Re Printing and Kindred Industries Union v Bendigo Advertiser and Independent Pty Limited [1988] FCA 38 (25 February 1988)

FEDERAL COURT OF AUSTRALIA

Re: PRINTING AND KINDRED INDUSTRIES UNION
And: BENDIGO ADVERTISER AND INDEPENDENT PTY LIMITED
No. NSW23 of 1987
Industrial Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
INDUSTRIAL DIVISION
Gray J.(1)

CATCHWORDS

Industrial Law - award - interpretation - introduction of electronic equipment - redundancy - whether employee of pensionable retiring age entitled to compensation.

Conciliation and Arbitration Act 1904 s. 110

Country Printing Award 1959 cll. 15, 15A, 15B, 15C

HEARING

MELBOURNE
25:2:1988

Appearances
Applicant: Mr. M. Moore

Instructing solicitors: Turner Freeman.

Respondent: Mr. J. Barnard Q.C. with Mrs. J. Bretherton

Instructing solicitors: Freehill, Hollingdale & Page.

ORDER

That, on the true construction of cl. 15(b) of the Country Printing Award 1959, an employee who has reached pensionable retiring age in the circumstances described in cl. 15(a) of that award is not entitled to the compensation the subject of cl. 15(b)(ii).

(NOTE: Settlement and entry of orders is dealt with by O. 36 of the Federal Court Rules.)

DECISION

The applicant in this proceeding, the Printing and Kindred Industries Union ("the Union"), is an organization of employees, registered pursuant to the Conciliation and Arbitration Act 1904 ("the Act"). The Union is a party to, and it and its members are bound by the Country Printing Award 1959 ("the Award"), an award made pursuant to the Act. The respondent, Bendigo Advertiser and Independent Pty. Limited, is a company which carries on the business of printing, and which is bound by the Award, by virtue of being named therein as a respondent.

2. This application is made pursuant to s.110 of the Act. A dispute or difference has arisen between the Union and the respondent over the interpretation of certain provisions of the Award. The Union therefore seeks an interpretation, favourable to it.

3. It is convenient to set out the provisions of the Award which are in contention, as well as those provisions which surround them:

"15 - INPUT OF EDITORIAL AND ADVERTISING MATERIAL

(a) In the event of a newspaper employer which
is a member of Regional Dailies of Australia
Limited or the Australian Provincial Press
Association introducing into his office, which
shall include branch offices, electronic equipment
to facilitate input of material (both editorial and
advertising) into computer banks, the employer
shall advise the Branch Secretary at least three
months prior to any change taking place or such
shorter notice as has been discussed between the
employer and the Branch Secretary.

(b) The following undertaking shall be
observed and applied by the employer:

(i) There shall be no retrenchment or
compulsory retirement of existing
employees (at the date of notification as
prescribed by subclause (a)) who have not
reached pensionable retiring age provided
that where an employee cannot be gainfully
employed, the Union will have meaningful
discussions with the particular employer
to overcome the problem.

(ii) In the event of redundancy not being
avoidable the employer shall pay to the
employee compensation on the basis of:

(a) Three weeks' pay for each completed
year of service, or pro-rata on the
basis of quarter years of service.

(b) For the purpose of this clause,
employment as a junior or apprentice
shall be included in the calculation
of completed years of employment.

(c) A week's pay shall mean the base
rate of pay at the date of
termination of employment.

(iii) There shall be no regression in the wage
rates of the existing employees referred
to in paragraph (b)(i) whilst they are
desirous of continuing to be employed by
their employer pursuant to this award.

(c) (i) Subject to paragraph (ii) hereof:

(1) The operation of electronic
equipment introduced by the
employer to facilitate input of
editorial material into
computer banks and instructions
for typesetting including
rewriting, revising, checking
and correcting of such material
shall not be performed by
members of the Union unless at
the discretion of the employer
from time to time they are
required to perform such work.

(2) The operation of electronic
equipment introduced by the
employer to facilitate input of
advertising material into
computer banks and instructions
for typesetting as they affect
liaison with the customer for
the validating, checking and
consequential correction
functions, whether performed
before or after entry of the
advertisement into the system
shall not be performed by
members of the Union unless at
the discretion of the employer
from time to time they are
required to perform such work.

(ii) The processing of material in 'hard
copy' form as defined hereunder,
shall be performed by members of the
Union.

Hard copy definition

(i) Advertising hard copy is copy
supplied in written form for
keyboarding. It may be typed,
printed or handwritten and received
at the office by post, courier or
other means.

(ii) Editorial hard copy is copy supplied
in written form for keyboarding
including contributed articles and
letters to the editor. It may be
typed, printed or handwritten. Hard
copy excludes direct input from
editorial phone rooms, recognised
editorial wire services and news
agencies.

(d)As a consequence of the undertaking described in
subclauses (a) and (b) the Union will allow the
acceptance of unlimited external input of material
from editorial phone rooms, recognised editorial
wire services and news agencies.
(e)The provisions in clauses 15A, 15B and 15C shall
continue to apply in respect to the technological
changes described therein and shall not be
prejudiced in any way by the provisions of this
clause.

15A - RETRAINING OF TRADESMEN AND
TECHNOLOGICAL CHANGE

(a) In the event of an employer introducing
into his office new techniques of production,
including tape perforating, photo-composition,
paste up, camera techniques and dark-room
techniques, photo-lithography and/or web offset
printing, the employer shall advise the Branch
Secretary at least three months prior to any change
taking place or such shorter notice as has been
discussed between the employer and the Branch
Secretary.

(b)When the employer advises the Branch Secretary
pursuant to subclause (a) of this clause,
representatives of the employer and of the Branch
shall meet and discuss;

(1) the tradesmen to be retrained to perform
the work of the technique, and

(2) the detail of the retraining of those
tradesmen including the times and type of
training to be undertaken.

(c)The retraining of tradesmen shall be undertaken
without cost to the tradesmen.

(d)Where possible a tradesman being trained in new
features of his trade or being retrained to perform
the duties of another trade shall be trained in the
manner an apprentice is trained pursuant to the
appropriate paragraph of subclause 31(b) of this
award as it relates to the area of his retraining
provided that such retraining is carried out in the
employer's own premises or in some other place
mutually agreed between the employer and the Branch
Secretary.

(e)When production for commercial or business
purposes using the above techniques is commenced by
the employer, the tradesman of one trade engaged in
such production in the new trade shall be paid and
classified on the records of the employer as such a
tradesman. The employer shall advise the Branch
Secretary of the names and classifications of those
concerned and the date of commencement of the
employment.

(f)The following undertakings shall be observed and
applied by the employer:

(i) there shall be no retrenchment of staff
except as provided in clause 15C;

(ii) an employee shall not be subject to any
reduction in his ordinary weekly wage;

(iii) all production staff shall, subject to
subclause (b) of this clause, be offered
to be retrained.

(g)Notwithstanding anything elsewhere contained in
this clause, a tradesman shall not be prejudiced in
his employment in the event of a tradesman in
another trade being retrained in the trade of the
tradesman first referred to.

15B - FLEXIBILITY OF EMPLOYMENT

(a)Where an employer has introduced new techniques
as described in subclause 15A(a) or electronic
equipment as is prescribed for in clause 15:

(i) a compositor may be employed on the work
of a graphic reproducer;

(ii) a graphic reproducer may be employed on
the work of a compositor.

(b)In the event of a new compositor or graphic
reproducer becoming employed and being required to
be retrained in the techniques of his new employer,
the provisions of subclauses 15A(c), 15A(d) and
15A(e) shall be observed.

(c)(i) In the event of a tradesman in the
particular trade who is an employee in the
establishment not being available to
perform the work in connection with the
techniques as provided in clause 15 or
15A, the employer shall discuss the matter
with the union and give the union the
opportunity to provide a tradesman of the
trade concerned to perform that work.

(ii) In the event of the union within two weeks
not providing such a tradesman in
accordance with paragraph (c)(i) hereof,
another person may be employed thereon.
In the event of a tradesman of the trade
concerned becoming unemployed and that
tradesman is ready and willing to be and
is capable without further training of
being employed in connection with the new
technique, he shall be employed to the
exclusion of that other person.

(iii) Notwithstanding anything contained
elsewhere in this subclause 15B(c) persons
other than tradesmen employed on
techniques of production of the nature
referred to in subclause 15A(a) at the
date this award is varied to include this
clause 15B shall be allowed to remain in
their present employment until they leave,
resign or retire or the employment is
terminated pursuant to clause 8.

15C - REDUNDANCY

Where all avenues of employment within the
establishment have been exhausted and the employee
is still considered redundant as a result of the
technological change as described in clause 15A,
the employer shall discuss this possibility with
the Branch Secretary on the basis of seriously
endeavouring to maintain staff without any
diminution of numbers. In the event of redundancy
not being avoidable the employer shall give to the
employee notice of termination of employment
according to the following:

(1) Where the employee has been employed for
less than three months, one week's notice
or pay in lieu thereof.

(2) Where the employee has been employed as an
adult employee for three months and up to
three years, the employer shall give the
employee three weeks' notice or pay in
lieu thereof for the first three months'
employment as an adult employee and in
addition thereto one week's notice or pay
in lieu thereof for each subsequent year
of employment as an adult employee.

(3) Where the employee has been employed as an
adult employee for three years or more,
the employer shall give the employee three
weeks' notice or pay in lieu thereof (at
the option of the employee) for the first
three months' employment as an adult
employee and in addition thereto one
week's notice or pay in lieu thereof (at
the option of the employee) for each
subsequent year of employment as an adult
employee."

4. It was conceded by Mr. Barnard Q.C., who appeared with Mrs. Bretherton of counsel for the respondent, that the respondent is a member of one or other of the entities referred to in cl. 15(a), and that cl. 15 is therefore applicable to it.

5. The question which divides the parties is whether cl.15(b)(ii) of the Award entitles an employee who has reached pensionable retiring age at the relevant date to the compensation for which that sub-clause provides. Although in its terms the application seeks an interpretation of cl.15C, it is common ground between the parties that cl.15C does not distinguish between employees of pensionable retiring age and other employees. There being no dispute between the parties on this question, it would be inappropriate for the Court to declare an interpretation of cl.15C.

6. The applicant's argument was based largely on the proposition that, although cl.15(b)(i) contains a distinction between employees who have reached pensionable retiring age and those who have not, no such distinction appears in cl.15(b)(ii). Mr. Moore of counsel, who appeared for the applicant, argued that the two provisions should be read separately. Such a reading would involve the exclusion of employees who have reached pensionable retiring age from the requirement that meaningful discussions take place, in the event that such an employee could not be employed gainfully. If an employee who had reached pensionable retiring age were redundant, however, the payment required by cl.15(b)(ii) would still have to be made.

7. Some support for this argument is found in the change of terminology between "retrenchment or compulsory retirement" in cl.15(b)(i) and "redundancy" in cl.15(b)(ii). Notwithstanding this change, however, it does appear that sub-cl.(b)(ii) is intended to be read as consequent upon sub-cl.(b)(i). In my view, the redundancy contemplated by sub-cl.(b)(ii) is the redundancy of an employee who cannot be employed gainfully in the circumstances to which cl.15 applies, and whose position has not been resolved as a result of the meaningful discussions required by sub-cl.(b)(i). Such an employee can be subject to retrenchment or compulsory retirement, upon the conditions laid down in sub-cl.(b)(ii) as to payment.

8. If the provisions of cl.15(b) are read in this way, it becomes apparent that the clause is designed to exclude from consideration employees who have reached pensionable retiring age at the relevant date. Such employees can be subjected to retrenchment or compulsory retirement, without attracting either a requirement of meaningful discussions under sub-cl.(b)(i), or the compensation provided for in sub-cl.(b)(ii). In my view, this is the meaning to be gathered from a reading of the provision as a whole.

9. Some attempt was made by Mr. Moore to argue that cl.15(b) should be read in a manner consistent with cl.15C, and should therefore be construed as requiring the payment of compensation to an employee who has reached pensionable retiring age. There is no doubt that some anomaly results from the requirement to pay compensation to such an employee in the events described in cl.15A(a), but not in the events described in cl.15(a). The differences in language are obvious, however, and the fact that the two clauses have origins at different points in the history of the Award tends to support the view that different meanings are intended.

10. Some discussion occurred in argument as to whether cl.15(b) of the Award could be construed by reference to its apparent purpose. An attempt to rely on the purpose runs into the difficulty of discerning the purpose of the provisions. If the purpose of the compensation contemplated by cl.15(b) is to assist a redundant employee in seeking to find another job, perhaps by aiding retraining or by providing living expenses while the employee searches for a job, then it is apparent that an employee who has reached pensionable retiring age will be unlikely to require such assistance. If, as Lord Denning M.R. said in Lloyd v. Brassey (1969) 1 All ER 382, at p 383, the object of a redundancy payment is to compensate a person for the loss of a job, the compensation being in proportion to the length of service of the employee, then there is every reason why an employee who has reached pensionable retiring age should receive compensation. It is not apparent from the Award whether cl.15(b) is aimed at securing one or other or both of these purposes. As a consequence, it is unsafe to rely on any supposed purpose.

11. It is no part of the function of the Court, in determining an application pursuant to s.110 of the Act, to determine the facts of any particular case. It is therefore unnecessary for me to determine whether any particular employee has reached pensionable retiring age, and to construe that phrase. It is also unnecessary to determine whether there may be any overlap between the events described in cl. 15(a), and those referred to in cl. 15A(a) of the Award.

12. Where an applicant for an interpretation of an award fails to persuade the Court that the interpretation sought should be given, it is the practice of the Court nevertheless to declare the true construction of the award in appropriate terms. The Court will therefore make an order declaring that on the true construction of cl.15(b) of the Award, an employee who has reached pensionable retiring age in the circumstances described in cl.15(a) is not entitled to the compensation the subject of cl.15(b)(ii).