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T8838

 

TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act 1984
s43(1) application for interpretation of awards

The Australian Workers' Union, Tasmania Branch
(T8838 of 2000)

FARMING AND FRUIT GROWING AWARD

 

PRESIDENT P L LEARY

HOBART, 2 October 2002

Interpretation - Clause 2 Scope of the Farming and Fruit Growing Award

REASONS FOR DECISION

[1] This is an application by the Australian Workers Union, Tasmania Branch (AWU), made pursuant to s. 43(1) of the Industrial Relations Act 1984 (the Act) for an interpretation of Clause 2 - Scope, of the Farming and Fruit Growing Award (the F&FG award).

[2] Clause 2 Scope states:

"This award is established in respect of the industry of farming and/or fruit growing and without limiting the generality of the foregoing, shall include:

(a) the preparation, sowing, raising, harvesting, preparation for packing, and packing of crops including grains, vegetables, peat moss, fungi, hops, nuts, or other specialised crops grown for the production of essential oils or pharmaceuticals;

(b) livestock farming including the management, breeding, rearing and/or grazing of horses, cattle, sheep, pigs, goats, poultry, deer and/or other livestock and dairy farming;

(c) fruit growing including the management, cultivation, picking, grading, processing for packing, packing and/or forwarding of fresh fruits including grapes;

(d) seed farming and/or silviculture where such work is performed in conjunction with the activities specified in subclauses (a), (b) and (c) of this clause;

(e) apiarist;

(f) floriculturist (as defined);

(g) viticulture."

[3] The application was initially listed before President Westwood on 31 March, 2000, at which time appearances were recorded by the Tasmanian Chamber of Commerce and Industry (TCCI) and the Tasmanian Farmers and Graziers Employers Association (TFGEA). Mr Flanagan represented the AWU and Mr D Durkin was also present and recorded an appearance.

[4] Following some time in conference, chaired by the then President, the matter was adjourned to allow the parties to have some discussion about the application and for the AWU to consider its position.

[5] The matter was relisted on 24 January, 2001, together with matter T8763 of 1999, which is an application made by the AWU to recover claimed underpayment of wages. T8763 of 1999 is not able to be progressed as the determination of that matter relies on an interpretation of the F&FG award which is the application the subject of this decision.

[6] The matter was again adjourned.

[7] The hearing recommenced on 29 April, 2002, and appearances were recorded on behalf of the AWU and the TFGEA. There was no representation by the employer party to the dispute in matter T.8763 of 1999.

[8] The matter was again adjourned and directions were issued in the following terms:

"In May, 2000, and again in December, 2001, the applicant provided to the respondent an "Agreed Statement of Facts" requesting a response. No response has been forthcoming.

Accordingly I now direct as follows:

1. That the respondent advise the applicant by close of business 14 May, 2002, whether the document provided by the applicant is an agreed document. If it is not an agreed document to inform the applicant of the points of disagreement.

2. Should the respondent not comply with the above direction the matter will proceed to arbitration. If the respondent fails to appear in the proceedings the matter will be heard and determined in their absence.

3. The matter will be listed for hearing on Tuesday 28 May, 2002 at 2.15pm."

[9] At the relisting of proceedings on 11 June, 2002, Mr D Durkin appeared representing Westlake Bulk Spreading and Westlake Bulk Fertilisers (Westlake) who is the employer in the alleged underpayment of wages claim in Matter T8763 of 1999.

[10] Section 33(1) of the Act provides:

"The Commission may make an award in respect of:

(a)    all or any private employees employed in an industry; or

The Commission, in making an award under this section, shall specify the industry to which the award applies."

[11] Section 38 of the Act states:

"An award has effect according to its terms and, unless and to the extent that those terms expressly provide otherwise, the award extends to and binds:

(a)    in the case of an award referred to in s.33(1):

    (i) all private employees employed in positions or classifications mentioned in the award in the industry or occupation to which the award applies; and

    (ii) all private employers employing those private employees; or..."

[12] The AWU presented an "Agreed Statement of Facts" which said:

    *Mr Scott Westlake conducted a business of spreading fertiliser under the trading name of Westlake Bulk Spreading.

    *Fertiliser cannot be purchased directly from the manufacturer. Fertiliser can only be purchased through a distributor such as Roberts, Websters and Tasag etc.

    *The business had two principle activities those being (a) the handling and spreading of fertilisers and (b) measuring seed and fertiliser, and spreading the mixture.

    *The income of the business was derived from two principle sources:

(i)    The client to the business would pay the business

    (1) in the case of spreading fertiliser, on a per tonne spread basis.

    (2) in the case of fertiliser/seed mixture, on a per acre spread basis.

    *The business operated 5 items of machinery those being 2 tractor spreaders, 2 truck spreaders and a loader.

    *The clients to the business were principally farmers.

    *The activity of the business was to spread the fertiliser or fertiliser/seed mixture on the farm using the machinery referred to above. At no stage did Westlakes actually own the fertiliser or fertiliser/seed mixture.

[13] In respect to the statement Mr Durkin said "the agreed facts are slightly different to those that were outlined by my friend, but nothing much turns on it so I don't at this point aim to break that up into yes's and no's but basically we have a common agreement that principally, Westlakes Spreading and Westlake Bulk Fertilisers, two individual businesses, were principally involved in the one exercise of taking grain from bulk stores and delivering that to the farm and at no stage did they own the fertiliser; the fertiliser was either owned by the seller, example Roberts, one of the large suppliers, or the owner, if it wasn't them, would have been the farmer. There's no disagreement on that."

[14] The AWU argued that the F&FG award identifies a classification or occupation for the work in question, that work being the spreading of fertiliser and seed mixture and the relevant classification is that of a mechanical plant operator.

[15] Mr Flanagan relied on the facts in the agreed statement and submitted that the employer was subject to the Scope provision of the F&FG award and that the employees operated equipment as found in the classification structure of the F&FG award. He claimed that the relevant classification was that of Mechanical Plant Operator, Level 1 which provides:

"Mechanical Plant Operator: Level 1 means an employee who is required to operate mechanical plant equipment or a harvesting machine. This level does not apply to employees of employers who use the employer's machinery for the planting and harvesting of the employer's crop."

[16] It was submitted that the employer referred to in the classification descriptor was the farmer not the contractor.

[17] Mr Durkin appearing on behalf of the employer argued that Westlake was in the business of the storage and distribution of fertiliser and not in the business of farming. As such the employer was respondent to an award of this Commission known as the Fertiliser Industry Award made by application of the AWU in Matter T5756 of 1995.

[18] He submitted that on investigation it was decided that the Fertiliser Industry award was the appropriate award as it had been established in respect of the "industry of the manufacture and/or distribution of fertiliser" which is the business of the employer.

[19] It was submitted however that the Fertiliser Industry award was silent as to wages and conditions and existed in name only.

[20] There is no doubt that the Fertiliser Industry award, if indeed it is an award, is in title and scope only and provides no conditions of employment or rates of pay.

[21] I have researched the history file of the Commission in respect to the award and note that by a decision of President Westwood the Fertiliser Industry award was made, by consent, in 1995.

[22] The history file is scant on relevant information and there is no transcript of proceedings other than a file note and some handwritten notes.

[23] The decision issued when making the Fertiliser Industry award states:

"This application for the making of a Fertiliser Industry Award had been made by the AWU-FIME Amalgamated Union, Tasmania Branch (now the Australian Workers' Union, Tasmania Branch) primarily to ensure award coverage for the fertiliser manufacturing business previously conducted by Pasminco Metals - EZ at Risdon. Following the sale of that part of Pasminco's operation to Impact Fertilisers Pty Ltd the fertiliser division had become award free."

and further:

"Mr Cooper [AWU] indicated that no federal award coverage applied in this State. He submitted that it was in the public interest that an award should be made to provide a base or safety net of employment conditions for employees in the fertiliser industry."

[24] The scope of the Fertiliser Industry award is in respect to the manufacture and/or distribution of fertiliser which includes coverage for distribution rather than just to cover the manufacturing business previously conducted by Pasminco. Nevertheless I am of the view that it is not an award as intended by the Act, it does not include any position descriptions or classifications to attract s.38(a)(i) which provides:

"(i) all private employees employed in positions or classifications mentioned in the award in the industry or occupation to which the award applies..."

[25] I note that the definition of award in the Act only refers to it being made in accord with the Act. However s.37 (where relevant) requires:

"(3)   The Commission shall -

    (a) make a written statement of the reasons for its decision in respect of the provisions contained in an award or for its refusal to make an award; and

(4)    Subject to this section, the provisions of an award have effect on and from the date on which the award is made or on such later date or dates as the Commission determines and as is or are respectively specified in the award."

[26] As there are no provisions in the Fertiliser Industry award that are capable of application, implementation or enforcement it is my view that the Fertiliser Industry award is a meaningless document in its present form. There are simply no provisions capable of application.

[27] Nevertheless the history as to the reason the Fertiliser Industry award was made is relevant to the application before me for determination. The decision issued when making the Fertiliser Industry award refers to the fact that the fertiliser division of the Pasminco operation was award free. It was also stated in the decision that "Other businesses involved in the industry were identified to acquaint the Commission with the potential coverage of a new award." It would seem from that statement that the intent was that any new award would provide coverage for the fertiliser industry.

[28] Notes found in the file indicate that the industry was unregulated and award free.

[29] By his acceptance of the submissions of the AWU the decision of President Westwood would indicate that the industry was then, and still is, award free.

[30] The F&FG award, the subject of this application, was made in Matter T226 of 1985 by a preliminary decision made on 17 January, 1986. The F&FG award, made by consent, replaced the Agriculturists award and by that decision also varied, by consent, the scope clause to reflect:

"Established in respect of the Industry of Agriculture, including the operation of equipment and the carrying out of processes involved in the production, harvesting, processing and packaging of agricultural products, and without limiting the generality of the foregoing that is to say in or in connection with the following agricultural enterprises:

Dairying
Vegetable Production
Seasonal Harvesting/General Cropping
Fruit Growing
Poultry Production
Raising of Livestock/Livestock Production
."

[31] By further decision issued 30 August, 1991, with a prospective operative date to be determined, the scope clause of the F&FG award was varied "having considered the submissions of the parties and their degree of unanimity I am prepared to endorse the new title and scope of the Agriculturists Award in the same terms as that presented by the applicant."

[32] The F&FG award was varied as follows:

"(1)  The title of the award to be known as the `Farming and Fruit Growing Award'.

(2)   The award to be established in respect of the industry of farming and/or fruit growing and without limiting the generality of the foregoing, shall include:

    (a) the preparation, sowing, raising, packing and harvesting of crops including grains, vegetables, peat moss, fungi, hops, nuts or other specialised crops grown for the production of essential oils or pharmaceuticals.

    (b) livestock farming including the management, breeding, rearing and/or grazing of horses, cattle, sheep, pigs, goats, poultry, deer and/or other livestock;

    (c) fruit growing including the management, cultivation, picking, grading, packing and/or forwarding of fresh fruits including grapes;

    (d) seed farming and/or silviculture where such work is performed in conjunction with the activities specified in sub-clauses (a), (b) and (c) of this clause;

    (e) apiarist;

    (f) floriculturist (as defined)."

[33] Since that time there have been some minor changes to the scope clause of the F&FG award which are not relevant to this application before the Commission.

[34] The AWU argued that the F&FG award had application to employees and employers in the fertiliser industry however reference to the submissions presented on behalf of the AWU in 1995, for the making of the Fertiliser Industry award, claimed that the industry was then award free. There has been no variation to the scope clause of the F&FG award to embrace the fertiliser industry. Accordingly the F&FG award, which was made many years before the Fertiliser Industry award, did not apply to employees and employers engaged in the fertiliser industry otherwise there would have been no need for the making, by application of the AWU, of the Fertiliser Industry award.

[35] The TFGEA argued that if the AWU was successful in its application it would have an effect on a number of other fertiliser spreading companies. It was submitted that the F&FG award scope clause made no reference to fertiliser and that there may also be an impact with employees and employers party to the Silviculture and Afforestation Award.

[36] The scope clause of the F&FG award states that it is established in respect to the industry of farming and/or fruit growing and then proceeds to describe the specific type of activity and work performed. It is drawing a long bow indeed to claim that the scope of the F&FG award has application to an employer in the fertiliser industry, no mention of the industry is found in any part of the award. Awards of this Commission are made in respect to an industry. Accordingly it is necessary to first determine the industry in which the employer is engaged and which award, if any, has application to that industry prior to considering an appropriate classification.

[37] In respect to the decision referred to by the AWU, Re: Peter Robert Saunders and Park Homes Pty Ltd [No.T13 of 1988] the question to be determined was whether the work was performed "in connection with the erection....... of buildings or structures" or within the definition of "construction work" as found in the relevant award.

[38] His Honour Justice Gray of the Federal Court said:

"It will be noted that the definition of `construction work' is of a `means.....and includes.....' type. The proper approach to such a definition is to determine the ordinary and natural meaning of the words which, it is said, the expression concerned `means' and to regard the inclusions as extending that ordinary and natural meaning."

[39] His Honour also said when considering the approach to adopt in interpreting a provision of an award:

"Reliance on the specific inclusion of one item as disclosing an intention to exclude similar items not mentioned expressly is a useful device for ascertaining the intention of the maker of the instrument. It is not, however, a device which must be applied in all cases. In particular, it should not be applied where to do so would be to fly in the face of indications to the contrary." [my emphasis].

[40] The provision in the F&FG award is in different terms to that referred to above and I am of the view that the words therein do not allow or intend any extension of their normal meaning. If anything the words found in 2(a), (b), (c), (d), (e), (f), and (g) of the F&FG award describe the type of work likely to be undertaken in the industry. The classification structure can only be considered in concert with the industry description and not in isolation.

[41] Likewise the dictionary definitions provided by the AWU are accepted for what they are but do not assist the claim that the F&FG award covers employees engaged in the work of spreading fertiliser or fertiliser/seed mixture.

[42] Mr Flanagan referred to a decision of President Koerbin in matter T30 of 1985 which he referred to as the seminal decision in respect to the interpretation of awards of the Tasmanian Industrial Commission.

[43] That decision made the following observations:

"1. Construction or interpretation of award provisions can only be made by considering their meaning in relation to specific facts. It is futile to attempt such an exercise in any other way.

2. It must be understood that in presenting an argument in support of or in opposition to a disputed construction relating to an award provision it is not permissible to seek determination of the matter on merit; that is, on the basis of what one party or the Commission believes the provision in question should mean.

3. Provided the words used are, in the general context of the award and its application to those covered by its terms, capable of being construed in an intelligible way, there can be no justification for attempting to read into those words a meaning different from that suggested by ordinary English usage.

4. An award must be interpreted according to the words actually used. Even if it appears that the exact words used do not achieve what was intended, the words used can only have attributed to them their true meaning.

5. If a drafting mistake has been made in not properly expressing the intention of the award maker, then the remedy lies in varying the award to accord with the decision given.

6. Where genuine ambiguity exists, resort may be had to the judgment accompanying the award as an aid to discovering its true meaning.

7. It is not permissible to import into an award by implication, a provision which its language does not express. The award being a document which is to be read and understood by persons not skilled in law, or versed in subtleties of interpretation, any omission or imperfection of expression should be repaired by amendment rather than by implying into it provisions which are not clearly expressed by its language."

[44] I now consider the application before me against those principles.

1. I have considered the specific facts as to the provision found in the Scope clause of the F&FG award and have relied on the history of the F&FG award and the Fertiliser Industry award.

2. I have not addressed the merit or otherwise of the claim.

3. I am of the view that the words in the provision are intelligible and their suggested ordinary English usage is clear.

4. I have applied to the words in the provision their true meaning.

5. There appears to have been no drafting mistake.

6. There is no ambiguity in the provision.

7. I am of the view that the words mean what they say and that the implication sought to be applied by the AWU is not open to it.

[45] I am of the view that the F&FG award does not have application to employees and employers where the major and substantial work performed is in the fertiliser industry, this it would seem was the view of the AWU in 1995 when pursuing an award for that industry.

[46] Whether a particular employee has an entitlement under the F&FG award will depend on the specific employment circumstances which apply to that individual.

[47] In determining this application reference has been made to one particular employer (Westlake), however the determination is in respect of the fertiliser industry and not Westlake in particular. It was a claim against Westlake alleging underpayment of wages which generated the application.

[48] As an aside to this application the parties to the Fertiliser Industry award will be asked to show cause why that award should not be set aside. There has been no action on its terms and conditions for many years and as such the document serves no useful purpose. The Commission will set down a hearing, on its own motion, to determine the future of the document titled the Fertiliser Industry Award.

 

P L Leary
PRESIDENT

Appearances:
Mr R Flanagan for The Australian Workers' Union, Tasmania Branch
Mr D Durkin (11.6.02) for Westlake Bulk Spreading and Westlake Bulk Fertilisers
Mr T Edwards (31.3.00) for Tasmanian Chamber of Commerce and Industry Limited
Mr K Rice (31.3.00) and Ms B Roney (29.4.02 and 11.6.02) for Tasmanian Farmers and Graziers Employers Association (intervening)

Date and place of hearing:
2000
March 31
2001
January 24
2002
April 29
June 11
Hobart