Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union re AFMEPKIU v The Pasta Master and others - PR916598 [2002] AIRC 397; (11 April 2002)

Workplace Relations Act 1996

s.45 appeal against decision PR910508

Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union

s.99 notification of industrial dispute

Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union

[1] This is an appeal by the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (AMWU) against a decision of Tolley C in which he refused to find a dispute against a number of companies. The AMWU appeals only in respect of Tolley C's refusal to find a dispute with Carlyon Foods, of 20 Gatwick Street, Brunswick. Tolley C's decision in the matter is very short and he deals with Carlyon Foods in the following extract:

"c) Carlyon Foods is a respondent to the Pastry Cooks (Victoria) Award 1994 by virtue of its amalgamation by purchase of Nana Divers, (a named respondent to the aforementioned Award). This is an Award to which the Union applicant in these proceedings is not a party.

The Commission pursuant to s.101of the Workplace Relations Act 1996, the Act, determines, records and finds that there is no dispute in existence between Carlyon Foods and the Union applicant to these proceedings." [sic]

[2] It can be seen from Tolley C's reasoning that he essentially refused to find a dispute on the basis of the respondency of Carlyon Foods to the Pastry Cooks (Victoria) Interim Award 1994 [Print L7649 [P0448]], an award to which the AMWU was not a respondent. Whilst there was some issue about the question of whether Carlyon Foods could be said to be a respondent to the Pastry Cooks (Victoria) Interim Award 1994, we do not think the issue turns on that matter.

[3] The existence or otherwise of an industrial dispute is one of jurisdictional fact to be determined on the basis of whether the claimant organisation has constitutional coverage in relation to the work in respect of which the demand is made and whether as a result of the making of the demand a genuine dispute arises in the constitutional sense. That dispute may arise even in the circumstances where there is existing award coverage. Accordingly, we are of the view that it is arguable that Tolley C's decision was wrong. A decision on jurisdictional fact is clearly capable of review by way of prerogative relief. We consider it is clearly in the public interest that before any such process takes place the matter be reviewed by an appellant bench of the Commission. Accordingly, we consider that it is in the public interest to grant leave to appeal in these circumstances and we do so.

[4] The Commission granted leave to admit fresh evidence in this case because there was little material before Tolley C as to the actual work undertaken at Carlyon Foods. Evidence was given for the AMWU by Jenny McLaughlin. She gave evidence that she had worked at the enterprise when it was known as Nanna Divers. At that time it produced two separate products - one was muesli bars and one was bakery products. When the company was taken over by Carlyon Foods, the bakery section was moved to Keysborough and the muesli bar line went to Rowville and it has produced only muesli bars since 1998. Ms McLaughlin gave the following evidence as to the production of muesli bars.

"Okay, so can you explain to the Commission how those muesli bars are made?---Yes, they have kettles, which is just like boiling, the syrup is put in that and it is just the raw materials that are mixed in a mixer. There is no baking involved. There is just the kettles which are heated up to heat the glue paste and the syrup and things like that and it is just mixed in a mixer and put onto the process line and right down one end to the other, where we pack them. They are not cooked at all. There is a yoghurt coater which coats the top and the bottom with yoghurt as they go down the line.

the question I should have asked you earlier is what products specifically do they make, so rather than just muesli bars, are they what types of products?---The muesli bar lines we make, it is just separate muesli bars. You either have a chocolate one or a yoghurt one. I am not sure what you are asking.

Well, I think you may have answered, so is there only chocolate and only yoghurt? ---Chocolate and yoghurt, that is all, yes.

And I think you just said that in relation to the yoghurt, the mix comes down and is coated with that yoghurt?---That is right, yes. They go on a process line. There is just like a sheet of them, you know, the muesli bar and they just go down the line. As they come through, they get cut into the squares. They go through a separate machine that puts yoghurt on the top and the bottom and they just go further down.

Now, that yoghurt is not the sort of yoghurt you get in a tub?---No, they buy little yoghurt bits, chocolate bits. I am not sure how it works. They just put it into a big heating container which melts the glue, the yoghurt, which melts it and then it is poured into another machine and filled in buckets full and as the bars come down, the chocolate is on the bottom, so each bar has chocolate on the bottom and then the lines squiggle on the top." [transcript PN82-86]

[5] In cross-examination she gave the following evidence.

"And so they are effectively cooked in there?---There is three pots where the syrup goes in. The syrup is heated up and then that is put into sort of like a big pan and then they have the mixers where the dry ingredients are mixed and that is how the dry ingredients are all mixed and then the syrup is added to that and then it is all mixed together until - I think they are mixed for like eight minutes or something but they are not cooked - the ingredients - the syrup is only warmed in a kettle. It is just like a big pot. The temperature is controlled and that is heated up until it bubbles and then they are lifted into a big pan like that and then they are tipped into the kettles.

Okay. Now the ingredients that are brought in, they are all brought in pre-prepared? ---Yes, the main ingredients, the flakes, the oat bran, they are in big bags, yes, and the rest is in boxes.

Yes, and as far as you know those big bags are purchased from other businesses? ---That is right, yes.

Yes, and they can be stored on the premises for maybe three or four weeks?---They are stored in the warehouse, yes.

Yes, and after they arrive they may be there for three or four weeks before they are all used up for example?---Yes." [transcript PN127-131]

[6] Mr Karl Divers, the Temporary Production Manager at Carlyon Foods also gave evidence, inter alia, as follows:

"Mr Divers, I understand that Carlyon Foods produce muesli bars?---That is right.

Correct. How did that come about, that they produced the muesli bars?---We had been and continue to import muesli bars from our New Zealand operation and in April 1998 we purchased a company called Nana Divers which is no relation to me, I might point out, just a fluke. We purchased a company called Nana Divers and they were manufacturing muesli bars at that time so we had the imported bars and we started manufacturing our own bars and that was the operation that Jenny was working in.

What would you say are the ingredients that go together to make up these muesli bars? ---Basically exactly as Jenny described it. You have got sugars and syrups, you have got grains and various fruits and you combine those two to make the muesli bars.

And what would you say are the proportions of those ingredients, roughly?---I think there is around about - it is about 40 per cent combined of sugars and syrups, it is roughly 40 per cent of grains and so forth and there is somewhere between about 15 - it must be around about 15 per cent of other products and about six or seven per cent I think of fruit, be it dried fruits or purees or whatever they are.

Mr Divers, when you say grains - about 40 per cent grains I think you said?---Yes.

Is that referring to the rolled oats?---Again, as Jenny described it, there is rolled oats, wheat flakes, there is wheat bran, there is toasted oats, there is rice pops, all those sorts of materials.

And in the remaining 13 to 15 per cent of this other ingredient category, what would that comprise of?---I guess there would be flavours, skimmed milk powders, cocoa powders, desiccated coconut, those sort of things.

Okay, thank you. And do all of your products contain all of these ingredients?---They all vary. All the products contain some form of grains. All the products contain sugars and syrups. Some of them do have fruit, some don't have fruit and so on." [transcript PN144-151]

[7] In cross-examination Mr Diver gave the following evidence:

"Now, in April 1998 when you purchased Nana Divers, were there substantial changes to the business at that time?---The Nana Divers at that time consisted, as Jenny said, of a baking - making biscuits and those sort of products and the muesli bar operation and we purchased the muesli bar operation so from our point of view it didn't change in the sense that we only bought the muesli bar operation but yes, the business as such changed, yes.

So the other side of the operation was more biscuit and pastrycook making, was it?--- Well they manufactured cookies, those sort of products, yes.

Now when you were talking about the ingredients, does any of those ingredients include chocolate?---We manufacture our own compound chocolate on site, if that is what you mean.

Yes?---So we manufacture the base raw materials to make the chocolate to then put with the muesli bars.

Okay, and that is put as a coating on the muesli bars?---Yes, exactly.

What are the other coatings you put on the muesli bars?---Well compound chocolate as I said and the other one is compound yoghurt which is basically chocolate but with some changes in raw materials.

So it is not your traditional yoghurt. It is more a - - -?---It is not yoghurt as you would buy in tubs, no, certainly not, no. It is more compound chocolate I should say than it is yoghurt, put it that way.

Now in the making of the muesli bars, is there any cooking as such?---Exactly again as Jenny described it. You have got your cooking syrups which are cooked to about 110 degrees in an open pan, an open saucepan if you like and that is the only cooking that happens in the product. That cooked syrup is then combined with the grains, fruits and other ingredients.

Okay, and the purpose of the syrup is to bind the other ingredients, is it?---Yes, that is one of the purposes of it. Obviously it is giving flavour and texture and so forth but yes, binding is the predominant reason, yes.

Now once the product is made, is it sealed in a bag or container?---Yes, once it is made it is sealed in what they call a flow wrapper, so sealed in a film, a standard film that you would have seen a million times with all sorts of products so it is sealed in a little bag if you like by itself and then packaged into a carton that you would buy on the shelf of the supermarket.

Okay, so they are those cellophane sachets or - - -?---That is not a bad way of describing it, yes, something like that, yes. [transcript PN164-174]

[8] The rules of the AMWU insofar as relevant are as follows:

"1G. Without in any way limiting the generality of the foregoing or being limited by sub-rules 1A, 1B, 1C, 1D, 1E, 1F, 1H and 1I, the Union shall also consist of an unlimited number of persons engaged in or in connection with:

(a) The manufacture, preparation, processing or putting up of:-

(i) Jams, jellies, honey, pastes, spreads, and similar preparations:

(ii) Pickles, salt preparations, sauces, chutneys, vinegar and other wet condiments;

(iii) Soups and other preparations of vegetables and/or food from animals; fish or sea food sold in containers;

(v) Pulp, fruit and vegetable juices and cordials whether such are made wholly or in part from fruit or vegetable juices or not;

(vi) Sugar from sugarbeet, (except in the states of New South Wales and Queensland);

(vii) Fish and seafood of any description and their by-products and the smoking of fish.

Provided that this paragraph shall not extend to persons engaged in or in connection with the manufacture, preparation, processing, or putting up:-

(i) In the states of Victoria and South Australia of pastes, spreads and similar preparations of preserved meat;

(ii) In the states of New South Wales, Victoria and South Australia of nut food;

(iii) In the state of New South Wales and in the state of Western Australia outside a radius of 30 miles of the General Post Office, Perth, of fish and seafood sold in containers;

unless the said persons are engaged in establishments where the chief product or products or one of the chief products manufactured in such establishment is otherwise provided for herein.

(b) (Without restricting the interpretation of the foregoing) the preparation and preservation as food of fruit and vegetables, their juices and pulp, meat, fish, sea food and the by-products of all of them together with such other persons whether employed in the industry or not as have been appointed officers of the Union or its branches and admitted as members thereof. Provided that this paragraph shall not extend to persons:- In the States of New South Wales, Queensland, South Australia and Western Australia engaged in any establishment where the predominant part of the product of such establishment is manufacture, preparation or putting up of preserved meat, rabbits, or poultry or to Berri Food Co-operative Ltd. in the manufacture, preparation, processing, or putting up of fruit juices at the companys' premises as constituted as 10 July, 1974 at Berri in the State of South Australia. Provided further that this paragraph shall not extend to persons engaged in the manufacture, preparation, processing or putting up of fruit juices in establishments respondent to the Aerated Waters Award 1974 or to an establishment where the work of that establishment falls within the scope of that award and such work is the predominant work performed at the said establishment.

(c) The Union shall consist of all journeymen Confectioners and all employees engaged in or in connection with the manufacture of Chocolate, Cocoa, liquorice, Candy and Confectionery, including Sweetmeats, chewing gum and the like throughout the Commonwealth, together with such other persons whether employees in any industrial pursuits or not who may have been appointed officers of the Union and admitted as members thereof. Provided that persons manufacturing Chocolate, and/or cocoa in the establishments of manufacturing grocers, whose part of the manufacturing business is to manufacture Cocoa and/or Chocolate shall not be enrolled."

[9] Mr Hale in support of his argument that the AMWU had eligibility to enrol employees submitted:

"So that we would say that those employees that are engaged - and we would say that although the muesli bars are food, they are also confectionery. They are coated in chocolate and on the evidence of Mr Divers, the chocolate is produced on the premises, and that we would say that that comes within the scope of the confectioners' rule. We would also say that it comes within the food preservers' rule as well and this was - it was outlined in more detail in our written submissions in relation to the matter where we said:

`Clause 1G states the union shall also consist of an unlimited number of persons engaged in or in connection with -'

`The manufacture, preparation, processing or putting up of sliced fruit, fruit salads and nut food.'

`Without restricting the interpretation of the foregoing, the preparation and presentation as food of fruit and vegetables, their juices and pulp, meat, fish, seafood and the by-products of all of them.'

And we say that the manufacture of muesli bars involves the preparation and presentation as food of a nut food or at least of a by-product of a nut food and fruit and dried fruit. The industry rule, as we submitted, is very broad as it provides essentially for the industry to be preparing, processing and preserving food substances. Carlyon Foods is preparing food substances. Now, the most recent examination of the food preservers' rules in relation to their application was a decision of SDP Williams in relation to Borgcraft Pty Ltd and that is in PR 904 326 and I can hand up a copy." [transcript PN218-224]

[10] In their written submissions opposing the dispute finding the Australian Liquor, Hospitality and Miscellaneous Workers Union (ALHMWU) submitted as follows:

"36. The AMWU in preliminary submissions made some reference to the confectionary element of the rule (T6) but was not pressed. An examination of the confectionary aspect of the rules is instructive in ascertaining that they clearly cannot apply to the operations of the companies. ie. Not . . . `engaged in or in connection with the manufacture of chocolate, cocoa, liquorice, candy, confectionery, including all sweetmeats, chewing gum and the like.'.

37. The AMWU in submissions made reference to `nut content' (T7) and relied in part upon that element of the rule to justify coverage. Examination of the relevant rule, 1G(a)(ii), excludes the manufacture, preparations, processing or putting up of nut food, in Victoria (emphasis added).

38. Accordingly it is the LHMU submission that the AMWU cannot rely on the `nut' element of the rule. Nonetheless the reference to the manufacture, preparations, processing or putting up of nut food is the primary function required to be undertaken by employees to be eligible for membership of the AMWU whereas the primary function of the employers in this case is Pastrycooking.

39. The submission of the LHMU is that the eligibility rules of the AMWU are clear in that the coverage is limited to the manufacture, preparations, processing or putting up of specified product as set out in Para(s) 1G(a)(i) to (vii) inclusive and at para 1G(b) the preparation and preservation as food of specified product being fruit and vegetables, meat, fish, sea food and by products. It is the preparation as food of the specified range of product which is the primary function for consideration not whether some of the same product is involved in other processes." [ALHMWU submissions pp. 12-13]

[11] In addition to the written submissions Mr Campbell submitted that while the evidence from Mr Divers showed that some chocolate was put on muesli bars, it was only a coating. He also submitted that a muesli bar was not confectionary because it contained grains, wheat and was almost "the opposite of confectionary because of its ingredients". He submitted it did not make a muesli bar confectionary to put a chocolate coating upon it. Ms Irwin, appearing for Carlyon Foods, made similar submissions in this regard.

[12] We have seriously considered the question of whether we should ourselves proceed to deal with the question of whether the AMWU has constitutional coverage for these employees. In this regard we are conscious of the submission by Mr Hale that we should do so as it is alleged a disadvantage may arise because manufacture of the product may cease and employees may be made redundant in the new future. However, we have decided in the circumstances not to do so because we do not consider the matter to have been sufficiently argued before us. While all parties gave some attention to the AMWU rules and to the work involved we do not think a sufficient analysis of the applicability of the rules and in particular the exclusions contained in the rules in relation to "nut foods" in respect of paragraph 1G(a)(iv) and the proviso to paragraph 1G(c) in relation to the manufacture of "Chocolate, and/or cocoa in the establishments of manufacturing grocers" have been sufficiently addressed. Moreover, we are aware of a number of cases where the meaning of confectionary has been considered including Landau and Another v Goldwater and Another [(1976-77) 13 ALR 192], Zeroz Pty Ltd v Deputy Commissioner of Taxation [WAG 131 of 1996] and Re G. Afiouny and El Atrach and The Collector of Customs [Administrative Appeals Tribunal No. 85/87 Customs 29 November 1985]. In all of the circumstances, we think the appropriate course is to uphold the appeal and refer the matter back to the Panel Head for re-allocation for full argument on the question of the extent of the AMWU's eligibility rule.

T. Hale on behalf of the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union.

N. Campbell and R Frenzel on behalf of Australian Liquor, Hospitality and Miscellaneous Workers Union.

Printed by authority of the Commonwealth Government Printer