Re FJ Walker Limited v Thomas Francis Casey [1989] FCA 409 (29 September 1989)

FEDERAL COURT OF AUSTRALIA

Re: F.J. WALKER LIMITED
And: THOMAS FRANCIS CASEY
No. Q1 of 1989
FED No. 595
Industrial Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
INDUSTRIAL DIVISION
Morling(1), Lee(1) and Pincus(2) JJ.

CATCHWORDS

Industrial Law - interpretation of Award - provision fixing minimum rate of work - meaning of "minimum rate of work" - meat processing works - extent of employer's right to determine rate of work - alleged breach of award - whether breach established - principles of construction of industrial awards.

Master and Servant - contract of employment - industrial action - employee refused to work unless in accordance with his interpretation of award - whether employee entitled to wages for days he did no work - whether situation modified by the award.

HEARING

BRISBANE
29:9:1989

Counsel for the appellant: Mr D. Bleby Q.C. & Mr G.C. Martin

Solicitor for the appellant: McCrea Jones

Counsel for the respondent: Mr D.R. Hall

Solicitor for the respondent: Poteri Woods & Co.

ORDER

Appeal allowed.

No order as to costs.

Note: Settlememt and entry of orders is dealt with in Order 36 of Federal Court Rules.

DECISION

The appellant operated a meatworks at Stuart near Townsville. The respondent was employed by the appellant as a slicer at those meatworks.

2. The respondent as a member of the Australian Meat Industry Employees' Union (AMIEU) and the appellant as a respondent to the Award were both bound by the F.J. Walker Queensland Meatworks Industrial Agreement-Award 1976 ("the Award") in respect of the respondent's employment at the meatworks. The Award was made under the Conciliation and Arbitration Act 1904 (Cwth) ("the Act").

3. In June 1987 an industrial dispute occurred at the meatworks as a result of which the respondent did not work and was not paid wages for a period of five days. Pursuant to s.123 of the Act the respondent claimed that $407.70 was due to him from the appellant under the Award for wages in respect of those days. The claim was heard before a single judge of this Court who ordered that the appellant pay the respondent the sum claimed.

4. The decision as to whether the respondent was entitled to the benefit of the Award in respect of payment for the days in question involves interpretation of several provisions of the Award; in particular, sub-cl.13(d).

5. The determination of the proceeding before the single judge was completed pursuant to sub-s.9(1) of the Industrial Relations Consequential Provisions Act 1988 (Cwth) consequent upon the repeal of the Act on 1 March 1989. Pursuant to ss.10, 21 and 69 of the former Act an appeal from that determination may be made to a Full Court of this Court as if the latter Act had not been repealed and the law to be applied for the purposes of the appeal is to be that which would have been applicable if the Act had not been repealed.

6. The following is a summary of the salient provisions of the Award at the relevant time. The Award has since been amended in important respects, but for convenience we shall describe its provisions in their unamended form.

7. An employee may be engaged as either a regular daily employee or a casual employee and either class of employee may be required to carry out his duties as either a pieceworker or a timeworker (sub-cl.5(a)). The employer determines the nature of the engagement (sub-cl.5(b)).

8. A regular daily employee is employed by the day or the shift. Provisionally, the employment terminates at the end of the day or the shift but continues from day to day unless the employee is given prescribed notice of termination (sub-cll.7(a) and 7(b)).

9. An employee is obliged to perform such work as the employer requires from time to time and, subject to the Award, is obliged to perform it at such time as the employer may require (sub-cl.7(e)).

10. The ordinary hours of work may not exceed 8 hours in any day or 40 hours in a week, such hours to be worked between 6 a.m. and 6 p.m. Monday to Friday (sub-cl.13(a)). The employer is required to notify the starting and finishing times of the ordinary hours (sub-cl.13(b)). The employer may require employees to work overtime (cl.18).

11. The employer has the right to transfer an employee from piecework to timework or from timework to piecework, but cannot require an employee to perform work which involves an unreasonable requirement for performance having regard to the employee's age and physical condition (sub-cl.10(a)).

12. A regular daily employee engaged as a timeworker is paid at the ordinary rate per day prescribed by the Award (sub-cl.7(d)). The ordinary rate of pay per day for a regular daily employee employed as a timework slicer is $42.76 (cl.71). The rate of pay for a piecework slicer is calculated by reference to an ordinary rate of pay per day of $56.70 (sub-cl.74(b)(i)).

13. The Award sets down a daily tally to be produced by a piecework slicer. The tally set for a piecework slicer is 65 units of beef or 100 units of mutton, lamb or veal per day or shift (sub-cl.74(a)(iii)). Units of tally are calculated according to prescribed values for the various cuts of meat set out in cl.74. It is a requirement of the Award that a piecework slicer slice such number of units of tally and units beyond tally within the ordinary hours of work as the employer may require (sub-cl.74(a)(iv)). A piecework slicer is paid at a rate per unit of tally equal to one-sixty-fifth of the regular daily rate of $56.70 in respect of units of beef and one-hundreth of $56.70 in respect of units of mutton, lamb or veal (sub-cl.74(b)(ii)). Therefore, the rate of remuneration of a piecework slicer is potentially one-third higher than the rate payable to a timework slicer employed as a regular daily employee providing the piecework slicer produces the prescribed daily tally of meat. If a piecework slicer is not competent and willing to complete tally on any day or shift, payment for the units of tally produced by that worker is calculated by reference to the daily rate of pay payable to a timework slicer (sub-cl.74(b)(i)). Each additional unit over and above tally sliced by a piecework slicer during the ordinary hours of work in the course of a day or shift is paid at the rate of 150 per cent of the rate payable for a unit of tally (sub-cl.74(b)(iii)). Subject to sub-cl.13(d) of the Award, the rate of work of a pieceworker is to be regulated or controlled by the employer for the purpose of securing a reasonable distribution of tally and work beyond tally during the prescribed working time (sub-cl.74(d)).

14. If an employer fails to provide sufficient boned-out meat to slicers to allow piecework slicers to achieve their tally, such slicers are to be paid as if the tally has been achieved in that shift or day provided they complete within ordinary hours the slicing of such meat as they are given and the employer's failure to provide the necessary meat has not resulted from the actions of other employees (sub-cl.74(b)(iv)). If the start of work is delayed, or work is interrupted, a piecework slicer is entitled to be paid for "waiting time" in addition to payment for tally. The payment for "waiting time" is calculated on the basis that the daily rate of pay is paid for a six-hour day (sub-cl.74(c)).

15. There is no obligation on the employer under the Award to provide meat over and above tally to allow piecework slicers to increase their daily earnings, but as set out above, if the employer does not supply sufficient meat for tally the piecework slicer is paid as if the tally has been achieved. There is no provision in the Award for a piecework slicer to be paid any sum in lieu of any earnings over and above payment for tally if the employer does not require production beyond tally in the remainder of the ordinary hours available after the achievement of tally. However, in being paid for waiting time (sub-cl.74(c)), a piecework slicer is remunerated for lost production opportunities occurring in the course of producing tally or work beyond tally.

16. In addition to the above, the Award requires pieceworkers to maintain a minimum rate of production. That provision is set out in sub-cl.13(d) of the Award which read as follows:

"(d) Pieceworkers and follow-on labour shall, within the
ordinary hours of work prescribed by this clause, complete
such work on production to and beyond tally as the
employer may require at the applicable minimum rate of
work as follows:
(i) Piecework killing and 1/6th of number of
dressing of cattle head required for
tally plus to 15%
tolerance
(ii) Piecework killing and 1/6th of number of
dressing of calves head required for
tally plus 5% to
tolerance
(iii) Piecework boning, slicing 12.5 units per boner
revising packaging and 5% tolerance
weighing - conveyor or
rail system.
Provided that where the majority of employees, members of
a particular piecework team, and the employer agree upon a
rate of work in excess of the above-mentioned minimum hourly
rate of work then such agreed rate may be substituted
therefor."

17. In March 1987 the appellant informed the employees at the Stuart meatworks that an unacceptable proportion of the meat produced by the works was being rejected by importers because it did not meet export standards. By June 1987 the appellant had determined that improvements to the quality of the product could be achieved by slowing down the conveying chain which transported the carcasses through the various stages of the meat processing operations. Up to that date the chain had been set at a speed which was designed to have the daily tally completed in 6 hours. The appellant proposed to slow the chain to have the tally completed in 7 hours. After various breaks provided by the Award were taken into account a "7 hour chain" effectively utilized the whole of the ordinary hours of work each day.

18. The appellant contended that sub-cl.13(d) of the Award did not prevent the employer from requiring a lesser rate of production from piecework employees.

19. The respondent and others contended that the reduction of the speed of the chain from 6 hours to 7 hours breached sub-cl.13(d) of the Award and that by offering work on a 7 hour chain the appellant had failed to offer employment on terms which complied with the requirements of the Award.

20. The industrial dispute then ensued.

21. In interpreting sub-cl.13(d) of the Award, the first matter to be noted is that it has nothing to say about the speed at which conveyor systems are to operate. It sets a minimum rate of production that an employer is entitled to require an employee to achieve. It places an obligation upon employees which is complementary to the beneficial loading of remuneration provided for pieceworkers elsewhere in the Award. In return for the employer's obligation to pay higher remuneration to pieceworkers, the sub-clause provides a benefit for the employer by enabling the employer to require pieceworkers to work at a rate likely to attain a higher level of production than would be achieved on timework.

22. Clause 74, relating to the payment of piecework slicers and the regulation of their work, makes no mention of the employer's right to control the speed of conveyors but sub-cl.73(f) of the Award which deals with the duties, tallies, payment and the regulation of work of piecework boners provides that the speed of conveyors is to be regulated and controlled by the employer subject to sub-cl.13(d) of the Award.

23. The respondent pointed to the paramountcy of sub-cl.13(d) in sub-cl.73(f) and other clauses of the Award and argued that the intent of sub-cl.13(d) is to fix the speed at which conveyors can run, namely at a speed not less than that required to provide production by a piecework slicer to service the 12.5 units of boner's tally produced per boner per hour. If that is so, sub-cl.73(f) is bereft of function because the matter has been dealt with entirely by sub-cl.13(d). According to the respondent's argument, the only variation in the speed of conveyors permitted by the Award is an increase in speed agreed to by the parties pursuant to the proviso to sub-cl.13(d) and, therefore, it follows that the Award has removed the employer's power to control or regulate the speed of conveyors. In our view, the only way in which sub-cl.73(f) can have any useful meaning is if the employer has power to control conveyors by setting them to run at speeds which may be less than that required to provide the prescribed units of tally per hour. Indeed, sub-cl.74(b)(iv) seems to recognize that a piecework slicer may work at a more leisurely pace than the rate required in sub-cl.13(d) if the employer is unable to provide sufficient meat for the slicer to achieve tally in the course of a shift. The sub-clause requires a piecework slicer to finish within ordinary hours work upon such meat as he is given to be sliced if he is to be paid as if tally has been produced. Such a provision is unnecessary if a piecework slicer cannot work at a lesser rate of production than that which achieves production of tally in 6 hours. At such a rate a piecework slicer would require less than 6 hours to complete work on an insufficient quantity of meat supplied by the employer. On the appellant's argument, the employer would be in breach of the Award if, in those circumstances, the rate of work was reduced to make a more reasonable distribution of work over the prescribed working time, a step required of the employer by sub-cl.74(d), but a piecework slicer would not be in breach and would be paid for tally if the slicer took the whole of ordinary hours to produce less than tally by working at a lesser rate of production than that prescribed in sub-cl.13(d). It must not be overlooked that the addition of sub-cl.13(d) and the insertion of cll.73 and 74 were part of interlocking amendments to the Award effected by the variation of the Award recorded in March 1982 and that the parties had taken the opportunity to re-draw cll.73 and 74 with full regard to the intended operation of sub-cl.13(d).

24. In our opinion, what sub-cl.13(d) does is impose upon pieceworkers and follow-on labour the obligation to complete their work at a rate at least equivalent to the rate appropriate to the classes of work referred to in paras.(i), (ii) and (iii). That is to say, such workers are obliged, if so required by their employer, to complete their work so as to achieve that rate. In accordance with the proviso to sub-cl.13(d), a majority of the members of a particular piecework team may agree with their employer upon a rate of work in excess of the rate applicable to their work. But there is nothing in sub-cl.13(d) which negatives any right which the employer may have to reduce the speed of conveyors or rate of work.

25. We do not think that to construe sub-cl.13(d) in this fashion is to treat "minimum rate of work" as meaning "maximum rate of work". The construction which we place upon the sub-clause leads only to the result that employees have an obligation to work at not less than a certain rate. In its terms, the only obligation imposed by the sub-clause is upon employees. If the construction contended for by the respondent is adopted, the proviso to sub-cl.13(d) would be entirely otiose. The respondent contends that the consequence of the adoption of the phrase "minimum rate of work" is that the employer may increase the rate of work but not reduce it. If that be so, there is no need for the proviso, the only purpose of which is to provide a mechanism whereby the rate of work may be increased.

26. Although sub-cl.13(d) was inserted as part of a clause which appears under the heading "Hours of Work", the purpose of sub-cl.13(d) is to control the rate of work not the hours of work. The employer retains the power both under the Award and under the contracts of employment to require employees to carry out their duties of employment during a period of ordinary hours of work nominated by the employer pursuant to sub-cl.13(b) of the Award. Although sub-cl.74(c) calculates payment for "waiting-time" on the basis that the daily rate of pay is paid for a 6-hour day, there is no limitation of working hours in the Award to 6 hours per day or shift. In the absence of any provision in the Award imposing an obligation on the employer to maximise earning opportunities for pieceworkers, there would appear to be no reason to make it a term of the Award that the employer maintain the speed of the conveyors at a set speed and make it a breach of the Award if does not do so. On the other hand, it is quite appropriate for the Award to limit the employer's ability to increase the speed of the conveyor and for the Award to limit the rate of work the employer may expect from employees engaged as pieceworkers.

27. In addition, the Award must be read in the context of the requirements of the industry to which it applies. It is within the contemplation of the Award that employers bound as respondents to the Award will be selling their products overseas and that their abattoir standards and procedures will have to comply with statutory regulations controlling the quality of meat prepared and presented for export. Clause 28 refers to such regulations, although it should be noted that the regulations referred to have been replaced by the Meat Inspection (Orders) Regulations. Any clause in the Award requiring the employer to convey the meat through the meatworks at no less than a prescribed speed would lessen the employer's ability to control the quality of its product. Clear words would be expected if sub-cl.13(d) is intended to have such an effect.

28. Although the interpretation of the Award remains a legal question, some generosity in approach to that question may be appropriate. As Barwick C.J. said in Reg. v. Aird; Ex parte The Australian Workers' Union [1973] HCA 53; (1973) 129 CLR 654 at p 659:

"I now turn to consider the meaning of the
eligibility clause in relation to the manufacture
in the batching plants of ready-mixed concrete.
This is a legal question to be solved by legal
considerations. But those considerations will, in
relation to the present question, include any
industrial meaning or usage of the words of the
clause to be construed. As with all construction,
the nature of the instrument in which the words
appear and the purposes the instrument is
evidently intended to serve or effect must be kept
in mind. In this respect, it is proper, in my
opinion, in the present case to acknowledge that
the eligibility clause will have been drawn, more
likely than not, by union officials more familiar
with the practical affairs of industry than with
the niceties or subtle nuances of language. The
purpose of the clause is to define, in brief
terms, industries or callings relevant to the
representative character of the union. But,
granted this generosity of approach, the question
of the meaning of the words used remains a legal
question."

The generosity referred to is the avoidance of a too literal adherence to the strict technical meaning of words and the application of a broad view after giving consideration to the contents of the whole Award. As Street J. commented in Geo. A. Bond & Co. Ltd. (In Liquidation) v. McKenzie (1929) AR (NSW) 498 at pp 503-504:

"Now speaking generally, awards are to be
interpreted as any other enactment is interpreted.
They lay down the law affecting employers and
employees in their relations as such, and they
have to be obeyed to the same extent as any other
statutory enactment. But at the same time, it
must be remembered that awards are made for the
various industries in the light of the customs and
working conditions of each industry, and they
frequently result as this award in fact did, from
an agreement between parties, couched in terms
intelligible to themselves but often framed
without that careful attention to form and
draughtsmanship which one expects to find in an
Act of Parliament. I think, therefore, in
construing an award, one must always be careful to
avoid a too literal adherence to the strict
technical meaning of words, and must view the
matter broadly, and after giving consideration and
weight to every part of the award, endeavour to
give it a meaning consistent with the general
intention of the parties to be gathered from the
whole award."

29. The application of these principles to the construction of the Award leads us to conclude that sub-cl.13(d) was not intended to require an employer to operate his conveyors at a set speed and to make it a breach of the Award if he does not do so. No doubt, the employment has unpleasant aspects and employees welcome a conveyor speed which permits a daily tally to be completed in less than the ordinary hours of work. However, as we have said earlier sub-cl.13(d) is not a provision designed to reduce the ordinary hours of work already fixed by sub-cl.13(a).

30. Therefore, we are of the view that the appellant was entitled to reduce the speed of the conveyors in the meatworks without thereby committing a breach of the Award. In refusing to carry out his work in the manner required by the appellant on 9 June 1987 and thereafter, the respondent failed to duly present himself for employment on that day as required by sub-cl.7(f) of the Award and was not entitled to be paid for the days in question.

31. Accordingly the appeal should be allowed.

This is an appeal from a single judge of this Court who gave judgment for the respondent against the appellant, a slicer working in a meatworks, in the sum of $407.70, in a claim for payment due under an award. There are two issues in the case. The first is the interpretation of clause 13(d) of the award, and the second is whether, even if the respondent's contention about that is correct, he was rightly held to be entitled to payment on days when he did not work.

2. The respondent was, it is not disputed, entitled to the benefit of the award to be discussed below. He contended successfully before the primary judge that a decision by the appellant employer to "set the chains at seven hours" in a meatworks at Stuart near Townsville was contrary to the provisions of the award. The name of the award is the F.J. Walker Queensland Meatworks Industrial Agreement-Award, 1976.

3. The meaning of setting the chains at a certain number of hours is as follows. The respondent and other piecework employees were entitled to be paid at the rate of a stipulated sum per "unit of tally"; the expression "unit of tally" means a certain quantity of meat. The respondent was slicing meat brought to him on conveyors, so that the amount of meat he could deal with was limited by the rate at which meat was so brought to him. If he dealt with more than a certain quantity of meat in a day, which quantity is called "tally", his rate of pay per unit of the excess would increase. What the employer did, in setting the chains at seven hours, was to so set the speed of the conveyors that it would necessarily take the respondent seven hours to reach tally - the amount per day payable at the ordinary, lower rate. The respondent said that under the award, he and others similarly situated were entitled to have the chains set at six hours, by which he meant that the conveyors should be so regulated that in six hours he would reach tally.

4. It is convenient to come straight to the illdrawn clause which is at the centre of the dispute. It is cl.13(d), reading as follows:

"Pieceworkers and follow-on labour shall, within the
ordinary hours of work prescribed by this clause,
complete such work on production to and beyond
tally as the employer may require at the applicable
minimum rate of work as follows:
(i) Piecework killing and 1/6th of number of
dressing of cattle head required for
tally plus to 15%
tolerance
(ii) Piecework killing and 1/6th of number of
dressing of calves head required for
tally plus 5% to
tolerance
(iii) Piecework boning, 12.5 units per boner
slicing revising plus to 5% tolerance
packaging and
weighing - conveyor
or rail system.
Provided that where the majority of employees,
members of a particular piecework team, and the
employer agree upon a rate of work in excess of the
above-mentioned minimum hourly rate of work then
such agreed rate may be substituted therefor."

Some explanation of the terms used is needed. "Pieceworkers" are, of course, people paid as described above, in accordance with the number of units dealt with. The length of "ordinary hours of work" is eight hours per day, but the employees are entitled to one hour for doing things other than slicing or boning, such as having breaks, sharpening knives and so forth. The expression "12.5 units per boner ..." opposite "Piecework boning, slicing ..." is at first sight hard to follow. Why does it not say per boner or slicer? The reason is that the slicers, such as the respondent, have to work on carcasses already dealt with by the boners; they are limited by the boners' work rate. At 12.5 units per boner per hour, the boner gets to tally in six hours, because his tally is 75 units. It is for that reason that the parties say that cl.13(d) involves a six hour chain.

5. The dispute about cl.13(d) is simply stated, but not easily resolved. The respondent says that it means the rate of work must be at least 12.5 units per boner per hour, or 75 units per boner per day, subject to the proviso under which, if there is the necessary majority, a faster rate may be set; the respondent says that the significance of the word "minimum" where it first appears is that the 12.5 units per boner per hour can be exceeded where the proviso operates, but cannot be gone below.

6. That is, on the respondent's construction of the clause, there could be an agreement under the proviso to go to, say, 15 units per boner per hour with the result that the workers would reach tally in less than six hours, but the chain cannot be slowed so that it takes more than six hours to achieve tally.

7. On the appellant's construction, the clause obliges the worker to keep up to the rate specified if the employer requires it, but the employer is not obliged to set the chain fast enough to enable tally to be disposed of in six hours. On the appellant's argument, no further agreement is necessary to justify the employer's setting the chain at, say, seven hours - i.e. requiring a rate of work slower than that stated in the clause; the employees cannot be required to work at a higher rate, however, in the absence of such an agreement as is mentioned in the proviso.

8. On the appellant's argument, the point of the clause is to impose an obligation on the employees (i.e. to work, if required, at the rate set out), but the clause imposes no obligation on the employer, except one not to have the employees working at a rate in excess of that specified unless a majority agree.

9. It should be added that counsel for the respondent suggested that the clause requires 12.5 units per boner in every hour, so that if the chain were set so as to produce 11.5 units in the first hour and 13.5 in the second, there would be a breach. On either view of the clause, there may be room for argument as to whether the rate of work specified must be satisfied each hour or only each day. It is not necessary to resolve that point, but in the light of clause 74(d), set out below, the latter interpretation seems preferable.

10. Counsel contended, and I agree, that to resolve the problem one should look at other provisions of the award which are interrelated with cl.13(d). Clause 7(e), which is a general provision applicable to all the employees, including pieceworkers, says, among other things, that:

"An employee shall perform such work as the employer
may from time to time require and, subject to this
agreement-award shall perform it at such time as
the employer may require".

11. On the other hand, there are provisions which may partially override that. One is cl.73(f), which is a special provision dealing with piecework boning. It says:

"Subject to sub-clause (d) of clause 13 - Hours of
Work of this agreement-award the speed of conveyors
shall be regulated and controlled by the employer."

Another provision in that category is clause 74(d); clause 74 deals specifically with slicing:

"Subject to subclause (d) of clause 13 - Hours of
Work in this agreement-award the rate of work
through the day or shift shall be regulated and
controlled by the employer for the purpose of
securing a reasonable distribution of tally and
work beyond tally required over the prescribed
working time."

12. The two provisions just quoted were particularly relied on before us, by the respondent. They seem unequivocally to subject the employer's right to regulate the rate of work to cl.13(d) and that implies that cl.13(d) imposes an obligation on the employer as well as on employees. The appellant may be able to answer, however, by relying on the proviso; it is possible that cl.73(f) and cl.74(d) were made subject to cl.13(d) only because under the proviso the employer cannot, without agreement of the majority of affected workers, set the chain to a rate of work faster than is stipulated.

13. Before us, counsel for the appellant did not submit that the obligation placed on the employees by cl.13(d) was not matched by a complementary obligation on the employer; his argument appeared to be that the word "minimum" in the clause should be read as "maximum". This result is apparently to be achieved, not by a process of rectification, but simply by construction.

14. On that view, the employees are obliged by the clause not to go faster than the set rate, whereas its language appears either to require them to work at the set rate (subject to the possibility that an agreement under the proviso increases the rate), or to require them work no slower than that rate. In my opinion, replacing "minimum" by "maximum" is not a permissible course, unless it can be plainly seen that there has been a slip in the drafting, such as inserting an unintended negative (Fitzgerald v Masters [1956] HCA 53; (1956) 95 CLR 420); I do not think acceptance of this submission is possible, unless one abandons the traditional approach, and treats the language actually used as a mere rough draft, to be freely re-moulded into such form as the Court thinks desirable.

15. Before stating my conclusion, I will mention two other points about the language of the clause.

16. The first is that the expression "as the employer may require" seems to modify "production to and beyond tally", making it clear that the employer retains a discretion about that. I do not think the words "as the employer may require" are to be read as "if the employer so requires" and as modifying the word "shall" - i.e. modifying the whole obligation.

17. The second is that the expression "plus to 5% tolerance" implies that any tolerance is to be up, not down. Something was sought to be made of this by counsel for the respondent, but in my opinion it is neutral.

18. In the end, I have come to the conclusion that the respondent's contention and the view of the primary judge on the sub-clause's meaning are correct. What the provision says is that the employees shall complete certain work at a certain minimum rate. It is not beyond the bounds of possibility that a unilateral obligation should have been intended, but in my opinion the more natural reading is that, subject to the proviso, and to the 5% tolerance, the rate mentioned is to be the rate; I find difficulty in reading the provision as if it said "at the applicable minimum rate of work or at such lower rate as the employer may require". In reaching this conclusion, I am influenced by the insertion into the award of the provisions mentioned above, subjecting the employer's right of control of the rate of work to cl.13(d).

19. Various extrinsic materials were referred to by both sides in the course of argument before us. For example, it was suggested that the parties had for some years acted upon the interpretation adopted by the learned primary judge. If they did, that cannot control the meaning of the clause but can assist only in rebutting any suggestion that, in practical operation, the respondent's construction would lead to absurd results. The only extrinsic material I find it necessary to refer to is a passage in the relevant decision of Mr Commissioner McKenzie, given on 3 February 1981, in consequence of which the award was varied to include cl.13(d). It is true that the decision does not include the wording of the sub-clause in question, but the Commissioner's reasons throw some light, of which one may legitimately take advantage, upon the point at issue.

20. The Commissioner explained, in effect, that the union wanted introduction of incentive schemes and extra pay for work beyond tally. He went on:

"In the application contained in C No. 5358, the
company on the basis of acceding to the constant
unit rate demand and the increase in the penalty
for production over maximum tally from 37.5% to
50%, seeks implementation of the following:
The speed of the chain to be set so that maximum
tally is processed in six hours or less if agreed
between employer and majority of workers with the
proviso that should the employer so require,
additional production over tally will be produced
during the remaining one hour or more of ordinary
time. Such additional production will attract a
50% penalty in addition to the constant unit rate
and the speed of the chain will not be varied from
that which was necessary to achieve tally in the
previous six hours or less of ordinary time."

21. He later said that he would accede to the application just described.

22. I do not regard these remarks as decisive of the question before the Court, but draw some comfort from the fact that there is nothing in this passage to suggest that the speed of the chain was to be set to produce tally in more than six hours, if the employer so required. The second paragraph just quoted speaks of processing the tally "... in six hours or less if agreed" and goes on to say, in effect, that the employer may require additional production over tally during the remaining one hour. It does not support the idea that the employer may lengthen the six hours at will.

23. I would add that some of the arguments put for the parties seemed to me very broad. Much was said about the right of the employer to dictate the mode of work, begging the question to be decided. We were even referred by the respondent's counsel to the opinion of the appellant's industrial officer and that of Mr Commissioner McKenzie, expressed well after the award was made, as to its meaning. I have preferred to try to extract the meaning from the language used in the clause, keeping in mind the inexpertness of its drafting, rather than to adopt less orthodox courses, inconsistent with the proper role of this Court in construing awards.

24. Counsel for the appellant urged us to take into account, in construing cl.13(d), that Mr Commissioner McKenzie had no power to alter "the standard hours of work in an industry", by reason of the terms of s.31(1)(a) of the Conciliation and Arbitration Act 1904. It does not appear to me, however, that on the view I take about cl.13(d), any question of varying the standard hours arises. At the conclusion of the six hours, the employer could require further work of the respondent without paying overtime, under cls.7(e), 10(a) and 46(b) of the award. No doubt, in practice it might not avail itself of the right so to require, but the standard hours are a matter of law, not practice.
No Work - No Pay?

25. This familiar expression occurs in a passage which was approved by the House of Lords in Miles v. Wakefield Metropolitan District Council [1987] UKHL 15; (1987) 1 AC 539 at 573G. There the plaintiff servant refused to perform part of his duties, in pursuit of an industrial campaign, and the employer deducted 3/37ths of his salary accordingly. That was held by the Court to be right, apparently on the basis that the plaintiff was only entitled to sue on a quantum meruit; he was held disentitled to sue for the amount due under the contract because he was not willing to perform all the duties required by that contract (see at p 574B to E). This may seem a rather surprising approach, reminiscent of the old tendency to treat contracts of employment as entire: Cutter v. Powell (1795) 6 TR 320. Another possible approach, as Lord Brightman recognised (p 553C) is that -

"... the employer must pay the full wage but may
recover by action or counterclaim or set off
damages for breach of contract."

26. In this case, however, it does not seem to matter which of the two approaches just mentioned should be followed; the issue requiring to be resolved is whether, as the primary judge held, the respondent is entitled to payment for the five days when he did not work. They were Monday, 8 June 1987 (a public holiday) and the remaining four days of that week.

27. The question appears to me to be one of some general importance; the assumption underlying the contentions put for the respondent was that if the employer acts in breach of the award (whether in a major or minor respect), the employee has a general right to stay away and still be paid.

28. The appellant conceded that if it lost on the construction issue (as I have held it does), then it must pay wages for the Tuesday, 9 June, as being a day on which the respondent attended and offered himself for employment. It is unnecessary to consider the correctness of that concession, but as will appear some consideration of the events of the Tuesday is still necessary.

29. On the morning of Friday, 5 June 1987, the respondent attended a meeting with Mr J. Hughes, a meat works supervisor for Australian Meat Holdings Pty Ltd, a consortium of companies of which the appellant is a member. Hughes told the meeting that, as from the Tuesday after the Queen's Birthday weekend, the speed of the chains was to be slowed to work over seven hours. At that meeting the respondent said that he would not work if the speed of the chain was slowed. The respondent then arranged for all the members of the Australasian Meat Industry Employees' Union employed at the appellant's meat processing plant to assemble at lunch time. The mass meeting resolved "We report for work but only work if the chains are set on status quo as per award (1982)".

30. The respondent was not required to work again until Tuesday, 9 June 1987; as I have said, the Monday was a public holiday. Work usually commenced at 6.45 a.m. and the respondent arrived at 6 a.m. in order to pick up his laundry and change in the locker room. A meeting took place at about 7 a.m. where a resolution was passed similar to that passed on the Friday. The respondent and some Union organisers had discussions with the management after that meeting. The Union organisers stated that they were willing and available to commence work provided the chains were set at 6 hours in accordance with their interpretation of the award. Hughes, on behalf of the management, said that the chains would be set at 7 hours and that if anyone did not want to work at that rate they could go home. The respondent replied that he would work for six hours and then stop, to which Hughes replied that if that was done, the respondent would be sacked. As a compromise, Hughes told the Union organisers that he would run the chain at 6 hours, but would sack any employees he considered were not carrying out their duties satisfactorily. This was not acceptable to the Union, which considered that employees who were not doing their jobs properly should be told what they were doing wrong, but not sacked. No solution was reached, the respondent being willing to work only if the chain rate was 6 hours, and the appellant being willing to set the chain rate only at 7 hours. All the Union members, including the respondent, then left the premises.

31. The respondent did not attend the plant on Wednesday, 10 June. The trial judge found that during the period 9 June to 12 June, there was no notification by the appellant to the respondent that his services were not required. On Thursday, the respondent went to the plant as requested by Mr Sherrington, a union official, to find out if the appellant's management had changed their attitude. Hughes stated that there was no change and that the chain speed would be set at 7 hours. This meeting was held at 9 a.m. and not at the normal starting time of work. Sherrington told Hughes that the members were willing to return to work provided that the chain speed was set at 6 hours in accordance with the award. It was then decided by both parties that the matter should be resolved by way of an application before the Industrial Commission. That afternoon, the respondent was advised by Sherrington that Mr Commissioner McKenzie had directed both parties to work under the "status quo", and that a hearing had been set down for Friday week.

32. On the next day, Friday, 12 June, the respondent attended a Union meeting where it was resolved that all members should return to work the following Monday. The respondent commenced work at the regular time on Monday, 15 June.

33. The learned primary judge remarked:

"Mr. Casey attended at the works on Thursday, 11
June 1987 On the facts it seems to me that (the
appellant) told Mr. Casey that he need not attend
unless and until he was prepared to work on the
chain set at seven hours. Once an employee has
been wrongly sent away, and is effectively told
that work would only be offered on terms in breach
of the Award, it seems to me there is no obligation
on the employee to continue coming around to the
place of employment to see if the employer had
changed his mind. In my opinion, Mr. Casey cannot
be characterised as not attending and offering
himself for employment on Wednesday, Thursday or
Friday, 10, 11 and 12 June 1987."

34. His Honour also took the view that Hughes was of opinion that "setting the chains at seven hours was in breach of the terms of the Award". That inference was drawn from statements made on behalf of the appellant in the presence of Hughes before Mr Commissioner Caesar on 16 July 1987.

35. With respect, I find it difficult to agree that Hughes was shown not to hold the view of clause 13(d) which he claimed to hold and which a majority of the members of this Court has concluded to be correct. However, the learned primary judge's opinion that in consequence of his interpretation of clause 13(d) (with which interpretation I agree), the respondent was entitled to be paid for all the days in question did not depend upon the point just mentioned. It depended, I think, upon the view his Honour took as to the effect of clause 7 of the award. Clause 7(a) provided, among other things, that a "regular daily employee", a class into which the respondent fell, should be employed "by the day or shift" and that, without prejudice to certain entitlements such as for holidays, "his employment shall terminate at the end of each day or shift on which he is employed".

36. That general provision must, however, be read in the light of other sub-clauses, which make the daily termination a theoretical rather than practical proposition. One is clause 7(d), which gives the employer the right to "deduct a payment for any day during which the employee cannot be usefully employed" because of certain circumstances such as strikes. That implies that prima facie there is a right to payment on each working day; that would not be so, of course, if the employment in truth did terminate at the end of each day.

37. Clause 7(f), on which the respondent's counsel principally relied in this connection, obliges a regular daily employee to attend and offer himself for employment on each working day, unless notified that he is not required to attend. Then there is a proviso reading in part as follows:

"Provided that, subject to the rights conferred on
the employer under sub-clause (d) of this clause, a
Regular Daily Employee who has not been notified on
the immediate working day before that he is not
required to attend for work in his classification
on the following working day, and such employee has
attended and offered himself for employment at the
normal starting time on that day and has not been
offered employment, shall be paid for the day ..."

38. The learned primary judge's view of that clause was, as I understand it, that because the respondent was wrongly sent away and told that "work would only be offered on terms in breach of the award", the employer could not treat him as having failed to attend and offer himself for employment. The idea might be expressed by saying that there was a constructive offering by the respondent.

39. It appears to me worthwhile briefly to consider the legal position apart from the award. The general rule of contractual employment still is that explained by the High Court in Automatic Fire Sprinklers Proprietary Limited v. Watson [1946] HCA 25; (1946) 72 CLR 435:

"The respondent cannot sue for his whole
remuneration as a debt due to him in respect of
complete performance of the agreement on his part
relying on his readiness and willingness to perform
the agreement ..." (per Starke J. at p 461)
"A contract for the establishment of the relation of
master and servant falls into the same general
category of agreements to pay in respect of the
consideration when and so often as it is executed,
and is, therefore, commonly understood as involving
no liability for wages or salary unless earned by
service, even though the failure to serve is a
consequence of the master's wrongful act." (p 465
per Dixon J.)

See also per Williams J. at p 476. Putting this more shortly, the ordinary understanding is that wages are paid for work done, not for work the employee is willing to do; in the latter case, if improperly prevented, the employee has at common law a claim for damages, not wages. The difference is important in practice because the damages claim may be reduced or eliminated by failure to mitigate the loss.

40. But this common law position may be and, if the view of the learned primary judge is correct, has been in the present case modified by an award.

41. The High Court held in Mallinson v. The Scottish Australian Investment Company Limited [1920] HCA 51; (1920) 28 CLR 66 that an employee may sue for wages higher than the award rate due under a contract. Then in Kilminster v. Sun Newspapers Limited [1931] HCA 37; (1931) 46 CLR 284, it was held that a clause in an award requiring two months' notice of termination did not detract from contractual rights accorded to an employee which necessitated a longer notice. See also the decision of the Privy Council in True v. Amalgamated Collieries of W.A. Limited [1940] UKPCHCA 1; (1940) 62 CLR 451.

42. But these cases, in which employees successfully asserted rights under the law of contract in preference to those given by award or statute, do not say that contractual rights under the general law necessarily co-exist with or override an award provision. Gapes v. Commercial Bank of Australia Ltd (1980) 37 ALR 20 is an important example: there, it was in effect held that provisions of an award spelling out in detail the circumstances in which deductions from salary could properly be made "covered the field". The employer was not allowed to rely on common law rights to deduct moneys on account of an employee's non-performance.

43. It is my opinion that the proviso to clause 7(f) of the award, partially quoted above, does, to the extent to which it applies, fall within the doctrine of Gapes' case. That is, to that extent the common law rule referred to by the High Court in Watson's case and in the authorities discussed by the House of Lords in Miles' case is abrogated.

44. However, that cannot sustain the view at which the learned primary judge arrived, because the proviso applies only where the employee has attended and offered himself for employment. Nor should one imply that the employee may avail himself of the rights given by the proviso without attending, if he is told that he need not attend; that is not a reasonable implication because the employer may, by the express terms of the proviso, take himself outside it by simply notifying the employee on the previous day that he is not required "to attend for work in his classification on the following working day".

45. There is no other provision in the award relevant to circumstances of the kind in issue which may sensibly be argued to entitle an employee to be paid on days when he does not attend, except clause 7(d), mentioned above. By analogy with Gapes' case, it is arguable that the employer has no right to deduct payment for working days (during the currency of the "engagement") when the employee simply does not attend for work; the foundation of this is that since the award does not include as a reason for deducting pay that the employee does not come to work, the intention must be that there is, in those circumstances, no right to make a deduction.

46. On the face of it, the argument seems absurd because it could lead to the result that an employee who did not come to work for weeks or months could then successfully sue for a large amount of wages. On the other hand, under clause 7(b), the engagement may be terminated "as from the end of the ordinary working hours on the day on which it is given", so that the obligation to pay a non-attending employee could easily be ended. Nevertheless, it is my view that there is nothing in the award which can reasonably be construed as giving a general right to payment for days not worked. I note that in Gapes' case Deane J. said:

"... the critical factors in the present case are
that the appellant, being an employee of the bank,
actually worked in his job for the three days in
question and that he so worked with the knowledge
and consent of the bank".

The result which Deane J. held to follow there can have no application to employees' wages on days when they do no work at all. It is my opinion that the common law position applied to the days on which the respondent failed to attend for work, with two exceptions. Firstly, as I have mentioned, an entitlement to wages for Tuesday, 9 June was conceded. Secondly, although entitlement to pay on the public holiday (the Monday) was not conceded, that seems to me necessarily to follow from the concession about the Tuesday.

47. The result is that in my opinion the respondent was entitled to be paid for the Monday and Tuesday, but not for the Wednesday, Thursday or Friday.

48. I make two other comments. The first is that my conclusion as to the Wednesday, Thursday and Friday is not based on the view that the respondent has no entitlement to wages, although "improperly stood down"; I do not accept that the respondent was stood down. There was an important disagreement between the parties as to the interpretation of the award, but by insisting on implementing its view (which the other members of this Court have determined to be correct), the appellant did not stand the relevant employees down. The second is that I have found no authority in favour of the proposition that there is a general right in employees, if they contend that the employer is acting in breach of the award, to be paid for not working. The rights of the parties when a breach of the award (by either side) occurs depend upon the particular circumstances and the law applicable; there is no prima facie rule that if the award is being breached the innocent party may, as long as the breach continues, treat all his obligations to the other party as suspended.
Conclusion

49. I am of opinion that the learned primary judge's construction of clause 13(d) of the award is correct and that, therefore, the appellant had no right to set the chain speed at seven hours.

50. I would allow the appeal as to the payments for the Wednesday, Thursday and Friday, for the reasons set out above.

51. I would therefore vary the judgment against the appellant by reducing it from the sum of $407.70 to $163.08.