Application by the Vehicle Builders Employees Federation of Australia for an Interpretation at the General Motors Holden Ltd (Part 1) General Awards 1978
[1980] FCA 91
•26 JUNE 1980
Re: IN THE MATTER OF THE CONCILIATION AND ARBITRATION ACT, 1904
And: IN THE MATTER OF AN APPLICATION BY THE VEHICLE BUILDERS EMPLOYEES'
FEDERATION OF AUSTRALIA FOR AN INTERPRETATION OF THE GENERAL MOTORS-HOLDEN'S
LTD. (PART 1) GENERAL AWARD 1978
N.S.W. No. 13 of 1980
Industrial law
COURT
IN THE FEDERAL COURT OF AUSTRALIA
INDUSTRIAL DIVISION
NEW SOUTH WALES DISTRICT REGISTRY
J.B. Sweeney J.
CATCHWORDS
Industrial law - Interpretation of award - Entitlement of employee to payment for sick leave, etc. during stand down periods.
HEARING
SYDNEY
#DATE 26:6:1980
ORDER
The said award be interpreted in the manner following:
Clause 6(g) of the award does not entitle an employer to stand down and make deductions from payments due to an employee under clauses 23, 24, 26 or 28.
If an employee to whom notice of stand down is given is at the time absent on sick leave as prescribed by clause 25, the said award does not authorise any deduction during the period he is so incapacitated and in receipt of sick leave.
If during a period an employee is stood down and is unable to attend for work by reason of illness or injury, as prescribed by clause 25, it is a question of fact to be determined by the employer subject to the decision of a board of reference whether his absence is due to such illness or injury or due to the stand down and in the former event, subject to compliance with clause 25, he is entitled to payment of wages without any deduction for his absence on that day.
An employee absent on jury service as prescribed by clause 27 is not entitled to receive any additional amount from his employer in respect of any day on which he is stood down in accordance with clause 6(g).
JUDGE1
This is an application for interpretation of the General Motors-Holden's Ltd. (Part 1) General Award 1978. In the application an interpretation was sought in the following terms:
An employee absent on paid leave, provided for by clauses 23 to 28 inclusive of the said award, is not disentitled to such paid leave and the employer is not entitled to deduct payment for such leave because of the operation of stand downs introduced in accordance with the provisions of clause 6(g) of the said award.
Clause 6(e) of the said award disentitles employees to payment for non attendance at work caused by reasons other than those provided for in clauses 23 to 28 of the said award.
Clause 6(g) of the said award does not operate so as to remove an employee's entitlement to paid absences from work provided for in clauses 23 to 28 of the said award.
It appears, however, that the matters in dispute between the parties is in a much smaller compass and I propose to limit myself to these.
The award provides, in clause 6, for employment by the week either part time or weekly and for casual employment. Provision is made in the award for paid public holidays (clause 23), annual leave (clause 24), sick leave (clause 25), bereavement leave (clause 26), jury service (clause 27) and for the making up of workers' compensation payments (clause 28).
No specific argument was directed to the case of part time or casual employees. I note that casual employees do not appear to be entitled to sick leave while part time employees are by clause 6(d) of the award entitled "to receive pro rata entitlement to sick leave, annual leave, bereavement leave and public holidays." No submissions having been made concerning their position, I deal in this interpretation with weekly employees only.
Clause 6 in addition to providing as I have said, provides that employees employed by the week are to be regarded as permanent. Clause 6(e) provides as follows:
An employee not attending for duty shall except as provided by clauses 23, 24, 25, 26, 27, 28 of this award lose his pay for the actual time of such non-attendance.
Clause 6(g) provides:
Notwithstanding anything elsewhere contained in this clause -
(i) The Company shall have the right to deduct payment for any day an employee cannot be usefully employed because of a strike or through a breakdown in machinery or a stoppage of work by any cause for which the Company cannot reasonably be held responsible.
(ii) The provisions of clause 40 of this award shall apply in the circumstances set out in that clause.
(iii) In any plant or complex of plants at any one site where there is in existence a ban or limitation upon the performance of work the Company shall have the right to deduct payment for any part of a day on which any employee cannot be usefully employed.
It is sufficient to mention that clause 40 deals with emergency provisions relating to deductions from pay in the event of restriction or rationing in the use of electrical energy and/or coal gas in the States of Victoria and South Australia.
In earlier awards, provision was made for stand downs but it was set out in a clause dealing with termination of employment and provided that the provisions of the award relating to termination should not affect the right of the employer to deduct payment for any day the employee could not be usefully employed because of any strike, etc.
Clause 6(g) in its present form, confers a right on the employer and confers it notwithstanding anything elsewhere contained in the clause. In the course of argument, stand downs were described and accepted by both parties as events which if they occurred in the circumstances set out in clause 6(g) would be notified by the employer to the employee as a stand down for a specific day or days in advance.
Employment under the award then in the relevant cases is a weekly hiring and the effect of this, unless modified by the award, is to entitle an employee to payment during the continuance of the employment. In his submission, Mr. Barnard, senior counsel for the respondent, made a number of submissions. He said:
"We do not base our argument on the operation of 6(e), as my learned friend will suggest, but rather on an interpretation of clause 6(g) when comparing its terms with the particular clauses 23 to 28 and interpreting them in the light of the whole of the award.
Now I might indicate that 6(g) of itself gives a right to deduct payment in certain circumstances. The provisions of clause 25 relating to sick leave read:
An employee on weekly hiring . . . . . . . . . . . . . . . . . . . leave of absence without deduction of pay.
Now both of those are concerned with different sets of circumstances and both of them are concerned with the question as to whether pay is to be deducted or not.
Our submission is that the task is to determine which of those clauses comes into operation. The argument which we will be developing in relation to that is that it involves a matter of causation; in other words, one has to look at the facts and the particular situation to see what has been the cause of the absence in the particular situation, and once that has been determined one knows which clause comes into operation."
(Transcript page 18)
He further submitted:
. . . . . "Accordingly we submit it is here of significance that clause 6(g) does begin with the words, "Notwithstanding anything elsewhere contained in this clause", and we submit in so doing it seeks to modify the provisions of clause (a)."
(Transcript page 21)
Two classes of cases were then discussed before me. The first was where an employee is absent on sick leave when notice of the stand down is given and the second case where notice is given of an intention to stand down for a day or days and after giving of the notice and the commencement of the stand down, the employee suffers personal illness or injury by reason of which he was unable to attend for work and perform his normal duties.
It was conceded that in the case of an employee absent on sick leave prior to the giving of the notice and whose incapacity continued during the period of the stand down and who had not exhausted the leave due to him in clause 25, the employer could not avail himself of the provisions in clause 6(g) to deduct payment. In the case of employees who had been given notice of stand down and who subsequently became ill within the meaning of clause 25, it would be a question of fact for decision by the employer with ultimate recourse to a board of reference, whether the absence of the employee from duty was due to the illness or the stand down. If due to the illness and not the stand down the employee would be entitled to payments in accordance with clause 25.
Mr. Haylen for the applicant referred me to Vehicle Builders Employees Federation of Australia v. British Motor Corporation (Aust.) Pty. Ltd., 8 F.L.R. 70, in support of a submission that under the award employees who having been stood down became ill were entitled to payment for the day of stand down if they were ill on that day. It is true that in that case the Commonwealth Industrial Court referred to workers who having been stood down for two days claimed sick pay and were paid for the second day. This seems to me consistent with the views I have expressed and in any event it is not easy to know whether this was a concession by the then respondent rather than a decision by the Court.
So far as the operation of clause 27 is concerned this clause provides:
An employee required to attend for jury service during ordinary working hours shall be reimbursed by the Company an amount equal to the difference between the amount paid in respect of attendance for such jury service and the amount of wages the employee would have received in respect of the ordinary time the employee would have worked had the employee not been on jury service.
It is to be noted that the reimbursement to the employee is provided for, not by making provision that his absence on the day he is required to attend for jury service is to be without deduction of pay, but it is to be calculated by calculating the difference between jury fees and the amount of wages he would have received in respect of the ordinary time he would have worked had he not been on jury service. It is not a clause providing for a right to be absent without deduction of pay.
If the employee was one in respect of whom the employer's rights under clause 6(g) would have been exercised on the day or days in question, then it could not be said that he would have worked any ordinary time and consequently there is no obligation to make up payment in respect of that particular day or days.
It is conceded by the employer that clause 6(g) of the award does not operate in any way in respect of the holidays under clause 23, the annual leave under clause 24, the bereavement leave under clause 26 or the provisions for accident pay under clause 28.
I agree with this view and the concessions made by Mr. Barnard QC, for the employer were, in my view, properly made.
In my view, the award should be interpreted as follows:
1. Clause 6(g) of the award does not entitle an employer to stand down and make deductions from payments due to an employee under clauses 23, 24, 26 or 28.
2. If an employee to whom notice of stand down is given is at the time absent on sick leave as prescribed by clause 25, the said award does not authorise any deduction during the period he is so incapacitated and in receipt of sick leave.
3. If during a period an employee is stood down and is unable to attend for work by reason of illness or injury, as prescribed by clause 25, it is a question of fact to be determined by the employer subject to the decision of a board of reference whether his absence is due to such illness or injury or due to the stand down and in the former event, subject to compliance with clause 25, he is entitled to payment of wages without any deduction for his absence on that day.
4. An employee absent on jury service as prescribed by clause 27 is not entitled to receive any additional amount from his employer in respect of any day on which he is stood down in accordance with clause 6(g).
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