Meat workers Meat industry

JUSTICE LUDEKE JUSTICE PETERSON COMMISSIONER COX SYDNEY, 12 FEBRUARY 1990

Industrial dispute - dispute finding - appeal - held recipients may reject claims that are relevant to them or may have no interest in aspects of the claims which are relevant to others - cannot affect the fact that all recipients carry on activities subject to the demand - application dismissed.

In September 1989 The Australasian Meat Industry Employees Union (the AMIEU) served a log of claims on employers in New South Wales, South Australia, and Queensland. The claims in the log covered 161 pages and dealt in great detail

with demands relating to the performance of work in abattoirs, slaughter houses, boning rooms and similar places. The log also included claims in respect of work performed in retail shops, the work of producing smallgoods and work incidental to these activities, such as the work of carters and drivers. In many ways the log reflected the terms and conditions set out in the Federal Meat Industry Award 1981.(1)

The demands made in the log were not acceded to and the ensuing dispute came before Deputy President Riordan. The employers who had been served and who appeared before the Deputy President objected to any finding that they were parties to a dispute with the AMIEU, on the ground that the dispute lacked interstate character and on the ground that the dispute was not

genuine. On 17 November 1989, the Deputy President published his decision,(2) in which he rejected these submissions and made a finding of the existence of a dispute within the meaning of the Act. From that decision this appeal was brought by employers in New South Wales who had been served with the log.

The appeal raised questions concerning the extent to which a "paper dispute" may be relied upon and the tests to be applied to ascertain whether a dispute can be said to be a genuine industrial dispute. We are of opinion that the matters raised on appeal are of such importance that, in the public interest, leave to appeal should be granted.

In the court below, and on appeal, the employers' resistance to the finding of a dispute was founded on the submission that, in practical terms, this was a one-State dispute. In New South Wales, 22 establishments had been served with the log of claims, while six had been served in Queensland and one

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(1)Print E9006 [F002]; (1982) 278 CAR 174 (2)Print J0340 in South Australia. The New South Wales establishments are covered by awards of the Industrial Commission of New South Wales and it was put that the real purpose for which the AMIEU log had been served was to bring them under federal award regulation. It was not argued that this alone was sufficient to prevent a dispute being found, but when taken with other matters germane to the attempt to create a dispute, it was put that it should be held that this could not be a genuine dispute. Those other matters arose from the nature of the comprehensive log served on the employers.

In summary, the appellants argued that service of the log created a great number of disputes between the union and each employer, or in some cases, groups of employers, but there was no single dispute which could be said to be common to all employers. This arose, so the argument went, because the log made different demands on different employers whose workers were engaged in different categories of activity; for example, in relation to processing of cattle, although teams of employees may be engaged in slaughtering and boning, different kinds of work are performed by different employees, and the employees are in different classifications. The systems of payment differ, having different values attached to them and it was submitted that each demand in these different categories should be treated as standing alone and constituting a separate demand, and hence, a separate dispute. It was argued further that an employer or employers receiving demands such as these have nothing in common with other employers served with the log, when those employers have workers engaged in activities not associated with cattle slaughtering; on this view of the facts, the appellants submitted that Riordan DP should have held that various different disputes existed between the AMIEU and each employer or groups of employers as to the different subject matters which were the subject of demands in the log; therefore the various groups of employers cannot be said to have any common concern in an industrial sense and no common disagreement with the AMIEU extending beyond the limits of any one State.

The appellants referred to The Queen v. Gough and another; Ex parte B.P. Refinery (Westernport) Proprietary Limited(3) as authority for the proposition that it is impermissible for the Commission to deal with an alleged dispute where the substance of the dispute with a particular party is so far removed and so different from the dispute with other parties that it is impossible to say that there is a single dispute. It was submitted that the facts of this case fell within that proposition. Other authorities were relied on by the appellants to support the contention that a union will have created a relevant dispute only if the dispute is about the same subject-matter among employers carrying on business in different States. However, we have formed the opinion that those authorities are not relevant to the facts here.

Before Riordan DP, evidence was given by the senior industrial officer of the New South Wales division of the Meat and Allied Trades Federation of Australia (MATFA). When cross-examined, he agreed that there existed an industry that was known as the meat processing industry. He stated that it encompassed a wide range of activities; some, but not all, of the activities he identified are as follows:

. Slaughtering of livestock of various species, including cattle, calves, sheep, lambs, goats, pigs, buffalo, deer and horses.

. Boning, slicing and packing of carcasses or parts of carcasses derived from the first-mentioned activity.

. Processing of offal and by-products. _
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(3)(1965-66) [1966] HCA 30; 114 CLR 384 . Production of casings.

The witness agreed that "the meat processing industry" was a common term which was well known in industrial parlance. He agreed also that there is a great deal of variety in the meat processing industry, where particular

activities are undertaken at one establishment while another establishment may have a different combination of activities. His evidence established that the diverse activities comprehended by the log and subject to separate, detailed claims constitute a recognisable industry when viewed as a whole.

In our opinion, Riordan DP was entitled to rely on this evidence, and no doubt did so, in finding in his decision that:

"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."(4)

We consider that the evidence before the Deputy President provided ample material on which to ground his finding that a dispute existed. Clearly, there is a well known industry in which the various establishments that were served with the log carry on their activities. It has long been held that these are relevant circumstances in considering whether a dispute exists. Starke J in Burwood Cinema Limited and others v. The Australian Theatrical and Amusement Employees' Association put it this way:

"An industrial dispute is constituted, both historically and in point of fact, where a difference exists between workmen themselves, or perhaps

between employers themselves, or between employers or classes of employers, and workmen engaged in some common industry or calling, concerning industrial conditions affecting a class so engaged and not merely affecting individual and definite members thereof. An industrial relationship, and not a contractual relationship, is all that is necessary to constitute an industrial dispute. The nexus is to be found in the industry or in the calling or avocation in which the participators are engaged."(5)

A recipient or group of recipients may reject claims that are relevant to them, and may have no interest in aspects of the claims which are relevant to others, but this cannot affect the fact that there is a common industry in which all recipients of the log and their employees carry on the activities which are the subject of the demands. The dispute resulting from rejection of those demands is a dispute common to all.

In our opinion, the criticisms levelled at the log of claims and the alleged shortcomings in the subsequent dispute are not sufficient to displace the Deputy President's conclusion.

Another and different question arose during the appeal proceedings as to whether or not this log was genuine, or was served with genuine intent. It emerged that the log, or something very like it, had been served in September 1988 by the AMIEU on a number of employers and on MATFA. On 21 November 1988, _ _

(4)Print J0340, p.3 (5)(1924-25) [1925] HCA 7; 35 CLR 528 at pp. 548-549 Riordan DP recorded his finding that a dispute existed, and on 20 February 1989 varied the finding by including ". . . Meat and Allied Trades Federation of Australia and its members as parties to this dispute". The existence of this finding had played no part in the proceedings before Riordan DP; apparently, neither the AMIEU nor the employer respondents treated it as being relevant to the issues before the Deputy President. We note also that although the appellants found 25 grounds on which to appeal, no ground is directed to this matter. When questioned on the purpose of serving the second log in September 1989, counsel for the AMIEU informed the Full Bench that service on the individual employers had been undertaken for a number of reasons.

First, the AMIEU was concerned that members of MATFA could avoid the consequences of being bound by an award by changing their legal identity, or by resigning from MATFA. We were referred to a decision of another Full Bench involving the AMIEU and Innisfail Butchering Co. Pty Ltd,(6) where a series of companies in turn had been the employer of the relevant workforce. In the course of its decision, the Full Bench said:

"Whilst we have felt some concern about the position involved in the purchase by Hughdeen Pty Ltd of a works which had been engineered out of federal coverage and the consequences that this decision might have for Hughdeen, we are unable to accept the view that it should be open to employers and their employees to construct circumstances which result in the avoidance of an award of this Commission. If the award provisions applying to an employer in the meat industry are believed to be so detrimental that they lead to this type of conduct, we can suggest

only that the employer would be better advised to seek to remedy at source the problem as he sees it, rather than attempting to contrive an avoidance.

The circumstances by which Innisfail No. 1 was able to transfer staff from one company to another to avoid the effects of the federal award are, we think, circumstances which cannot be supported."(7)

It was said also that the AMIEU had encountered difficulties in ascertaining the membership of MATFA and finally it was said that clause 15 - Saving, of the Federal Meat Industry Award 1981 left in doubt the position of certain abattoirs and slaughterhouses in New South Wales and Queensland. The terms of clause 15 are not entirely clear, but it would appear that at the time the award was made, if employees in the two States were performing certain work prescribed by the award, but being paid according to the provisions of a State award or awards, the federal award did not apply. It was provided further that application might be made at any time by MATFA or the AMIEU to have the provisions of the federal award applied to the employees referred to in the clause.

The reasons given by the AMIEU for the service of the second log became the subject of a further submission by the appellants. It was said that it was apparent that this was not a new dispute, but a dispute already before the Commission arising from the service of the log in September 1988. In these circumstances, it was argued, the service of the second log could not have been undertaken with a genuine intention of creating a dispute. In any event, the submission continued, any fears the AMIEU held concerning the identification of respondents were groundless, as MATFA was party to the proceedings arising out of the service of the first log.

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(6)Print H6915; 16 February 1989
(7)Print H6915, p.4 We are are unable to accept the appellants' submissions on this aspect of the case. As we have indicated, the matter of the existence of the finding of dispute on the first log was not an issue before Riordan DP. Either the parties simply forgot that it had been made, or MATFA accepted that it furnished no impediment to the service of the second log. Commonsense requires adoption of the second view. No submission was made to Riordan DP that the service of the second log lacked genuine intent because of the existence of proceedings arising out of service of the first log. We consider that the reasons given by the AMIEU for serving the log in September 1989 do not support the contention that they reveal lack of genuineness on the part of the AMIEU in its desire to create a dispute.

We have concluded that the AMIEU put forward this log of claims with the intention of obtaining improved terms and conditions of employment in accordance with the claims made in the log. For the reasons given, the appellants' case must fail. We dismiss the appeal and confirm the decision of Deputy President Riordan given 17 November 1989. ** End of Text **