Ad Astra Pty Ltd v Cothing & Allied Trades Union of Australia

[1978] FCA 117

WESTERN AUSTRALIA DISTRICT REGISTRY W.A. No. 4 of 1978

INDUSTRIAL DIVISION \

IN THE MATTER OF THE CONCILIATION AND-

ARBITRATION ACT l904

B E T W E E N: AD ASTRA PTY. LTD.

Appellant

7 A N D: CLOTHING AND ALLIED TRADES

UNION OF AUSTRALIA

Respondent

O R D E R

JUDGES MAKING ORDER:	SMITHERS, EVATT AND KEELY JJ.
DATE OF ORDER	5 DECEMBER 1978
WHERE MADE	PERTH
THE COURT ORDERS THAT:

2. In all other respects the appeal be dismissed.

3. Penalty imposed by the Industrial Magistrate below to be pit

to the respondent Union.

REASONS FOR J U E M E N T

I n this matter , the court i s unanimous t h a t t h e

appeal should be dismissed, excep t i n r e l a t ion t o the

$4 cos t s , which i s r a t h e r a machinery matter. The court

a l so proposes t o vary the order in re la t ion t o the payment

of the amount of the penal ty and t o order t h a t it be paid t o

the Clothing and Allied Trades Union o f Austral ia .

So f a r as the substance of the matter which has been

the subject o f discussion with counsel for the appel lant i s

concerned, we a r e s a t i s f i e d t h a t t h e scheme of clauses 30

and 31 of the Dry Cleaning and Dyeing Industry Award

is tha t c l ause 31 provides f o r the keeping of the books and

records referred t o there in and that it permits an employer

with more than one place of business t o keep those records

a t h i s head off ice and only a t h i s head o f f i ce ; and t h a t ,

as c lause 31 provides, i f he does t h a t , he w i l l have s a t i s f i e d

h i s obligations under clause 31.

However, the obl igat ions which a re upon the defendant,

the appel lant herein, which a re in ques t ion in this matter

a r e h i s obligations under clause 30, and i n p a r t i c u l a r , c l a u s e

30(a). That i s a clause which deals with mat te rs per ta in ing

t o the en t ry in to the fac tory of the authorised representat ive

of the union. It purports t o deal with h i s r i g h t s and the

employer 's obligations in respect of an en t ry made by the

authorised representat ive o f the union for the purpose of making

var ious inspect ions, and it provides in express terms that

2

Ifaccess sha l l be granted t o the wages book o r time sheets o r

records cover ing a l l employees, including outdoor workers in

the employ of t h a t employer", and it contemplates t ha t such

access sha l l be granted a t the place where the inspect ion

takes place, which i s the fac tory , workshop, receiving

depot and a t a time during working hours.

Clause 3o(a> goes on t o say tha t Itwages books o r time

sheets o r a t r u e copy thereof sha l l	be kept on the premises
a t which the employees are working'l,	and, t h a t "it s h a l l be

made ava i lab le f o r inspect ion on demand". Again, it would

seem c l e a r t h a t t h i s is something which i s contemplated as

l i k e l y t.0 o r which may occur i n t h e f a c t o r y a t t h e t i m e o f the

inspect ion.

True it i s , that the or ig ina l and mTin records of wages

books and time sheets may be kept under clause 31 a t t h e head

o f f i c e of the company of the employer, but equally true it is ,

that clause 3O(a) imposes a fur ther ob l iga t ion in respec t of

such wages books and time shee ts ; and t h a t i s , i f the wages

books themselves are not there , t o keep a t r u e copy thereof

a t t h e p r e m i s e s a t which the employees a re working. So, e i t h e r

by production of the main books and time sheets of the employer

o r a true copy thereof , there sha l l be avai lable a t the premises,

when the union representat ive c a l l s during working hours, e i t h e r

those books o r a t rue copy thereof ; and they sha l l be made

ava i lab le on demand.

3

In these circumstances, i t i s c l e a r t ha t a demand was

made during working hours on the premises a t which employees

were working f o r production and inspection of the wages books

and time sheets i n respect o f the employees on those premises;

and there was a c l ea r r e fusa l t o produce them by the manager of

the fac tory who was the senior employee o f the employer, a t the

fac tory a t that t ime.

In those circumstances we f e e l t h a t it i s c l e a r t h a t t h e

obligations under clause 30(a) were n o t f u l f i l l e d and t h a t t h e

conviction was co r rec t , and the appeal must be dismissed;

except as t o cos ts and with the variationwehave mentioned a s

t o the payment o f the penal ty t o the Union.