Various employees Meat industry

COMMISSIONER LAWSON
SYDNEY, 25 AUGUST 1993

In September 1992 The Australasian Meat Industry Employees Union (the union) served a letter of demand and log of claims on ten employers in the cattle

feedlot industry seeking new wages and conditions of employment covering

"persons employed by your company eligible to be members of the AUSTRALASIAN MEAT INDUSTRY EMPLOYEES UNION and whether or not they are members of this organisation . . . it is intended that this demand apply to all persons employed by you in the meat industry and also to all persons . . . engaged in work ancilliary to and/or incidental to your operation in the meat industry." [letter of demand dated 18 September 1992].

The employers failed to accede to the claims and the union duly notified the Commission of an alleged industrial dispute. At an initial hearing of the matter the union withdrew its demand against one of the employers - CRS Pty Ltd

Mr J. Murdoch (of counsel) was granted leave to appear for eight of the remaining employers; Mr R. Buchanan (of Queen's counsel) and Mr G. Hatcher (of counsel) were granted leave to appear for Rockdale Feedlot Management Pty Ltd (Rockdale); and Mr J. Longhurst of The Australian Workers' Union (the AWU) was granted leave to intervene. The National Farmers' Federation of Australia had given advance notice of an application for leave to intervene but subsequently failed to appear.

The nine employers and the intervenor objected to a finding of dispute: collectively they sought to argue a case based on threshold issues concerning challenges to the union's capacity to serve a log of claims in an industry in which, they argued, there was no legal capacity within the union's registered rules to create an industrial dispute within the meaning of the Industrial Relations Act 1988 (the Act). In the alternative, the objectors sought to argue, under section 111(1)(g) of the Act, that the Commission should dismiss the matter or refrain from further hearing or determining the industrial dispute.

The objectors agreed to the concurrent conduct of a case against the legal construction of the union's rules, and to the tendering of affadavit evidence and on-site inspections.

The three threshold issues for determination before consideration could be given to the merits of the union's claims were: firstly, did the union's registered rules permit the recruitment of employees in the cattle feedlot industry? Secondly, what was the cattle feedlot industry and what was that industry's relationship to the meat industry? Thirdly, was the cattle feedlot industry different from the meat industry for which the union's registered rules were drafted?

The industry and eligibility rules of the union, tendered in a certified copy of the union's registered rules [exhibit M8] state:

The industries in connection with which the organization is registered are the butchering, meat refrigeration and kindred industries, and, in New South Wales only, the manufacture of condensed milk and/or dried milk and/or malted milk and/or casein and/or similar products (other than in factories exclusively manufacturing malted milk) and/or the manufacture of butter and/or cheese and the receival and treatment of whole milk (other than the receival and treatment of milk for retail only), and without limiting the generality of any other provision hereof in the State of Western Australia the industries of processing, freezing and/or packing marine reptiles and of cold storage other than cold stores connected with the milk industry or at factories where any of the following products are manufactured or processed, butter, cheese, condensed milk, yoghurt or casein.

The Union shall consist of all persons of good character who are employed in any position in or in connection with, or who are usually employed in, or who are qualified and desire to be employed in:-

(a) the Butchering and Meat Industry, Refrigerating Industry, or in any kindred industry handling the products of the Meat Industry, in the Commonwealth; and

1. the manufacture of condensed milk and/or dried milk and/or malted milk and/or casein and/or similar products (other than

in factories exclusively manufacturing malted milk);

3. the receival and treatment of whole milk (other than in plants which receive, treat and retail milk only)

in the State of New South Wales, other than persons eligible to be members of the Federated Engine Drivers and Firemen's Association of Australasia; and without limiting the generality of any other

provision hereof in the State of Western Australia the industries of processing, freezing and/or packing marine reptiles and of cold storage other than cold storage connected with the milk industry or

at factories where any of the following products are manufactured or processed, butter, cheese, condensed milk, yoghurt or casein;

and who are admitted as members of the Union." [emphasis added] [exhibit M8, pp.2]

Messrs Buchanan and Murdoch (for the objecting employers) advanced argument to support a contention that there was no category of industry within the above rules which conferred a legal capacity upon the union to create a dispute.

Exhibits B1 to B6 traced the history of the development of the union's rules from 1906 to 1987 in the industries of the "butchering and meat industry", the "refrigeration industry" and "any kindred industry handling the products of the meat industry".

It was argued that the union's letter of demand and log of claims dated 18 September 1992 contained three elements of presumption:

(i) a presumption of eligibility for membership; (ii) a presumed application of the log to persons employed in the meat industry; and

(iii) a presumed application to persons in employment ancilliary to the operations of an employer in the meat industry.

In objecting to any dispute being found and in asking the Commission to exercise its discretion to dismiss the matter, the objectors argued that if the persons against whom the log was directed were not eligible for membership of the union, then there could be no valid demand. In R. v. Williams and others; Ex parte The Australian Building Construction Employees' and Builders

Labourers' Federation [1982] HCA 68; [153 CLR 402, p. 408] the High Court said:

"The eligibility provisions in the rules of a registered organization of employees serve the function of defining the general area or areas of industry or industrial pursuit from which members can legitimately be

drawn and from which the organization can legitimately be concerned (see Reg. v. Dunlop Rubber Australia Ltd; Ex parte Federated Miscellaneous Workers' Union of Australia [(1957) [1957] HCA 19; 97 CLR 71, p. 87)]; Reg. v. Clarkson; Ex parte Victorian Employers Federation [(1973) [1973] HCA 57; 131 CLR 100, pp. 111, 113)]; Co-operative Bulk Handling Ltd v. Waterside Workers' Federation of Australia [(1980) [1980] FCA 141; 49 FLR 355, pp. 357-358]). Since such eligibility provisions constitute a reference point for courts, commissions, employers, employees and other organizations in determining or ascertaining an organization's proper coverage and field of operation,

they must be construed objectively (see Reg. v. Aird; Ex parte Australian Workers' Union [(1973) 129 CLR 659]; Reg. v. Cohen; Ex parte Motor Accidents Insurance Board [(1979) [1979] HCA 46; 141 CLR 577, pp. 580, 587]). In so construing them, however, it is permissible to pay regard to any common understanding among people concerned with relevant industries and particularly with industrial matters of the ordinary application of the

words used and to take account of evidence of that common understanding furnished by the previous use of the words in the relevant organization's rules and in statutory provisions, decisions, determinations, awards, reports and other papers concerned with the relevant industry or industries (see e.g., R. v. Hickman; Ex parte Fox and Clinton [(1945) [1945] HCA 53; 70 CLR 598, p.613]; Reg. v. Aird; Ex parte Australian Workers' Union [(1973) 129 CLR 659])."

The wording of unions' rules must be construed within their everyday context. Rule 4 of the union's registered rules (above) is concerned with the eligibility for membership of persons employed in, inter alia, the slaughtering and associated butchering functions of meat processing, in the refrigerating and storage of meat products and in downstream kindred industries handling products of the meat industry. The objectors contended that in this context the "meat industry" covered activities of employers which followed-on from the task of slaughtering of animals, and not those activities which preceded the task of slaughtering (apart from the necessary holding yard activities and penning-up of stock immediately before slaughter).

The Commission's attention was directed to Exhibit B2 - an application for a name change in 1912 by the Australasian Federated Butchers' Employees Union to The Australasian Meat Industry Employees Union - on the grounds (inter alia):

"3. That the words Butchers employees (literally) do not cover the membership of the Union as the word Butcher means persons who kill or slaughter.

4. That the meat industry is so varied, including as it does, what are known as Butchers' shops, Abattoirs, Bacon Factories, Small-goods factories, Tallow and Margarine Works, Sausage-casing Factories, Meat preserving Works, Freezing and export Meat Works etc." [exhibit B2, p. 1]

The opponents contended that that name change, and the subsequent

extension to the rules in 1962 [exhibit B4] and 1987 [exhibit B5] were clear evidence of the union's intention to cover the activities of the meat and kindred industries downstream from slaughtering and butchering process, and to activities covering the processing of non-living things.

The substance of that contention was contrasted with the activities of the rearing and the husbandry of live-stock in a feedlot, all of which were activities in advance of the process of slaughtering for meat and kindred products [transcript, p. 29].

The distinction between live-stock and meat was further reinforced by reference to the Australian Meat and Live-stock Corporation Act 1977 (Cwlth) [exhibit B7]. Section 5 of that Act defined the following:

"'export licence' means a meat export licence or live-stock export licence;

'live-stock' means cattle, buffaloes, sheep, lambs, goats or other prescribed animals;

'live-stock producer' means a person engaged in the raising or fattening of cattle, buffaloes, sheep, lambs, goats or other prescribed animals;

'meat' means the flesh, whether fresh or preserved, of cattle, buffaloes, sheep, lambs, goats or other prescribed animals and includes meat products and edible offal;" [exhibit B7, p.6]

The objectors contended that there was a distinction between live-stock and meat established within the powers and functions of the Australian Meat and Live-stock Corporation. Those functions and powers involved on the one hand questions related to the production and marketing of live-stock, and on the other hand questions related to the production and marketing of meat.

Further, in the Meat Inspection Act 1983 (Cwlth) [exhibit B8] it was contended that the clear distinction between live animals and meat and meat products was made in the provisions in that Act for the inspection and the transport of meat and meat products whether for human consumption or otherwise.

In support of the contention of a distinction between the meat industry and the cattle feedlot industry, the opponents referred to the Meat Industry Act 1978 No. 54 (NSW) [exhibit B9]. In that Act, it was contended, terms were used in their common parlance to define all aspects of "regulation and control of the meat industry in New South Wales". In no sense did that Act deal with the regulation or control of animal feedlots.

Further evidence was submitted related to volume 1 of the Australian Standard Industrial Classification, 1983 edition, ABS Catalogue 1201.0 (the classification) [exhibit B10] in which the purpose of the classification was set out as:

". . . to provide a standard framework for classifying establishments and other statistical units by industry in official statistics. It has been developed as part of an integrated statistical system, which provides for each individual establishment (or other statistical unit) to be classified to the same industry in all statistical compilations in which it is included." [emphasis added] [exhibit B10, pp. 2-3]

Extracts from the classification were used to distinguish between divisions, subdivisions, group and class of establishment classification. Of relevance to these proceedings was the distinction between establishments classified under Class Div A.0186 Agriculture, as meat cattle feedlot operations [exhibit B10, pp. 159-160], and establishments classified under Class Div C Manufacturing, Meat products covering establishments mainly engaged in slaughtering animals including abattoir and other kindred industry operations.

It was submitted that in a 1983 Industries Assistance Commission (the IAC) Report into the Abattoir and Meat Processing Industry, Report No. 313 dated 28 January 1983 [exhibit B11], the IAC emphasised that live-stock

producers were classified as being in the broader rural industry. The report further distinguished between live-stock as the source material for the meat industry and meat as the product of the industry.

A further delineation was drawn to the Commission's attention - that contained within Harrison C's report to a Full Bench of the Commission dated 12 September 1991 [exhibit B12]. The terms of reference of that report included:

"4. Examine all sectors of the meat industry as follows:

(a) Export meat processing; (b) Domestic meat processing and wholesale operations; (c) Smallgoods;

In the Inquiry process Harrison C "undertook a comprehensive programme of inspections of meat industry establishments throughout the States of Victoria, South Australia, New South Wales and Queensland" comprising some 34 establishments "to provide an understanding and overview of the industry in all its facets". The objectors in these proceedings reinforced their argument with the obvious point that at no stage throughout that Inquiry did the union or the Australian Council of Trade Unions (the ACTU) seek to embrace the cattle feedlot industry within the meat inquiry.

A later-raised but no less relevant argument put by counsel related to the application clause of the Federal Meat Industry Award 1981 [Print E9006 [F002]; (1982) 278 CAR 174] - described as a tap-root award of the industry and one that "tends to record the activities which are stipulated in the eligibility rule of the AMIEU" [transcript, p.121]. Mr Murdoch submitted:

'. . . of particular significance is the fact that the eligibility rule starts at the slaughtering phase and follows through then into the downstream activities, and this is particularly picked up when you see

the award starts at the same point, namely, slaughtering, and then goes through the follow-on labour and the slaughter floor, the boning, slicing, freezing, processing of meat, butcher shop work, etcetera. (d) Retailing, including supermarkets.' [exhibit B12, p.4]

The various divisions are: division A is abattoirs, and the very first classification is 'Employee required to do any slaughtering'. As I said, the starting point for the Federal Meat Industry Award [Print

E9006; (1982) 278 CAR 174 [F002]] is slaughtering. It is to be seen, of course, that in classification 3 there is a general terminology, 'Employees directly connected with the slaughter floor'. I want to draw your attention to the fact, Commissioner, that under that heading is sub-category (b) which is penning up, droving, attending to stock, shackling and hoisting.

It is significant that the droving, attending to stock and penning up come under the heading of 'Employees directly connected with slaughter floor'. So we repeat, the AMIEU eligibility rule starts with slaughtering; so too does their award." [transcript, p.121]

On 22 February 1993 during an adjournment in the proceedings, and in consideration of argument put by Mr Buchanan, Mr Meiklejohn (for the union) took an opportunity to discuss with representatives for Rockdale its continued participation in the proceedings. For the record, Mr Meiklejohn subsequently noted that the union did not intend to proceed against Rockdale while reserving the parties' respective rights to another day should a dispute finding be sought. Mr Buchanan acknowledged the union's position, noted Rockdale's reserved right and was released from further participation in the proceedings.

Extensive affadavit evidence was submitted by Mr Murdoch on behalf of Mr T. Mickleborough, a director of Oakey Holdings Pty Ltd [exhibits M1 and M7]; Mr R. Hadwen, general manager of Australia Meat Holdings Pty Ltd feedlots [exhibits M2, M5 and M6]; Mr A. Teys, managing director of Teys Feedlots Pty Ltd [exhibit M3]; Mr P.J. McKay, director of ICM Farm Products (Australia) Pty

Ltd [Exhibit M4]; and Dr I. Wells, consultant and cattle producer [exhibit M9]. The majority of evidence contained within the exhibits related not so much to the threshold issues, but to merit arguments related to section 111(1)(g)(ii) and (iii) of the Act.

Mr Murdoch did however use the affadavits to support an argument concerning the narrowness of the industry sector of the union's targetted employers: he submitted that the union had deliberately not served the many hundreds of other cattle feedlot operations, but had separated out only those operators which had a connection with operators of abattoirs. That very narrowness of that industry sector, Mr Murdoch argued, demonstrated a lack of genuineness to address the industry nationally. While Mr Murdoch conceded that those operators served were at one end of the industry sector (that being the holding of large numbers of live-stock in the feedlots at any point in time), and that union success in the matter would further fragment the present industrial coverage, Mr Murdoch submitted that the industry of cattle production - including the rearing and husbandry of live-stock - had always been industrially separate from the abattoir and/or meat processing industry, even when some element of common ownership existed.

Mr Murdoch contended that it mattered not whether the fattening and preparation-for-slaughter process took place in a feedlot or elsewhere. What was of relevance was that feedlots were invariably conducted in conjunction with large-scale agricultural and feed-milling activities associated with sophisticated farming, and not generally geographically associated (with some exceptions such as the Beef City and Beaudesert feedlots) with the activities of meat processing.

Finally in relation to the affadavit evidence and the threshold issues, Mr Murdoch highlighted:

(i) the activities at feedlots of "custom-feeding" (that is, contract feeding for other live-stock owners) - said to emphasise a clear distinction between the rearing of cattle for producers, and the holding of cattle for slaughter by meat processors; and (ii) the evidence related to the independent management of feedlots, to separate cost-centre structures, to transfer prices at the feedlot

gate, and to other elements related to the separation of activities at a feedlot from any meat processing plant.

Both the employer objectors and the intervenor union quoted as authority for their submissions Riordan DP (as he then was) in The Australasian Meat Industry Employees Union v. Hamilberg Pty Ltd and others. [(1989) 36 IR 471]. Riordan DP observed:

"The meat processing industry covers a very wide range of activities from the saleyard to the retail butcher shop. Of course, there are many variations in between with different methods of purchasing stock, of slaughtering and processing that stock, of the use made of the various parts of the carcase and the presentation of meat for sale on the domestic and export markets. Each and every process is directly related to the slaughter of the animal in the first instance which is the commencement of a long chain of various activities which are necessary in order to be able to offer an end product for sale and subsequent consumption." [(1989) 36 IR 471 pp. 472, 473]

An appeal from that decision (which found the existence of an industrial dispute) included a determination by the Full Bench (Ludeke, Peterson JJ, Cox C) that Riordan DP was entitled to rely upon the evidence available to him to make the above finding. [(1989) 36 IR 476, p.478]

For its part the AWU adopted the submission of the employer objectors, and further submitted that the Commission was not entitled to extend the

AMIEU's rules upwards into the rural, cropping and animal production industries: equally so, the Commission was not entitled to extend the AWU's rules downwards into the meat processing industry. From the AWU's perspective, the starting point of the meat industry was the end point of the cattle feedlot industry. The AWU opposed the finding of an industrial dispute.

Mr Meiklejohn advised the Commission that the dispute with the AWU had been referred to the ACTU and that an outcome was expected some time. That

outcome - in the form of a determination of the competing coverage issues in the feedlot industry - was made in June 1993 and forwarded to the Commission by the union for information. The AWU objected to the union's action (to inform the Commission), however the AWU did not seek a re-opening of the matter for consideration or argument of the ACTU's determination.

I emphasise that my decision in this matter has been made on the merit of arguments and evidence raised during the proceedings: for the purpose of this decision both the union correspondence dated 28 June 1993 (with the attached ACTU determination) and the AWU correspondence dated 2 July 1993 (with attachments) have been disregarded.

In response to the objectors' various arguments - that the union had no lawful capacity to create a dispute in the cattle feedlot industry - and in support of his contention that employees of feedlot operators were in the meat processing industry, Mr Meiklejohn advanced several arguments. Firstly, the union submitted that the cattle feedlot industry was significantly different from the industry of cattle "farming" (read production) because of the latter's essential ingredient of specific breeding and rearing from calves. In so distinguishing a feedlot from a farm Mr Meiklejohn posed the rhetorical notion that feedlots were therefore in another industry. In the union's view, that other industry was the meat industry.

Secondly, on the question of legitimate union coverage by the union, the union also drew strength from the observations of Riordan DP in The Australasian Meat Industry Employees Union v. Hamilberg Pty Ltd and others [(1989) 36 IR 471] that "the meat processing industry covers a very wide range of activities from the saleyard to the retail butcher shop . . ." [emphasis

added]. Mr Meiklejohn submitted that "the evidence in this case clearly show(ed) that the cattle in feedlots (were) past the point of the saleyard." [transcript, p.175]

Thirdly, on the authority of R. v. Watson; Ex parte The Australian Workers' Union [(1972-73) [1972] HCA 72; 128 CLR 77] in which Gibbs J said:

"The words 'in connection with' are somewhat vague but in their ordinary meaning and in the context of the rule they require that there should be a relationship between the employment of the labourer doing the concrete

mixing and the building operations. It cannot properly be said that a labourer does concrete mixing in connexion with building operations unless he is employed to mix concrete with a view to it being supplied for the purpose of such operations. It is not enough that subsequently the concrete may happen to be used in building operations or that more of it is used in building operations than for other purposes. A labourer who mixes concrete for use in a variety of operations, only some of which are building operations, is not employed in doing concrete mixing in connexion with building operations, any more than he is employed in doing concrete mixing in connexion with roadmarking or airfield construction if some of the concrete is to be used for those purposes also. As my brother Menzies has pointed out, the employment cannot change in character according to the use made of the product. The necessary connexion between the employment of the operator of a concrete batching plant and the building operations is lacking if he is employed to mix concrete some of which will and some of which will not be used in those operations. It follows that in my opinion the operators of concrete batching plants off the site do not do 'concrete mixing in connection with, or incidental to building operations' within the meaning of the rule." [(1972-73) [1972] HCA 72; 128 CLR 77]

Mr Meiklejohn argued that the words "in or in connection with . . . the Butchering and Meat Industry . . ." [exhibit M8, p.2] had to be interpreted literally. He contended that "the feedlots do nothing but supply cattle for the slaughter, and that . . . is an uncontested fact". He contended that there was a direct relationship between employment in the feedlot industry and meat processing.

Further in this regard, Mr Meiklejohn relied upon Jacobs J in R. v. Moore and others; Ex parte The Federated Miscellaneous Workers' Union of Australia [(1978) [1978] HCA 51; 140 CLR 470] where the High Court stated:

"It is abundantly clear that the four mining companies each wish to have constructed a mine or mines with all ancillary works. It is equally clear that the other companies propose to engage in the work of constructing

the mines and all their ancillary works. Nothing could be more closely related to metalliferous mining than constructing or having constructed a metalliferous mine and its ancillary works. It is an integral part of the mining operation" [(1978) [1978] HCA 51; 140 CLR 470, p.477]

to argue that feedlots were an integral part of the abattoir operations of the employers party to the dispute [transcript, p.177].

Next Mr Meiklejohn distinguished this case from that considered in Re Federated Liquor and Allied Industries Employees Union of Australia; Ex parte The Australian Workers' Union (also known as Poon Bros Case) [(1977) 51 ALJR 266] where the High Court said:

"The business of the respondent companies was quite distinct and separate from that of the mining companies engaged in metalliferous mining. True it is that the respondent companies served the mining companies and provided them with commodities and services the provision of which was desirable if not indeed necessary for the maintenance of the workforce to carry on the mining operations. But that does not mean that in contracting to provide and in providing these commodities and services the respondent companies entered into the business of the mining companies so as themselves to be carrying on metalliferous mining; nor were their employees employed in connexion with that industry. Their business remained distinct. Though serving the mining industry, the respondent companies did not carry on metalliferous mining or a business or industry in connexion with metalliferous mining. Although employees of the mining companies who provided food or services of the kind furnished by the respondent companies might have been held to be working in the industry of metalliferous mining, such work done by an independent contractor has a different nature of quality. It cannot be said to be done as an integral part of the metalliferous mining operation." [(1977) 51 ALJR 266, p.268] Mr Meiklejohn argued that in this case the circumstances considered by the High Court in Poon Bros Case [(1977) 51 ALJR 266] were not evident. He contended that there was a "clear and absolute connection" between the feedlot industry and the meat industry.

In order to further establish the link between the two industries Mr Meiklejohn next relied upon R. v. Neil and another; Ex parte Cinema

International Corporation Pty Ltd and others [(1975-76) [1976] HCA 11; 134 CLR 27] in which the High Court examined the meaning of the words "employed in any kind of amusement" in determining eligibility for membership of persons employed by motion picture film distributors. In that case Gibbs J said:

"The expression 'in any kind of amusement' is a narrower one than 'in connection with any kind of amusement'. The preposition 'in' indicates that the nature or scope of the activity of the employee is indicated by the following words - he must be directly engaged in the amusement, and not merely engaged in some related activity." [(1975-76) [1976] HCA 11; 134 CLR 27, p.31]

Mr Meiklejohn argued that employees working in feedlots were integrally linked to (read "in or in connection with") employees working in the meat processing industry where both activities are wholly-owned subsidiaries of international companies, for example the Whyalla feedlot (a subsidiary of Nippon Meat Packing) and the Beef City and Beaudesert feedlots (subsidiaries of

Fourthly, Mr Meiklejohn turned to an examination of the similarities of some duties of employees in feedlots compared with counterpart duties in meatworks. The union submitted (and was later challenged) that the duties of feedlot stockmen who daily tend cattle in feedlot pens, substantially duplicated the duties of meatworks stockmen engaged in loading and unloading cattle, tending cattle in pens, feeding cattle and generally working with live-stock. The union contended that the only difference between stock held in each case was the period over which stock were held pending slaughter - in the case of meatworks two to three days, in the case of feedlots 150 to 300 days. The challenge by the objectors to these submissions derived from a contrast of the specialist analytical and animal husbandry skills required of feedlot stockmen versus the stock-handling skills of the meatworks stockmen.

While this decision does not deal with many other issues related to section 111(1)(g) of the Act it cannot ignore the material submitted for and against the objectors' contention that the Commission refrain from hearing or from determining the industrial dispute because of existing industrial regulation. It was contended by the union that the feedlot industry was a national industry and that ipso facto all terms and conditions of employment ought to be the same and therefore Federal regulation was more appropriate. Not unexpectedly the objectors opposed that contention and brought forward substantial evidence of the existence of several State awards and agreements in each of the States applicable variously to each of the respondent employers.

With regard particularly to the industry in Queensland, Mr Meiklejohn stated that the union had intervened in State award proceedings since 1991 with a view to gaining coverage and therefore would not concede that the existing State regulation was satisfactory. The union alleged that industrial coverage in three States was "either non-existent or contrived", and it followed that it was not proper for the Commission to dismiss the matter on those grounds. In carefully considering all of the material presented and the submissions made in respect of the threshold issues, I have paid attention to the classes of employee traditionally covered by the union. This historical fact is of importance in determining the threshold issues.

In the Electrical Trades Union of Australia and another v. The Waterside Workers Federation of Australia and others [(1982) 42 ALR 587, p.595], the Full Court of the Federal Court of Australia (Bowen CJ, Evatt and Deane JJ) said:

"Eligibility provisions such as those contained in r6 of the Federation's rules should not be construed narrowly or technically, such provisions

serve the function of defining the general area or areas of industry or industrial pursuit from which the membership of the relevant organization can legitimately be drawn and with which the organization can legitimately be concerned. Plainly, they should be liberally construed: R. v. Cohen; Ex part Motor Accidents Insurance Board [(1979) [1979] HCA 46; 27 ALR 263, p.270; [1979] HCA 46; 141 CLR 577, p.587]; Co-Operative Bulk Handling Ltd v. Australian Workers' Union, supra, at 546-7 [(1980) [1980] FCA 141; 32 ALR 541]: In particular, when they refer to an industrial pursuit, they should ordinarily be seen as referring to the performance of general functions rather than to the precise activities which may, in a particular place or at a particular point of time, be involved in the performance of those functions but which are liable, by reason of changing technology or advances in technique, to be displaced by substituted or varied activities." [Print G9414]

In attempting to define the general area or areas of industry or industrial pursuit from which membership of the union has been traditionally drawn, even applying the most liberal of construction, I remain unconvinced that the union's rules can extend upstream from the abattoir unloading ramps or holding pens to embrace the duties and functions of employees in feedlots. The functions of animal breeding, animal rearing and animal husbandry associated with cattle production all relate to traditional rural-based pursuits. The fact that in some sectors of the cattle production cycle a technological change has occured involving the holding, the feeding, the rearing and the tending to of cattle in feedlot pens rather than in pastures, does not detract from the fundamental purpose, that is to prepare cattle for subsequent processing into meat and meat products. The duties and functions of employees in that industry have never been embraced within the horizons of the union's registered rules.

In this case the Commission has had to form an opinion as to the legal

capacity of the union to enrole as members persons engaged in the tasks referred to above. In R. v. Coldham and others; Ex parte The Australian Workers' Union [(1983) [1983] HCA 35; 153 CLR 415] Deane and Dawson JJ said:

"The Commission's power to make an order, under s.142A(1), that an organization of employees shall have the right to represent, in respect of all or some industrial interest under the Act, a class or group of

employees is dependent upon the existence of a jurisdictional fact, namely, that the employees of the particular class or group are eligible for membership of the relevant organization." [(1983) [1983] HCA 35; 153 CLR 415, pp. 427, 428]

Even by applying the most liberal view of the rules of the union, I have had to have regard for the history of the coverage of awards and the industrial regulation generally of the class of persons concerned. At no point in history

has the union sought to extend its rules in the manner sought in these proceedings. The union is as industrially astute as any major registered organisation of employees. It has a very long industrial association with employers in the meat industry many of whom have traditionally owned, reared and supplied cattle to mutually-owned abattoirs, and yet the union has never contended that its industrial coverage extend upstream into the employer's pastoral interests.

That history, coupled with the inconclusive arguments put forward in this case founded on Riordan DP's statement in The Australasian Meat Industry Employees Union v. Hamilberg Pty Ltd and others [(1989) 36 IR 471], enable me to find:

(i) that persons employed by cattle feedlot proprietors do not undertake work ancilliary to or incidental to work in the employers' operations in the meat industry;

(ii) that by applying the High Court tests in R. v. Williams and others; Ex parte Australian Building Construction Employees and Builders' Labourers' Federation [1982] HCA 68; [153 CLR 402] concerning a common understanding of the previous use of words in statutory provisions, decisions, determinations, awards, reports and other papers, the union's rules fail to cover the cattle feedlot industry; and

(iii) that as employees against whom the log of claims is directed are not eligible to join the union, there can be no valid demand made upon the respondents within the meaning of section 101 of the Act.

R. Meiklejohn for The Australasian Meat Industry Employees Union.

J. Longhurst and E. Beningfield for The Australian Workers' Union (intervening).

J. Murdoch and J. McCrae of counsel for Oakey Holdings Pty Ltd, the Karuna Feedlot trading as Whyalla Pastoral Company, Australia Meat Holdings Pty Ltd's Beaudesert, Beef City and Mungindoah Feedlots, Teys Feedlots Pty Ltd, T & R Pastoral Company and ICM Farm Products Pty Ltd.

R. Buchanan with G. Hatcher and P. Terrett of counsel for Rockdale Feedlot Management Pty Ltd.

Beef City and Whyalla: January 28 (inspections). Beaudesert: January 29 (inspections). Brisbane: