T6556
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Automotive, Food, Metals, Engineering, VEGETABLE PRESERVERS AWARD
Interpretation of award - Scope clause - Vegetable Preservers Award - application of award to Perfecta Exports Pty Ltd, trading as `Perfecta Produce' - declaration pursuant to section 43(1)(a) that the Scope clause does not include the preparation, sowing, raising, harvesting, preparation for packing and packing of vegetables - declaration retrospective to 7 October 1996 REASONS FOR DECISION This application by the Automotive, Food, Metals, Engineering, Printing & Kindred Industries Union (the AMWU) was lodged pursuant to section 43 of the Industrial Relations Act 1984 for interpretation of the Vegetable Preservers Award. The application was made in the following manner:
The details of the circumstances giving rise to the application were:
The matter commenced on 21 November 1996 at Devonport, and prior to the continuation of proceedings, on 8 May 1997, inspections were conducted at the premises of Perfecta Produce at Kimberleys Road, and at Fieldings Way, Ulverstone. The company is principally involved in the exporting of onions, and to a lesser extent other vegetables such as carrots, squash and swedes. The company grows some of the onions and other vegetables and contracts with other farmers to grow the product for it to export. Mr Baker, for the AMWU, outlined the applications which had previously been before the Commission and which preceded the interpretation application, namely Matters T6081 of 1996 and T6094 of 1996. Application T6081, he said, had been a dispute notification with the company Perfecta Exports Pty Ltd, trading as Perfecta Produce, Ulverstone, in which the AMWU had alleged that the company had failed to observe the terms and conditions of the Vegetable Preservers Award. The hearing of that application had been adjourned. T6094 had been an application by the Australian Workers' Union, Tasmania Branch and Perfecta Product to register an industrial agreement pursuant to section 55 of the Act. The agreement was to provide wage rates and conditions of employment for seasonal employees engaged by the company in the production, packing, processing and distribution of vegetables. During the hearing of that application the AMWU formally sought leave to intervene but withdrew from proceedings before the matter was concluded. Mr Baker said that after discussions it had been decided that a fresh application would be lodged for interpretation of the award. Mr Baker quoted the Scope clause of the Vegetable Preservers Award:
In particular, he directed the Commission's attention to subparagraph (a) "fruit or vegetable preservers", and offered definitions of the word "preserve" as appearing in the Concise Oxford Dictionary, viz.:
As well, Mr Baker quoted an excerpt from transcript in matter T6094, in which Mr Fitzgerald, representing the company, had said in respect of what the company did with onions -
Mr Baker said the AMWU contended that at Perfecta onions were not just picked, packed and despatched. He said that both the dictionary extract and transcript quotes were paramount in final conclusions of the interpretation application. Mr Baker called Ms Catherine McKean, a food technologist, to give evidence in relation to the preservation of vegetables, in particular the preservation of onions. She defined "preservation" as a set of activities which happened post harvest, that is after the vegetable leaves the paddock. She said that from a food technologist's point of view anything which maintained the harvest quality, condition, or state of the product was preservation. Having been present during inspections at Perfecta Produce, Ms McKean referred to the activities witnessed and made the following comments:
She said:
Ms McLean said she considered the process used at Perfecta was a process of preserving the product. In cross examination Ms McLean maintained that the product was not required to change in order to be preserved but its shelf life would be increased. In respect of those onions which did not require drying, Ms McLean had the following to say:
Mr Baker submitted that the process undertaken by Perfecta stopped the rot of the onion and extended its life. He tendered an extract (Exhibit B.1) from a book entitled "Commercial Vegetable Processing6 " which at page 244, under the heading "Onion", states that -
A second exhibit (B.2) was an extract from a book entitled "Vegetable Processing7 ". Chapter 7, Other Preservation Methods, discusses dehydration and commences with the following:
A third exhibit (B.3) was an extract (p.138) from a book entitled "Onions and Their Allies, Botany, Cultivation and Utilisation8." In a section headed Harvesting and Post-Harvest Handling, reference is made to harvesting and curing being "frequently quite distinct, especially when the bulbs are cured artificially; but they may be continuous or simultaneous operations in the field." Mr Baker repeated his claim that a preservation function occurred in Perfecta's operations either artificially in the bins of the drying chamber or during the storage and handling of the product until it reached the market. He submitted that the Scope clause should be read as having three separate points and that the three points should not be read together; that is that vegetable preserving should not be read in the context of the whole of the Scope clause but determined separately from the other activities mentioned in paragraphs (b) and (c). Mr Fitzgerald expressed concern that Ms McLean had taken part in the inspection of the Perfecta plant given that she was to give evidence later as an expert witness. I was not aware that Mr Fitzgerald, who also took part in the inspection, did not know Ms McLean's status at that time, but I do not think Ms McLean's attendance was prejudicial to the company and I am inclined more to the view that the proceedings were assisted by the knowledge gained by Ms McLean at that time for the layout and work practices of the plant. Mr Fitzgerald submitted that in order that an award can be applied at a workplace it was necessary for the scope clause to describe the industry and for an appropriate classification and wage rate to be included in the award. He said the award simply referred to the Federal Food Preservers Award for rates of wage (other than for boiler attendants) and he submitted that the validity of the award had not been tested. He said that only parties to the federal award could make submissions to vary the award. By virtue of Clause 8, Wage Rates, employers in the State, not parties to the federal award, were "bound" to those rates without the opportunity to make submissions. Mr Fitzgerald submitted that the Commission had not made the award and those affected had no involvement in the proceedings. He referred to the Commission's powers spelled out in section 19 of the Act dealing with its jurisdiction, and the requirement for the Commission to act in a manner consistent with section 20(1), in particular paragraph (d), in respect of natural justice and public interest considerations. He submitted that if the Commission declared that the Vegetable Preservers Award was to apply it could not apply retrospectively and the award would need to be re-made comprehensively by the State Commission after hearing parties with an interest in the award. He said I should not ignore the scope of other awards such as the Produce Award and, more particularly, the Farming and Fruitgrowing Award which, he asserted, was the appropriate award to apply to the operations of Perfecta. The scope of the Farming and Fruitgrowing Award at paragraph (a) included:
Mr Fitzgerald said that the guidelines for interpretation established by the Commission required that consideration be given only to a set of actual circumstances applying and not to a hypothetical set of circumstances. In this case he said the industrial agreement which had been ratified by the Commission and which applied at Perfecta would override any declaration under section 43 in respect of award scope which he submitted meant that the application was a "nonsense". I do not accept this proposition as the employer and employees are entitled to know what award, if any, applies to them now and when the agreement expires. Mr Fitzgerald argued that if the Commission found in favour of the union's application there would be a conflict between the Farming and Fruitgrowing Award and the Vegetable Preservers Award. He submitted that "in the public interest", pursuant to section 21(2)(c)(ii) of the Act, I should refrain from further hearing the matter. On that point Mr Baker submitted that his organisation had constitutional coverage of workers "involved in that preservation function" and that the Commission should continue to hear the application in the public interest because serious questions needed to be answered in respect of the awards to which reference had been made. He said the Vegetable Preservers Award was a valid award and there had been no application to strike it out. Further he said the first issue that needed to be dealt with was whether the Vegetable Preservers Award applied to any of the processes engaged in at Perfecta. I informed the parties that it was my intention to proceed with the matter as it was in the public interest that the situation be clarified. Mr Fitzgerald then introduced his first witness, Mr Patrick Johnston, the Agricultural Manager of Perfecta Produce who was responsible for the "contracted production" of onions, carrots, swedes, Japanese squash and other small crops and bringing the crop to the "factory". Mr Johnston said that at the time the onion was harvested it was half way through its life. The second half involved the onion bulb producing roots, sending up a seed stem, producing a flower and seeding, after which the process recommenced. He said any handling of the bulb reduced its life; if it was left untouched, he said, "it would actually last substantially longer".9 He claimed there was "nothing unnatural" about what was done to the onions and no attempt was made to "artificially prolong the life of the bulbs". He said that onions were harvested dry, having been left on the ground for three to four weeks to cure; then the onions were stored in ventilated bins to prevent spoilage such as staining, and "bacterial and fungal breakdown". He said onions were shipped in bins called "fantainers" which were continually ventilated similar to the process on site. The drying stores were used to remove the outer skin, not to prolong the life of the onion. The only significant change in the nature of the product was the removal of the top and the roots of the onion. In answer to a question from Mr Baker in cross-examination, Mr Johnston agreed that the onion had to be cured before being removed from the field. He repeated that onions cured naturally. The drying process occurred in order to remove any stained outer skins. Mr Fitzgerald then introduced Mr Darren Broadby, a director with Perfecta Produce, as his second witness. Asked to describe the company's operations Mr Broadby said:
and further:
and further:
Mr Broadby said his company sent onions to Blue Banner in Hobart where the onions were pickled, which to his way of thinking was "preserving the onions". He said:
Mr Broadby said the introduction of the drying stores in recent times was an "insurance policy ... for when the onions aren't fit."14 Mr Fitzgerald urged me to apply standards of ordinary English to the clause in deciding how the Scope clause should be interpreted. He said: "Preservation from an ordinary English usage point of view relates to a change in the nature of the product". In respect of the three paragraphs of the Scope clause, Mr Fitzgerald submitted they should not be read in isolation and paragraphs (b) and (c) which envisaged a "distinct and fundamental change to the nature of the product" could not be divorced from paragraph (a). He asserted that all the classifications described in the Food Preservers Award related to functions involving a change in the nature of the product. He said that award dealt with products which are received in a particular state and there is "human intervention" to change that state. He said Perfecta was an integrated farming operation including the farming of livestock. All of its functions in relation to the vegetables it handled were included in the Scope of the Farming and Fruitgrowing Award. Both parties later provided written comments in relation to the scope of the federal Food Preservers Award which each claimed supported their position. It is clear from the evidence that an onion once cured and harvested continues to live and to go through its cycle of life which ends after having produced seeds. Mr Johnstone and Mr Broadby say they cannot lengthen or preserve the life of an onion. All they can do, they say, is to limit the reduction in its life caused by the trauma of the harvesting, packing and storing operations in which they are involved. I accept their evidence that they are unable to extend the natural life of the vegetable, even though Ms McLean says the onions are maintained in a certain state and are therefore preserved. Whilst I accept that the actions by Perfecta to "maintain" the state of onions and to "retain" the quality and condition of the onions, and to "prevent decomposition" of the onions could in a literal sense fall within some of the definitions of the word "preserve" according to the Oxford Dictionary, I am not satisfied that those definitions are applicable to a preserver of vegetables in the sense required by the award. The part of the dictionary definition which I consider more appropriately and realistically applies to vegetables is that which deals with preparing "fruit, meat, etc." by "boiling with sugar, pickling, etc.", to "prevent decomposition or fermentation", and I am confident that such is the more common understanding of preserving fruit or vegetables. By this action of preserving, the natural life of the fruit or vegetable would appear to be cut short. If the former definitions dealing with maintaining and retaining the condition of the fruit or vegetable were to be applied, processes such as canning or bottling etc., or indeed making soups or fruit or vegetable juices which change the state or condition of the fruit or vegetable, could not be regarded as preserving. Such an application of the definitions would exclude those activities from coverage by the scope of the award and, in my opinion, would be contrary to the general intent and understanding of the award which I consider is drafted having regard to the latter definition. Having said that I am prepared to acknowledge that from a food technologist's point of view only the methods used by Perfecta Produce to store and pack its onions could be said to be preserving the product. But for reasons already mentioned I do not consider that simply maintaining the vegetable in as near to its natural state as is possible is the function of a vegetable preserver for the purposes of the Vegetable Preservers Award. The arguments in respect of the application of the Federal Food Preservers Award do not assist me greatly. But it is clear that the "Incidence of Award" clause refers, with the exception of washing and grading asparagus, predominantly to preserving vegetables by way of some process such as, but not limited to, canning, bottling, manufacturing, or dehydrating. None of these activities, with the exception possibly of dehydrating, is evident in the Perfecta operations. However on that point I should make it clear that I do not consider the drying process carried out at Perfecta is dehydration as carried out in respect of other fruits and vegetables as comprehended in the Federal award. In any event, the scope of the Federal award is of peripheral interest only as the scope of the State award stands or falls on its own set of words. I accept Mr Fitzgerald's submission that the Scope clause of the Vegetable Preservers Award must be read as a whole and that, in the absence of any definition of the word "preserve", it is reasonable when interpreting this award to conclude that the activities referred to should bear some relationship to each other. The manufacture of sauce, soup (including soup concentrates) or vinegar, and the production of fruit juices or vegetable juices, both of which change the state and condition of the fresh produce, do not sit comfortably with the activities of Perfecta Produce which harvests, stores and packs fresh vegetables. Perfecta Produce does not manufacture or produce a product in the sense which I think is required by the Scope clause. Its product is taken from the field and held in its natural state for so long as it is necessary, within its natural life, prior to its sale. The natural life of the other products referred to in the clause is concluded once the manufacturing or other production process is commenced. I think those processes sit more comfortably with fruit and vegetable preserving than the harvesting, storing and packing of vegetables as carried out by Perfecta. I agree with Mr Fitzgerald that care should be taken to avoid conflict with other awards of the Commission and for that reason my declaration will have regard to the interaction or potential for overlap between this award, the Produce Award and the Farming and Fruitgrowing Award. Given the conclusions I have arrived at in respect of the appropriate dictionary definition of "preserve" as it applies to vegetable preservers; the general understanding of the word "preserve" and its ordinary usage in respect of vegetables; and the need to read the three paragraphs of the Scope clause together in order to establish the nature of the industry, I am satisfied that the business carried on by Perfecta Produce is not that of a vegetable preserver and consequently the Vegetable Preservers Award has no application to Perfecta Produce. Accordingly, pursuant to section 43(1)(a) of the Industrial Relations Act 1984, I declare, with effect from 7 October 1996, the date on which the application was lodged, that paragraph (a) of the Scope clause of the Vegetable Preservers Award is to be interpreted as applying to employees and their employers in the industry of preserving fruit or vegetables and for the purposes of this declaration that preserving fruit or vegetables does not include the preparation, sowing, raising, harvesting, preparation for packing and packing of vegetables.
F D Westwood Appearances: Date and place of hearing: 1 Transcript p.4 |