Re Conciliation and Arbitration Act, 1904 v Re An Application By the Building Workers Industrial Union of Australia of An Interpretation of the Carpenters, Joiners and Bricklayers (Australian Capital Territory) Award [1979] FCA 69 (29 October 1979)

FEDERAL COURT OF AUSTRALIA

Re: IN THE MATTER OF THE CONCILIATION AND ARBITRATION ACT, 1904
And: IN THE MATTER OF AN APPLICATION BY THE BUILDING WORKERS INDUSTRIAL UNION
OF AUSTRALIA FOR AN INTERPRETATION OF THE CARPENTERS, JOINERS AND BRICKLAYERS
(AUSTRALIAN CAPITAL TERRITORY) AWARD, 1963
No. 22 of 1979
Industrial Law
[1979] FCA 68; 41 FLR 192

COURT

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
INDUSTRIAL DIVISION
J.B. Sweeney J.

CATCHWORDS

Industrial law - Interpretation of award - clause providing for payment of wages - stand down provisions - whether clause confers right on employer to deduct payment Conciliation and Arbitration Act, 1904, s.110

HEARING

SYDNEY
29:10:1979

ORDER

The application be dismissed.

DECISION

This is an application by the Building Workers Industrial Union of Australia ("the Union") for interpretation of the Carpenters, Joiners and Bricklayers (Australian Capital Territory) Award, 1963 ("the award"). The clause to be considered is paragraph (e) of Clause 36 - Payment of Wages which provides:

"Provided that no provision contained in this award shall affect the right of a private employer to deduct payment for any day an employee cannot be usefully employed because of any strike or stoppage of work by any persons whatsoever in connection with that employment or otherwise."

The clause follows the form adopted in a number of clauses in awards dealing with stand downs. It does not expressly confer a right on a private employer but uses curious language which on first consideration appears to preserve from the operation of the award a right which the employer may have or may obtain apart from the award. It should be noted that the award applies both to employees of the Commonwealth or a State or an instrumentality and to other employers. The award provides generally for weekly employment with a right to employ casual employees on a daily basis for a period not exceeding one weeks employment. So far as the stand down by other than private employers is concerned the award provides in Clause 12 - Terms of Engagement as follows:

"Stand down

(d) Provided that:

(i) For any day upon which a Commonwealth employee cannot be usefully employed because of any strike or lock-out by any persons whatsoever which curtails electric power and/or coal and/or any other fuel that employee may be stood down by the employer without the required notice and without pay. Provided that weekly employees who are required to attend for work and do so attend on any day shall be paid a minimum of two hours pay at ordinary rates.

(ii) Any employee stood down in terms of this order shall be re-employed by his employer if he is willing to resume work when sufficient electric power and/or coal and/or fuel is available, and that employee shall not forfeit any sick leave or other rights accrued to him or her at the time of stand down."

The award also contains in Clause 14(b) the following provision:

"Without limiting the right of any employer or employee to agree on rates and/or conditions in excess of those prescribed in this award, the minimum provision of this award or any amendment thereof shall apply to all particulars of employment notwithstanding any agreement to the contrary."

The question may be shortly stated whether the award operates to preserve a right of the employer to deduct payment or whether it does in fact confer upon an employer a right to deduct payment in the circumstances set out in Clause 36(e). The award history shows that in an award made in 1946 (64 C.A.R. 622) provision was made for weekly and casual employment but no provision made for stand downs. In July, 1949 the award was amended by inserting in a clause having the heading "Terms of Engagement" provisions relating to stand down which gave both the Commonwealth and private employers the right to stand down in certain limited circumstances. By an amendment to the award in 1963 (103 C.A.R. 262) the stand down provisions relating to the Commonwealth were unaltered but there was inserted in the then Clause 31 bearing the heading "Payment of Wages" a clause in the same terms as the clause now under consideration except that the word "clause" was used instead of the word "award" as at present. A provision which had existed giving a private employer the same rights as to stand down as the Commonwealth was deleted.

In 1968 (23 C.A.R. 871) a clause in the present form was inserted in a clause headed "Terms of Engagement". In 1969 the award was varied deleting the sub-clause from the Terms of Engagement clause and inserting the same sub-clause in the Payment of Wages clause and that was continued in the current award in 1973.

In the light of this history, it is clear that the parties attached importance to the clause and intended it to have operation. If the interpretation sought by the Union is correct, I am unable to see what operation the clause could have. There was no existing right in the employer to deduct payment in the circumstances set out at common law.

Halsbury's Laws of England, 3rd Edition, Volume 25 at p.468 says:

"Where, however, a written agreement, which appears on the face of it to include all the terms agreed to by the parties, provides only for the payment of wages or salary at certain times, no implied obligation to find work for the servant will be added, and he is not entitled to damages for not being given employment, although, if he remains ready to perform his services during the period covered by his contract, he is entitled to the agreed wages."

See also Hanley v. Pease and Partners (1915) 1 K.B. 698.

There has not then at any relevant time been any right at common law to be preserved from the operation of the award nor was it suggested that there had at any time been any usage or custom which was relevant.

Mr. Rothman, who argued the case for the Union, then sought to rely on a possibility of an agreement being come to between an employer and an employee or the union which in consideration for some overaward provision would give the employer a right to stand down which the clause could then preserve, but in the light of the award and having particular regard to clause 14(b) I am unable to conceive of any such agreement.

If then the sub-clause bears the interpretation sought by the Union, it is quite redundant. Unless driven to such an interpretation by the intractability of the language I think the Court should not so hold.

Mr. Peterson for the employers submitted that the award did confer a right on the employer to deduct wages in the particular circumstances set out in the clause and as he submitted, I think such a meaning has been given to clauses framed in this manner over a considerable period. There are cases in which an award has been so interpreted and there are a number of others where there has been an assumption by the parties and the Court that that was the interpretation of the award. I think it relevant for me to consider both types of cases because as the history shows, this clause has been dealt with by the parties by consent and inserted in different parts of the award and indeed varied in a manner quite inconsistent with the parties intending that it be redundant.

There is authority of the Australian Industrial Court in dealing with such clauses. In Vehicle Builders v. Ford Motor Company of Australia 3 F.L.R. 198 at 201 the Court said:

"We are disposed to agree that the only relevant right given to the employer by the clause is to deduct wages, but we are unable to find any implication in cl.7 that such a deduction cannot be made for more than one week. It is to be observed that although employment is stated to be "by the week" there is no requirement that a week, once commenced, shall be completed since a week's notice of termination may be given on any day. Moreover, the right to deduct is given, inter alia, in a case where the employee cannot be usefully employed 'because of any strike' . . . " (my emphasis)

Again in Vehicle Builders Federation of Australia v. British Motor Corporation 8 F.L.R. 70 at 74 the Commonwealth Industrial Court again dealing with a clause using like language said:

"The award provides for engagement by the week, and in the absence of any express provision an employee is entitled to a week's wages for each week of his employment even if there is no work for him to do. Clause 7(b) of the award provides, however, that the employer's right 'to deduct payment for any day the employee cannot be usefully employed because of any strike or through any breakdown in machinery or any stoppage of work by any cause for which the employer cannot be held responsible' is not affected by the provision for weekly employment.

We start, therefore, from the position that an employee who is on a weekly engagement is prima facie entitled to a week's wages. If, being ready and willing to work, he is told by his employer that he need not report for work the next day as there is no work for him to do, he is nevertheless entitled to be paid for that day, unless the employer can show that the employee cannot be usefully employed on that day for a reason falling within the clause above quoted."

The Industrial Commission of New South Wales has also considered similar clauses. In Re Iron and Steel Works Employees 1956 N.S.W.A.R. 615 at 617-8 and Re Dispute Australian Iron and Steel Pty. Ltd. 1972 N.S.W.A.R. 285 at 286. In the latter case, speaking of a clause similarly drafted, Shepherd J. said:

"This clause has been held, in relation to earlier awards, to confer a right upon the company to deduct payment even though it is couched in language which might not at first sight suggest that the right arises pursuant to the clause. I refer to In re Iron and Steel Works Employees (Australian Iron and Steel Limited - Port Kembla) Award(1956 A.R.615) and In re Steel Works Employees (Broken Hill Proprietary Company Limited) Award and Another (No. 1)(1962 A.R. 334). The conduct of employment clause in succeeding awards by the use of similar words means that the right that the company claims to arise by reason of the clause is beyond question if the circumstances mentioned therein are found to have existed."

The earlier judgment of Richards J. to which I have referred was considered by a full bench of the Industrial Commission of New South Wales in 1962: 1962 N.S.W.A.R. 335, when the Commission said:

"The existing provision in this regard is expressed in a somewhat curious way:

'This clause shall not affect the right of the Company to deduct payment for any day or portion thereof during which the employee is stood down by the Company as the result of refusal of duty, malingering, inefficiency, neglect of duty, or misconduct on the part of the employee . . .'

Such wording might suggest that, independently of the award provision, the company had a right to deduct payment in respect of time during which an employee was stood down by the company for the specified reasons. But no such right would have existed at common law. In In re Dispute at Metal Manufactures Ltd. (re Hutchinson) (1948 A.R. 818) a Full Bench of the Commission had referred to and acted upon an English decision to that effect. It would seem that the provision as to standing down made by the steel industry awards was intended not to preserve an existing right of the employers but to confer a new right. Richards J. so held in In re Iron and Steel Works Employees (Australian Iron and Steel Limited - Port Kembla) Award (1956 A.R.615)."

In numerous cases there has been an assumption that such a clause did confer a right. One such case is Pickard v. Heine and Son Ltd. [1924] HCA 38; 35 C.L.R. 1. It will be noted that the clause dealt with there provided for weekly employment and then went on to say that this should not affect the right of the management to deduct payment because of any strike etc. and the case was dealt with on the basis that such a clause conferred a right. There are many other cases in the arbitration tribunals where such an assumption has been made and the question litigated has been only whether the particular circumstances shown in the case allowed a deduction having regard to the language used in the particular clause.

In these circumstances I feel impelled to interpret the award as itself conferring a right on the employer to deduct payment in the circumstances set out in the clause. Whilst I refuse the interpretation sought by the Union, it must be noted that no question has been raised before me whether the circumstances were such that any employee could not be usefully employed and whether that inability to usefully employ him arose because of any strike or stoppage of work or otherwise. I would also comment that it seems to me highly desirable that when an award confers a right it should do so in language which is quite clear to the layman. The clause as at present framed particularly in the reference to any strike and in the use of the word "otherwise" seems somewhat wide and I think consideration should be given to a variation of the clause to a form more readily understood and specifying the circumstances under which deductions may be made with more particularity.

For these reasons I refuse to make the interpretation as sought by the Union.