Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union and ors v Qantas Airways Limited

Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union and ors v Qantas Airways Limited - [2006] NSWIRComm 1037 - NSWIRComm 2005 case summary — Zoe

[13]

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).

[26]

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.

[35]

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.

[39]

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.

[47]

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.

[49]

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)

[58]

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.

[59]

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.

[98]

[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.

At a glance

Court

Decision date

Before

Source

Judgment (104 paragraphs)

Parties

Cases Cited (21)