Association of Drafting Supervisory & Technical Employees v Wilmot Breeden (Australia) Pty Ltd

[1981] FCA 254

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EX TEFIPORE JUDGMENT -

IN THE FEDERAL COURT OF AUSTRALIA )

1 ) V No. 17 of 1981

I	VICTORIA	D STRICT	REGISTRY	1
)

DIVISION INDUSTRIAL 1

i l

I I	IN TIJE MATTER OF the Conciliation	&
I	Arbltratlon Act 1904
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l	1	Between:	THE ASSOCIATIOK OF DF35JGHTIX
SUPERVISORY AND TECFIXICAL
ElilPLOYEOS
I

(Applicant)

- WILMOT BREEDEN (AUSTRALIA) And:

PTY. LTD.

(Respondent)

Coram: Smithers	J.
30 November 1981
Melbourne

REASONS FOR JUDGMENT

HIS HONOUR: I think I can give judgment now, sub~ect of course

to correctlon of any verbal errors or errors of substance.

The application in thls case is brought by the Association f

Draughting Supervisory and Technlcal Employees agamst Wilmot

Breeden (Austral1a)Pty. Ltd. The clam is for penalties under

s.llY of the Conclllation & Arbltrntlon Act 1904

I	I	2.
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I .

w i t h a n c l l l a r y rellef I n t h e matter of employees‘ wages. The

a p p l i c a t i o n is based upon a s i t u a t i o n i n which two employees,

M r . Prlce and Mr. Hopgood, were no t pa id wages i n r e s p e c t o f

four days, namely, 2 4 , 2 5 , 2G and 2 1 June 1980 while they were

employees , no t having been d ismissed , and to whom under the

award t h e wages were p a y a b l e s u b ~ e c t , o f c o u r s e , t o t h e

p r o v i s l o n s o f c l a u s e 9 ( b ) o f p a r t I1 o f t h e r e l e v a n t award

whlch i s the Mctal I n d u s t r y Award 1 9 7 1 . Under t h a t c l a u s e i t

is provlded that : -

“Notwwlthstanding any p r o v i s i o n elsewhere contained

herem, an employer may deduct payment f o r any day

an employee canriot usefully be employed because of any s t r lke, breakdown of machlnery or any s toppage

of work by any such cause for whlch the employer

cannot reasonably be he ld respons ib le . Provlded

t h a t s u c h s t a n d i n g down s h a l l n o t be deemed a break

i n t h e c o n t i n u l t y of employment f o r t h e p u r p o s e o f

any r i g h t s u n d e r t h i s p a r t . ”

The d e f e n d a n t h a s a s s e r t e d t h a t t h e facts l u s t i f i e d

a deduct ion of pay under th i s c lause . It is p o i n t e d o u t t h a t

o n t h e d a y s i n q u e s t i o n t h e r e was no power suppl ied by the

E l e c t r l c i t y Commission. They p o i n t o u t a l s o t h a t t h e e m p l o y e e s

i n t h e p r o d u c t l o n p a r t o f t h e e s t a b l l s h m e n t who are governed

by par t I of the award had determined on the day before the

24th , namely the 23rd , tha t none of the members o f t h a t

organlzat ion would work i n any way, on t h e g r o u n d t h a t , I f t h e y

had worked , auxi l l la ry power mlght have been obtained from a

gene ra to r on the p remises bu t t he ex ten t of power would on ly

h a v e p e r n i t t e d t h e employment of o n l y s e v e n t y f i v e per c e n t

of the workers. They had determined chat i n t h a t e v e n t s e e i n g

t h a t t h e company cou ld no t employ a l l t he worke r s none o f t ha t

class of worker would work a t a l l .

3.

Th i s In t ima t ion was conveyed t o management a t a

meeting on the 23rd a t which seven shop stewards were p r e s e n t

and the seven shop s tewards present Inc luded M r . P e a r t who

was the shop steward i n r e s p e c t of workers employed under

p a r t I1 of the award. It seems t h a t t h e workers unde r pa r t I1

of the award f o r whom M r . Peart was the shop steward have

genera l ly main ta ined the i r independence from decisions made by

the shop s tewards of , o t h e r w o r k e r s i n t h e e s t a b l i s h m e n t , namely

t h e p a r t I people. However, on t h i s o c c a s l o n M r . Peart b a n g

p r e s e n t a t the meet ing a t which t h e d e c i s l o n o f t h e par t I

shop stewards was communicated t o management d i d n o t p o i n t o u t

t o management t h a t t h e s t a t e m e n t by M r . Dale, t h e l e a d i n g

p a r t I shop steward whlch might have appeared t o be made on

behal f of a l l the shop s tewards present , was , i n f a c t n o t t o

b e t a k e n a s a s ta tement b inding h im, M r . P e a r t r o r t o refer

t o the workers covered by par t I1 of t h e award.

It is s a l d t h a t management would understand t h a t

M r . Dale w a s n o t s p e a k i n g f o r M r . Peart. It is d i f f i c u l t t o

r e s o l v e t h i s , b u t it a p p e a r s t h a t l a te r on t h a t d a y t h e p o s i t i o n

was c l a r i f i e d and t h a t Mr. Peart d i d e x p r e s s t o M r . C u b i t t

s u f f i c i e n t l y c l e a r l y t h a t h i s members were lndependent ofi and

not covered by the decls ion which had been expressed by Mr. Dale.

H e i n t i m a t e d t h a t management would h a v e t o decide f o r i t se l f

i n r e s p e c t of t h o s e o f h l s members who wanted t o work

whether they could be useful ly employed or not .

Management seems t o h a v e b e e n s a t i s f l e d w i t h o u t

any s p e c i f i c e n q u i r y t h a t M r . Price and Mr. Pea r t and M r .

Hopgood could no t usefu l ly be employed the fo l lowing day . To

4.

,

get clarification of his position, Mr. Cubitt, the managing

director then communicated wlth and received advlce from the

Employer's Associatlon to which hls company was attached. What-

ever it was he was advised by that Association did not cause hlm

or anybody in the defendant's management to make enquiries with

any precision or in any detail as to whether or not any

particular employees In the production planning section of the

defendant's operations could be usefully employed. I dare say

that management dld not expect Mr. Prlce or Mr. Hopgood to

want to work the next day, but ln fact each of t em dld, each

one - Mr. Price actually came to work and was told not to work.

Mr. Hopgood communicated with the company to flnd out whether

he would be allowed to work and he was told that there was

no work for him. Accordingly they did not	go to work during
the next four days.

Accordingly a question of fact arises as to whether,

i

having regard to the nature of the defendant's business and operatlons, Mr. Prlce and Mr. Hopgood could have been usefully

employed. Whether a person can be usefully employed has been

given attentlon by this Court and the Australian Industrial

Court in the Carpenters Case in 1971, 17 F.L.R. 3 3 0 and by

Mr. Justice Keely in a ~udgment in the matter of the Technical

Staff T.A.A. Award 1974 decided by him on 23 December 1977 in

C No. 28 of 1977. It was also glven some attention In a

decision ln Niceski v. Dowell Aushralla Pty. Ltd. in	V NO. 14
of 1980 on 23 February 1981.

The question of fact is whether, In respect of workers

rrlho are working under a contract of emplcyment, there was work

5.

,

a v a i l a b l e ts be performed by them, which, from the polnt of

view of the employe r ' s unde r t ak ing It would be u s e f u l t o p e r f o r m .

The work done by M r . Price c o n t a l n e d t h r e e e l e m e n t s . F i r s t

p roduct ion p lanning , which lnvolved doing c le r lca l work, whlch would

c o n t r i b u t e t o the compl l a t ion of a book c a l l e d t h e work o r d e r

book i n r e s p e c t of va r lous componen t s t o be p l aced in to

product ion by t h e company. Second, work whlch was called

p r e l l m i n a r y i d e n t i f i c a t i o n work which related t o t h e I d e n t i f i -

I c a t i o n o f t h e s t o c k i n h a n d a s it s t o o d i n c o n t a i n e r s called

s t i l l a g e s . T h i r d l y , t h e r e w a s some work which comes unde r the

heading of engmeering new p r o d u c t s r e c o r d s o r r e q u i s l t l o n s .

I t i s a p p a r e n t t h a t i n r e l a t i o n t o c l a u s e 9 (b) of

t h e award the onus i s upon the employer to show e i t h e r t h a t

no work was a v a i l a b l e or l f it was ava i l ab le the pe r fo rmance of

it o n t h e d a y s i n q u e s t i o n would i n t h e c i r c u m s t a n c e s n o t b e

u s e f u l t o him. I n t h l s case both those p ropos i t ions have been

pu t fo rward and the ques t ion i s whether the defendant has

e s t a b l i s h e d b o t h o r e i t h e r o f them. I n t h e a p p r o a c h t o t h l s

problem the defendant 1s a t a disadvantage because lt had,

r i g h t l y or wrongly, a clear consc ience about no t paying M r .

Price and M r . Ilopgood because it t h o u g h t t h a t t h e s i t u a t i o n

was such tha t t hey cou ld no t be u s e f u l l y employed.

The r e s u l t i s t h a t t h e y made no detai led m v e s t i g a t i o n

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i	t o e s t a b l i s h t h o s e p a r t i c u l a r	matters.	It	mlght	have	been	well
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i f t h e A s s o c l a t i o n t o w h i c h M r . Cubi t t resor ted , had ment ioned

t o him a passage in the Carpen te r s j udgmen t t o t h e e f f e c t t h a t

6.

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I

in each case diligence i s r e q u i r e d t o e n s u r e t h a t t h e f a c t s

as t o a s c e r t a i n e d w i t h t h e a v a i l a b i l i t y o f work on l a r g e c o n s t r u c t i o n s i tes a r e

some care b e f o r e men are l a i d o f f . The r e s u l t

i s t h a t t h e e v i d e n c e b e f o r e m e i s of two k m d s . F i r s t l y , t h e

evidence of M r . Price and M r . Hopgood themselves who having

pe r fo rmed the va r ious tasks which it f e l l t o t h e i r l o t t o

perform i n t h i s company over a long per iod had a f a i r i d e a o f

the kind and volume of work t h a t was l i k e l y t o be a v a i l a b l e f o r

them and of course each of them had t h e v e r y b e s t r e a s o n s f o r

h a v i n g i n mind what work was a v a i l a b l e t o them on t h e 2 4 t h ,

25th, 26th and 27th because they had wanted t o work on those

days . Inevi tab ly they had an in t imate knowledge as t o whether

t h e r e was any work a v a i l a b l e f o r them.

I

! There has been somewhat of a c o n f l i c t o f e v i d e n c e

i n v a r i o u s matters i n t h i s c a s e b u t I am q u i t e s a t i s f i e d t h a t

everybody has tr ied t o do t h e n best. However, o f course

M r . Price and Mr. Hopgood h a v e t h e a d v a n t a g e o f b e m g a b l e t o

say they remembered t h e v e r y t h m g s w h i c h are i n i s s u e t o d a y .

The d e f e n d a n t o n t h e o t h e r h a n d h a s h a d t o r e s o r t on the whole

t o s a y i n g w h a t i n t h e i r o p i n i o n m u s t h a v e b e e n t h e s l t u a t l o n a n d

t o g i v e t h a t o p i n i o n w i t h r e g a r d t o one important matter on an

assumptlon which it t u r n s o u t c o u l d n o t b e t a k e n as n e c e s s a r i l y

b e i n g t r u e . The onus being upon the defendant , assumpt lons

which are do no t ca r ry the necessa ry we igh t . n o t e s t a b l i s h e d as more p robab ly t rue than o the rwise ,

Accord ingly the class of evidence given by t h e d e f e n d a n t

has had to be valued as b e m g o f less w e i g h t t h a n t h a t o f t h e

evidence of M r . Price and M r . Hopgood. Mr. Price s a y s t h a t h e

7 .

had severa l days work a v a i l a b l e t o him i n r e s p e c t , I n p a r t l c u l a r ,

of p roduc t lon p l ann ing and p re l imlna ry i den t l f i ca t lon .

It i s easier perhaps t o approach the matter a t t h e moment by

r e f e r r l n g t o t h e p r e l i m i n a r y i d e n t i f l c a t i o n . H e s a y s t h e r e

was 1 2 hours of work the re , and i f t h a t i s so and I do no t

see how It can be s u g g e s t e d t h a t t h e r e was n o t , it cannot be

s u g g e s t e d t h a t i f done i t would not have been usefu l . The f a c t

a t a k e t h e d a t e t it would have been done consjderably in advance of the s tock

t h

of which was unknown and depended upon the length

o f t he str ike is of no importance. The only disadvantage of

doing work a t a n e a r l y s t a g e b e f o r e s t o c k take is t h a t t h e

product ion processes may perhaps lead t o t h e n e c e s s i t y t o r e v i s e

a n d c o r r e c t some o f t h e i d e n t l f y i n g labels. But of cour se

t h a t p r o b l e m d o e s n o t a r i s e when t h e r e i s no production going on.

I n r e l a t i o n t o the p roduc t ion p l ann ing it has been a

matter of a l o t of c o n s i d e r a t l o n t o d e t e r m i n e as well as I can

w h a t t h e t r u e p o s i t i o n i s as t o t h e u s e f u l n e s s o f t h e p r o d u c t l o n

planning that could have been done by M r . P r i c e o n t h e d a y s

of the 24th, 25th, 26th and 27th. Here aga in t he onus is upon

t h e d e f e n d a n t t o show e i t h e r t h a t t h e r e was no such work t o be

d o n e o r t h a t i f done it was i n a t r u e s e n s e n o t u s e f u l work.

It c a n n o t r e a l l y b e shown by t h e d e f e n d a n t t h a t t h e r e w a s no

such work t o be done and I do accept , and I t h i n k I must

accep t , t he ev idence o f M r . Price on the matter t o t h e e f f e c t

t h a t t h e r e the re obv lous ly were some days of product ion planning. O f course

would have been lf he was i n h i s t h l r d week

of a c y c l e - or f l r s t week, as t h e case may be - and no t In

the second or f o u r t h week of a cyc le .

8 .

I t h l n k t h e same c o n s i d e r a t i o n s a p p l y t o Mr.

Hopgood e x c e p t f o r t h i s , t h a t t h e r e c a n b e n o s u g g e s t i o n

t h a t t h a t p a r t of work t h a t h e was doing which was c a r r y i n g

o u t c o r r e c t i o n s l n r e l a t i o n t o stock r e c o r d s r e l a t l n g t o s t o c k

taken over by the defendant f rom thc company which previously

c a r r i e d on t h e d e f e n d a n t ' s m a r l n e work would n o t i f performed

have been useful work. I t a p p e a r s t h a t t h e r e was q u i t e a

l o t of confusion because the method of the previous company i n

taking records and making schedules of s t o c k was d i f f e r e n t from

t h a t of the de fendan t . Cor rec t ions had to be made and t h e r e

was s t i l l q u i t e a l o t or' work t o b e d o n e i n t h i s a n d o b v i o u s l y

t h a t would be useful work.

In add i t ion to tha t he h imse l f cou ld have been expec ted

t o be employed i n t h e p r e l i m i n a r y i d e n t i f i c a t i o n . I t h i n k

I should accept and I do, h a v i n g r e g a r d t o t h e e v i d e n c e a s a

w h o l e t h a t t h e r e were i n a l l about s i x days of u s e f u l work

a v a i l a b l e t o have been performed by Mr. Price and M r . Bopgood,

and t h a t would be th ree each . Is the re any matter I have not

dea l t w l th or any toplc?

MR. KENNAN: N o , your Honour.

HIS HONOUR: Accordingly I must make a f i n d i n g t h a t t h e r e h a s b e e n

a non-observance of the award i n t h e r e s p e c t s a l l e g e d a n d it is

n e c e s s a r y t h a t a pena l ty shou ld be imposed. I t i s q u i t e clear,

t o my mind, t h a t t h e non-payment of these men's wages occurred

because of a be l l e f wh lch was bona f l d e o n t h e par t of management

t h a t t h e c i r c u m s t a n c e s were such that payment was n o t r e q u i r e d .

Thcre i s no ques t ion o f t he non-payment b e m g i n support of

r

9.

some i n d l r e c t l n d u s t r l a l o b j e c t o r t h a t h a d t h e company been

proper ly advised , I mean as t o t h e f a c t s , It would not have

paid these amounts of money.

I t 1s impor t an t , however , t ha t t he sen tence ,

i n t h e C a r p e n t e r s Case which I have referred t o , s h o u l d be

observed by a l l employers and t h a t care should be taken before

people are s tood down i n c i r c u m s t a n c e s of any doubt a t a l l .

I n a case l i k e t h e p r e s e n t it would not have involved very

much expendi ture of energy t o have had a look, t o a s c e r t a l n

whether there were any people coming In t o work the nex t day who

thought they were e n t i t l e d t c work and to de t e rmule whe the r t hey

had any work o r n o t and whether it was j u s t i f i a b l e t o t e l l them

t o s t a y a t home.

A s I have said i n a rgument , the pena l ty , even the

maximum p e n a l t y , i s n o t a s i g n i f i c a n t b u r d e n f o r a company

employing hundreds of people. A l l t h a t i s n e c e s s a r y t o do w i t h

the de fendan t company is t o remind it a n d o t h e r s t h a t care should

be t a k e n i n t h e s e c i r c u m s t a n c e s as o u t l m e d in these remarks and

t h a t a pena l ty of $400 i n respect o f each o f t he workmen would be

q u i t e s u f f i c i e n t .	I	order	t h a t	t h a t p e n a l t y b e p a i d	t o	t h e
informant.

MR. KENNAN: I do no t know I f your Honour ...

HIS IIONOUR: I th lnk t he employees hou ld on ly have t h rce days . I

do no t t h ink you ought t o g e t t h e l a s t day i n any event.

MR. KENNAN: Yes, your Honour.

HIS HONOUR: So i f you t e l l me what it i s f o r t h r e e d a y s I will

o r d e r Payment of t h a t amount of wages. I t will be t h r e e - q u a r t e r s

I

I rc 1 0 .

I ,

of the f u l l amounts f o r f o u r d a y s .

MR. KENNAN: Y e s , it w l l l b e t h r e e - q u a r t e r s .

i

! M r . Itennan: I thought It was $166.32 f o r M r . Hopgood,

your Honour.

HIS HONOUR: That i s t h e t o t a l .

MR.	KENNAN:	Three-quarters .
HIS	HONOUR:	Very well . $ 1 6 6 ?

MR. KENNAN: $ 1 6 6 , your Honour.

HIS HONOUR: $166. I o r d e r t h a t M r . Hopgood receive i n r e s p e c t

o f t h r e e d a y s t h e $166 and M r . Price l o o k s l i k e $ 1 4 0 ---

MR. KENNAN: $ 1 4 6 , your Honour.

HIS HONOUR: $146?

MR. KENNAN: $146.70, your Honour.

HIS HONOUR: You d id no t r ea l ly p rove t he 4 th day , bu t even

i f you had , th i s deduct ion under 9(b) i s on a d a i l y b a s i s .

People who a r e o n l y p r e p a r e d t o work h a l f a day cannot recover .

Once It a p p e a r s t h a t t h e workman was o n l y g o i n g t o work h a l f a

day I th ink the employer i s e n t l t l e d t o deduct a whole day

u n d e r t h a t clause.

MR. KENNAN: Yes, your Honour. Your Honour, could I j u s t Say

something a b o u t t h e p e n a l t y as i t r e l a t e s t o t h e a p p l i c a t i o n ?

HIS HONOUR: Yes.

MR. K E N N W : The a p p l i c a t l o n 1 s i n t h e a l t e r n a t i v e form and I

suppose I o u g h t t o h a v e i n d i c a t e d i n paragraph 2 i s on t h e f a c e of

It i n t h e a l ternat lve.

HIS HONOUR: I n 2? Is it n o t i n r e s p e c t of each one of them?

MR. KENNAN: No, your Honour, it is not . Paragraph I a l l eges one

breach i n e f f e c t , y o u r Honour.

HIS HONOUR:	What i s 2?
MR. KENNAN:	Paragraph 2 i s a non-observance.

J

HIS HONOUR: A l l r l q h t .

MR. KENNAN: I l u s t t h o u g h t t h a t I should have ---

HIS HONOUR: If I declare t h a t t h e r e was a non-observance i n

respec t of the payment due to each of t h e a p p l i c a n t s and

t h a t t h e p e n a l t y is c a l c u l a t e d a t t h e rate of $ 4 0 0 i n r e s p e c t

of each non-observance, a t o t a l y p e n a l t y of $800.

MR. KENNAN: Yes, your IIonour. Is your IIonour doing t h a t in

r e s p e c t of paragraph 2?

HIS HONOUR: Paragraph 2. I do not impose any pena l ty on the

a l t e r n a t i v e c l a i m .

MR. KENNAN: If your honour pleases.

The a b o v e r e p r e s e n t s t h e s h o r t h a n d t r a n s c r l p t

of my remarks a t t h e h e a r i n g as ed i t ed by m e I n matters of

form. One item of subs tance I o m i t t e d t o s ta te and t h a t was

t h a t I was n o t sa t isf ied on t h e e v i d e n c e t h a t t h e a b s e n c e of

a r t l f l c l a l l l q h t o n t h e t h r e e d a y s i n q u e s t i o n would have been

more than a minor inconvenience not prevent lnq the performance

of a f u l l d a y ' s work on those days .