Re Dimitri Niceski v Dowell Australia Limited [1981] FCA 13; (1981) 52 FLR 371 v (23 February 1981)

FEDERAL COURT OF AUSTRALIA

Re: DIMITRI NICESKI
And: DOWELL AUSTRALIA LIMITED [1981] FCA 13; (1981) 52 FLR 371
V No. 14 of 1980
Industrial Law - Conciliation and Arbitration

COURT

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
INDUSTRIAL DIVISION
Smithers J.(1)

CATCHWORDS

Industrial law - Breach of Award - Stand down clause - whether threatened strike constitutes "a strike" - Significance of employee who is stood down - Joinery picket line on Employer's premises - Significance of Demarcation dispute in assessment of penalty.

Conciliation and Arbitration Act 1903 s.119(1) and (3)

Conciliation and Arbitration - Breach of award - Standing down employee without pay - Demarcation dispute - Threatened strike - Whether employee could not be usefully employed because of strike or stoppage of work - Order for payment of wages when breach of award established - Penalty - Conciliation and Arbitration Act 1904 (Cth), s. 119(1), (3). The applicant, a glazier and member of the Federated Furnishing Trades Society of Australasia (F.F.T.S.), whose duties included the insertion of glass panels into door frames, was stood down without pay by his employer, the respondent. At that time a demarcation dispute was occurring at the respondent's premises between the F.F.T.S. and the Federated Ironworkers' Association (F.I.A.) whose members manufactured the door frames and who had decided not to place them in the location from which they were normally collected by F.F.T.S. members for glazing. At that time there were 100 assembled frames already delivered to the pick up point. F.I.A. officials threatened industrial action if the F.F.T.S. members touched frames assembled by F.I.A. employees.

Clause 6(e)(i) of the Metal Trades Award 1952 (the award) which applied to the standing down of the applicant provided: "Standing Down of Employees - (e) . . . (i) The employer shall have the 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 reasonably held responsible."

Upon proceedings being brought by the applicant under s. 119 of the Conciliation and Arbitration Act 1904 seeking the imposition of a penalty upon the respondent for alleged breach of the relevant award as a result of the non-payment of salary and seeking an order for payment of that salary pursuant to s. 119(3),

Held: (1) The respondent could not rely upon cl. 6(e)(i) of the award because: (a) there was no evidence whether the decision of the F.I.A. employees to refrain from placing assembled frames in the normal pick up place, which action would have amounted to a strike, was ever implemented and accordingly at the most there was a threatened strike; (b) there was no stoppage which affected the availability of work for the applicant on the day he was stood down or thereafter.

(2) Accordingly the applicant was stood down in breach of the award.

(3) An appropriate order should be made under s. 119(3) of the Act because, it having been established that an employee was entitled to wages under an award, the authority granted to the court by that section should be exercised.

(4) A penalty of one dollar should be imposed upon the respondent in respect of the breach as it had been placed in a most difficult position by the unions' tactics and had acted erroneously but not unreasonably.

HEARING

Melbourne, 1980, December 8-9; 1981, February 23. 23:2:1981
APPLICATION.

The applicant sought the imposition of a penalty upon the respondent pursuant to s. 119(1) of the Conciliation and Arbitration Act 1904 and, pursuant to s. 119(3), the recovery of wages from the respondent.

J. Kennan, for the applicant.

C.N. Jessup, for the respondent.
Cur. adv. vult.
T.J. GINNANE

ORDER

1. The respondent pay a penalty of one dollar ($1.00) which penalty is to be paid into consolidated revenue.

2. The respondent pay to the applicant wages in respect of the period for which he was stood down being an amount in respect of each of the nine days on which he was stood down which bears to the award entitlement for one week's work the same proportion as the normal number of hours of one day's work bears to the total number of working hours in that week and that if there be any dispute with respect thereto the parties have liberty to apply. Orders accordingly.

DECISION

This is an application under s.119(1) of the Conciliation and Arbitration Act 1903 (the Act) in which the informant Dimitri Niceski seeks the imposition of a penalty upon the respondent, Dowell Australia Limited (Dowell) in respect of an alleged non-observance of a term of the Furnishing Trades Consolidated Award 1975 in that the respondent failed to pay to the applicant a remuneration that was prescribed by clause 12 of that award in respect of the period from Tuesday, 7 August to Tuesday 19 August 1980, both dates inclusive. Pursuant to s.119(3) of the Act payment of an amount of wages withheld from the applicant in respect of nine working days during that period is also sought.

For some years prior to 7 August 1980 the applicant was employed by the respondent at its establishment at Preston as a glazier. Employment was by the week and it was terminable by notice or abandonment but in respect of the relevant period it was not terminated and the relationship of employer and employee persisted throughout.

Clause 12 provided that the applicant, as an adult employee, should be paid the weekly rate appropriate to his classification. It is common ground that the award provided that he should be paid weekly. It was and is provided by clause 44(g) of the award that the respondent was bound, so far as its glaziers were concerned, only by clause 12 of the Award and certain other clauses thereof, and otherwise it should observe in respect of those employees the conditions prescribed from time to time by the award or determination applicable to the majority of the employees in its establishment. That award was known as the Metals Trade Award 1952 as varied.

It was and is provided by clause 6(e)(i) of the last mentioned award that,

"Standing Down of Employees.

(e) Notwithstanding anything else contained in this clause: -

(l) The employer shall have the 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 reasonably be held responsible."

It is common ground between the parties that the applicant was eligible to be and was at all material times a member of the Federated Furnishing Trades Society of Australasia (F.F.T.S.), that that Society was a registered organization of employees under the Act and that for the relevant period the appropriate weekly rate for the applicant was $171.30.

Prior to, or as at, the commencement of work on Thursday, 7 August 1980 the applicant was "stood down" and he remained stood down until the morning of Wednesday, 20 August 1980. There were nine working days during this period and the respondent deducted from the applicant's weekly wages a sum of money calculated to represent the total of the wage payments which would have been made for those nine working days, had they been worked in the ordinary way. This deduction was made pursuant to clause 6(e)(i) of the relevant award which is set out above.

The standing down of the applicant arose in the following circumstances. The respondent carries on, at Preston and in some ten other factories in various parts of Victoria, the manufacture of aluminium windows and doors. It has many employees. Its operations involve the assembling of aluminium windows and door frames and insertion into such frames of glass panels. At Preston the frames are assembled by employees who are members of the Federated Ironworkers Association (F.I.A.), an organization registered under the Act, and the insertion of the glass is carried out by members of the F.F.T.S.

In other establishments of the respondent, with minor exceptions, both the assembling of the frames and insertion of the glass panels is carried out by members of the F.I.A. During some months preceding August 1980, the F.F.T.S. being dissatisfied with this situation took industrial action designed to apply pressure to the F.I.A. members and the respondent in support of a demand for changes whereby the glazing work in the respondent's various establishments would be performed by its members. This pressure took the form of a ban upon supply of glass to the respondent's establishments other than Preston. The ban was implemented by members of the F.F.T.S. who were engaged in glass deliveries. It appears to have been partially effective, but by August 1980, it had not stopped production at the respondent's factories although the respondent was seriously concerned that it might soon do so. The ban was a serious threat to the continuance of employment of F.I.A members by the respondent at its establishments other than Preston. There were negotiations between the F.I.A. and the F.F.T.S. as to the allocation of work with the respondent as between their members but no agreement was reached. It was understood by all concerned that the respondent would accept whatever agreement the two Unions agreed upon as to this allocation of work. Feeling under threat the F.I.A decided to institute a counter attack upon the employment of members of the F.F.T.S. at Preston.

The counter attack was implemented at a meeting held at Preston on 6 August 1980. There was a strong move for an immediate stoppage of work. It appears that this was rejected and in the end it was moved, and carried, in substance, as stated in evidence by Mr. Read, the F.I.A. Victorian State Secretary, that "no further frames would be put over to the furnishing trade section.". So far as can be gathered from evidence it was the practice in the factory for the F.I.A. employees to deliver the manufactured frames at a particular place from where the F.F.T.S. employees could pick them up to do their glazing work. The effect of the resolution appears to have been that assembled frames would not be delivered by the members of F.I.A. to that place. This decision was made somewhere about the middle of the afternoon of Thursday, 6 August. It is not suggested that there were frames made and not so delivered pursuant to this policy on that Thursday, as for practical purposes work was not resumed on that afternoon.

The decision of the meeting was conveyed to Mr. Keane, the Manager of the respondent's Victorian operations on the same afternoon. It was delivered in terms which differed from those stated by Mr. Read to have been used in the motion issued at the meeting. Mr. Read, the Victorian Secretary of the F.I.A. and Mr. Muscat an F.I.A. organizer spoke for the Union and the F.I.A. employees. Mr. Read said in evidence,

"We went back to the Company and advised them of the decision of the members, we did not spell it out to them but we said, 'Now don't compound the dispute by allowing handling of those frames by people other than ironworkers. We just let them know that if they handled or allowed those frames to be worked on there would be an immediate stoppage to the plant by the ironworkers at Preston, and that stoppage would extend to every other Dowell establishment the following day.'"

He added,

"I think the words I used, I used generally, the companies, because I think it puts a soft edge on the industrial relation situation, a thing like this, you do not say harsh things if you can avoid them, but I said 'Don't compound the dispute by allowing the work to be done by people other than ironworkers.'"

Mr. Keane stated in evidence: -

"The ironworkers . . . had a meeting with their members and came back to me and told me that all frames had been banned. The ironworkers were banning all frames from delivery or pick up by the furnishing tradesmen after the furnishing trades had handled it. In other words they were banning any of their work being touched by the furnishing trades at Preston . . . The F.I.A. were banning the furnishing trades from glazing any frames they had assembled and the F.I.A. were banning the taking away of any frames after they had been glazed by the furnishing trades."

To interpret this fully it is necessary to know that it was normal procedure that after glazing by the F.F.T.S members the frames were stacked and later removed by F.I.A. members who performed further finishing work on them.

From the above it is to be gathered,

(a) that the meeting had decided to refrain from delivering assembled window frames to the normal F.F.T.S. picking up place; and

(b) that the Union officials, either interpreting accurately the mood of the meeting or by way of a separate initiative added threats of wide and hostile industrial action if the F.F.T.S members touched frames assembled by the F.I.A. employees.

Whether these threats were to be implemented if frames already assembled and delivered by the F.I.A. employees were worked on by F.F.T.S. members is not quite clear. But Mr. Keane understood the ban to apply to all frames whether already assembled and delivered to the F.F.T.S. pick up place or yet to be assembled. Mr. Keane decided to comply with the demand that F.F.T.S. employees should not work on any assembled frames. This decision involved, at least, that the F.F.T.S employees be stood down.

At the time for commencing work on the morning of 7 August, there were 100 frames already assembled and delivered to the F.F.T.S pick up point. But for the stand down, work by eight or ten glaziers would have proceeded on those frames on 7 August. There is some doubt as to how long they would have taken to glaze those 100 frames, but I think it probable that if the usual team of about ten employees had worked on them their work would have been completed in under four hours. If one man, even two, had been set to work on those 100 frames they would have been engaged for more than one day. Mr. Read said that in imposing the ban the F.I.A. had assumed that the respondent would comply with it, but he agreed that if the respondent had refused to implement the ban he would have been required to consult the F.I.A. employees to seek a decision as to what their reaction would be. In fact the respondent took action to avoid the threats implied in the notification to it of the F.I.A. ban. This action was to instruct its employees on the morning of 7 August 1980 not to start work. Before employees who were members of the F.F.T.S clocked on most of them were officially informed on behalf of the respondent that they were not to clock on. The applicant did clock on and actually commenced to work on a frame but almost immediately it was made clear to him that he was not allowed to work. It does not appear that any explanation for this was offered by the respondent but I infer that the situation was well understood by those concerned. The applicant attended the factory on the morning of 8 August and 11 August 1980 but was not allowed to work and it is clear that he was stood down by the respondent until he resumed work on 20 August 1980.

On and after 7 August 1980 from the time he was stood down the applicant and other F.F.T.S employees of the respondent engaged in a picket of the Preston establishment. This picket achieved much disruption of deliveries to and from the factory. It was aimed at causing a complete stoppage of work.

On 7 August the members of the F.I.A. continued to manufacture frames. Whether they put the completed frames in the places from where the glaziers would have picked the frames up, had glazing work been proceeding, or in some other places, does not appear and I am not prepared to draw any inference as to where they put them. However, by the afternoon of Friday 9 August they had run out of framing bars because supplies were blocked by the picket. The respondent put the F.I.A. men on to cleaning and other jobs. This class of work also ran out.

Accordingly, on the Friday afternoon Mr. Keane called a meeting of these employees, told them the respondent could no longer find work for them and offered a week's leave out of their annual leave or a week off without pay. They all elected to take a week's leave. They returned to work on Monday 18 August. The situation had not changed. On Tuesday, 19 August Mr. Keane collected the F.I.A. employees and those F.F.T.S employees who were on picket duty. He informed them in colourful language that the respondent would have to close down unless they would not agree to work together and persuaded them to agree to resume work fully the next day. This they did.

The respondent deducted from the pay of the applicant, amounts calculated in respect of the days from 7 August until 15 August during which he was stood down. This deduction is said to have been justified by reference to clause 6(e)(i) of the award.

It is contended by Dr. Jessup for the respondent, that on the relevant days the applicant could not be usefully employed because of a strike, or alternatively a stoppage of work by a cause for which the respondent could not reasonably be held responsible.

It was said that at the time the applicant was stood down there was in progress a strike within the ordinary meaning of that word. That strike was constituted by the F.I.A. decision which was to be interpreted as a decision that "we will make windows but not for the furnishing trade people, . . . that we are not going to make available frames to the Furnishing Trade Society.". It was said that this decision was to be interpreted as meaning that the F.I.A. employees would not put the frames as completed by them in the place where it was their duty to put them to be picked up by the F.F.T.S. employees. I accept that when an implemented concerted refusal by the F.I.A. employees to put the completed frames in that place occurred there would be a strike. It was made clear in the Board of Fire Commissioners of N.S.W. v. N.S.W. Fire Brigade Employees' Union (1953) A.R. (N.S.W.) 622 that a cessation of work by employees acting in combination and a concerted refusal to carry out their well defined and recognised duties and work is a strike within the ordinary meaning of that word notwithstanding that they are prepared to and do carry out some of their duties. (See per Cantor J. at p. 629.)

If one accepts that the F.I.A. employees had decided not to put frames in the accustomed place to be picked up by the glaziers and that that decision was conveyed to the respondent, that would have caused concern to the respondent. But it does not appear that such a decision even if implemented would have caused completed frames to be unavailable to the glaziers for glazing. They could have been picked up by the F.F.T.S. members wherever the F.I.A. employees put them. That might have been potentially explosive, but there is no evidence before me as to what the practicalities of that situation would have involved if there had been no more to the decision than that the completed frames would not be put in the proper place for the F.F.T.S. employees. But it was against that kind of exercise that Mr. Keane considered he had been warned by Mr. Read, namely, that frames touched by the F.F.T.S. would be black. The implication, was that they would not be collected by the F.I.A. members for finishing off and would be and remain black and thus useless, possibly for ever. But although a strike exists or is in progress when by decision of employees acting in concert only some part of the duties of employees is not performed, it would seem that until that decision to engage in such a strike is implemented, and certain of the duties which ought to have been performed are not performed, there is no strike. At most there is a threatened strike which it has been decided shall take place. At most, in my view, it is this which had occurred by the time the F.F.T.S. employees, including the applicant, were stood down.

Accordingly, at that time, it could not be said that the physical availability of work for those employees was detrimentally affected by a strike. The strike decided upon would probably have taken place, but it might not have, or it may only have been partially implemented. Not all strikes decided upon do occur. The situation at the close of work on 7 August 1980 seems to have been that there was a decision of the F.I.A. employees at Preston not to deliver assembled frames to the usual F.F.T.S. pick up point, and a threat by the Union through its officers of further strikes or work stoppages if the F.F.T.S. employees did any work on frames, at least, those yet to be assembled. The F.I.A. decision not to deliver would seem to have been designed to produce a situation that the F.F.T.S. employees were physically excluded from coming within reach of assembled frames. The Union threats appear to have been designed to discourage the respondent from authorising the F.F.T.S. employees themselves from seeking to collect the assembled frames from wherever they might be put by the F.I.A. employees or adopting some other means of conveying them to the F.F.T.S. employees. The decision, if implemented would have resulted in a strike. The threats if implemented would have resulted in a strike or stoppages of work of some kind. But as at the time of starting work on 7 August 1979 notwithstanding the decision and the threats there were 100 assembled frames physically within reach of the F.F.T.S. employees and available to be worked upon. As to any other frames which might be assembled, subsequently, the failure to deliver to the usual pick up place might have presented problems in relation to those frames being brought within reach of the F.F.T.S. workers. But in respect of all the frames, already assembled or yet to be assembled, Mr. Keane believed that he would allow F.F.T.S. employees to work on them only at peril of complete stoppages occurring at Preston and elsewhere. On this subject when Mr. Keane was asked whether he knew what would happen if he had said, "we cannot put the furnishing trades people off, that places us in an unfair position, we are keeping them all and we are not standing anyone down.", he said "No, I do not know what would have happened. I do not pull a trigger on a gun, either to find out if it is loaded, I know what would have happened.". In these circumstances reasonable citizens would no doubt have every sympathy with the respondent and react with distaste to the policies and tactics of the Unions. But this is of course beside the point, except perhaps on the question of penalty.

It is clear from the above that so far as the 100 frames already assembled and delivered were concerned there was no existing strike which in any way affected their avaiability to be worked upon by the glaziers. As between the applicant and the respondent the question is not what was said by the Union officers to the respondent. The question is whether because of a strike or stoppage of work he could not be usefully employed. Of course in one sense a man cannot be usefully employed if employing him is going to lead to substantial industrial strife. But that is not the sense in which those words are used in clause 6(e)(i).

It is clear upon ordinary canons of interpretation that clause 6(e)(i) is concerned with situations in which because of a strike, or machinery breakdown or a stoppage of work the employer, although willing enough to employ his employee in work is physically prevented from finding work for the employee to do. The fact that the employment of a particular employee might, because of personal attributes of that employee, namely for instance, that he is a member of a particular religion, race, colour, political party or union, or unpopular for some other reason is likely to involve the employer, in all sorts of trouble is for the purposes of clause 6(c)(1), irrelevant. The best inference which one can draw from the evidence is that the applicant together with the other F.F.T.S. workers were stood down not because the respondent could not be usefully employed on 7 August, nor because there was no useful work for him or them to do on that day, but because to have allowed him or them to do any work would have involved the real risk of strikes at Preston and the respondent's other establishments. From the physical point of view the situation on the morning of 7 August was that assembled frames were already delivered to the F.F.T.S. pick up point and could, according to ordinary factory procedure have been picked up and glazed by the applicant. But no matter, how reasonable it might have been, on his part, Mr. Keane was not concerned with that factor. To him all the frames touched by the F.F.T.S. were black. The operating factor was not that anybody was on strike but that the frames worked on by members of the F.F.T.S. would be black.

Clearly enough employment of an employee to do work on a frame which would render that frame black, perhaps for ever, could hardly be regarded in a general sense as useful employment. There was therefore a sound reason for Mr. Keane holding that the F.F.T.S. employees could not in that sense be usefully employed on 7 August. However, that sense was not the sense relevant to clause 6(e)(i). The inability to employ the applicant usefully came not from a strike affecting the supply of raw materials or power or the like, but from a threat of strikes by the F.I.A. members at Preston and elsewhere if he did the available work. The question in this case is whether where a situation of that kind exists is clause 6(e)(i) applicable? In my view it is not. Clause 6(e)(i) does not go to the question of whether the usefulness of the employment of the employee may be affected by extraneous attitudes of persons other than the employer or the employee, but whether, in the reasonable conduct of the employee's business in the pursuit of its business objectives, conditions are such that from a practical point of view there is nothing that the employee can reasonably set the employee to perform which in the production processes of the business will be beneficial to the employer. If that situation exists and is brought about by a strike or breakdown or stoppage of work there may be a stand down under clause 6(e)(i) but that clause is unacquainted with mere threats of strikes however strong.

Having regard to the absence of evidence as to whether, the F.I.A. employees' decision to refrain from placing assembled frames in the normal F.F.T.S. pick up place was ever implemented there is no evidence before the Court that there ever was an actual strike at Preston at all. Of course the onus on that issue is on the respondent.

The result is that there was certainly no strike which created a situation in which the applicant could not be usefully employed. I think the same may be said about a stoppage of work. There was no stoppage of work which affected the availability of work for the applicant on 7 August or at any time thereafter. It is said that the ultimatum delivered by the F.I.A. to the respondent created a situation in which it was dictating to the respondent that its members would manufacture frames only on condition that they were not glazed by members of the F.F.T.S. and that thereby a state of strike came into existence. The F.I.A. was of course not entitled to impose any such condition. If it were accepted by the respondent, as indeed there is ground for thinking was the case, then there was not a strike but a situation of agreement between the respondent and its F.I.A. employees, which constituted an alteration of the contract between the respondent and them. If it were not accepted by the respondent then the situation was that whether and how the condition might be sought to be enforced remained to be seen. On the morning of 7 August 1980, the ultimatum that such a condition was imposed, was not itself a strike, and had no effect on the availability of work for the appellant at that time. It is that time which was important.

As mentioned above it does not appear whether these frames which were made on Thursday, 7th or Friday 8th August were delivered to the accustomed place for pick up by the F.F.T.S. employees. But it is clear that on the morning of 7 August there was certainly more than one day's work available to be performed by a glazier on frames which were already made and had been delivered to the accustomed place. What was in evidence as to the content of that decision and as to what Mr. Read said to Mr. Keane differ considerably. It is the latter which is critical. What was decided was the better guide as to what was going to happen.

It is this feature which exemplifies the general validity of the submission by Mr. Kennan, in closing his address for the applicant, that it would be surprising and dangerous in relation to demarcation disputes between two or more Unions in one establishment, which is not uncommon, that one Union could make demands to the detriment of employees in another Union, knowing that the employer could seek the protection of clause 6(e)(i), and go to the employer and say "unless you stand down those employees we will do so and so," and that the employer could say, "very well, we can do that under clause 6(e)(i)". Having regard to the foregoing it is apparent that on 7 August 1980, apart from the possibility of the implementation of threats to strike at Preston and elsewhere, there was no reason why his usual glazing work could not have been usefully performed by the applicant. It follows inevitably that the same remained true in respect of every day that he was stood down.

It was urged by Dr. Jessup that although the fact that there is sufficient available work for only one or some of a work force usually employed on certain tasks does not of itself establish that one or some members of that force cannot be usefully employed, it is sufficient to establish that fact, if it is shown that to employ only one or some would cause industrial trouble of some significance. He referred to Re Carpenters and Joiners Award, (1971) 17 F.L.R. 330 at pps. 333 and 334 and Jarrad v. Melbourne & Metropolitan Tramways Board (1978) 21 A.L.R. 201. One can accept this submission but there is no evidence that employment of one or say two, glaziers on the 100 available frames would have led to any such trouble.

Dr. Jessup conceded, and in my view quite correctly, that the participation by the applicant in the maintenance of the F.F.T.S. picket line directed against the F.I.A. and the respondent, was not a matter of defence to the charge under s.119(1). In other words once non-observance of the award was otherwise established it is not a defence that the applicant was a party to picketing the factory. This depends upon the view that while the state of employment contemplated by the award exists then subject to such express or implied qualifications as are to be found in the award itself the obligation to pay the wage therein provided for must be observed. In this award no such qualification relevant to the circumstances is to be found, save clause 6(e)(i). But he urged that that conduct should be taken into account in the exercise of the Court's discretion under s.119(3), which is in the following terms: -

"S.119(3) Where, in any proceedings against an employer before a Court specified in sub-section (1), it appears to the Court that an employee of that employer has not been paid an amount to which he is entitled under an order or award, that Court may order that the employer shall pay to the employee the amount of the underpayment but no order shall be made in respect of so much of the underpayment as relates to any period more than six years prior to the commencement of the proceedings."

This sub-section is obviously designed to make it unnecessary, where a non-observance is proved, for an employee to take a separate proceeding to recover unpaid wages at common law or under s.123 of the Act.

Under s.119(1) the issue is whether there has been a breach or non-observance of an award. It might seem quite reasonable that although moneys are payable as wages under this award, the employer should be relieved from payment thereof, if, while the relationship of employer and employee persists, the employee concerned, engages in action designed to disrupt, and indeed close down the employer's business. It might be reasonable that the award should so provide. But it does not. Of course such conduct would sustain a civil claim for damages against the applicant for breach of contract or possibly damages in tort arising out of successful picketing in concert with others. One way of dealing with this problem would have been for the respondent to terminate the applicant's employment on the ground of misconduct. The attempt to bring the respondent's business to a standstill by means of the participation in the picket would certainly constitute misconduct of an employee justifying his dismissal. See North v. Television Corporation Ltd. (1976) 11 A.L.R. 599, Printing Industry Employees' Union of Australia v. Jackson & O'Sullivan Pty. Ltd. (1957) 1 F.L.R. 175 and compare Gapes v. Commercial Bank of Australia Ltd. (No. 3) (as yet unreported) Federal Court of Australia, 13 March 1980.

But no doubt there were policy considerations against dismissing the applicant and his fellow glaziers. As a result the relationship between the respondent and the applicant at all relevant times was one in which but for clause 6(e)(i) of the Award, the employee was wrongly excluded from available work which he was willing to perform, in other words, he was unjustifiably stood down. As indicated above clause 6(e)(i) did not apply in the existing circumstances. Accordingly, the applicant was entitled to wages in respect of the days he was wrongfully stood down.

It seems to me that Parliament intended that where an employee is entitled to wages under an Award in respect of which proceedings under s.119(1) are taken the Court should exercise the authority granted to it under s.119(3). The important factor is the existence of the entitlement.

I would observe generally that although the respondent, as the innocent victim of the inter union conflict was in a most difficult position the attempt to solve its problem by standing down employees belonging to one union, could only be undertaken at the risk of incurring obligation to those employees under the Award. In the event, the combined effect of this attempt, the effect of the F.F.T.S. picketing, the practical persuasive efforts of Mr. Keane, and the good sense of the employees led to a resumption of work on acceptable terms, albeit leaving the respondent exposed to this claim. It was a pity that the inter Union conflict led to the considerable loss and disruption involved in the incident, the subject of these proceedings. Protection of Union members, employers and Unions themselves from Union aggression such as that revealed in this case appears to be a matter with respect to which industrial legislation does not impose penalties. It is a strange situation that industry may be brought to a standstill by boycotts and bans imposed by organizations exclusively on demarcation issues, and that in relation to such conduct, those organizations are immune from such penalties. If this situation exists because it is assumed that public opinion would not support appropriate laws the validity of that assumption must surely be in serious question.

In the result, I find that the respondent failed to pay to the applicant the weekly sums due to him in respect of the weeks in which the days when he was stood down, namely the 7th, 8th, 11th, 12th, 13th, 14th, 15th, 18th, and 19th days of August 1980 occurred. Thereby the respondent failed to observe the provisions of the Furnishing Trades (Consolidated) Award 1975 as amended requiring it to pay to the applicant the remuneration payable to him pursuant to clause 12 of the said award in respect of the period on and between the 7th day of August 1980 and 19th August 1980.

It is necessary therefore to impose a penalty. I take into account that the respondent had been placed in a most difficult position by the aggressive and ruthless conduct of two unions conducting a demarcation battle and committed the breach of the award by erroneously but not unreasonably relying on the stand down provisions of the award. The real question here is whether the applicant is entitled to his wages. I am satisfied that he is. The penalty is therefore fixed at one dollar ($1.00) which is to be paid into consolidated revenue. I order the respondent to pay to the applicant an amount in respect of each of the nine days which bears to the award entitlement for one week's work the same proportion as the normal number of hours of one day's work bear to the total number of working hours in that week and that if there be any dispute in any matter the parties have liberty to apply.