Re Wayne Douglas Blair v General Motors-Holden'S Limited [1983] FCA 219; (1983) 79 FLR 21; 6 IR 409 (9 September 1983)

FEDERAL COURT OF AUSTRALIA

Re: WAYNE DOUGLAS BLAIR
And: GENERAL MOTORS-HOLDEN'S LIMITED [1983] FCA 219; (1983) 79 FLR 21
No. V11 of 1983
Industrial Law
6 IR 409

COURT

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

CATCHWORDS

Industrial Law - breach of award - failure to pay for holiday - stoppage of work - part of the working day after a holiday - whether "absent from his . . . employment . . . on the working day . . . after . . a holiday".

Conciliation & Arbitration Act 1904 - s. 119

General Motors-Holden's Limited (Part 1) General Award 1982 - clause 24

Industrial Law - Commonwealth - Arbitration - Interpretation of awards - Payment for holidays - Payment forfeited where employee "absent from his employment" on working day after holiday - Absence on part of working day. Held, that where an award provided that an employee was not entitled to be paid for a public holiday where, without reasonable excuse, he was "absent from his employment" on the working day after a holiday that provision did not apply where an employee was absent on part of the working day after a holiday.

Re Wire Netting Makers, etc (Rylands Bros (Australia) Pty Ltd) Award (1955) AR (NSW) 584, distinguished.

HEARING

Melbourne, 1983, September 9. 9:9:1983
APPLICATION

Application under the Conciliation and Arbitration Act 1904 (Cth), s 119 for the imposition of a penalty for an alleged breach of an award.

R Merkel QC and S R Marshall, for the applicant.

C Jessup, for the respondent.

Solicitor for the applicant: Holding Redlich & Co.

Solicitor for the respondent: Moules.
BAG

DECISION

This is an application under s. 119 of the Conciliation and Arbitration Act 1904 (the Act) for the imposition upon General Motors-Holden's Limited (the respondent) of a penalty for an alleged breach of a term of the General Motors-Holden's Limited (Part 1) General Award 1982 (the award) in failing to pay to certain employees the wages prescribed by clause 8 of the award in respect of the week ending 8 February, 1983. It was admitted that at all material times:-

1. The applicant, Wayne Douglas Blair, was secretary of the Victorian Branch of the Vehicle Builders Employees' Federation of Australia (the organization), was an officer of the organization and was authorised under the rules of the organization to sue on its behalf.

2. The organization was an organization of employees registered pursuant to the Act and was a party to and bound by the award.

3. The respondent was a duly incorporated company and a party to and bound by the award.

4. Messrs. Herbert Muench, John Buchanek and John Bailey Mattheson were employees of the respondent at its Fishermens Bend plant in Victoria. The weekly wage payable under the award to each of those employees was as follows:-

Mr. Muench Forklift driver Grade E $279-40

Mr. Buchanek Inspector tradesman Grade D $318-00

Mr. Mattheson Motor body developer Grade A $322-80

5. Each of the three employees performed his usual duties on the working day before 31 January, 1983 but did not attend work on 31 January, 1983 because it was Australia Day - a holiday under the award.

6. The respondent did not withhold payment in respect of the Australia Day holiday in the wages received by the employees on 3 February, 1983. However, in calculating the amounts to be paid to the three employees on 10 February, 1983, the respondent reduced the weekly wage prescribed in clause 8 of the award for each of them on the basis that each had lost his entitlement to be paid for the Australia Day holiday on Monday 31 January, 1983.

It was also admitted by Dr. Jessup, of counsel, who appeared on behalf of the respondent, that, on Tuesday 1 February, 1983, each of the employees performed his usual duties for the following periods:-

Mr. Muench - 7.00 a.m. until 9.30 a.m.
Mr. Buchanek - 7.15 a.m. until 9.15 a.m.
Mr. Mattheson - 8.00 a.m. until 9.30 a.m.

There was unchallenged evidence that at all material times each of the three employees was a member of the organization who was "affected by the breach" of the award (s. 119(2)(b)). It was conceded by the respondent that the three employees stopped work on 1 February, 1983 for "simply and nothing more than this; that it was union policy to stop work when the temperature outside reached 35" degrees celsius and that temperature had in fact been reached. (Transcript p. 13)

The only issue in these proceedings was whether the respondent was permitted to reduce the wages payable to the three employees on the basis that they were not entitled under the award to be paid wages in respect of the Australia Day holiday. Clause 24(a) of the award conferred upon the three employees a right to be granted a holiday on Australia Day but clause 24(d) provided as follows:-

"(d) Where an employee is absent from his or her employment on the working day before or the working day after a holiday referred to in sub-clause (a) or (b) hereof without reasonable excuse (proof whereof shall lie upon him) or without the consent of the company, the employee shall not be entitled to payment for such holiday."

Dr. Jessup submitted that each of the three employees in ceasing work during the morning of 1 February, 1983, had been "absent from his . . employment on the working day . . . . after" the Australia Day holiday. Mr. Merkel, of Queen's Counsel, who appeared with Mr. Shane Marshall on behalf of the applicant, advanced a number of arguments in support of his submission that, where an employee had commenced work at the usual time on the day following a holiday and ceased work later in the morning of that day, clause 24(d) did not operate to take away that employee's entitlement to payment for the holiday. He conceded that a person who formally "clocked on", but immediately left work and continued his holiday, would be "absent from his . . employment on the working day . . . after a holiday".

The parties agreed that the Court should hear argument upon the question as to the construction of clause 24(d) and that, if the applicant failed on that aspect, the application would be relisted for the purpose of further hearing evidence and argument in respect of an alternative submission which the applicant wished to put, namely, that even if the construction of clause 24(d) advanced by the respondent were correct, the three employees had not been absent from their employment on 1 February, 1983 "without reasonable excuse".

As to the construction of sub-clause 24(d) of the award, Dr. Jessup submitted that "there are good reasons for the Court holding that it extends to part day absences . ." but I am quite unable to see any good reason for holding that the sub-clause so extends. The language of the sub-clause must be construed "in its ordinary and natural sense" (per Higgins J. in The Amalgamated Society of Engineers v The Adelaide Steamship Co. Ltd. (1920) 28 C.L.R. at 162). In my opinion, the words "employee . . absent from his . . employment . . on the working day after . ." a holiday do not include an employee absent on part of the working day after the holiday. To so construe the sub-clause involves reading additional words, "any part of", into the sub-clause. Looking at the sub-clause as a matter of construction, without reference to decided cases as to either its meaning or its purpose, in my opinion, it does not apply to the facts of the present case where the three employees commenced work at the usual time on the day following the public holiday and performed their usual duties for periods varying from one and one-half hours to two and one-half hours before they ceased work.

The proposition that each of those three employees was "absent from his . . employment" on 1 February, 1983 involves asserting that three people who, between them, had performed their usual duties for six hours on 1 February, 1983 were in fact all "absent from" their "employment on" that day. Dr. Jessup encapsulated his contention on behalf of the respondent in the following passage in his address:-

"The words used are: on the working day before or the working day after. They are not for the working day before or the working day after. The employees in question fit the description of employees who were absent on the working day after Australia Day. They were also present on the working day after Australia Day. Being employees who were both present and absent on that working day they necessarily were employees who were absent on that working day."

Notwithstanding the reliance placed by Dr. Jessup on the use in the sub-clause of the preposition "on" in the expression "on the working day" - as distinct from the preposition "for" - I reject the respondent's contention as a matter of construction of the sub-clause, having regard to both the "ordinary and natural sense" of the language used and to the context - particularly the other clauses in the award referred to by Mr. Merkel.

Mr. Merkel cited a judgment of the Australian Industrial Court in Re Vehicle Industry Award 1972 (unreported - delivered 16 November, 1976 in matter B. 180 of 1976). The judgment dealt with an application under s. 110 of the Act for interpretation of clause 26(e) of the Vehicle Industry Award 1972 - a sub-clause which did not differ in any significant way from the sub-clause in the present case. In that judgment Smithers, Nimmo and Northrop JJ. said:-

"Here where the employees reported for work at the normal commencement time on the day following the holiday and performed their normal duties during the whole of the morning, attended a stop work meeting for which by reason of clause 6(b) of the award they do not receive payment, and continued to perform their duties until the normal time for ceasing work, it cannot be said, in our opinion, that they were absent from their employment on the working day after the Labour Day holiday within the meaning of that expression in clause 26(e).

In the context of this award the expression employment is used, in our opinion, in a sense different from that of mere performance of the duties of the employment. True it is that on part of the day in question the employees refused and failed to perform their duties, but it is another thing to say that they were absent from their employment on that day.

It appears that the stop work meeting was the kind of casual meeting which might have occurred on any day and had no relation to that day being a day following a holiday and there is no suggestion that the stop work meeting was in any way related to the subject of holidays.

If a failure to perform duties during part of a day were shown by other circumstances to be a device for extending the holiday on the basis of being paid their full entitlement for payment, the holiday might well be lost."

Although in that case the employees concerned had returned to work after the stop work meeting, in my opinion, the underlying principle of the judgment supports the applicant's contention in the present case.

Dr. Jessup sought to rely upon the decision of Richards J. in In re Wire Netting Makers, &c. (Rylands Brothers (Australia) Proprietary Limited) Award (1955) 54 A.R.(N.S.W.) 584. I accept Mr. Merkel's submission that that decision is distinguishable from the present matter. In that case the unauthorised absence of the employees "merged with the public holiday" in the sense that the employees left work early on the day before the public holiday. In this connexion, as Mr. Merkel pointed out in reply, Richards J. said (at p. 587):-

"The purpose of a clause such as this is to ensure that employees do not commence their holidays prior to the normal commencement of such holidays as laid down under the terms of the award and that they return at the normal conclusion of such holidays."

If, contrary to what I have said, the decision is not distinguishable then, with great respect, I would consider it to have been wrongly decided and would refuse to follow it in deciding the present case.

I have not found any ambiguity in the words used in clause 24(d). If, however, ambiguity existed then, in my opinion, the respondent's submission gains no support from the passages cited by Dr. Jessup from the decision in the Metal Trades Award case (1952) 73 C.A.R. 324. In that case (at p. 402) Mr. Commissioner Galvin said:-

"Public Holidays

I have acceded to the request that this award be brought into line with the great bulk of Federal awards which require that as a condition precedent to entitlement to payment for such days, there shall be placed upon the employee the obligation he shall be present at work on the working day preceding and the working day subsequent to any public holiday. There is some evidence both in this industry and in the Motor Body and Coach industry of a trend on the part of some employees - happily, not the majority - to absent themselves on either one or the other, or both of the days preceding and succeeding public holidays. It needs to be emphasised that payment for public holidays is in the nature of a privilege, and not a right, and the concession is one which should not be abused by a minority."

As to the relevance of that passage to the present case, Dr. Jessup referred to the Vehicle Industry Award case (1953) 76 C.A.R. 280 at 342 where Mr. Commissioner Galvin decided to "grant the employers' claim to bring this award into line with sub-clause (c) of clause 15 of the Metal Trades award in regard to attendance on the working day prior and after a public holiday.". If I had decided that the words used in clause 24(d) were ambiguous the passage cited from the Metal Trades Award case as to the purpose of the sub-clause would, in my opinion, support the applicant's submission.

Having rejected the respondent's contention I find that the respondent has committed a breach of the term of the award in failing to pay to each of the three employees the wages prescribed by clause 8.

As it appears to the Court that each of the three employees of the respondent has not been paid an amount in respect of the Australia Day holiday on 31 January, 1983 to which he is entitled under the award the respondent will be ordered (s. 119(3)) to pay to each employee the amount of the underpayment. It was agreed by counsel for the applicant and the respondent that those amounts are as follows:-

Herbert Muench $55-88

John Buchanek $63-60

John Bailey Mattheson $64-56

The applicant did not seek an order for costs (see judgment of Northrop J. in Viner and others v Australian Building Construction Employees Builders' Labourers' Federation 38 A.L.R. 550 at 552-3 cp. decision of Ellicott J. in Stapleton v African Lion Safari Pty. Ltd. 43 A.L.R. 385). By consent the Court deferred hearing submissions as to penalty until after the delivery of these reasons for judgment.