Re Gary Owen Poultney v the Hydro-Electric Commission of Tasmania [1981] FCA 99; (1981) 52 FLR 427 Tas (17 July 1981)

FEDERAL COURT OF AUSTRALIA

Re: GARY OWEN POULTNEY
And: THE HYDRO-ELECTRIC COMMISSION OF TASMANIA [1981] FCA 99; (1981) 52 FLR 427
Tas. No. 1 of 1980
Industrial Law - Conciliation and Arbitration

COURT

IN THE FEDERAL COURT OF AUSTRALIA
TASMANIA DISTRICT REGISTRY
INDUSTRIAL DIVISION
Evatt J.(1)

CATCHWORDS

Industrial Law - Alleged breach of award - locus standi of "non-unionist" employee applying for penalty for breach - meaning of "member of organization" - eligibility of person to become and remain a member of an organization - Right of employer to stand-down employees because of strike - meaning of "cannot be usefully employed" in stand-down clause of award -cl.6(e) Metal Trades Award 1952 as varied. Division (III) - Hydro-Electric Commission of Tasmania - Conciliation and Arbitration Act 1904 as amended s.5, s.119.

Conciliation and Arbitration - Award - Employee who cannot be usefully employed - Employee stood down because of strike - Employee applying for penalty for alleged breach of award by employer - Locus standi - Whether employee member of organization - Conciliation and Arbitration Act 1904 (Cth), ss. 5, 119. The applicant who claimed to be a member of the Australasian Society of Engineers (the A.S.E.), a registered organization, sought the imposition of a penalty under s. 119 of the Conciliation and Arbitration Act 1904 upon the respondent his employer. The applicant alleged that the respondent had breached cl. 6(e) of the Metal Trades Award 1952 (the award) by deducting three days' salary from his wages when he was stood down because of a strike. Clause 6(e)(i) stated: "The employer shall have the right to deduct payment for any day the employee cannot be usefully employed because of any strike. . ."

Held: (1) The applicant had no locus standi because it had not been established that he was eligible to become or remain a member of the A.S.E. and he did not claim membership of any other registered organization.

(2) Merely because the applicant had become a member of the A.S.E. prior to commencing work with the respondent did not mean he was entitled to remain a member thereof until an order of the court under s. 144(5) of the Conciliation and Arbitration Act 1904 was made.

Re Keogh and Federated Clerks Union of Australia; Ex parte Linehan [1979] FCA 100; (1979), 40 FLR 445; Cook v. Crawford [1981] FCA 16; (1981), 52 FLR 1, applied.

Lorimer v. Australian Workers' Union (1975), 30 IIB 1842, not followed.

(3) In any event the respondent had discharged the onus upon it to show that it could not usefully employ the applicant within the meaning of cl. 6(e) of the award at relevant times because of the strike.

Re Carpenters and Joiners Award (1971), 17 FLR 330, applied.

HEARING

Hobart, 1980, July 18; September 23-26; October 29-31;
1981, July 17. 17:7:1981
APPLICATION.

The applicant sought the imposition of a penalty upon the respondent pursuant to s. 119 of the Conciliation and Arbitration Act 1904.

A.E. Read, for the applicant.

C.N. Jessup, for the respondent.
Cur. adv. vult.

Solicitors for the applicant: Jennings Elliot & Stanwix.

Solicitor for the respondent: C. Camprill.
T.J. GINNANNE

ORDER

The application herein as amended be dismissed. Orders accordingly.

DECISION

This is an application brought under s.119 of the Conciliation and Arbitration Act (the Act) seeking an imposition of a penalty on the Hydro-Electric Commission of Tasmania (the Commission) for an alleged breach of cl.6(e) of Division (III) of the Appendix to the Metal Trades Award 1952 as varied (the award). That Division refers to wage rates and conditions of employment of employees of the Commission covered by the award.

The application was issued in the name of the Australasian Society of Engineers (A.S.E.) which was and still is an organization registered under the Act. The only document originally filed in support of the application was an affidavit of Gary Owen Poultney sworn 16 June 1980 wherein he claimed that on 6 July 1979 he was a member of the A.S.E.; that he was then employed by the Commission as a boilermaker, welder at its Moonah workshops complex at Hobart and that contrary to the award the Commission had deducted payment from his weekly wage for the three days from 9 - 11 July 1979 inclusive.

At the directions hearing it was pointed out to counsel who appeared for the applicant, A.S.E. that there was no evidence that that organization had authorised the bringing of the application and, as Mr Poultney in his affidavit had stated that he was a boilermaker, welder, the Court queried if he was eligible to be a member of that organization.

When the matter was called on for hearing Dr Jessup, counsel for the Commission, immediately raised the question whether the application had been properly commenced in accordance with the certified rules of the A.S.E. which he tendered. A perusal of such rules raised doubts as to whether the application in the name of the organization had been made in accordance with such rules. After argument Mr Read who had appeared for the A.S.E. agreed that Mr Poultney be substituted for the A.S.E. as the applicant herein. This was consented to and accordingly the Court so ordered.

The Commission conceded that it had deducted payment from Mr Poultney's wages for the particular three days but claimed it had the right to do so as he could not then be usefully employed because of a strike by members of the Federated Engine Drivers and Firemen Association (F.E.D.F.A.) employed by it at its Moonah works at Hobart.

Clause 6(e) of the award reads:

6. - CONTRACT OF EMPLOYMENT

Standing down of Employees

(e) Notwithstanding anything elsewhere contained in this clause:
(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 reasonably be held responsible.

Clause 4 of the award so far as is relevant provides:

4. - PARTIES BOUND

This Part shall be binding upon the following organizations, their officers and members:

Amalgamated Engineering Union
Australasian Society of Engineers
Boilermakers and Blacksmith Society of Australia
and
The Hydro-Electric Commission of Tasmania in respect of the employment of all its employees classified in accordance with the schedule contained in clause 8 whether members of the abovenamed organizations or not.

Section 119 of the Act provides that an application for a penalty for a breach of an award by a person bound thereby may be sued for and recovered by certain nominated persons. Paragraphs (c) and (d) of sub-s.(2) provides that such a party may be (c) "any member of any organization who is affected by the breach" or "(d) any party to the award".

It was not suggested that Mr Poultney was a party to the award. If he had locus standi then it could only be as a member of an organization, namely the A.S.E., who was affected by the alleged breach of the award.

Accordingly whether he was at all relevant times a member of the A.S.E. was an issue squarely raised in the proceedings.

Counsel for Mr Poultney argued that the Commission at the said directions hearing had conceded that he was at relevant times a member of the A.S.E.. Such a statement had then been made by Dr Jessup but it was argued that such statement was referring only to the de facto position and not the de jure position. In my view this was so. In any event at the hearing of the application the Court was satisfied that that issue was clearly raised in the points of defence filed pursuant to an order made at the directions hearing. Counsel for Mr Poultney did not claim that he was prejudiced in any way. Accordingly the Court heard argument on this issue.

In his affidavit referred to above Mr Poultney had claimed he was a member of the A.S.E. but there was no evidence before the Court that any application by him to join that organization had ever been accepted by it under and in accordance with its certified rules.

I am of the opinion that to be a "member" of an organization within the meaning of that word in s.119(2)(c) it must be shown that the person claiming to be a member was not only a de facto member at relevant times but that he was eligible to become a member of that organization.

The Court has considered the meaning of the expression "member of an organization" as used in s.5 of the Act. In Burgess -v- John Connell-Mott, Hay and Anderson Pty. Ltd. (1979) 37 F.L.R.386 Northrop J. stated at page 390:

"In order to prove one or other of the circumstances set out in s.5(1)(a),(d) or (f) of the Act, the informant must prove that at the relevant time he was a member of an organization. The informant had purported to join the Australian Workers' Union (the A.W.U.) which is an organization within the meaning of the Act. The A.W.U. had issued a membership ticket to the informant. Counsel for the defendant submitted that the informant was not eligible to become a member of the A.W.U., and therefore could not, in law, be a member of the A.W.U. It follows, so it was submitted, that the informant, therefore, failed to prove that he was a member of an organization.

It is trite law that an organization, as party principal, has no power to create an industrial dispute within the meaning of the Act on behalf of persons not eligible for membership of that organization and has no power to stand in their place or to represent them in an industrial dispute. The fact that an organization has purported to enrol as members persons who are not eligible to become members, does not confer on that organization the power to represent those persons. In my opinion, to come within s.5(1)(a),(d) and (f) of the Act, the informant must prove that he is eligible to become a member of the A.W.U.. In other words the informant must prove that he comes within a class of employees specified in the eligibility for membership rule of the A.W.U.. When an issue of this kind is raised, the court is not bound by the production of a membership ticket nor is it bound by a certificate issued pursuant to s.155 of the Act. The court is required to consider whether a person is eligible to become a member of the organization of which he claims to be a member."

I agree with the reasons of Northrop J. in this regard.

Reference is also made to Leontiades -v- F.T. Manfield Pty. Ltd. 1980 A.I.L.R. 157 where Keely J. considered the meaning of the expression "employee entitled to the benefits of an award" in s.5 of the Act.

In both the above judgments their Honours make reference to numerous authorities. It is unnecessary that reference be made in detail to those authorities. Suffice it to say that the principles therein referred to are in my view applicable in determining the meaning of the word "member" in s.119(2)(c). Such principles clearly show that a person who is not eligible to become a member of a particular organization can not, in law, become a member of that organization.

Consequently it is necessary to determine whether Mr Poultney at relevant times was eligible to become and remain a member of the A.S.E..

The principles to be considered in determining whether an employee is eligible to be a member of a particular organization were considered by the Conciliation and Arbitration Commission in J. Fenwick and Company Pty. Limited -v- Merchant Service Guild of Australia & Ors. etc.(The Tug Boat case)(1973) 150 C.A.R. 99. At p.101 the Commission stated:

"To ascertain the course of the calling of particular employees, it is not enough merely to make a quantitative assessment of time spent in carrying out various duties. In my opinion, not only should the nature of the work done by the class of employees be examined but it is equally relevant to consider the circumstances in which they are employed to do the work; if a worker is required by his employer to carry out diverse duties, the inquiry should be directed to ascertaining the principal purpose for which the worker is employed."

I agree with those reasons.

Mr Poultney commenced working with the Commission in March 1978 at the age of 27 years. He had applied for work as a boilermaker/welder. The Commission classified him as a boilermaker/welder in accordance with the schedule contained in cl.8 of the award. He had been apprenticed in 1971 as a boilermaker/welder and had for years worked as such. His principal duties with the Commission were those which were traditionally carried out by boilermakers.

The following are extracts from his evidence:

Mr Read: When you went to the Hydro what position did you apply for? - - - I applied for a position as a boilermaker /welder.
Can you just describe to the court the difference between boilermaking work and welding work? - - - A boilermaker carries out the work on boilers or pressure vessels and also work on structural steel. He puts the job together and then it is passed on to a person that is qualified to fully weld the job. In other words, a full time welder mostly carries out welding for his full employment. A person who is just a boilermaker, can you describe where his job finishes? At which point on the production line? - - - His job finishes - - -

His Honour: Are you talking now about the Hydro, or general? - - - Generally, all over. A boilermaker's job, if he is a straight out boilermaker, he cuts all his materials, puts the job together into a pre-fabricated state and that is where his job finishes. Then it is passed on to the welder to weld the job up.
As boilermaker/welder where does your job finish? - - - Well, I do both facets of the trade. If I am called on to weld a job, I weld it. If I am called on to construct a job and to weld it, I will carry that out.

So if you have tacked a job together, you do not hand it necessarily to a welder, you can weld it yourself? - - - Not, that is right. On a lot of occasions I weld the job myself.

His Honour: I did not understand you to say that a boilermaker in a strict sense, even tack welds. He only does all the cutting, measuring out, marking? - - - No, a boilermaker does tack the job together as well.

I must have misheard you, yes.

Mr Read: Have you seen any boilermakers simpliciter - boilermakers only - work in Hobart anywhere? - - - Yes.

Whereabouts? - - - Mainly during my apprenticeship at Johns and Weygood, around about 90 per cent of the boilermakers were employed to put the job together; then it was passed on to the welders. They never had anything to do with welding whatsoever, apart from tacking the job up.

At the Hydro, are there any persons as far as you have noticed in the number 1 workshop who work simply as boilermakers? - - - No, not really. One or two.

Later in cross-examination by Dr Jessup Mr Poultney stated:

Dr Jessup: Your work at the Moonah workshops, and I am referring now to your work in the period leading up to July 1979, tell me if there was any difference. I am referring broadly to the six months or so leading up to that period. Your work involved the marking out of various steel items? - - - Yes.

The cutting of steel? - - - Yes.
The setting up of structures made out of steel? - - - Yes.
Tack welding in relation to those matters? - - - Yes. And working from plans? - - - Yes.

Those items that I have referred to in broad terms would you say what percentage of your time would have been engaged in those particular activities? - - - Six months prior to the stand-down, do you mean?

Yes, on average? - - - On an average, 60 per cent of the time I would say.
60 per cent? - - - Yes.
And the other 40 per cent would have been partly spent in welding? - - - Yes..

What else would you have done to take up the remainder? - - - Well, I would say probably 30 to 40 percent of the remaining time would be taken up in different types of welding jobs.

You mean 30 to 40 per cent of that 40 per cent, or almost all of the 40 per cent? - - - I would say almost all of the 40 per cent. There would be a small percentage left cleaning up of jobs. Cleaning up of completed jobs like running the file over or chisel, anything like that over completed jobs.

The welding that you did was that - that is part of this 40 per cent - welding of work that you had set up yourself or used you to weld work that other people had done by the boilermaking side of? - - - I would have to honestly say that it would have been work that I have constructed myself.

His Honour: You had done the whole lot? Fabricated and welded? - - - Yes.

You used the term marking out, I think, Dr Jessup. The term I know is marking off. I do not know if there is any difference? - - - Marking out or marking off, it means the same thing.

Dr Jessup: Mr Poultney, again looking at about that period of time, the first half or thereabouts of 1979, were there people employed in the Moonah workshop welding shop number 1 who just did welding? - - - Yes.

And there still are? - - - Yes.

Those people, do they have or do any of them have welder special class qualification? - - - I think they all do.

Was it the practice then for such people to come in and do the welding, especially the special class welding, after you or somebody else had set up a job and tacked it up? - - - Yes. That is their normal procedure.

Mr H.C. Stevens, Superintendent of the Commission's Power Branch, Engineering Workshops at Moonah during the relevant period gave evidence. When asked to give a general description of such workshops his answer was:

"This is a general picture of the power branch workshops at Moonah that have remained fairly static over a number of years and it is generally divided up into the following shops and sections; there is a modern machine shop equipped to undertake machining of all types including large turbine components and heat treatment of metals, precision grinding, sheetmetal work, including manufacturing of power station and sub-station control boards, general engineering and fitting and tool-making. Then we have a tower fabrication shop equipped with a mass production of transmission line towers and pole line hardware, also producing prototype towers in conjunction with designers. We have a structural and welding shop equipped with general boilermaking and structural work, repair of manufacture of water control gates, structures and special repair of turbine components. In that shop controlled there we have a large stress relieving furnace which is mentioned on that diagram. Also we have located in another area grit blasting equipment. Then we have a galvanising shop equipped for the galvanising of tower components and general galvanising. We have an electrical shop which carried out repairs to transformers and electric equipment, pre-wiring of power station and sub-station control panels, maintenance of electrical service in the workshops and buildings in the Moonah area and a general electrical installation in the Hobart area. We have a stores section for procurement and control of engineering stores. We have costing and time-keeping activities I will not read in detail. We have a drawing office - again for just the design of workshop tools and equipment. We have a central planning section for the preparation of quotations, cost estimates, planning and the direction and control of major work. Carpenters and painters section for maintenance and manufacture. We have an inspection section for inspection of all finished work. We have a rigging and transport section for carrying out all heavy lifts and transport within the works area. Cleaning and first aid facilities; oil conditioning plants we have mentioned on the plans and that is the main parts of the workshops, and as I said, as a part of that welding and structural shop at one part of it at the particular date in question, it was named the Fuji section."

Mr Stevens was then asked the following questions:

"Now in the welding shop number 1 which is marked N on the map there are employed some boilermakers, are there not? - - - That is correct.

Would Mr Poultney be one of those? - - - Yes.

How would you assess the importance to this role in that shop of his boilermaking skills as distinct from his welding skills? - - - We would assess and require the service of this particular man for his boilermaking skills and he was engaged on that basis."

It is of interest to note that Mr Poultney was the only member of the A.S.E. employed by the Commission at its Moonah complex. In the particular workshop where he normally carried out his day to day work there were approximately thirty-five tradesmen and apprentices employed and that all tradesmen were said to be members of the Amalgamated Metal Workers Union (A.M.W.U.).

In 1971 the A.S.E. made application to the Conciliation and Arbitration Commission to amend its Eligibility rule in certain respects including the deletion of the word "autogenous" where it appeared therein immediately before the word "welding". Certain organizations objected to the various proposed amendments to the eligibility rule. So far as is relevant the Boilermakers and Blacksmiths' Society of Australia (the Boilermakers Union), an organization then registered under the Act, objected to the deletion of the word "autogenous" from the expression "autogenous welding".

"Autogenous welding" according to "The Welding Encyclopedia" tendered by Dr Jessup is "an early day term usually applied to gas fusion welding. Autogenous welding referred to those applications where the edges of the pieces to be welded were melted together thus causing a weld without the addition of filler metal."

The said application by the A.S.E. to amend its Eligibility rule came on for hearing before Mr S.G. Hastings, Deputy Industrial Registrar in Sydney on 8 September 1971. His decision granting the application was issued on 17 December 1971 and is reported at (1971) 141 C.A.R. 1364. At p.1366 the Deputy Industrial Registrar stated:

" The remaining objectors who had been concerned also with the removal of the word "autogenous" withdrew their objections in that respect following statements made on behalf of the applicant to the effect that the purpose of the application was not to encroach upon the territory of other organizations but to regularise an existing situation."

Thereafter the certified eligibility rule (r.2(a)) of the A.S.E.(other than a restriction that Panel Beaters were restricted to be those employed by the Department of the Interior in the Transport Workshop in the Australian Capital Territory and certain restrictions on Technicians) read:

Rule 2. CONSTITUTION

This Society shall consist of members engaged in any of the following trades or branches of trades:

(a) Engineers, Fitters, Turners, Water Meter Fitters, Tool and Gauge Makers, Die Sinkers, Mechanical and/or Scientific Instrument Makers, Scale Makers and Adjusters, Safe Makers, Pipe Fitters, Motor Mechanics, and Tuners and Testers, Cycle and Motor Cycle Mechanics, Typewriter Mechanics, Patternmakers, Coppersmiths, Brassfinishers, (Engineering and General) Forgers, Forge Furnacemen, Blacksmiths, Shipsmiths, Angle-Ironsmiths, Springsmiths, Spring Fitters, Welders, Oxy-acetylene Cutters, Locksmiths, Mechanical Draughtsmen, Millwrights, Iron and Steel Rollers, Electrical Fitters, Electrical Mechanics, Machine Makers, Milling Machinists, Planers, Slotters, Borers, Shapers, Drillers, Polishers, Grinders and Lappers, Bolt and Nut Machinists, Agricultural Implement Makers, Panel Beaters, Gunsmiths, Technicians, and any other Machine Operators or Mechanics employed in the Engineering, Locomotive, Shipbuilding, Rolling Stock, Aircraft Munition and Iron Trades, or in any other Industry, and the paid officials of the Society."(emphasis supplied).

Further, the certified description of the industry in its Industry rule is "Engineering".

It is a matter of record that an amendment to the Industry and Eligibility rules of the Amalgamated Engineering Union (A.E.U.), an organization registered under the Act, was granted by the Industrial Commission on 10 January 1972. Such amendments effectively permitted coverage by the A.E.U. of persons previously covered by the Boilermakers Union. Further, that an application for the cancellation of the registration under the Act of the Boilermakers Union was approved on 30 August 1972 and that on 2 April 1973 approval under the Act was granted to the A.E.U. to change its name to the A.M.W.U.

Mr Read submitted that pursuant to s.144 of the Act Mr Poultney having become a member of the A.S.E. at some stage prior to his commencing work with the Commission was entitled to remain a member thereof until an order of the Court under sub-s.(5) of that section. I reject such argument. In Re Keogh and the Federated Clerks Union of Australia; Ex parte Linehan (1979) 40 F.L.R.445 Sweeney J. refusing to follow the decision in Lorimer -v- Australian Workers' Union (1975) 30 I.I.B.1842 decided that the expression in s.144(1) "entitled to remain a member of an organization so long as he complies with the rules of the organization" does not apply generally but is referable only to an order made under the section. In Cook & Ors. -v Crawford & Ors. N.S.W. No.19 of 1979, March 1981 (not yet reported) I indicated that I preferred the decision in Keogh's case to that in Lorimer's. I am still of that view.

In my view the evidence clearly shows that the principal purpose for which Mr Poultney was employed by the Commission at all relevant times was to carry out the duties of a boilermaker. Accordingly I am not satisfied that Mr Poultney was at relevant times eligible to become or to remain a member of the A.S.E.. As he does not claim to be a member of any other organization registered under the Act it is clear that he has no locus standi before the Court on this application and accordingly the application should be dismissed.

This does not mean that an employer who commits a breach of an award covering the employment of a "non-unionist" employee does so with impunity. In such circumstances an application under s.119 of the Act may be brought by the Industrial Registrar, the Industrial Relations Bureau or by any organization registered under the Act which is affected, or whose members or any of them are affected by the alleged breach (see s.119(2)(a), (aa) and (b)).

Notwithstanding that the Court has determined that the application herein as amended should be dismissed the Court considers that, as a great deal of evidence spread over some six days was led in respect of the issue whether Mr Poultney could have been "usefully employed" within the meaning of that expression in cl.6(e) of the award during the three days in question, its view of such evidence should be expressed.

A short history of events leading up to the stand-down of Mr Poultney commencing 9 July 1979 is as follows: On or about 24 June 1979 members of the Federated Engine Drivers and Firemen Association (FEDFA) employed by the Commission at its Moonah complex at Hobart went on strike. The effect of the strike was that the drivers of the mobile cranes and the derrick crane in the yard close to No.1 welding shop and the driver of the gantry crane in the galvanising section ceased work. The mobile cranes in practice were used to carry materials that could not be readily man-handled into and out of the welding shop. The derrick crane in practice was used to lift steel plates from the plate stack over on to the trolleys which were then pushed into the welding shop. The gantry crane in the galvanising section which was driven by a member of the FEDFA was used to lift any fabricated article within the galvanising shop which was to be galvanised.

Immediately after the stoppage by members of the FEDFA no further materials were brought into or taken from the No.1 welding shop which would have normally been carried by the mobile crane or initially lifted by the derrick crane. Further no prefabricated articles were lifted within the galvanising shop. This situation prevailed up until 12 July 1979. Despite such stoppage work continued in the welding, fabricating and galvanising sections on the heavy materials which had already been lifted into the various shops. As regards the welding and fabricating shops the employees were able to make use of the pendant-controlled gantry cranes for the lifting of articles within the shop as such employees were permitted in practise to operate such gantry cranes.

During the week ending 6 July 1979 the work within No.1 welding shop slowed down and efforts were made to keep the employees within that shop engaged in doing useful work with materials that were already within the shop. During that week discussions were apparently taking place between FEDFA and the Commission and it was hoped that a settlement of the dispute could be effected. Such hopes were not fulfilled. By Wednesday, 4 July employees within the galvanising section were stood down. On Friday, 6 July it was decided by the Commission that as there was no useful work that could be carried out by employees in the welding and fabrication shops that they would be stood-down at the end of their shift that afternoon.

Dr Jessup counsel for the Commission conceded, rightly in my view, that the Commission carried the onus of showing that Mr Poultney could not be usefully employed during the relevant period.

It is material in my opinion to consider the actions of Mr Poultney and those of the other employees who worked in No.1 welding shop immediately following the stand-down and before the application herein under s.119 of the Act was filed. There is evidence, which is accepted, that none of the employees employed in No.1 welding shop complained at the time of the stand-down that work was in fact available within that shop. Thereafter there had been no complaint to the Commission or its officers in that regard from the AMWU or any of its officials including the shop steward in the particular shop.

In a letter dated 3 November 1979 written to Mr Forster, Secretary of the Tasmanian Branch of the A.S.E. Mr Poultney made no claim that he could have been usefully employed in the Moonah workshop during the stand-down. The only complaint set out in the letter was as follows:"The employees were notified by notice board, that we were to be stood down indefinately because of lack of work. At no time as an individual was I given an offer to work anywhere else in the H.E.C. in my field of work."

On 22 November 1979 Mr Commissioner Vosti heard a dispute lodged pursuant to s.25 of the Act by Mr Forster. Such proceedings were heard on 19 December 1979. Mr Forster appeared on behalf of the Tasmanian Branch of the A.S.E. whilst Mr King, the Industrial Officer with the Commission, appeared for it.

At that hearing no allegation was made on behalf of Mr Poultney that he could have been usefully employed in the No.1 welding shop during those three days. On the other hand it was then claimed by Mr Poultney that work was available for him at the Glenorchy garage complex and other areas of the Commission's activities within the State of Tasmania. The transcript of those proceedings and Mr Commissioner Vosti's decision handed down 18 January 1980 (Print D 8906) were tendered without objection.

The Commission called the following witnesses, the classification of each within the various complexes of the Commission at the relevant time being shown.

Moonah Complex

(1) H.C. Stevens - superintendent of H.E.C. power branch engineering workshops; (2) A.T. Crombie - assistant superintendent in charge of production and planning; (3) R.G. Hurd - technical officer with Moonah workshop and officer-in-charge of central planning; (4) R.T. Harper - senior supervisor-in-charge, welding shop No.1; (5) J.S. Goninon - A/Senior Supervisor Distribution Branch; (6) J.W. Blackaby - supervisor; moved from Fuji to welding shop No.1 on Monday 9 July 1979 when Mr Harper went on leave; (7) M.V. Shaw - foreman of No.1 welding shop and (8) A.W. Cameron - supervisor of Rigging and Transport in charge of the particular crane drivers who were out on strike.

Glenorchy Garage Complex

(1) A.R. Christie, Acting Superintendent

Tullah Complex

(1) C.N. Taplin, Works Industrial Officer

Tarraleah Complex

(1) J.H. Wilson, Power Station Superintendent and (2) L.W. Tapnell, Senior Engineering Assistant.

Generally

(1) J.G. King, Senior Industrial Relations Officer of the Commission.

In re Carpenters and Joiners Award (1971) 17 F.L.R.330, the Commonwealth Industrial Court (Spicer C.J., Joske and Smithers JJ.) had to consider the meaning of the expression "could not be usefully employed" as used in cl.B10 and cl.C10 of the Carpenters and Joiners Award 1967 both of which provided that:"The employer may deduct payment for any day upon which an employee cannot be usefully employed because of any strike by or participation in any strike by members of the Union;".

The judgments in that case make "observations by way of interpretation" what were the different conditions and circumstances which might or might not cast upon an employer bound by such a clause in a particular award the obligation to pay employees during periods of stand-down. Those observations and considerations have been applied in numerous cases since the decision by both the Australian Industrial Court and this Court. Of course the conditions and circumstances referred to in such observations are not exhaustive.

I am of the opinion that such observations are relevant to the present application and are the appropriate guidelines which the Court should consider in determining whether a breach by the Commission of cl.6(e) of the Award herein has occurred.

I accept the evidence of the witnesses called on behalf of the Commission together with the documentary evidence tendered by it. It is clear that after the crane drivers went on strike other employees at the Moonah complex were given at least eight days further work. The officials of the Commission had the situation continuously under review and were consulting with the various shop stewards. I have no doubts that those officials were reluctant to take the action they were ultimately forced to take and that diligence and care had been used to ensure that all facts and circumstances were examined in determining the availability or otherwise of useful work at the complexes of the Commission in the Hobart area before employees, including Mr Poultney who were engaged in No.1 welding shop were stood down.

Mr Poultney had also alleged in his evidence that there was at the relevant time an obligation on the Commission to find him "useful work" at the dam construction site at Tullah and the generating complex at Tarraleah. To reach both places required travelling time from Hobart of the order of half to one day. To meet this allegation officials who were stationed at those places at the relevant time were called to give evidence. Such evidence (supported by contemporaneous documentary evidence) clearly showed that no useful work was then available at those two sites for Mr Poultney.

Further Mr Poultney claimed that there was sufficient useful work at Moonah during the stand-down for a least one man. This work was the making of switch yard ladders. The Commission, did concede that it was open to the Court to infer that limited materials for such work had been delivered inside No.1 welding shop prior to the stand-down. But it submitted that the Court should apply the observations of Spicer C.J. and Smithers J. in the Carpenters and Joiners case where at p.333 their Honours stated: -

"(b)(i)Where useful employment is not available for all the employees normally engaged in a class of work performed in some aspect of production but is available for one or more of such employees it cannot on that ground be said with respect to any particular employee that he cannot be usefully employed.
(ii) When in the circumstances referred to in the last preceding sub-paragraph some employee or employees are engaged to perform the available useful work then it can be said with respect to the others that they cannot be usefully employed.
(iii) Where in the circumstances referred to in sub-par.(b)(i) a selection of particular employees out of the number normally employed on the class of work which is available to perform such work as is available would cause an industrial dispute calculated to cause material disruption of the conduct of the employer's business, then it can be said of each and all the employees concerned that they cannot be usefully employed. The expression "usefully employed" necessarily connotes that by the employment in contemplation there will be a net benefit to the employer's business by reason of the performance of the particular work done. If the performance of the work done will prejudice the conduct of the employer's business then it is not useful to him although the work in itself would probably, to some extent, contribute to production."

In this regard there was evidence that there had been a strike by the A.M.W.U. members employed by the Commission at its Moonah complex some time before July 1979 and that throughout the period of the strike Mr Poultney (claiming that he was then a member of the A.S.E.) did not cease work. It will be remembered that the other thirty-five or so tradesmen working with Mr Poultney at the Moonah workshop were members of the A.M.W.U.. The Commission accordingly submitted that an employee could not be usefully employed if to do so would on the probabilities cause industrial disputation as a result of the dissatisfaction of other employees not having been allocated such work and believing that there had been discrimination. In the particular circumstances of this case it is reasonable to infer that there would have been industrial disputation if the suggested work had been allocated to Mr Poultney alone. I agree with this submission.

Further, Dr Jessup indicated that the Commission would welcome an observation from the Court, whatever the words "usefully employed" as used in cl.6(e) of the award meant, as to what are the duties of the Commission when a stand-down of employees working in Hobart is eminent. Is it necessary before actually standing down such employees that the Commission look "all over Tasmania" for other work for such employees even though the Commission reasonably believed that the particular stand-down would be for a few days only? The Court declines to make such an observation however helpful it might be. The particular facts and circumstances of each and every case must be looked at.

In all the circumstances of the case I am of the opinion that the Commission has discharged the onus that laid upon it to show that it could not usefully employ Mr Poultney within the stated three days because of the strike by the members of the F.E.D.F.A. and I so find.

The application herein is dismissed.