Peckham v Moore

[2000] NSWIRComm 62

Industrial Relations Commission (NSW)|1999-11-25|Before: Sams DP, Wright P, Walton VP, Hungerford J

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Court

Industrial Relations Commission (NSW)

Decision date

1999-11-25

Before

Sams DP, Wright P, Walton VP, Hungerford J

Source

Original judgment source is linked above.

Judgment (84 paragraphs)

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CITATION : 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 [2000] NSWIRComm 62 PARTIES : Australian Workers' Union, New South Wales WJ & A Seery FILE NUMBER: 1848 of 1999 CORAM: Sams DP Dispute notification - powers of interpretation s175 - jurisdiction of Commission to make an order - purposive approach to interpretation - scope of awards - award respondency - partnership - whether respondent partnership bound to Federal award - whether Federal award prevails over State award - definition of "crop" - whether cotton is a crop. CATCHWORDS : Held, Commission has power to interpret Federal award - respondent carries out work covered by Federal award - scope of award expanded - language in an award should be purposively construed - no abiguity or obscurity in language - cotton is a crop - Federal award prevails - Commission lacks jurisdiction - dispute proceedings concluded. Industrial Relations Act 1996 Workplace Relations Act 1996 Workers' Compensation Act 1987 Rural Workers' Accommodation Act 1969 Interpretation Act 1987

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LEGISLATION CITED : AWARDS: Cotton Growing Employees (State) Award 288 IG 947 Pastoral Industry Award (Cth) Dried Fruits & Other Fruits Industry Award 1999 (Cth) Wine Industry Award 1999 (Cth) Pig Breeding and Raising Award (Cth) Fruit and Vegetable Growing Storing Packing and Processing (AWU) Award 1999 (Cth) Peckham v Moore [1957] 1 NSWLR 353 Devaine v Gati (1956) 95 CLR 174 at 175 Darlington Futures Limited v Delco Australia Proprietory Limited (1986) 161 CLR 500 at 510 Nissho Iwai Australia Limited v Malaysian International Shipping Corporation (1989) 167 CLR 219 at 227 CASES CITED : Horizon Cold Storage Constructions Pty Ltd v WorkCover Authority of New South Wales (Wright P Walton VP and Hungerford J, Matter IRC2246 of 1999, 25 November 1999 at 15-16) Kucks v CSR Limited (1996) 66 IR 182 Pearson v Western Newspapers (1994) 52 IR 411 HEARING DATES: 02/07/2000; 02/08/2000 DATE OF JUDGMENT: 05/05/2000

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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.

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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 ........

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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.

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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).

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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.

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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.

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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)

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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:

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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.

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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.