Peckham v Moore

APPLICANT Mr E Young, Solicitor Turner Freeman LEGAL REPRESENTATIVES: RESPONDENT Mr A Ashburner of Counsel SOLICITORS Toomey Pegg Drevikovsky

Notification under section 130 by the Australian Workers' Union, New South Wales, of a dispute with WJ & A Seery re payment of overtime and penalty rates DECISION

1 This decision arises from a notification of dispute, pursuant to s130 of the Industrial Relations Act, 1996, lodged by the Australian Workers' Union, New South Wales Branch, on 27 April, 1999. The dispute was alleged to be with WJ and A Seery, PO Box 406, Moree, New South Wales, and was expressed in short terms as "refusal to pay overtime and penalty rates for weekend work". 2 Compulsory conference proceedings were held on 7 May, 15 June, 30 July and 8 October. During the early conferences it was apparent that the dispute centred around whether the work performed by the respondent was work covered by the Cotton Growing Employees (State) Award. The union submitted that it did, with the consequent effect of underpayments to three employees for overtime and weekend work. The respondent has maintained, ab initio, that it is a member of the New South Wales Farmers Industrial Association, a bound respondent to the Pastoral Industry Award (Cth) and the wages and conditions applied to its employees, were in accordance with that Award. 3 It is unnecessary to detail the proceedings in the compulsory conferences, suffice to observe that the dispute was unable to be resolved through conciliation; the parties adhering to their respective positions as to whether the Commission was possessed of jurisdiction to progress the dispute beyond conciliation. 4 Accordingly, on 8 October 1999 I formed the view that further conciliation would prove unsuccessful and issued a s135 Certificate of Attempted Conciliation. I issued directions for the filing and serving of affidavit material and listed the jurisdictional question for hearing on 7 and 8 February 2000. The parties were directed to confer as to the utility of the Commission sitting in Moree (the hearing subsequently proceeded in Sydney). 5 At the hearing, Mr Ashburner, of Counsel, appeared for the respondent and Mr Young, Solicitor, appeared for the notifier union.

THE EVIDENCE 6 The Commission was helpfully provided with an abundance of documentary material including:

ii) a history of the Cotton Growing Employees (State) Award ;

iv) material relating to the everyday usage of the term " crop ";

vi) material relating to the relevant rules of the NSW Farmers Industrial Association;

vii) numerous authorities of the High Court, Federal Court and Australian Industrial Relations Commission and its predecessors. 7 In addition, three affidavits were tendered and admitted without objection, subject to appropriate weight and relevance to the issues before the Commission. The deponents of the affidavits were not required for cross examination. I shall briefly refer to the relevant aspects of the affidavits. Affidavit of William J Seery (Ex'1') 8 Mr William Seery is a partner of WJ & A Seery Partnership; the other partners are Ada Seery, Richard James Seery, Ian John Seery, Stephen Paul Seery and Michael William Seery. Mr Seery claims the partnership is bound to the Pastoral Industry Award by virtue of the partnership's membership of the New South Wales Farmers Industrial Association, a named respondent organisation to the Award and by reference to the scope of the Award, namely the "sowing, raising and harvesting of crops". 9 Evidence of the partnership's membership of the Association, dating from 1986 was annexed to Mr Seery's affidavit and is not contested. 10 The three employees, subject to the Union's dispute notification, were employed as farmhands with their duties described as follows: (a) preparation of land for the sowing of crops; (b) irrigation of land for the growing of crops; (c) general duties in relation to the growing of crops, for example watering crops; (d) tractor driving for fertilising crops; (e) weed control for growing crops through the use of chemicals; (f) harvesting of crops; (g) general maintenance of farming machinery and equipment used in crop growing. 11 Correspondence to the union (annexure J) describes the nature of the business carried out by the partnership as "broadacre farming including the growing of wheat, cotton, soy bean, together with the grazing of 2,500 sheep". 12 The three employees were only engaged in the cotton growing aspect of the business. Only one of the employees remains employed by the partnership.

Affidavit of Allan McDermott (Ex'B') 13 Mr McDermott has been an organiser with the Australian Workers' Union for four years with extensive experience in the cotton industry. He has visited several dozen cotton growing operations. 14 The thrust of his evidence is, from his experience, there has always been an understanding in the cotton industry that the Cotton Growing Employees (State) Award applies to employees in the cotton growing industry. 15 Apart from the respondent, he has never known of any cotton grower applying any other Award to their employees. He said that, if the lower wages and conditions under the Federal Award were to be applied to the cotton industry, it would be contrary to the understanding and practice in the industry and result in an "enormous reduction" in workers' incomes. 16 Mr McDermott attests that, prior to advice given to the respondent, by a Mr Kellow, the respondent had applied the state Award to its operations. 17 He said that on 21 April 1999, while inspecting the respondent's employment records, the respondent did not dispute the applicability of the State Award, or the right of entry of the union under the State Act. 18 The remainder of his affidavit refers to various conversations which are not materially relevant to the matters to be determined. I therefore do not recount it.

Affidavit of Mr Peter Kenneth Smith (Ex'A') 19 Mr Smith is employed as the union's National Industrial Officer and has worked for the union since 1991. His responsibilities and knowledge relate to the Pastoral Industry Award and other agriculturally based Awards. He is a member of the AWU Pastoral Committee and the peak industry forum known as PANIC (Pastoral Award Negotiating Industrial Committee).

20 In describing the arrangement of the Pastoral Industry Award, he said that the Award historically, and in practice, primarily governs the terms and conditions for shearing and shearing related work such as shed hands, wool pressers and cooks. The term "station hand" is widely acknowledged as applying only to sheep or cattle station workers. 21 Mr Smith attests that the Pastoral Industry Award was never intended by the Award parties, nor designed or understood to apply to intensive stock and cropping operations, such as cotton. 22 He said if the broad construction which the respondent contends for, was accepted, it would create enormous uncertainty in the rural sector in New South Wales and Australia-wide. It is not the construction recognised in the rural industry, including the cotton industry in New South Wales. 23 He said that, while the National Farmers Federation has recently sought to broaden the scope of the federal Award, such a proposal has only been informally put, and rejected by the union. 24 He concluded that the application before the Commission seeks to circumvent and undermine the long established, and agreed scope, of the Pastoral Industry Award, as accepted by all industrial parties and the relevant Federal and State Industrial Commissions.

SUBMISSIONS 25 Mr Ashburner's submissions may be summarised as follows:

A) The respondent is a partnership bound to the provisions of the Pastoral Industry Award by virtue of its membership of the New South Wales Farmers Industrial Association. It has been a member since 1986.

B) The issue to be determined is a legal, rather than a factual one.

C) The interpretation of the Award is achieved by examining the language used in the context of what was intended by the parties who created it, and by approaching the task reasonably, without conceding any ambiguity.

D) If there is any ambiguity in the Award, recourse to the Award history is a useful way of interpreting its provisions.

E) The Pastoral Industry Award is not confined to shearing, or grazing; it is deliberately and unambiguously applicable to the growing of crops.

F) As to jurisdiction, Mr Ashburner submitted that in the present matter the Commission's jurisdiction is limited in the following ways: i) for the Award to be authoritatively interpreted as binding on the parties, jurisdiction resides only with a Court; and only a Court vested with federal powers; ii) if there was no issue as to federal coverage, a binding decision under the state legislation could only be made by the Commission in Court Session; iii) the Commission, as presently constituted, cannot bind the parties to any order being made for monies to be paid; iv) the Commission's decision might be highly persuasive, but not binding as a matter of law; v) if the respondent's argument succeeds, the only power open to the Commission is to decline from hearing the dispute notification any further.

G) an examination of the history of the Pastoral Industry Award discloses that there was, from the first Award in 1907, a gradual expansion in the Award's coverage from exclusively shearing and ancillary work, to a broader coverage which now includes crops;

H) the term "crop" is used generally to describe anything grown on land which leads to some economic produce. Its literal, and common definition, is not limited and covers the production of cotton;

I) bare assertions of the AWU official, Mr Smith, are of little significance as the Award must speak for itself. What matters is what work is done and what is the nature of the employer's activity;

J) if the correct interpretation of the Award leads to a complaint by the AWU, then it is up to its federal body to take action, as it sees fit, under the Federal Act. However, even if it successfully did so, such an outcome could only be prospective and would not result in any penal consequences for an employer who was operating on past practice. 26 In respect to the argument foreshadowed by the AWU, that a partnership is not a legal entity for the purposes of being bound to a Federal Award, Mr Ashburner raised these objections:

1. If this view was correct, any employer could form a partnership to avoid being bound to a Federal Award. This would have "interesting" consequences for the viability of the Federal award system.

2. The submission is a legal nonsense. Partnerships have a clear legal basis, can enter into legal contracts and become parties to an industrial dispute.

3. The registered rules of the New South Wales Farmers Industrial Association provide for a membership eligibility provision which includes persons, partnerships and companies.

4. Federal awards are binding on " all members of organisations bound by the Award " s149(1)(f) of the Workplace Relations Act 1996 . 27 Mr Young, in opening the case for the notifier, submitted that:

A) A partnership cannot be bound as a respondent to a Federal award (see Peckham v Moore & Ors [1975]1NSWLR 353).

B) The Commission is perfectly entitled to exercise its interpretative powers under s175 of the Act.

C) Mr Smith's evidence is that cotton is not a crop for the purposes of the Federal Award, and station hands are workers on sheep and cattle farms. This view is supported by the ordinary understanding and usage of these terms.

D) While the word "crop" is used in the Federal Award it raises an ambiguity which requires consideration of other State and Federal awards, which might have relevant application.

E) The use of the word "crop" by references to decisions of the Federal Commission in the Pastoral Industry Award has always limited the term to wheat, and other coarse grains. (See Print J1761)

F) The definition proposed by the respondent is too simple and too broad. Resort to tax documents, industry material or newspaper articles is not decisive. G) If the meaning contended for by the respondent was correct, it would conflict with other Federal Awards which have specific application, such as the Dried Fruits & Other Fruits Industry Award (Cth), Wine Industry Award (Cth) , Pig Breeding and Raising Award (Cth) and Fruit and Vegetable Growing, Storing, Packing and Processing (AWU) Award (Cth) . This conflict would have the potential to create industrial disputation - contrary to the objects of both State and Federal Acts.

H) A meaning of an award should " strain " to avoid inconsistencies and injustice.

I) The practice and application of an award is relevant to the determination of its coverage.

2 An employer is a respondent by virtue of membership of a named employer organisation.

K) A partnership is an unincorporated association without a legal entity.

L) Membership of an organisation does not give rise to legal rights and obligations where they would otherwise not arise.

M) The Commission has a power under s175 to interpret the Pastoral Industry Award as not applying to cotton and to interpret the Cotton Growing Employees (State) Award as being applicable. 28 In reply, Mr Ashburner submitted:

A) While a partnership is not an association and does not have an existence separate from the individuals who comprise it, relying on the findings in Peckham is not the point here. B) The High Court's judgment in Devaine v Gati (1956) 95 CLR 174 is the correct legal principle applicable in this case.

C) There is no ambiguity in the Award. It has been interpreted by the respondent for fifteen years without complaint.

D) If there is any injustice which arises (which is not conceded) then it is available to be remedied by the AWU through its federal manifestation. The real injustice would be to retrospectively penalise the respondent by altering the plain meaning it had been applying to the Award for a long time.

E) The doctrine of "purposive interpretation" flowing from a series of High Court judgments, is now widely accepted in all sorts of fields, including applicability to industrial instruments. The respondent's contention imposes no strain on the language, gives the language its ordinary and natural every day meaning, according to the appropriate industrial instrument.

F) Reliance on the 1990 Australian Industrial Relations Commission decision (Print J1761) is not available. A decision is an authority for what it decides, not otherwise. This decision did not decide that the cotton industry was not a crop for the purpose of the Award.

G) Reliance on other rural Awards as a basis for a claim of conflict is not open, as the New South Wales Farmers Industrial Association is not a party, and cotton growing is not within their coverage. Consequently, there can be no relevant conflict.

H) Cotton is not a fruit, vegetable or coarse grain - but in any event that is not what the Award says. Even so, while cotton is a fibre, it also produces seed used in stock feed and oil.

Principles of Award Interpretation 29 The Commission's interpretive powers arise from s175 of the Act: 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). 30 From time to time, the Commission is required to determine whether a Federal or State award applies in a particular set of circumstances. It would, as a matter of practicality and obligation, require consideration and, sometimes interpretation, of the provisions of a Federal award. Such an inquiry could not be conducted in vacuo. Accordingly, as I apprehend the powers under s175, they comprehend a power to interpret a Federal award, being either, a relevant instrument, or a relevant industrial instrument. I will therefore approach my task in this case pursuant to those powers available pursuant to s175. 31 There emerges from the recent authorities, that the modern approach of the courts in interpreting the language in an Award, is analogous to the approach to be adopted in interpreting statutes, or other legally binding instruments. Words are to be construed in the context of their purpose and within the framework of the whole document. 32 In short, the principle is to give the language a purpose - to give it work to do. It is formally described as the purposive approach to interpretation. Such an approach is to adopt an interpretation of words consistent with their purpose.

33 Another approach is to give the language its natural and ordinary meaning. This principle is succinctly put in Darlington Futures v Delco , (1986), 161 CLR 500, where the High Court said at p510: ... the interpretation of an exclusion clause is to be determined by construing the clause according to its natural and ordinary meaning, read in the light of the contract as a whole, thereby giving due weight to the context in which the clause appears including the nature and object of the contract, and, where appropriate, construing the clause contra proferentem in case of ambiguity. 34 This passage was quoted with approval by the High Court again in 1989 in Nissho Iwai Australia Limited v Malaysian International Shipping Corporation (1989) 167 CLR 219 at p227. 35 More recently, (1999) the Industrial Relations Commission in Court Session discussed the purposive approach, as it has been generally applied in New South Wales courts and, more particularly, in proceedings under the Workers Compensation Act 1987. In Horizon Cold Storage Constructions Pty Ltd v WorkCover Authority of New South Wales (Wright P, Walton VP and Hungerford J in Matter IRC2246 of 1999, 25 November 1999), their Honours said at pp15 and 16: ... we consider that the words of the relevant provision are clear on their face and it is unnecessary, for the purposes of dealing with this appeal, to discuss in any great detail the relevant principles of statutory interpretation. It is sufficient, for present purposes, to refer to the following discussion in the judgment of the Full Bench of this Court in Drake Personnel (at 444-445): The general approach to statutory construction adopted in recent cases may be illustrated by the judgment of Kirby P (as he then was) in State of New South Wales v Macquarie Bank Ltd (1992) 30 NSWLR 307. His Honour observed (at 319): 1. The primary task of a court, in its relationship with parliament, is to interpret parliament's will as expressed in the language which parliament has adopted. Nowadays, there is an increasing facility to look beyond the language of legislation to derive the imputed legislative will. But, in the end, courts must be faithful to that will as expressed in the legislative language. That is the way by which parliament speaks to the community and to the courts: see Re Bolton; Ex parte Beane (1987) 162 CLR 514 at 518; 2. Because legislation is expressed in language and language (especially the English language) is inescapably ambiguous, there will sometimes be a requirement that the court exercise a choice in deriving the will of parliament. Where that will is clear and the court has no choice, it must give effect to the clearly expressed legislative intention. But where there appears to be an ambiguity, the court should prefer the construction which appears to achieve the legislative purpose rather than that which appears to defeat or frustrate that purpose or undermine its achievement. This is not a new rule of statutory construction. But it is one which has been accorded greater emphasis in recent decisions of the courts in Australia, England and elsewhere in the common law world. The authorities and justification for this approach are to be found in McHugh JA's well-known opinion in Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404 at 423 ff ... The judgment of McHugh JA, as he then was, in Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404 at 423 included this passage: A purposive and not a literal approach is the method of statutory construction which now prevails: cf Fothergill v Monarch Airlines Ltd [1981] AC 251 at 272-273, 275, 280, 291. In most cases the grammatical meaning of a provision will give effect to the purpose of the legislation. A search for the grammatical meaning still constitutes a starting point. See also the majority judgment in Project Blue Sky Inc , at 384, where it was said: However the duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision ........

36 I have also had regard to s33 of the Interpretation Act 1987: In the interpretation of a provision of an Act or statutory rule, a construction that would promote the purpose or object underlying the Act or statutory rule (whether or not that purpose or object is expressly stated in the Act or statutory rule or, in the case of a statutory rule, in the Act under which the rule was made) shall be preferred to a construction that would not promote that purpose or object. 37 The purposive approach is to be contrasted with the literal approach. The strictly literal approach often results in narrow, absurd or unintended outcomes. In a contemporary and modern society, where the courts are required to interpret a vast array of legal instruments, effecting so many disparate contractual circumstances, the purposive approach is a natural and understandable advance in statutory interpretation. 38 When deciding the meaning and intent of the language in an industrial instrument, a tribunal will find the purposive approach particularly useful. Even more so because industrial instruments are usually framed in less legalistic form than statutes or formal contracts. 39 In respect to award interpretation, I regard as particularly apposite the following extract from Kucks v CSR Limited (1996), 66 IR 182, wherein at p184, Madgwick J says: It is trite that narrow or pedantic approaches to the interpretation of an award are misplaced. The search is for the meaning intended by the framer(s) of the document, bearing in mind that such framer(s) were likely of a practical bent of mind: they may well have been more concerned with expressing an intention in ways likely to have been understood in the context of the relevant industry and industrial relations environment than with legal niceties or jargon. Thus, for example, it is justifiable to read the award to give effect to its evident purposes, having regard to such context, despite mere inconsistencies or infelicities of expression which might tend to some other reading. And meanings which avoid inconvenience or injustice may reasonably be strained for. For reasons such as these, expressions which have been held in the case of other instruments to have been used to mean particular things may sensibly and properly be held to mean something else in the document at hand. But the task remains one of interpreting a document produced by another or others. A court is not free to give effect to some anteriorly derived notion of what would be fair or just, regardless of what has been written into the award. Deciding what an existing award means is a process quite different from deciding, as an arbitral body does, what might fairly be put into an award. So, for example, ordinary or well-understood words are in general to be accorded their ordinary or usual meaning. 40 I also refer to Pearson v Western Newspapers (1994) 52 IR 411, where the Chief Industrial Magistrate observed at p417: The traditional and primary approach in interpreting an industrial award is to read the document itself and give to the words used their ordinary commonsense English meaning. The first task in every case will be to determine whether the words used are capable in this ordinary sense of having an ambiguous (or obscured) meaning. If that question is answered in the affirmative then the further consideration of the expressed or supposed intention of the award making tribunal does not fail to be considered: Norwest Beef Industries Ltd v Australian Meat Industry Employees Union of Workers (WA Branch) (1984) 12 IR 314 at 331. Common sense demands the Court "consider the wider context of the award provision as a product of a series of decisions which must reveal plainly its general purpose and policy": per Burchett J Short v Hercus (supra) at p136. Dixon CJ said in Commissioner for Railways (NSW) v Agalianos (1955) 92 CLR 390 at 397, "the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed". 41 I have applied these principles to my consideration of this matter.

The Scope of the Awards 42 The Pastoral Industry Award has had a long, colourful, and sometimes, turbulent, history. First made by O'Connor J in 1907, 1 CAR 52, it is manifestly obvious that its history has been accompanied by an evolutionary and expansive extension of its scope and coverage. There are obvious points at which, it might be said, each step in the evolution can be identified. 43 It is apparent that the 1907 Award was an industrial instrument limited to shearing and associated work. At [1907] 1-2 CAR 62 the reference at p62 describes the Court as making an "Award settling the conditions of employment and rates of pay of shearers, shed hands, woolpressers and shearers' cooks". 44 The 1911 Award made by Higgins, J continued the limited scope of the Award to shearing and related occupations. Interestingly, Higgins J rejected a claim for the Award to be extended to station hands on the basis that the Court was not satisfied that the station hands were in dispute with their employers, (5 CAR 48). 45 The first step at expanding the coverage of the Award is found in the 1917 Award, following a finding, by the High Court, of a dispute between the union, on behalf of station hands, and respondent employers (23 CLR 22). 46 Thus, in the judgment of Higgins J in 1917, the Award, for the first time, was expanded to cover station hands. 47 In the 1927 Award proceedings, Dethridge CJ, was faced with a union claim to extend the Award to station hands in Tasmania and Western Australia, where they had not previously been covered. The court extended coverage to Western Australia, but not Tasmania. Another intriguing claim, advanced by the union in this case, was to extend the definition of station hand to employees engaged: ... at the occupations of blacksmiths, carpenters, fenders, axemen, pick and shovel men, rabbit poisoners, concrete mixers, bare rain delvers, irrigation labourers, horse or bullock drivers, burr, thistle or prickly pear cutters or drovers" (25 CAR 687).

While this claim was rejected, it is nevertheless clear, from the gamut of occupations just cited, that the union, at that time, was not the least bit content with the Award being restricted to shearing, and shearing related work. 48 It is relevant to note that the Court made sure that the Award was so limited by the exclusion in clause 31: This Award shall not (except in New South Wales) apply - 1. To any employer unless his main or predominant work is as a pastoralist raising and/or shearing sheep in the ordinary way. 2. To any sheep-farmer, or any other farmer, unless his main or predominant work is that of raising and/or shearing sheep. 49 The Award was therefore limited (except in New South Wales) to pastoralists as employers, and farmers whose "main or predominant work" was that of "raising and/or shearing sheep". The exception in New South Wales related to a state Award which exempted employers from the Award where the employer owned less than one thousand sheep. 50 The most notable extension of the Award coverage, apropos to this case, is to be found in a 1967 decision of Commissioner Donovan at 121 CAR 454. Here, for the first time, the scope of the Award refers to the "sowing, raising and harvesting of crops". Ironically, the scope of the Award was said to have been re-written for the purposes of clarity. At p456 the Commissioner said: The provisions of the current award clauses covering 'Definitions and Interpretations' and 'scope' have been re-written for the purposes of clarity. The scope of the Award has been widened and it will now cover employment of members of the Australian Workers Union (hereinafter referred to as the 'Union') employed by respondent employers in connection with the management, rearing or grazing of sheep, cattle, horses or other livestock, the sowing, raising or harvesting of crops, the preparation and treatment of land for any of those purposes, and the shearing or crutching of sheep. 51 This "widening" of the Award scope does not appear to have been contested. While other aspects of the Commissioner's decision were subject to appeal, on this point, there was no complaint, 121 CAR 506. 52 It is open therefore to conclude, particularly as the Commissioner intended the objective was to clarify the Award's scope, that he was doing no more than recognising the existing understanding of what the Award covered. In this conclusion, there must have been the acceptance of the parties to the Award, or at the very least, their acquiescence. 53 Consistent with these observations, is the fact that the earlier references to the award only applying to pastoralists or farmers whose main or predominant work is the "raising and/or shearing of sheep", has now disappeared. 54 I postulate this question - is it reasonable to conclude, therefore, that a farmer or pastoralist whose predominant work is not shearing, is able to be covered by the Pastoral Industry Award Assuming, that the work is otherwise captured by the scope of the Award, I think it must be logically so. 55 It is uncontested that the business of the Seery Partnership is broadacre farming including wheat, cotton, soybean and 2,500 sheep. Assuming that the other hurdles contended for by Mr Young can be overcome, it seems incontrovertible that the partnership is more than capable of being covered by the Award. Such capability arises from the Award's expanded manifestation in 1967, which has remained in this form to the present day. 56 In view of the union's submission as to the limited definition of station hand, it is instructive to note the definition in the 1967 Award made by Donovan C: 'Station hand' means an employee to whom the award applies including station cooks, but excepting employees engaged for shearing or crutching operations to whom section 1 of this award applies.

57 One then turns to the rates of pay for station hands at cl 55 and finds that the rates are based on experience and proficiency: The minimum rates to be paid to adult station hands engaged by the week shall be: Per week Without keep: $ 1 Station hand with less than twelve months experience in the industry 37.45 2 Station hand with twelve months experience or more in the industry (but who does not conform to the definition of General station hand) 38.10 3 General station hand (as defined) 39.65 Definition: 'General station hand' means an employee who has had at least two years' experience in the pastoral industry as a station hand and who is capable of performing efficiently without supervision any task, including driving a tractor and motor vehicle and operating farm machinery, which might reasonably be required of him as a station hand on the property where he is employed.

With keep: The rates prescribed above less $9.15 per week.

58 These provisions are replicated in the 1986 Award. 59 More importantly, however, is a passage from a decision of the Full Bench of the Commonwealth Conciliation and Arbitration Commission in 1971 (139 CAR 212): 60 At page 213 the Full Bench said: In the 1970 proceedings reference was made to the fact that the award was very limited in its legal effect, although it was used by graziers generally as the basis for the payment and conditions of work for all station hands. 61 and at p214: This award is used by the employers to cover many thousands of station hands on many thousands of properties on which are grown sheep, wheat, cattle and other kinds of animals and crops. It covers many areas from the high rainfall areas of the coast and tablelands to the wheat sheep zone and to the dry pastoral zone. It operates in New South Wales, A.C.T., Victoria, Tasmania, South Australia and Western Australia with all the variety that such a coverage can bring. In brief the nature of this award makes very difficult and adoption of provisions reasonably suitable for all circumstances. 62 These observations make it palpably clear, that the Award was being applied generally and was used by employers to cover "many thousands of station hands" on rural properties, not limited to sheep, or cattle stations, and including properties which grow "crops". 63 Such global observations must reinforce a wide practice in the industry - a practice Mr Young submits, does not, and has not existed. He submitted that the correct definition of station hand is limited to work on a sheep or cattle station. Such a submission is unsustainable when measured against the Full Bench's comments in 1971. I emphasise the expression that the Award operates "with all the variety that such a coverage can bring". 64 The 1990 Award, Print PJ4337 retitles the Grade 3 station hand to "Senior Station Hand" and adds the tasks of "animal husbandry, stock handling, irrigation work and the use of chemicals". 65 The most recent Award made by consent in 1998 (Print Q2650) does not alter, either the definition of station hands, or the coverage of the Award. 66 It is hardly surprising that the scope and coverage of the Award, has expanded, from 1907, as a consequence of periodic applications made to the various incarnations of the Federal tribunal. As the Federal award system emerged from its infancy in the first decade of this century, this was a pattern of award development not unique to this Award. 67 Nor is it startling that the Award's wider coverage arose from initiatives pursued by the union, rather than the employers. Indeed, the employers usually vigorously opposed such extensions. Again, so much is evident from the Commission history, to which I have already referred. 68 It comes then, as a somewhat novel and ironic turn of the tables, that in the instant matter before me, it is the union which argues a limited interpretation of the Award. 69 In view of the aforementioned analysis, I am satisfied that there is no ambiguity as to the coverage of the Pastoral Industry Award in the context of this case. Subject to my other findings, it is an entirely appropriate instrument for regulating the work performed by the respondent. I note nevertheless, that the respondent describes the employees as "farm hands", and not station hands. In my view, little turns on this distinction and does not derogate from my primary finding.

The Cotton Growing Employees (State) Award 70 The first Cotton Growing Employees (State) Award was made by the Agricultural Employees (State) Conciliation Committee (Cahill, CC Chairman) on 4 November, 1968, 172 IG 1253. (There co-existed at the time a State Cotton Ginning Award which has since been rescinded). The classifications under the Award are recorded at cl 3: Margin per week $ General farm hand 5.50 Field equipment operator 8.00 Mechanical equipment operator 11.00 Stick pickers and chippers 1.02 (per hour) Cooks 76.57 (per week)

71 A classification of rural tradesperson was added in the early 1990's. The present classifications are recorded as follows: Rural Tradesperson Mechanical Equipment Operator - Lister Operator, Service Truck Operator, Laser Operator, Scraper Operator, Excavator Operator, Blade Operator, Backhoe Operator, Mobile Crane Operator, Crane Driver, Storeperson Grade 1, Picker Mechanic, Grader Operator

Field Equipment Operator - who shall include but not be limited to: Module Builder Tractor Operator, Truck Driver, Syphon Forklift Operator, Picker Operator, Storeperson Grade 2, Front-end Loader Operator, Rotobuck Operator, Spray Operator, Gas-rig Sled Operator, Farm Welder, Bug Checker, Neutron Probe Operator, Irrigation Machinery Operator, Roller Operator.

General Farm Hand -includes but not limited to Irrigation Harvest Ground Crew. 72 In my view, the term General Farm Hand in the Cotton Award is sufficiently wide enough to include the work referred to in Mr Seery's affidavit. So much so must be evident by the classification of General Hand used in many rural awards to describe the broad and diverse range of general duties associated with work on farms, orchards, stations or other rural properties. 73 The interpretation of Station Hand can, per contra, be similarly described. While there was no evidence adduced as to the extent of coverage of the state common rule award, from the Commission's own knowledge, there is little doubt that it is an active Award of this jurisdiction and is applied widely in the cotton growing industry. However, my observations in this regard, are not decisive to the questions presently before the Commission. 74 Even if I accept that the State and Federal Awards have overlapping coverage with each being able to cover the work in question, the Federal Award, will, as a matter of law, prevail to the extent of any inconsistency over the State Award. The very existence of this dispute concerning differential pay rates under the two awards, demonstrates an inconsistency which is bound to be addressed stricto sensu by the aforementioned legal and constitutional constraint. 75 While it is unnecessary for me to make such a finding, it would nevertheless, be open to conclude that the work of the partnership could be legally, and in practice, covered by either of the awards. In these circumstances other prevailing factors must obviously be taken into account, including inter alia, whether the partnership is a respondent to the Federal Award. I return to this question shortly.

Is Cotton a Crop? 76 An answer to this question can be conveniently obtained by adopting at least two practical approaches:

1. What is the ordinary common sense meaning of the word "crop" as understood by any reasonable person?

2. Is the term "crop" recognised, and used by those in the industry, as applicable to the growing and harvesting of cotton? 77 These two approaches are not mutually exclusive. Each one produces an answer which is perfectly sensible and rational. 78 Recourse to the first approach might be usefully assisted by the dictionary definition of "crop". In this regard, I was referred by the respondent's counsel to the Oxford English Dictionary: Crop : ... The annual produce of plants cultivated or preserved for food, esp that of the cereals, the produce of the land, either while growing or when gathered; harvest.... ... in, under, out of crop : i.e. the condition of bearing crops; tillage, cultivation... ... With qualificaiton or contextual specification: The yield or produce of some particular cereal or other plant in a single season or in a particular locality, the crops : the whole of the plants which engage the agricultural industry of a particular district or season. and the Macquarie Dictionary: Crop : 1. the cultivated produce of the ground, as grain of fruit, while growing or when gathered. 2. the yield of such produce for a particular season. 3. the yield of some other produce in a season: the lamb crop . 79 On any view of it, "crop" is a wide descriptor of any plant or produce grown for economic benefit. In my view, it is unarguable that cotton is a plant, grown for economic benefit. The submission that cotton is not a crop cannot be sustained. I find accordingly. 80 I am fortified in this conclusion by reference to the definition of "agricultural or pastoral occupation" in the Rural Workers' Accommodation Act 1969, an Act referred to in the Cotton Growing Employees (State) Award at cl 20. The Act requires minimum accommodation conditions for workers living on rural properties in New South Wales, including cotton farms.

Section 3 of the Act is expressed as follows: Agricultural or pastoral occupation is defined as work, in or in connection with: a) the sowing, raising, or harvesting of crops of grain, fodder, sugar cane, fruit, or any other crop or farm produce whether grown for food or not,

b) the management, rearing or grazing of horses, cattle, or sheep,

e) dairying, or f) any other occupation carried on in connection with, or as ancillary to, an occupation mentioned in paragraph (a), (b), (c), (d) or (e) of this definition. 81 By the use of the words "or any other crop or farm produce whether grown for food or not", plainly in my view, includes a fibre product grown from a plant, to be used for purposes, other than food. I am hard pressed to identify any other fibre product that more aptly describes this definition than cotton. 82 To support his contention, Mr Young relied on a decision of a Full Bench of the Australian Industrial Relations Commission in the Pastoral Industry Award 1986 in Print J1761. 83 With respect, there is little to be garnered from this decision which is relevant to the question at hand. Not only, was the decision not concerned with the issue of what was, or was not a crop, it never even went remotely close to the point. The decision concerned an incapacity to pay application by the employers in respect to award wage increases based on the structural efficiency principle. As such, the decision is an authority for what it decides, not for what a party presumes or hopes, it might decide. 84 Mr Young quoted the following passage: Furthermore, we are satisfied that the marked diversity of experience in the industry sectors covered by the Award which includes the wool industry, the meat industry (beef, veal and sheep meat), and dairy products as well as wheat and other coarse grains makes it inappropriate to exempt all sectors of the rural industries covered by the Pastoral Industry (Wages and Allowances) Award, 1985 and/or all respondents to that Award from the National Wage Case decision of 26 June 1986. As no realistic alternative is available, having regard to the nature of the submissions made and the material presented, we therefore grant the increase in wages claimed. 85 Mr Young seeks to extract from this passage an interpretation which is simply not available. In my opinion, the reference to rural industry sectors is little more than illustrative of the diversity of the rural industry. It is not a descriptor which is either prescriptive or limiting. 86 Mr Young contends that the term "crop" is limited to coarse grains. I do not agree. If this limitation was the correct interpretation, then the Award provision could have plainly said so. It does not. It is not open to import into the term a limited and restrictive definition of the type envisaged by Mr Young. It has oft been said that Awards, and other industrial instruments, should be read beneficially and according to reason. Applying these tests, must result in the term "crop" being read in its broadest sense and without limitation. 87 While I am sure there is no ambiguity with the term, I would nevertheless, refer to other extrinsic material which leads inexorably to the same conclusion. In this regard, I consider it entirely appropriate to consider whether the term, as used in its ordinary, everyday context, is able to give solace to Mr Young's definition. 88 Mr Ashburner tendered a number of rural newspaper articles, an industry research paper and a tax department pamphlet which, he submitted, make clear that cotton is regarded as a crop in the ordinary context of that expression. In my view, this material is not selective, but rather demonstrates conclusively that cotton is widely and generally regarded as a crop by persons and organisations intimately involved in the rural sector. 89 I refer in particular to Ex'5', a brochure published by the Co-operative Research Centre for Sustainable Cotton Production. A number of references may be quoted to demonstrate Mr Ashburner's submission: Cotton belongs to the Hibiscus family and though its flowers are plain and short lived, it produces one of the world's greatest natural fibres. Our commercial varieties of cotton were developed from perennial shrubs in Central America, but we harvest them as an annual crop . (p2) Cotton crops use only 9% of Australia's total irrigation water. Cotton returns more than 4 times the farm gate value per megalitre of irrigation water than either rice or pasture which use two thirds of the total irrigated water. (p6) The Integrated Pest Management (IPM) war which is being waged against insects that attack cotton is a complex one that operates on a number of different levels. Its main purpose is to reduce the amount of insecticide used on the crop . (p8)

Weeds have plenty of room to flourish in cotton crops which are planted in rows 1 metre apart and grown in conditions of high soil moisture and nutrition. (p10) 90 In my opinion, this evidence, contemporaneously considered with my earlier comments, points overwhelmingly in favour of the interpretation contended for by the respondent.

Respondency and the "Seery Partnership" 91 The "Seery Partnership" claims Federal Award respondency by virtue of its membership of the New South Wales Farmers Industrial Association. 92 The following is the factual basis upon which this claim is made:

i) The New South Wales Farmers Industrial Association is a registered organisation pursuant to the Workplace Relations Act 1996 .

ii) The New South Wales Farmers Industrial Association is a named organisation bound as respondent to the Pastoral Industry Award .

iii) The Seery Partnership has been a member of the Association since 1986.

iv) The registered Rules of the Association, in particular r 8, provide for membership of persons, partnerships and companies. 93 The notion that the Seery partnership cannot be a respondent to a Federal award cannot possibly be sustained. It is wrong in both, fact and law. Mr Young's valiant submission to argue otherwise must just as certainly fall on barren ground. 94 It is, as Mr Young submitted, trite law that a "partnership" has no distinct legal status. However, non sequitor, that the named persons making up the partnership have their independent legal standing extinguished by reason of the partnership itself. Each are individual employers caught by their membership of the employer's organisation bound to a Federal Award. They are bound both severally, and individually, irrespective of what form or shape the partnership takes. 95 In my view, Peckham v Moore is entirely distinguishable from this case. Peckham was concerned with a rugby league footballer's workers' compensation claim against his employer, the unincorporated Canterbury Bankstown District Rugby League Football Club, through its elected committee. The Court of Appeal was required to determine the actual employer against whom the claim could be directed. The Court upheld the Club's appeal, finding the claim was made against the wrong employer in time; the Club's Committee being a different entity to that which existed when the original contract of employment was entered into. The circumstances in this case are not analogous. The Seery "partnership" does not deny it is the employer and was the employer at all relevant times. It was not an employer whose identity changed from time to time. 96 In my opinion, there is no escaping from the authority of the High Court in Devane v Gati at 175: It was quite competent for the Court of Conciliation and Arbitration to deal in the firm name with a partnership carrying on business in the firm name. The partners of the firm against which proceedings in the Court of Conciliation and Arbitration were so carried on would be bound by an order or award made naming the firm, that is assuming that in all other respects the court had jurisdiction to bind them by the order or award. It is, of course, true that a partnership is not a separate legal entity. But the firm name is nevertheless a description of the individuals who compose the partnership and it describes them for the purpose of the firm's business". 97 Despite this conclusive authority I would add these observations. Even though the partnership is an unincorporated organisation, the individual employers cannot contract out of their employment obligations as the true employer by forming a partnership. Such a proposition would produce some absurd and bizarre results. Nor does the partnership forfeit its employing identity by being accepted for membership of the New South Wales Farmers Industrial Association. 98 Mr Ashburner submitted that the effect of an employer being simply able to establish a partnership and thereby opt out of his/her obligations as a respondent to a Federal Award, would have grave implications for the Federal Award system. This submission is highly persuasive. Such a result, would be untenable. It cannot possibly have been the intention of the parties to this, and other Federal Awards. 99 If the union's submission is upheld then there will be a number of existing award respondents who can seemingly walk away from their Award obligations. A roping in variation to the 1986 Award (Print L8577), in the material tendered by Mr Young, discloses at least three named partnerships in New South Wales:

100 I suspect there may be many others. It could not surely be the desire of the Australian Workers' Union that such a consequence would be entertained by this Commission - let alone be sanctioned by it. 101 It is for these reasons that I can find no basis for a preliminary finding, as requested by the Union, that the respondent is not capable of being a legally bound respondent to the Federal Award. This submission is rejected.

Industry "Confusion" and Rates of Pay 102 The Australian Workers' Union submits that upholding the respondent's argument will have the consequential result of creating uncertainty, confusion and, even conflict in the rural sector. Despite the assertions of Mr Smith there is no evidence to support this contention. 103 This matter has been determined by applying well established and uncomplicated legal tests to the relevant factual circumstances. There is little to suggest that any particular finding in this case will have the dire consequences, unintended or otherwise, for the cotton industry in particular, or the rural sector generally. 104 The Commission is well conscious of the many discrete Federal and State awards historically applying in the rural and agricultural sector; some State awards being counterpart to their Federal cousins. Many overlap in terms of coverage and scope; but nevertheless have co-existed for many years. A plethora of so many awards seemingly has not created confusion or conflict. I ask rhetorically why would a discrete decision in this matter, relevant to a single employer, and based on the case's specific facts and circumstances, lead to the adverse outcomes asserted by the union? 105 One example of overlap was well demonstrated by Mr Young in the reference to cl 6 Coverage of the Fruit and Vegetable Growing, Storing, Packing and Processing (AWU) Award (Cth): 6.1 This award shall apply throughout the Commonwealth of Australia to the employment of persons in or in connection with the fruit growing industry, that is to say in or in connection with the cultivation, picking, dehydration, crystallisation, washing, juicing, canning, and all other processing, storing, packing and forwarding of fruits and vegetables. 6.2 Without limiting the generality of the foregoing, the scope includes persons engaged in any work carried on in connection with the preparation of the product of the vineyard for market. Where employers are bound by the Pastoral Industry Award 1998 [Print Q2650], agreement should be expressly reached as to whether this award is to apply.

106 Sub clause 6.2 envisages a situation where the work performed by an employer might be covered by the said Award, but the employer may be respondent to the Pastoral Industry Award. By reference to an agreement being reached as to which award is to apply, plainly means that it is competent for both Awards to have coverage. 107 It is unclear, however, as to what is to happen in the absence of any agreement. Presumably, the Commission would be asked to resolve the impasse. 108 While the Commission acknowledges and accepts that the rates of pay, and other conditions, are not as generous for employees under the Pastoral Award, vis a vis the Cotton Award, this is not a sufficient basis for displacing the clear legal position established in this case. 109 There is no evidence that the employer has sought to recently manipulate its Award respondency or enter into sham arrangements deliberately designed to avoid its legal obligations to employees. In my view, it has acted bona fide at all times. Its Federal Award respondency extends back for some fourteen years. 110 The fact that rates of pay might be lower under a Federal Award is not able to be claimed as a basis for undermining an existing Award respondency; a fortiori, where the respondency arrangement has been in place for many years. Until this dispute, there was no evidence of any complaint from the union throughout these years. 111 While the Australian Workers' Union is perfectly entitled to seek improvements in wages and conditions for its members, it is wrong to do so, by claiming that rates under a different Award should be imposed on an otherwise legally bound employer. 112 The competent course of action for an aggrieved party is to make an appropriate application to the Federal Commission. Such application, no doubt, would be dealt with in the usual way, and according to the prevailing Wage Fixation Principles. 113 Other alternatives might be to seek a certified agreement with the employer, or negotiate some other overaward arrangement. 114 I would, in passing, observe that the disparity in wage rates, effecting even counterpart Awards, is likely to become more pronounced as the Federal system moves towards an approach in which Federal awards will contain rates and conditions that are safety net minimums under the provisions of the Workplace Relations Act.

1. The Industrial Commission of New South Wales has the power under s175 of the Industrial Relations Act 1996 to interpret the Pastoral Industry Award .

2. The scope of the Pastoral Industry Award has been progressively expanded.

3. Words in an award should be construed in the context of their purpose and according to reason.

4. There is no ambiguity or obscurity in the language of the words " sowing, raising and harvesting of crops ".

5. Cotton is a crop for the purpose of the words in the scope clause of the Federal Award; vide licet " the sowing, raising and harvesting of crops ".

5. The "Seery Partnership" is a bound respondent to the Pastoral Industry Award .

6. The partnership engages in work comprehended by the coverage of the said Federal Award.

7. The Pastoral Industry Award prevails over the Cotton Growing Employees (State) Award in the context of this dispute.

115 It is apparent from my consideration of this matter that the Commission has no jurisdictional injunction to further proceed with this s130 dispute notification. Ipso facto, no order or award can be made pursuant to s136 of the Act. 116 I would add, in light of my earlier findings, that it is unnecessary for the Commission to rule on the additional jurisdictional questions posed by Mr Ashburner, insofar as the limitation of the powers available to the Commission in this matter. 117 The appropriate course for me to take is to refrain from further consideration of this matter on the basis that the dispute notification, as a matter of jurisdiction, is not competently before the Commission. I determine accordingly.

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