Re John Stephen Rickard v Kelman Nominees Pty Limited [1989] FCA 389; 29 IR 281 (22 September 1989)

FEDERAL COURT OF AUSTRALIA

Re: JOHN STEPHEN RICKARD
And: KELMAN NOMINEES PTY LIMITED
No. ACT 1 of 1989
FED No. 579
Industrial Law
29 IR 281

COURT

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY
INDUSTRIAL DIVISION
Northrop(1), Keely(2) and Pincus(3) JJ.

CATCHWORDS

Industrial Law - validity of appointment of an Inspector under s.125 of the Conciliation and Arbitration Act - application under s.119 of the Act for the imposition of penalties - consideration of whether the Respondents employee was a "motor mechanic" within the meaning of an award - consideration of whether the employee was a "tradesman".

Rickard v. Cinalda Pty. Limited

Conciliation and Arbitration Act 1904 s.119, s.125(2)

Standard Telephones and Cables Pty. Ltd. v. The Australasian Society of Engineers (1959) CAR 256

HEARING

MELBOURNE
22:9:1989

Counsel for Appellant : Dr C. Pannam, Q.C.

with Mr Erskine

Solicitor for Appellant : Australian Government

Solicitor

Counsel for Respondent : No Appearance

Solicitor for Respondent : No Appearance

DECISION

For the reasons given in Rickard v Cinalda Pty. Ltd., judgment in which is published today, the appellant was an inspector appointed under s.125(2) of the Conciliation and Arbitration Act 1904 at the time he commenced proceedings against the respondent under s.119 of that Act. Nevertheless, on 11 July 1989, the appeal was dismissed on the completion of the hearing. The reasons for dismissing the appeal are set out in the judgment of Keely J. On no view of the evidence could it be said that the appellant had proved that the respondent had committed a breach of the award as alleged. I agree with the reasons expressed by Keely J. and have nothing further to add.

The appellant appealed from a judgment of a single judge of the Court, given on 10 March, 1989. On 11 July, 1989 the Court dismissed the appeal and reserved its reasons for judgment. My reasons for so deciding are now given.

2. The appellant had applied under s. 119 of the Conciliation and Arbitration Act 1904 (C'th) ("the Act") for the imposition of penalties upon Kelman Nominees Pty. Limited ("the respondent") in respect of three alleged breaches of the Metal Trades (Australian Capital Territory) Award 1982 ("the award"). The appellant contended that the respondent had failed to pay to Mr. Andrew Muir certain amounts alleged to be due to him by reason of clauses 4, 20(c) and 34 of the award.

3. The learned trial judge held that the proceeding had not been instituted in accordance with the provisions of sub-s. 119(2) of the Act. For the reasons given in Rickard v Cinalda Pty. Limited, (judgment delivered today), in my opinion the proceeding was properly instituted. Accordingly it was necessary to consider the second matter raised by the appeal.

4. The appellant's counsel have submitted that the learned trial judge erred in law in finding that Mr. Muir was not employed as a motor mechanic within the meaning of the award. The expression "motor mechanic" is defined in clause 47 of the award as follows:-

"'Motor mechanic' means a tradesman engaged
(in) repairing, altering, overhauling,
assembling (except for the first time in
Australia), or testing metal and/or
electrical parts of the engine or chassis
of motor cars, motor cycles or other motor
vehicles."

5. It will be noted that the definition refers to a "tradesman". In Standard Telephones and Cables Pty. Ltd. v The Australasian Society of Engineers (1959) 92 CAR 256 at 258 Senior Commissioner Chambers quoted what he described as the "now famous observation" of Murray M. Stewart, which read as follows:-

"The mere doing of some acts common to the
operations of a tradesman does not make the
person doing them a tradesman. A tradesman
is an operative who, through a course of
apprenticeship or long general experience,
has acquired the knowledge, skill and
dexterity necessary to enable him to
perform all the types of work common to the
trade at which he holds himself out as a
tradesman. In other words, a tradesman
must be one possessing and capable of
applying "general trade experience" - a
well-understood term although difficult of
complete definition or clarification."

6. In the matter the subject of the present appeal, the learned trial judge found:

"that while Mr Muir performed some of the
work which would fall within the
description set out in the definition of
motor mechanic in the Award, he did so
under supervision and guidance and for the
purpose of learning the trade. He was not
qualified as a tradesman and he did not
perform the work of a tradesman."

The appellant did not challenge his Honour's findings of fact and, on the evidence, plainly could not do so. Mr. Muir was aged 15-16 years at the time of the alleged breaches. He had not completed an apprenticeship; in fact he had not commenced an apprenticeship, although he had sought to do so. It could not be suggested that at his age he had had long general experience in the trade of a motor mechanic or of a motor cycle mechanic, which is an apprenticeship trade.

7. I do not accept the submission by the appellant's counsel that the question before the learned trial judge was which one of the classifications in the award applied to Mr. Muir; nor the submission that his Honour answered the wrong question. His Honour answered - and correctly answered - the right question. That question was whether the applicant's evidence established that Mr. Muir was employed at the relevant times as a motor mechanic. On the evidence he was not employed in that capacity.

8. The argument advanced by the appellant sought to concentrate attention upon the question whether clause 7 of the award should be construed as applying only to unapprenticed juniors who are employed consistently with s. 19(1) of the Apprenticeship Act 1936 (A.C.T.). It is unnecessary to consider that question because it was not raised by the application for the imposition of penalties for alleged breaches of clauses 4, 20(c) and 34 of the award.

9. It was for these reasons that, in my opinion, the appeal could not succeed.

I have read the reasons of Keely J. and agree that the appeal should be dismissed.

2. The question was whether a Mr Muir was employed as a "motor mechanic" within the meaning of the relevant award. The expression "motor mechanic" is defined to mean a "tradesman engaged" in certain activities. The learned primary judge held that Mr Muir was not a tradesman.

3. The first point taken for the appellant was that Mr Muir, who is a junior but not apprenticed, was not lawfully employed as a non-apprentice junior in the relevant trade, and therefore, as explained in Rickard v. Cinalda Pty Limited in which judgment is being given by this Court today, was entitled to be paid as if he were not a junior; I do not propose to add anything to what I said in the Cinalda case about that argument, which must be rejected.

4. The next question raised was whether Mr Muir was, at the relevant time, a "tradesman". The word implies a certain level of competence. The learned primary judge held, on the evidence, that Mr Muir carried out his work under the direct supervision of others and accepted evidence that his work was "what you would expect of an apprentice". I can see no reason to disagree with his Honour's view on the facts. It is true that some people who are undoubtedly tradesmen are much more competent than others who have that status, and it is also, no doubt, true that some people who are particularly quick to learn can rapidly attain greater skill than others with long experience. Nevertheless, I am not persuaded that the learned primary judge's view of the facts was wrong, and agree that the appeal should be dismissed.