear that the respondent and its employees process and bottle fruit juice. In processing fruit juice, the respondent adds its own sugars, preservatives and colouring - processes clearly provided for in clause 47.2.3 of the Food Award. 74 Mr Nielson referred to the Collins Concise Dictionary definition of the word "process" as being "handle, treat, prepare by special method of manufacture" and submitted that on Mr Etherington's evidence, the respondent's employees attach a hose to bulk fruit juice drums or bags and subsequently add colours, sugars and preservatives prior to bottling - activities clearly associated with the processing and bottling of fruit juice as provided under Clause 47, Area, Incidence and Duration. 75 In Mr Neilson's submission, Clause 26, Area, Incidence and Duration of the Aerated Waters Award provides that the award applies to employees engaged in or in connection with: ...the manufacture and/or distribution of aerated water, other soft drinks, fruit juices, cider, cordials, ginger-beer, hop and other non-intoxicating beers and/or similar types of beverages with or without alcoholic content ... and is limited by the jurisdiction of the Aerated Waters State Industrial Committee. He submitted this limitation is grounded in the fact that the Aerated Waters & c (State) Industrial Committee Industries and Callings only applies to aerated waters and beverage makers and accordingly jurisdiction is conditional on the product produced being treated with carbon dioxide. The word 'aerated' is a descriptor that limits the application of the Award is to aerated products. 76 A number of classifications under the Aerated Waters Award relate to Soft Drink Industry Employees and in the Union's submission, the description of "soft drink employee" correctly characterises the type of work that the award is intended to cover. The respondent does not produce soft drinks and none of its products are aerated for the purposes of the Aerated Award. 77 Specifically, Mr Nielson referred to classification No.9 under Part B, Monetary Rates, Table 1 - Wages of the Aerated Waters Award provides coverage for: "Employees engaged on bottling or canning line operations, including operating bottle washer ... filling cases with full bottles and stacking cases on pallets, fruit juice extracting cordial and/or syrup room ..." Accordingly, Mr Nielson submitted the respondent is unable to rely upon the reference to 'fruit juices' in Clause 26, Area and Incidence of the Aerated Waters Award because the classification itself refers to "fruit juice extracting cordial". The respondent does not produce cordial, which on the evidence of Mr Etherington , is by definition, a product containing some four per cent fruit juice. 78 Mr Nielson referred to Exhibit 7, the Membership Qualifications of the Australian Liquor, Hospitality and Miscellaneous Workers' Union, New South Wales Branch, the industrial organisation he submitted was responsible for the Aerated Waters Award. Under Part 2, the Membership Qualifications refer to employees working in or in connection with "aerated cordial". There is no reference to "fruit juice industry" in the Union's Rules. 79 The Membership Qualifications for the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, New South Wales Branch, set out in Exhibit 8, refer under Part E, 2E.1(v) to persons engaged in or in connection with the manufacture, preparation, processing or putting up of "fruit juices and cordials." 80 Mr Nielson submitted the Union's Eligibility Rule entitled it to cover employees engaged in the production of fruit juices. 81 The respondent had applied the Food Award to its Mudgee site operations for a number of years prior to July 2004 when it began to apply the Aerated Waters Award. 82 Hours of work, classification rates of pay, meal allowances, bereavement leave and a range of conditions applicable under the Food Award were more generous than similar provisions applicable under the Aerated Waters Award. 83 Mr Nielson inferred the respondent had applied the Aerated Waters Award to ensure Australian Workplace Agreements proposed in the latter part of 2004 satisfied the Office of Employment Advocate's 'No Disadvantage Test'. 84 Mr Nielson submitted that the primary consideration of the Commission to interpretation adopted in Bryce at 452 (See also Kellogg (Aust) Pty Ltd v National Union of Workers, New South Wales Branch [1998] 89 IR 391 at 395 and Cooper Brooks (Wollongong) Pty Ltd v Commissioner of Taxation (Cth) [1981] 147 CLR 297 at 305) is that when interpreting industrial instruments, the Commission is to look at the actual words used and apply their plain ordinary meaning. That approach should be applied in considering the application of the Aerated Waters and Food Awards to the respondent's Mudgee site operations. 85 Mr Neilson submitted the respondent may assert that the Commission should place reliance on the fact that it has applied the Aerated Waters Award for some time. However, he cautioned that were the Commission to place reliance upon this in forming its view on interpretation and application of the Awards, it would fall into error: Re Hospital Employees Conditions of Employment (State) Award (2000) 96 IR 245 at 262. 86 In the event the Commission determined the words in the respective Awards ambiguous, it was Mr Nielson's submission that the Commission should consider the evidence of Ms Burgess with respect to the application of the award across various other fruit juice producers and manufacturers: Codelfa Constructions Pty Ltd v State Rail Authority (NSW) [1982] 149 CLR 337 at 352 and Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union and ors v Qantas Airways Limited [2001] 106 IR 307. 87 Mr Nielsen also referred to the decision in Zoological Parks Board of New South Wales and The Australian Workers' Union, New South Wales [2004] NSWIRComm 85 where at paragraph 2, the Full Bench held that the primary consideration when interpreting industrial instruments is the actual words used, which should be given their plain and ordinary meaning. Further, at paragraph 3, the Full Bench said it was permissible to have regard to the surrounding circumstances: The context of the words is to be considered, and may be considered in the first instance, not merely at some later stage when ambiguity may be thought to arise. That context includes the instrument as a whole, and in some circumstances the history of the instrument. 88 Mr Neilson submitted the title of the Food Award was clear. The Award concerns the preservation of food and on the evidence of Mr Etherington, the respondent adds preservatives to its products to extend their shelf life. In this regard, the Zoological Parks Board decision favours the Union's case. At paragraph 49 where the Full Bench concluded: First, the disputed clause must be considered in its context: Codelfa Constructions at 348 and CFMEU v Delta Electricity at [44]. The title, parties to the agreement, objects and coverage clauses clearly indicate that the agreement applied to the functions of employees at Taronga Zoo. 89 Mr Nielson submitted that against the backdrop of the Zoological Parks Board case, the title "Aerated Waters Award" can be properly applied only where the nature of the respondent's operations relates to "aeration". Further, the title of the Food Award clearly reflects the intent that it covers food preserving and on the evidence the respondent 'preserves' fruit juice as part of the processing and bottling operations. 90 Mr Neilson contended the federal and NSW Food Awards were counterpart awards and their respective area and incidence provisions were similar. He referred to Ms Burgess' evidence that some federal award respondent companies, including Berri Juices at Smithfield, do not crush fruit on site and rely upon fresh or concentrated fruit juice provided by suppliers. The Respondent 91 The respondent opposed the Union's case that the Food Award should apply . 92 Mr Kite referred to the principle of condonation and submitted that should the Commission place reliance on the fact that the respondent had applied the Food Award for a lengthy period of time, it would fall into error: Seamen's Union of Australia v Adelaide Steamship Co Ltd [1976] 46 FLR 444. 93 At 445 of the Seamen's Union case, Mr Kite submitted the Court noted that respondents in that matter had: [S]ought to have admitted evidence of the conduct of the parties subsequent to the making of the award, relying on the advice of the Judicial Committee of the Privy Council in Watcham v Attorney-General of the East Africa' Protectorate and a decision of this Court in Merchant Guild of Australia v Sydney Steam Collier Owners and Coal Stevedores Association in which evidence was admitted in order to resolve the ambiguity. 94 Mr Kite referred to the approach of the Full Bench in the Zoological Parks Board case which at 70 paragraph 58 considered there was no role for the principle of condonation in interpreting industrial instruments: Further, the principle of condonation seems, conceptually, to intersect with the use of "evidence of user", that is, where the court has regard to how the parties have applied the instrument in practice. It is well established that it is generally impermissible to have regard to the subsequent conduct of parties as an aid in the interpretation of a written instrument, such as a contract or industrial instrument: see, for example, Seamen's Union of Australia v Adelaide Steamship Co Ltd at 445 where the Australian Industrial Court discussed the advice of the Privy Council in Watcham v Attorney-General of the East Africa Protectorate [1919] AC 533 and the judgment of the House of Lords in L Schuler A.G. v Wickman Machine Tool Sales Ltd [1974] AC 235 and, in considering the latter decision, stated: The issue there was whether the conduct of the parties to a commercial agreement was admissible in aid of interpretation of that agreement and the House of Lords unanimously decided that, in general, an agreement could not be construed in the light of the subsequent actions of the parties. Lord Reid expressed the view that there may be special reasons for construing the title to land in the light of subsequent possession, but found no support for any general principle permitting subsequent actions to be used in throwing light on the meaning of a contract. Lord Wilberforce was more severe in his criticism of reliance on Watcham's case, which he described as a "refuge of desperation". No other authority on the point has been referred to us and, in these circumstances, we decided to apply Schuler's case and refused to allow the evidence of subsequent conduct. 95 Mr Kite submitted the Court determined Watcham's Case should be confined in its application to the interpretation of documents of title to land as to evidence of user. The Court's decision in the Seamen's Union case has been followed in other cases before this Commission and elsewhere in other jurisdictions. 96 Mr Kite further submitted at 71, the Full Bench noted at paragraph 60 of the Zoological Parks Board decision that the principle of condonation involved some sort of reciprocation or non-reciprocation. In the present case the respondent had applied the Food Award for some time based on certain advice at the time and later, based on further advice, had commenced applying the Aerated Waters Award. 97 Mr Kite also referred the Commission to paragraph 49 where the Full Bench also observed: [T]he disputed clause must be considered in its context: Codelfa Construction at 348 and CFMEU v Delta Electricity at [44]. The title, parties to the agreement, objects and coverage clauses clearly indicate that the agreement applied to the functions of employees at Taronga Zoo. Thus, the terms of the agreement should be construed as concerning the operations of that special enterprise. 98 Mr Kite referred to the majority decision of the Full Bench decision of Re Hospital Employees Conditions of Employment (State) Award per Wright J, President and Schmidt J, where at 258 their Honours having identified the obvious difficulty with the construction of the provisions, subsequently attempted to identify some logic in the approach and words adopted by the drafters of the Award. 99 Mr Kite concluded that the proper approach to interpretation where the construction and language used is ambiguous was outlined by Mason J in Codelfa Constructions at 352: The true rule is that evidence of surrounding circumstances is admissible to assist in the interpretation of the contract if the language is ambiguous or susceptible of more than one meaning. But it is not admissible to contradict the language of the contract when it has a plain meaning. Generally speaking facts existing when the contract was made will not be receivable as part of the surrounding circumstances as an aid to construction, unless they were known to both parties, although, as we have seen, if the facts are notorious knowledge of them will be presumed. 100 Mr Kite contended the issues concerning elements of conduct prior to the making of the relevant industrial instrument and conduct that was known to both parties as outlined by Mason J do not arise in this matter. Accordingly, it is open to the respondent to conclude that the Aerated Waters Award is appropriate to its Mudgee site operations. 101 Referring to the decision in Kingmill at paragraph 63, Mr Kite submitted the test to be applied in construing the true meaning of an industrial award, was to examine the actual words used and their plain, ordinary English meaning. This approach is consistent with the principles enunciated by the Full Bench in Bryce - the plain and ordinary meaning of the words used and the approach also taken in Kellogg (Aust) Pty Ltd per Hungerford J at 392-3; 395; Re Hospital Employees Conditions of Employment (State) Award (1999) at 255 - 256 per Wright J, President and Schmidt J. 102 Mr Kite referred to paragraphs 67 and 68 to reinforce the respondent's approach to the resolution of questions of interpretation: 67 The application of those principles, we think, should occur in conformity with general approaches to the construction of enactments and other instruments. In this respect, we note, with approval, the observations of Walton J, Vice-President, in Perisher Blue v Australian Workers' Union (1999) 91 IR 274 at 283 - 284: Speaking generally, awards should be interpreted in a similar fashion to other enactments: Geo A Bond & Co Ltd (in liq) v McKenzie [1929] 28 AR (NSW) 498 at 503 ; Short v F W Hercus Pty Limited (1993) 40 FCR 511 at 520. In the construction of the general order, and in conformity with general principles of award interpretation, the Commission should consider the wider context of the making of those provisions. Burchett J in Short v F W Hercus describes this approach to the interpretation of an award as follows: "The context of an expression may thus be much more than the words that are its immediate neighbours. Context may extend to the entire document of which it is part, or to other documents with which there is an association. Context may also include, in other cases, ideas that gave rise to an expression in a document from which it has been taken. When the expression was transplanted, it may have brought with it some of the soil in which it once grew, retaining a special strength and colour in its new environment. There is no inherent necessity to read it as uprooted and stripped of every trace of its former significance, standing bare in alien ground. True, sometimes it does stand as if alone. But that should not be just assumed, in the case of an expression with a known source, without looking at its creation, understanding its original meaning, and then seeing how it is now used. Very frequently, perhaps most often, the immediate context is the clearest guide, but the court should not deny itself all other guidance in those cases where it can be seen that more is needed. In literature, Milton and Joyce could not be read in ignorance of the source of their language, nor should a legal document, including an award, be so read." (at 518) (See also Western Newspapers Pty Limited & Another v Warren (1994) 56 IR 340 at 351). I note that a similar approach was adopted by the former Industrial Commission in re Butter, Cheese and Bacon Factories and Milk and Cream Condensories &c. (State) and Butter Cheese and Bacon Factories and Milk and Cream Condensories, &c. (Newcastle and Northern) Awards (1950) 49 AR 62 at 64 where it was held that the meaning of words within an award (which are not expressed or precise) may be ascertained by "placing upon the words their ordinary meaning as applied to the subject matter with respect to which they are used". 68 The authorities set out in Bryce considered the circumstances in which it may be appropriate to apply the award-maker's intentions to the circumstances in which the award was made and to the practical effects of a particular construction. The decision in Perisher Blue indicated the desirability of considering the terms of an award in the context in which they appeared and emerged. Those principles apply with equal force to the circumstances in which it may be appropriate to have regard to other aids of construction such as the "major and substantial" or "principal purpose" tests. 103 Mr Kite submitted that the principles stated in Bryce represent a long standing and settled approach to the interpretation of an industrial instrument. 104 Mr Kite submitted that in the light of the decision of the Full Bench in Construction, Forestry, Mining and Energy Union (New South Wales Branch) v Delta Electricity [2003] NSWIRComm 135 at paragraph 41, it was inappropriate to construe industrial instruments having regard to the subjective intentions of the parties. Rather, the primary consideration in such matters is the plain ordinary meaning of the actual words used and the context in which the words are used. 105 Mr Kite submitted that what Bevco and the Union intended and for that matter, what the Union intends with Berri Juices or P&N Beverages are irrelevant to the Commission's consideration. Rather, the Commission is required to have sufficient regard to the actual terms of the instruments being construed. He referred to the decision in Delta Electricity where at paragraph 44 the Full Bench said: 44 The reliance on the subjective intention of the parties in the interpretation of the industrial instruments involves error in principle thus requiring appellate intervention: see, for example, House v The King (1936) 55 CLR 499. Further, we consider that, by adopting that approach, the Commissioner erred by failing to have sufficient regard to the actual terms of the instruments being construed, namely the terms of the award and the agreement. Nor was the Commissioner's approach consistent with the normal approach to interpretation, including interpretation of awards, which requires the particular words or phrases under consideration to be considered in their context (for example, Fox v GIO Australia Ltd [2002] NSWIRComm 318 and Perisher Blue Pty Ltd v Australian Workers' Union (1999) 91 IR 274 at 283). 106 Mr Kite submitted the relevant Aerated Waters Industrial Committee has jurisdiction to make awards within its constitution. 107 Mr Kite submitted the respondent is a beverage maker and it produces beverages such as bottled spring water, fruit juice drinks and fruit juice. In the respondent's view, the Industries and Callings under the Aerated Waters Industrial Committee correctly apply to "makers and bottlers" of both aerated waters and beverages, principally on the ground that the word 'aerated' governs only the word 'water' and not the word 'beverage'. Simply put, the respondent is in the business of making beverages and bottling them, activities that clearly fall within the Industries and Callings of the Aerated Waters Industrial Committee. 108 Mr Kite further submitted the beverages produced by the respondent were soft drinks. Mr Nielson's interpretation of Mr Etherington's evidence that the respondent does not produce soft drinks was denied. Rather, Mr Kite submitted, it was Mr Etherington's evidence that although the respondent did not aerate the soft drinks it produced, there was no reason in the respondent's submission, to confine the words, "soft drinks" to fizzy drinks such as "Schweppes Lemonade". 109 It was the respondent's submission that a soft drink is simply in common parlance a non-alcoholic drink or beverage and accordingly both fruit juice and spring water are soft drinks. 110 Mr Kite contended the respondent does not produce cordial, which on the evidence of Mr Etherington, is by definition, a product containing some four per cent fruit juice. He believed the definition may be governed by the Pure Food Act or similar regulatory instrument. However, the fact that the term "cordial" may be governed by a regulatory instrument does not apply to the use of the word wherever it arises, whether in the Liquor, Hospitality and Miscellaneous Workers Union Rules or, in the Aerated Waters Award. 111 Mr Kite also submitted the fact that the respondent adds preservatives to some products that it produced does not mean it is in the business of preserving food. The respondent is a beverage maker, a producer of drinks such as spring waters, fruit drinks and juices. 112 Mr Kite submitted that the tension between the "the business of making and bottling of beverages" as contended by the respondent and "the business of processing fruit juice" can be answered by reference to the context of the respective Awards and their history. 113 Mr Kite contended the classifications set out under Clause 1, Definitions of the Aerated Waters Award contained a range of definitions including Assistant Syrup Maker and various grades of Soft Drink Industry Employee. 114 Specifically, Mr Kite submitted that the definition of Grade 2B Soft Drink Employee includes work: ... filling cases with full bottles, stacking cases on pallets, extracting fruit juice, assisting in cordial and or syrup rooms... 115 A Grade 3B Soft Drink Industry Employee performs work at a level above and beyond the level of a Soft Drink Industry Employee Grade 2. Such employees are responsible for "running adjustments or running maintenance of automatic carbonating, fruit juice or aerated waters machines or plant..." 116 A Grade 4B Soft Drink Industry Employee is defined as an employee who performs work above and beyond the skills of the Soft Drink Industry Employee Grade 3B. 117 Classification 9 under Part B, Monetary Rates, Table 1 - Wages (for establishments with a flow rate of 7,000 litres per hour or more) is defined as "Employees engaged on bottling ... fruit juice extracting cordial..." Mr Kite submitted the definition only makes sense when a comma is inserted after the word 'juice' and contended the missing comma was a drafting error. Mr Kite referred to the definition of Grade 2B Soft Drink Industry Employee where a comma appears after the words, "extracting fruit juice.." 118 Mr Kite submitted Exhibit 11, a copy of the Aerated Waters Award made on 27 June 1975 by the Aerated Waters & c. (State) Conciliation Committee was relevant to the submission that historically, the words, "fruit juice" and "extracting" were separated by a comma. 119 Mr Kite further submitted that Exhibit 10, a copy of the Aerated Waters Award Conciliation Committee Gazettal dated 11 July 1930 refers to 'Aerated waters and beverage makers' and this reference supports the proposition that the processing and bottling of fruit juice, a beverage, is a part of the aerated waters industry. 120 Against the backdrop of the Full Bench decision in Zoological Parks Board and having regard to titles, classifications and parties of the Awards, Mr Kite contended that the Food Award was about food and the Aerated Waters Award was about drink. 121 The classification structure of the Food Award is consistent with its title and history. The history of the Food Award is very much focused on the preservation of food and the fact that the 1978 Award rescinded and replaced the former Jam and Condiment Makers & c (State) Award. 122 The Food Award contains a number of syrup maker definitions and definition 2.16 Syrup Maker (other) refers to the making of brine, a part of a preservation process. Further, Clause 3, Wages and Classifications under the Food Award contain a range of classifications that are involved in the processing, preparation, preservation and cooking of food. Within Group 2.3 lies the classification, Preserver of cherries, citrus peel and/or vegetable by syruping or brining (including the making of such syrup or brine is very much part of the food preservation process). Syrup and brine are linked to the preservation of food. 123 Classification Group 5.35 is defined as "Employee engaged in the juice making section working on or about a fruit press in processes associated with the extraction of fruit juice". In this regard, Mr Kite submitted that the reference to fruit juice in Classification Group 5.35 is the sole reference to fruit juice within the Food Award's classification structure and importantly, the reference is about 'taking the whole fruit and extracting the fruit juice' and 'the extraction of fruit juice to a concentrate.' 124 Mr Kite referred to Exhibit 13, setting out of the Food Preservers (State) Award gazettal dated 9 August 1978, and specifically Clause 38, Area, Incidence and Duration. He submitted the Award rescinded and replaced the Jam and Wet Condiment Makers (State) Award and both the Area, Incidence and Duration Clause and, the Classification Clause are essentially set out in terms identical to the current Food Award. 125 Mr Kite noted that Clause 38(3), Area, Incidence and Duration of Exhibit 13 refers to "fruit juice or vegetable juice processing and/or concentrating and cordial making, including bottling and/or canning in factories." Accordingly, the construction of the Award is very much centred on the operation of extracting or concentrating fruit juice from whole fruit or vegetables. Accordingly, the coverage of the award is limited to the extraction of fruit juice from whole fruit. 126 Mr Kite noted that the Industries and Callings of the Jam, Vinegar, Sauce, & c Manufacture (State) Conciliation Committee, appended to the 1978 Food Award, make no reference to fruit juices. Rather, the Conciliation Committee deals with the preserving, preparing, canning and/or manufacture of jams, fruits, vegetables and the like. 127 Mr Kite referred to Exhibit 12 and submitted the Industries and Callings under Jam, Vinegar, Sauce, &c., Manufacturers (State) Conciliation Committee gazetted on 23 January 1932 do not deal with fruit juice but rather, deal with fruit and vegetable preparing and their preservation. 128 Mr Kite contended the fact that the Union may be able to cover persons employed in or in connection with fruit juices or cordials is not determinative that the Food Award applies. Similarly, the Liquor, Hospitality and Miscellaneous Workers Union Rules neither refer to soft drinks or aerated waters, yet that Union seems to have unchallenged coverage of the aerated waters and soft drinks industry. 129 In conclusion, Mr Kite submitted the Commission needs to consider the context of the language that appears in the awards together with their history, including the scope of the originating conciliation committees which made the original awards. Union in Reply 130 Mr Nielson submitted Clause 38(3) of the Area, Incidence and Duration clause under the 1978 Award referred to by Mr Kite and set out in Exhibit 13, clearly refers to fruit juice or vegetable juice processing and/or concentrating and cordial making, including bottling in factories. 131 Mr Neilson argued it was inappropriate to rely upon the jurisdiction of the Jam, Vinegar, Sauce Manufacturers Conciliation Committee as constructed in 1932 as the Committee's jurisdiction has expanded since that time through legislative change, union amalgamations and agreements, agreements within and between committees to expand coverage to cover fruit and vegetable juice processing. 132 It was the Union's view that the Food Award had stood since 1978 and was subject to a s 19 Review by Marks J in 2001. Mr Neilson submitted the Review affirmed the current scope set out under Clause 47.2(3). Accordingly, it was Mr Nielson's submission that following the s19 Review the Commission itself has accepted that the Food Award covers fruit juice processing and bottling. 133 On the evidence of Mr Etherington in chief that the fruit juice bottled at Mudgee is processed from fruit concentrate, whole juice and pulp, Mr Neilson contended the respondent acknowledged that the "processing and bottling" of fruit juice is covered by the Food Award. 134 Mr Neilson submitted that reliance by the respondent on the fact that classifications under the Food Award do not refer to "fruit juice" does not prevent the Award's application to employees engaged by the respondent at the Mudgee site. 135 Mr Neilson contended the Group 5 Classification under the Food Award refers to an employee engaged in the juice making section working on or about a fruit press in processes associated with the extraction of fruit juices. 136 Mr Neilson submitted the respondent does not extract fruit juice and it is only in relation to "extracting fruit juice" that the Aerated Waters Award can be applied. 137 Mr Neilson contended that other than the reference to "extracting fruit juice" within the definition of Grade 2 B Soft Drink Industry Employee under the Aerated Waters Award, the only other references to "fruit juice" appear within Classifications 4 and 9 under Part B of the Award. 138 Mr Neilson argued that when the jurisdiction and callings of the Aerated Waters Award are taken into account, the references to fruit juice in Classifications 4 and 9 under Part B do not bring the Award within the ambit of the work performed by the respondent. 139 Mr Neilson contended the jurisdiction of the Food Award is not limited by an Industrial Committee. There is no reference in the 1978 Food Award, nor the current Award to its operations being limited to the jurisdiction of the relevant Industrial Committee. 140 Mr Neilson submitted that in the Union's view, the operation of the Aerated Waters Award was restricted by the Industries and Callings of the Industrial Committee being limited to aerated waters and beverage makers. The reference to the word "beverage" under the Industries and Callings is qualified by the word "aerated." 141 Mr Neilson contended that in the event that the Industries and Callings Clause of the Aerated Waters Award was to be read as providing jurisdiction for both aerated waters and/or beverages, it would have read as "aerated waters, beverages ..." 142 Mr Neilson contended that "Aerated Waters" must be charged with gas or some form of carbon dioxide so as to make it soft drink. 143 Mr Neilson submitted the fact that the respondent uses a range of crushed orange concentrates in liquid or frozen form does not exclude the processing of concentrate from the operations of the Food Award. The concentrate remains a form of food albeit in a liquid form. Further, Mr Neilson submitted the Union relies upon Mr Etherington's evidence that the respondent applies preservatives in certain circumstances prior to bottling fruit juice and drinks. CONSIDERATION 144 This has been a very difficult matter to decide. Neither the Union nor the respondent were able to refer to any cases where the application and coverage of the Awards had been the subject of consideration in this Commission. 145 In Barrier Industrial Council and Broken Hill Chamber of Commerce Inc [2005] NSWIRComm 249, Sams DP conveniently summarised the key principles to be applied when interpreting awards: 1) Interpretation of awards cannot be approached in exactly the same way as the interpretation of statutes. 2) The actual words used should be given their plain, ordinary English meaning. 3) If the words are unambiguous, it is not permissible to extend or limit their ordinary commonsense meaning. 4) A too literal interpretation of an award provision should be avoided. 5) It may be appropriate to consider the intention of the industrial parties who drafted the award. 6) The meaning of a particular clause may be ascertained in the context of the award as a whole. 7) The provisions of an award should be construed beneficially, subject to the actual language used and what is fairly open on the words used. 146 It is appropriate that the Commission has regard to the relevant history of the Awards, their surrounding circumstances and principal purpose when attempting to interpret the plain and ordinary meaning of the words set out in the respective Area and Incidence clauses and elsewhere in the Awards. 147 Clearly the Awards in this matter has been reviewed consistent with the provisions of s 19 of the Act. The Union submitted, pursuant to those reviews, the Commission as presently constituted should consider whether that review process has encroached upon the respective interpretations of the parties. 148 The role of the Commission in the review of awards under s19 is identified in s 19(3) of the Act: (3) The Commission must take account of the following matters in the review of awards: (a) any decision of the Commission under Part 3 or any other test case decision of the Commission, (b) rates of remuneration and other minimum conditions of employment, (c) part-time work, casual work and job-sharing arrangements, (d) dispute resolution procedures, (e) issue of discrimination under the awards, including pay equity, (f) any obsolete provisions or unnecessary technicalities in the awards and the ease of understanding of the awards, (g) any other matter relating to the objects of the Act that the Commission determines. 149 The practical purpose of the review process set out under s 19(2 of the Act is to modernise and consolidate awards relating to the same industry and, rescind obsolete awards. The Commission is also required, under s 19(4) to take account the effects of the award on productivity and efficiency in the relevant industry. The Commission is empowered under s 19(6) to make such changes as it considers necessary to an award as a result of a review. 150 Simply put, the Union contended that the fact that the Commission has reviewed the Food Award pursuant to s 19 of the Act is of itself indicative that the Area and Incidence clause of the Award was being properly applied to the respondent's Mudgee operations prior to July 2004 in a manner consistent with its true construction. 151 It is arguable that any disagreement as to the interpretation and application of the Area and Incidence clause of the Food Award is a matter that the Commission could have regard to in a s 19 review process principally on the grounds that it may be a matter that can be identified within s 19(3)(f), as going to "the ease of understanding" of the particular award provision. 152 The respondent in this matter is not challenging the wording of the Area and Incidence Clause of the Award per se, but rather, how the Area and Incidence Clause of the Food Award should be applied in practice. Notwithstanding that viewpoint, the respondent contends that it has been open to the Union to bring this matter to the attention of the Commission before now, on the basis of seeking declaratory relief or alternatively, the dispute provisions of the Act in combination with s 175. 153 On the evidence before the Commission in these proceedings it would appear that nothing has been done up until now, despite the s 19 reviews referred to by Mr Neilson to define or redefine the scope of the Area and Incidence Clause of the Food Award and nor for that matter, the Aerated Waters Award. That of course does not preclude this matter being dealt with by the Commission as presently constituted. Accordingly, I am not satisfied on the material currently before the Commission that the remaking of the Award under s 19 on two occasions can be seen of itself as confirmatory of the interpretation contended by the Union. Union's Evidence 154 It was Ms Burgess' evidence that the Food Award has broad coverage across ice cream, confectionary and frozen food production and manufacture, including the manufacture, concentrating, bottling, making and canning of fruit juices. 155 Ms Burgess deposed the Food Award and its Federal counterpart award are applied by a number of fruit juice manufacturers with operations in New South Wales. Ms Burgess contended that with the exception of P & N Beverages, an aerated waters producer that also produces a small quantity of bottled fruit juice, no other fruit juice manufacturer or bottler in New South Wales to her knowledge applied the Aerated Waters Award. 156 Ms Burgess deposed the area and incidence clause of the Food Award can be applied to the work performed by the respondent's employees. 157 It was Ms Burgess' evidence that the area and incidence clause of the Aerated Waters Award provides coverage for employees engaged in the manufacture and distribution of fruit juices only within the industries and callings of the Aerated Waters Industrial Committee, defined sharply as "aerated waters and beverage makers ...." 158 The respondent does not aerate fruit juice. Accordingly, the Industrial Committee precludes the application of the Aerated Waters Award to the respondent's operations. 159 The rules of the Union enable coverage of persons engaged in or in connection with the fruit juices and cordials. 160 The respondent's production and stores employees can be classified in accordance with the Food Award's classification structure. 161 Technological change and the fact that respondent purchases all of its raw fruit materials from suppliers should not prevent the application of the Food Award. Respondent's Evidence 162 The issue for decision is whether the Aerated Waters Award applies to the respondent. 163 It is common ground that the respondent is primarily engaged in processing, packaging, storage of fruit juices, fruit drinks and bottled spring water. It was also common ground that the respondent had applied the Food Award to its Mudgee operations for many years. 164 According to the evidence of Mr Etherington, approximately 80 percent of the products manufactured and distributed are fruit juice products. Bottled spring water represents the remaining 20 percent of manufactured product. The parties agree that the respondent does not produce fruit juice from raw fruit and all of its raw material fruit juice requirements are derived from specialist suppliers. 165 In July 2004 the respondent began to apply the Aerated Waters Award consequent upon the purchase of a fruit juice manufacturing plant in Queensland where the relevant state aerated waters award was applied. It was Mr Etherington's evidence that the respondent sought advice concerning appropriate award coverage in NSW and was advised the Aerated Waters Award was "probably the more relevant award." 166 It was conceded by the parties that rates of pay and allowances were generally lower under the Aerated Waters Award when compared to the Food Award. 167 On the basis of Mr Etherington's evidence, the production process is relatively straight forward. On the one hand, frozen concentrate is thawed, placed in a mixing tank with water, sugar, preservatives and other additives. It is subsequently pasteurised, placed in a holding tank and bottled. Whole fruit juice is pasteurised and placed in a holding tank where additives are mixed prior to bottling. Spring water is filtered and pasteurised prior to placement in a holding tank ready for bottling. 168 Shortly stated, the respondent contends that the area and incidence clause of the Aerated Waters Award covers the Mudgee operation and further, the award's classification structure covers the work undertaken by employees engaged in the production of fruit juice and spring waters. Conclusion 169 The guiding principle to award interpretation is to consider the plain and ordinary meaning of the actual words used: Zoological Parks Board at [43]. 170 The principles governing the interpretation of awards and industrial agreements in this jurisdiction are well settled. It is sufficient to observe that the instrument is to be read as a whole with the words used therein being given their ordinary and natural meaning. Extrinsic material may only be relied upon as an aid to interpretation when applying the ordinary and natural meaning of the language if any ambiguity remains. 171 It is instructive to look at the Awards as a whole. For an award to apply at a workplace, it is necessary that the relevant area and incidence clause describes the employer's industry. It is also necessary that the award contains an appropriate classification structure. 172 The Union submits that the Food Award is the proper award to apply to the respondent. 173 The respondent submits it is a beverage maker and the various fruit juice products it makes are beverages. The respondent's products are also marketed as beverages. The Aerated Waters Award covers beverage makers. 174 When juice is extracted from fruit, the natural life of the fruit is cut short. Without some form of preservation, the fruit juice will spoil and be rendered waste. Accordingly, raw juice is subsequently preserved by refrigeration and/or the addition of chemicals shortly after crushing. The respondent uses this "preserved" product to produce bottled fruit juices and fruit drinks. 175 The transition from whole fruit to fruit juice changes both the state and condition of the raw fresh fruit and does not sit comfortably with the operations of the respondent who largely bottles fruit juice from supplied concentrate which is already preserved by refrigeration or chemical means. 176 In my view, and on the material before the Commission, the Area and Incidence Clauses and, the relevant classification definitions of the Food and Aerated Waters Awards can be interpreted without regard to extrinsic material. The Award provisions are capable of being given a sensible meaning by applying the ordinary and natural grammatical meaning of the language used in the respective award provisions. It is only in the case of ambiguity or uncertainty that one needs to go further. 177 In this regard, the Concise Macquarie Dictionary (revised third edition 2005) defines "preserve" as: 1. to keep alive or in existence; make lasting. 2. to keep safe from harm or injury; save. 3. to prepare (food or any perishable substance) so as to resist decomposition or fermentation. 4. to prepare (fruit, etc.) by cooking with sugar. 178 "Food" is relevantly defined as: "what is eaten or taken into the body, for nourishment ... more or less solid nourishment (as opposed to drink)". 179 "Processing" is relevantly defined as: "a systematic series of actions directed to some end; a continuous action, operation, or series of changes taking place in a definite manner; to treat or prepare by some particular process, as in manufacturing". 180 "Bottle" is relevantly defined as: "to put into a sealed bottle; to preserve (fruit or vegetables) in bottles". 181 "Canned" is relevantly defined as: "preserved in a can, tin or jar". 182 "Concentrating" is relevantly defined as: "...to make more intense, stronger, or purer by removing or reducing the proportion of what is foreign or inessential; Chemistry to increase the strength of (a solution), usually by evaporation". 183 "Drink" is relevantly defined as: "any liquid which is swallowed to quench thirst, for nourishment, etc.; a beverage". 184 "Beverage" is relevantly defined as: "any kind of drink, other than water". 185 "Aerated" is relevantly defined as: "to charge or treat with air or a gas, especially with carbon dioxide". 186 "Juice" is relevantly defined as: "the liquid part of a plant ... any extracted liquid ...from a fruit". 187 "Soft drink" is relevantly defined as: "a carbonated, non-alcoholic, highly sweetened and flavoured drink; a non-alcoholic drink, as soda water, fruit juice, etc., especially when drunk instead of alcohol at a social occasion". 188 The Macquarie Dictionary definition of the term "preserve" concerns some form of intervention to maintain a product's condition, quality and shelf life. The principal purpose of the Food Award is to cover work associated with the preservation of food. In that context, "preservation" largely involves the preservation of food, including the manufacture, preparation, processing, cooking or putting up of fruit and vegetable products, jams, sauces soups and condiments whether canned or bottled. Historically, the principal purpose of the Food Award has been supported by its then existing Industrial Committees. 189 The classification structure of the Food Award largely supports the preservation, manufacture and preparation of food. There are a range of materials handling and stores classifications also supporting the manufacture, preparation, processing, cooking or putting up of food. 190 Clause 47.2(3), Area and Incidence of the Food Award is limited to the employment of all persons employed in or in connection with "fruit juice or vegetable juice processing and/or concentrating and cordial making, including bottling and/or canning in factories. 191 Clause 2 of the Food Award sets out a number of definitions for the purposes of the Award. Under subclause 2.12.2, the reference to the "citrus fruits (concentrated juice) season" definition would appear to support and under pin the intent of the Award to cover the operations pertaining to "fruit juice processing and/or concentrating". 192 Under Clause 3.6, Group 5, Classification 35 is defined as: Employee engaged in the juice making section working on or about a fruit press in processes associated with the extraction of fruit juices. Elsewhere, classifications such as syrup maker, storeman and packer, labelling machine operator and, mixing and/or blending machine operator are set out amongst a multiplicity of classifications reflecting the work of employees engaged in the manufacture, preparation, processing and preservation of food. 193 On their face, the plain and ordinary meaning of the words set out in Classification 35 would appear to restrict the scope of the classification to the coverage of only those employees working in the juice making section of a factory, working on or about a fruit press in processes associated with the extraction of fruit juices. 194 Similarly, the plain and ordinary meaning of the words set out in clause 47.2(3), Area and Incidence of the Food Award suggests the area and incidence is restricted to fruit juice processing, juice concentrating, cordial making, including the bottling and/or canning of the processed or concentrated fruit juice conducted in factories. 195 Other than a reference to "fruit juice processing and/or concentrating...." within Clause 47.2(3), Area and Incidence and, the Group 5 Classification 35 definition, the Food Award makes no other specific reference to fruit juice. 196 The everyday meaning of the expression "food" has a meaning akin to something which is eaten for nourishment. The expression "drink" is commonly used to describe any alcoholic or non alcoholic liquid that may be swallowed to quench thirst or, for nourishment. The question therefore remains, is fruit juice a beverage? 197 The plain and ordinary meaning of the words, "aerated waters and beverage makers ...employed in or in connection with the manufacture and/or distribution of aerated water, water, other soft drinks, fruit juices, cider, .... and/or similar types of beverages with or without alcoholic content" come within the Macquarie Dictionary definitions of beverages, drinks and soft drinks. 198 The phrase "aerated waters and beverage makers" contained the Industrial Committee Industries and Callings is connected by a conjunction. The purpose of the conjunction is to join the two phrases so as to enable them to be read together, thereby defining the application of the area and incidence of the Aerated Waters Award to "aerated waters and beverage makers". 199 On that construction, the respondent is engaged in the manufacture and/or distribution and bottling of fruit juices and soft drinks. It is not engaged in or in connection with the crushing and manufacture of fruit juice from raw fruit, nor fruit juice processing or concentrating in factories 200 On the evidence before the Commission raw whole fruit is transformed through a juice making or extracting manufacturing process producing a product that is both physically and commercially dissimilar to raw fruit. 201 Neither Award provides a definition of the term "manufacture". The Macquarie Dictionary provides the following definition: 1. the making of goods or wares by manual labour or by machinery, especially on a large scale. 2. the making of anything. 202 Under the Area and Incidence Clause of the Food Award, the "manufacture" of say jams, sauces, soups and condiments "in factories" from fruit or vegetables results in a new product that is commercially distinct from the individual parts of the ingredients. Their bottling or canning "in factories" is an aid to preservation. 203 The "manufacture" or "processing" of juice from fruit and vegetables "in factories" also results in a new product, a liquid, that is commercially distinct from its ingredients. Its bottling and canning "in factories" is also an aid to its preservation. 204 Mr Nielson submitted that Clause 47, Area, Incidence and Duration, particularly the words "fruit juice ... processing and ... concentrating ... including bottling" reflects the respondent's Mudgee site operation. 205 The plain and ordinary meaning of the words, "shall apply to the employment of all persons employed in or in connection with... fruit juice or vegetable juice processing and/or concentrating and cordial making, including bottling and/or canning in factories" under the Food Award suggests an association within a manufacturing or processing activity whereby juices are extracted from whole raw fruit, concentrated in certain circumstances through the removal of water and preserved through the use of additives and/or refrigeration. 206 Similarly, the plain and ordinary meaning of the words, "including bottling and/or canning in factories" have the effect of embracing the bottling or canning of fruit and vegetable juices tasks set out under the Area and Incidence Clause of the Food Award as a logical extension juice processing. The principal purpose of extending the scope of the area and incidence of the Food Award is to enable the Award to apply to the entire manufacturing or processing operation - from the processing and/or concentrating of juice at one end of the factory, through to bottling and packaging ready for commercial sale at the other end. 207 On the above construction, it is open to a fruit juice processor to produce fruit juice from raw whole fruit and bottle some or all of that juice as part of its overall manufacturing process under the Food Award. Further, the reference to the words, "bottling and/or canning in factories" is a reference to the process whereby the juice however preserved is put into a container sealed for preservation. These words connect with the process of bottling fruit juice for say retail consumption as an extension to the manufacturing process or, in the alternative, containerising pure or concentrated fruit juice that has been preserved in some way for sale to third party bottlers such as the respondent. 208 The meaning of the words "food" and "beverage" has been subject to judicial inquiry in the context of Australian taxation law. 209 In Bristol-Myers Company Pty Limited v Commissioner of Taxation (1988) 27 FLR 129, the Court was required to determine whether a product known as "Sustagen Gold" was a beverage within the meaning of Item 23 of the First Schedule to the Sales Tax (Exemptions and Classifications) Act 1935 and, subject to sales tax. 210 Bristol-Myers contended Sustagen Gold, a nutritionally enhanced liquid milk based drink, was a medicine within the meaning of Item 38 of Division VII of the First Schedule and therefore exempt from sales tax. Sustagen Gold was marketed as both a nourishing drink and an occasional meal replacement. 211 In determining the matters before him, Lockhart J observed at [14] that Sustagen Gold had a water content of less than 75% whereas most beverages commonly have a water content of more than 90%. However, His Honour stated that did not prevent the product being determined a beverage as other beverages including milk shakes have a similar water content. Moreover, many solid foods have more than 90% water content. 212 His Honour considered expert evidence from Professor Ronald Edwards, Head of the Department of Food Science and Technology of the University of New South Wales for the applicant and Miss Rosemary Stanton, a consultant nutritionist and dietician for the respondent. 213 His Honour considered the expressions "food" and "beverage" and held Sustagen Gold was a beverage: [16] Professor Edwards' evidence was concerned to a large extent with the question whether "Sustagen Gold" is or is not a food, a question that appears to have been an issue in the early stages of the case; but had ceased to be in issue before the trial commenced. It was common ground at the trial that "Sustagen Gold" was a food within the meaning of item 23. Professor Edwards' evidence was concerned to a substantial degree with the Code, its history, content and effect. The Professor also directed a large amount of his attention in the evidence to the question of the correct categorisation of "Sustagen Gold" was correctly categorised under the Code rather than the question whether it had the necessary elements of a beverage. Both experts devoted themselves to some extent to the question of defining the expressions "food" and "beverage", but this is a matter which in my opinion is for the Court because they are ordinary English words and should be interpreted in item 23 according to their ordinary English usage. [17] The evidence of the experts was helpful, however, in analysing the product "Sustagen Gold", its various components and uses. There was some degree of conflict between the evidence of Professor Edwards and Miss Stanton and where it arose I prefer the evidence of Miss Stanton. [18] I have studied a number of dictionaries in the search for the meaning of the words "food", "beverage" and "medicine". Johnson's Dictionary contains the following interesting definition of the word "beverage" as perceived in the eighteenth century: "BE'VERAGE. n.f. [from bevere, to drink, Ital.] 1. Drink' liquour to be drank in general I am his cupbearer; If from me he have wholesome beverage, Account me not your servant. Shakespeare Grains, pulies, and all sorts of fruites, either bread or beverage, may be made almost of all Brown's Vulgar Errours. A pleasant beverage he prepar'd before, Of wind and honey mix'd. Dryden The coarse lean gravel on the mountain sides, Scarce dewy bev'rage for the bees provides. Dryden "2. Beverage, or water cyder, is made by putting the mure into the fat, adding water, a you desire it stronger or smaller. The water should stand forty eight hours on it, before you press it, when it is pressed, turn it up immediately. Mortimer. "3. A treat upon wearing a new suit of clothes. "4. A treat at first coming into a prison, called alfo garnifo." [19] I prefer the simpler definition attributed to the word "beverage" by the Macquarie Dictionary which is simply "a drink of any kind". [20] "Drink" when used as a noun is defined in slightly different ways by the dictionaries, but in my view it means any liquid which is swallowed to quench thirst or for nourishment. [21]. "Food" is what is eaten or taken into the body for nourishment, to maintain life and growth. What constitutes foods does not admit of any absolute definition because different societies accept and use different substances as food. Foods which maintain a defined shape are generally referred to as solids and, by contrast, foods which are not "solid" but which take up the shape of the container in which they are placed are either liquid foods or paste. Most beverages are foods, though tea is one notable exception. Tea is certainly a beverage and a drink but is not generally accepted as a food because it is not nutritious; it is a stimulant: see Hinde v Allmond (1918) 87 LJKB 893; Sainsbury v Saunders (1918) 88 LJKB 441 especially per Darling J. at 445 and Diet Tea Co. Limited v Attorney-General (1986) 2 NZLR 693. 214 His Honour adopted the Macquarie Dictionary definition of beverage, that is, any kind of drink, other than water. In this regard, the Macquarie Dictionary defines "drink" as any liquid which is swallowed to quench thirst, for nourishment, etc.; a beverage. 215 Accordingly, the ordinary and popular meaning of the term "drink" is that it is a liquid which may be simply swallowed to quench a thirst or for nourishment. 216 His Honour also identified the nature and distinguishing features of a beverage, being a drink of any kind: [22]. A beverage is consumed either hot or cold and is normally taken to quench the person's thirst or for stimulation or as an accompaniment to solid foods either at meal times or between meals. Beverages may contain stimulants such as caffeine and they may be used for refreshment or to overcome thirst. Beverages are not generally formulated to provide nor do they invariably provide essential nutrients to the meals with which they are consumed. An important part of a beverage is to replenish fluids. It is an important element in the concept of a beverage that it is something one drinks not eats. This is quite a usual means of distinguishing beverage from other types of liquid foods which are not beverages such as gravy, sauce and syrup. 217 In concluding Sustagen Gold was a beverage, His Honour concluded: [25] In my opinion "Sustagen Gold" is a beverage. Although it may be consumed as a replacement for a meal it may also be consumed as a nourishing drink and is consumed by people for this purpose either as an accompaniment to meals or between meals. This is how it is drunk for example by sportsmen and sportswomen and by school children. It is in fact sold together with an attached straw so that it may be drunk. Claims made in the packaging of "Sustagen Gold", on its carton and forms of advertisement are not inconsistent with it's proper description as a beverage because it is a beverage of a kind that is also a food. Nor do I regard the meal replacement properties of "Sustagen Gold" as detracting from its character as a beverage. Also the words "Ready to Drink" on the package indicate a beverage. "Sustagen Gold" is a concentrated milk drink with some added vitamins and minerals. The fact that it contains added nutrients does not alter its characterisation as a beverage. 218 The term "beverage" has also been the subject of legislative attention under Australian customs and taxation law. 219 Chapter 22 of Schedule 3 under the Customs Tariff Act 1995 sets out the range of beverages, spirits and vinegar that are either subject to or exempt goods under the Act. 220 Under goods reference number 2201 of Schedule 3: Fruit juices (including grape must) and vegetable juices and not containing added spirit, whether or not containing added sugar or other sweetening matter. are "customable beverages" for the purposes of the Act. 221 Similarly, under Chapter 2202: Waters, including mineral waters and aerated waters, containing added sugar or other sweetening matter or flavoured, and other non-alcoholic beverages, not including fruit or vegetable juices of 2009. are also deemed to be customable beverages. 222 Pursuant to Schedule 2 of the A New Tax System (Goods and Services Tax) Act 1999 certain fruit and vegetable juices, whether concentrates for making non-alcoholic beverages (Item 10), non-alcoholic non-carbonated beverages, (Item 12), are described as "beverages" for the purposes taxation law. Similarly, water whether natural water, non-carbonated and without any additives (Item 14), is also described as a beverage. 223 Pursuant to Regulation 4, Beverages of the South Australian Environment Protection (Beverage Container) Regulations 1995, water, including mineral and spring water, pure fruit juice, where at least 90 percent is fruit or vegetable juice or, a mixture of both and, non-carbonated soft drinks are deemed to be beverages for the purposes of Division 2 Part 8 of the Environment Protection Act 1993. Conclusion 224 Having considered all the material before the Commission in this matter, there is in my view no impediment to the respondent applying the Aerated Waters Award to cover the operations undertaken at its Mudgee facility. J D Stanton Commissioner DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.