Australia Paper Manufacturers Ltd v Pulp & Paper Workers Federation of Australia

[1981] FCA 213

Re: AUSTRALIAN PAPER MANUFACTURERS LIMITED AND ASSOCIATED PULP AND PAPER MILLS
LIMITED
And: PULP AND PAPER WORKERS' FEDERATION OF AUSTRALIA; PRINTING AND KINDRED
INDUSTRIES UNION; THE AUSTRALIAN TIMBER WORKERS' UNION; THE AUSTRALIAN
WORKERS' UNION (1981) 55 FLR 303
No. 48 of 1981
Industrial Law - Conciliation and Arbitration

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
INDUSTRIAL DIVISION
Morling J.(1)

CATCHWORDS

Industrial Law - interpretation of an award - Pulp and Paper Industry (Production) Award - employee unable to be usefully employed - "period not being less than three consecutive working days" - meaning

Conciliation and Arbitration Act 1904, s.110

Conciliation and Arbitration- Interpretation of award - Stand-down clause - Period during which employee unable to be usefully employed - Period not less than three consecutive days - Conciliation and Arbitration Act 1904 (Cth), s. 110 - Pulp and Paper Industry (Production) Award 1973.

HEADNOTE

Clause 4 (1) of the Pulp and Paper Industry (Production) Award 1973, as varied, provided that an employer could deduct payment from the employee: ". . . for any period not being less than three consecutive working days during which an employee cannot be usefully employed because of any strike, any breakdown of machinery or any stoppage of work for any cause for which the employer cannot reasonably be held responsible provided however that deduction of payment for such shorter period not being less than one day may be made in the circumstances where an employee cannot be usefully employed as a consequence of a strike or other industrial action by employees being members of a union party to this award."

Upon an application pursuant to s. 110 of the Conciliation and Arbitration Act 1904 for an interpretation of this provision.

Held: (1) The relevant provisions of cl. 4 (1) were not ambiguous - (a) In the first instance referred to therein the sub-clause gave the employer the right to make the deduction provided the employee could not be usefully employed for three days. Such deduction could then cover those first three days. (b) In the second instance referred to therein the employer has a right to make a deduction if he is unable for one day or longer to provide useful work for the employee and not only at the end of the second day.

(2) The evidence did not establish that the relevant employers had accepted the stand-down clause as having any other meaning, even if such an acceptance were relevant.

HEARING

Sydney, 1981, September 21; November 17, 24. #DATE 24:11:1981

APPLICATION.

Application pursuant to s. 110 of the Conciliation and Arbitration Act 1904 for an interpretation of cl. 4 (1) of the Pulp and Paper Industry (Production) Award 1973.

B. Hungerford, for the applicants.

P. R. A. Gray, for the respondents.

Cur. adv. vult.

Solicitors for the applicants: Cutler, Hughes & Harris.

Solicitors for the respondents: Ryan, Carlisle, Needham & Thomas.

T. J. GINNANE

ORDER

THE COURT DECLARES that upon the true meaning and intent of sub-paragraph (ii) of paragraph (b) of sub-clause (1) of clause 4 of the Pulp and Paper Industry (Production) Award 1973, as varied, each of the applicants may deduct payment from the wage of an employee covered by the said award for the whole of any period during which such employee cannot be usefully employed because of any strike, breakdown of machinery or any stoppage of work for any cause for which the applicants or any of them cannot reasonably be held responsible; provided that if the said period of lack of useful employment -

(a) is less than three consecutive working days, other than in the circumstances where an employee cannot be usefully employed as a consequence of a strike or other industrial action by employees being members of a union party to this award, or

(b) is less than one day in circumstances where an employee cannot be usefully employed as a consequence of a strike or other industrial action by employees being members of a union party to this award,

no such deduction from the wage may be made.

Orders accordingly

JUDGE1

This is an application under s.110 of the Conciliation & Arbitration Act 1904 for the interpretation of cl.4(1)(b)(ii) of the Pulp and Paper Industry (Production) Award 1973. Clause 4(1) of the award is in the following terms:

4 - CONTRACT OF EMPLOYMENT

(1) Weekly Hiring

(a) Except as hereinafter provided, employment shall be by the week. Any employee not specifically engaged as a casual or part-time employee shall be employed by the week.

(b) Employment shall be terminated by a week's notice on either side, given at any time during the week, or by the payment or forfeiture (of wages only), as the case may be, of an amount equal to the employee's weekly wage. Provided that such forfeiture shall not be imposed upon an employee who through any reasonable cause is unable to give a full week's notice of termination of employment. This shall not affect the right of the employer:

(i) to dismiss any employee without notice for refusal of duty or misconduct, and in such cases wages and other entitlements shall be paid up to the time of dismissal only;

(ii) to deduct payment for any period not being less than three consecutive working days during which an employee cannot be usefully employed because of any strike, any breakdown of machinery or any stoppage of work for any cause for which the employer cannot reasonably be held responsible provided however that deduction of payment for such shorter period not being less than one day may be made in the circumstances where an employee cannot be usefully employed as a consequence of a strike or other industrial action by employees being members of a union party to this award."

The applicants and the respondents are parties to the award and are bound by it. On 21 July 1981 a strike by members of the Transport Workers' Union of Australia occurred as a result of which employees of the second applicant (A.P.P.M.) under the award could not be usefully employed. A.P.P.M. then proceeded to implement the stand-down provision in the award by deducting payments from the wages of employees so stood-down from the commencement of the time of lack of useful employment. This action resulted in the first respondent writing to A.P.P.M. disputing the company's right to stand down workers without pay. Because of its dissatisfaction with the stand-down action taken by A.P.P.M. the second respondent took action pursuant to s.25 of the Conciliation and Arbitration Act. In due course the dispute came before the Australian Conciliation and Arbitration Commission where it became apparent that there was disagreement as to the proper construction of the stand-down provision in the award.

The principle matter which divides the parties is the meaning of the words "any period not being less than three consecutive working days" which appear at the beginning of cl.4(1)(b)(ii). The parties also disagree as to the meaning of the words "such shorter period not being less than one day" which appear in the proviso contained within cl.4(1)(b)(ii).

Mr. Hungerford, who appeared for the applicants, contended that the stand-down clause gives employers the right to make deductions from the wages of employees in two situations. The first situation is where an employee cannot be usefully employed because of one of the nominated causes and where the inability to usefully employ the employee extends for three complete days or more. The second situation is where the inability to usefully employ the employee is caused by a strike or other industrial action by employees who are members of a union which is a party to the award. In those circumstances, he argued, the employer had the right to make a deduction if he was unable for one complete day or more to provide useful work for the employee.

Mr. Gray, who appeared for the respondents, argued that the employer's right to make deductions was more limited. Where an employee cannot be usefully employed because of a strike etc. by employees being members of a union, other than a union which is a party to the award, he contended that the employer had no right to make a deduction for the first three days of the period during which he cannot usefully employ the employee. In those circumstances the right to make a deduction arose, on his argument, only at the expiration of the fourth day. In the case of an employer's inability to usefully employ an employee because of a strike etc. by employees being members of a union which is a party to the award, he contended that the employer's right to make a deduction only arose at the expiration of the second day of the period during which the employer could not usefully employ his employee.

I am satisfied this is a proper case for the exercise of the court's declaratory jurisdiction having regard to the nature of that jurisdiction as conferred by ss. 110 of the Act. The power of the court under that section and the circumstances in which it may appropriately be exercised are referred to in Master Builders Association of Victoria v. The Australian Building Construction Employees & Builders Labourers Federation (Evatt and Northrop JJ. 11.5.81, as yet unreported).

The primary task is to discover the meaning of cl.4.(i), reading the award as a whole. See Australian Timber Workers' Union v. W. Angliss & Co. Pty. Limited (1924) 19 C.A.R. 172. However little, if any, assistance is to be obtained in this case from a consideration of the other provisions of the award.

Mr. Hungerford submitted that the meaning of the standdown clause was quite clear and was not attended by such ambiguity as would justify reference being made to its history. He conceded, as I understood his argument, that if the meaning of the clause is ambiguous it is permissible to consider its history. See Pickard v. John Heine & Son Limited (1924) 35 C.L.R. 1 at p. 9.

In my opinion the meaning of the stand-down clause is reasonably clear. It deals first with the situation where an employee cannot be usefully employed because of a strike etc. for which neither the employer nor members of a union which is a party to the award can be held responsible. In that situation the employer is given the right to deduct payment "for any period not being less than three consecutive days during which an employee cannot be usefully employed". Provided the employee cannot be usefully employed for three consecutive working days or longer, the employer is given the right to make the deduction. The second situation referred to in the clause is where the strike etc. giving rise to the employer's inability to usefully employ his employee is a strike etc. by employees who are members of a union which is a party to the award. In those circumstances the employer has the right to make a deduction if he is unable for one day or longer to provide useful work for the employee.

Mr. Gray submitted that the stand-down clause was ambiguous on its face. He made the point that if the clause has the meaning contended for by Mr. Hungerford, an employee who is stood down would not know until after the expiration of three days whether his employer would have the right to make a deduction from his wages. Also, an employer would not know whether he had a right to make a deduction in the first two days of a period when he could not usefully employ his employee. I see the force of Mr. Gray's submission. But, in my opinion, the submission goes more to the manner in which the clause is implemented than to its meaning. I do not think that the phrases "for any period not being less than three consecutive working days" and "for such shorter period not being less than one day" are ambiguous at all. I think it is tolerably clear that they mean "three days or more" and "one day or more".

Even if I were of the opinion that there was sufficient ambiguity in the clause to justify construing it in the light of its history, I do not think reference to its history carries his argument any further. A stand-down clause was included in the award when it was made in 1973. In its original form sub-paragraph (ii) of paragraph (b) of sub-clause (i) of clause 4 was in the following terms:

"(ii) to deduct payment for any day during which an employee cannot be usefully employed because of any strike, any break-down of machinery or any stoppage of work for any cause for which the employer cannot reasonably be held responsible."

I agree with Mr. Gray that the words "any day" in the original stand-down clause meant a whole day. See Federated Ironworkers Association of Australia v. J. Mullan Pty. Limited (1942) 47 C.A.R. 615; re Carpenters and Joiners Award (1971) 17 F.L.R. 330 per Spicer C.J. and Smithers J. at p. 334, and Metropolitan Meat Industry Board v. Australasian Meat Industry Union (1972) 72 A.R. 80. Mr. Gray argued that it was significant that the words "any day" as appearing in the original stand-down clause were replaced by the phrases "not being less than three . . . days" and "not being less than one day" in the new clause. In his submission when the draftsman of the new clause used the words "not less than" he meant to exclude the first three days (or the first day in the case of the proviso) from the period during which it could be said that the employee cannot be usefully employed. He relied on Bear v. The Official Receiver (1941) 65 C.L.R. 307 per Williams J. at 318 and Forster v. Jododex Aust. Pty. Limited (1972) 127 C.L.R. 421 per Walsh J. at 428 and per Gibbs J. (as he then was) at p. 443. He also relied on s.190 of the Conciliation and Arbitration Act which provides that expressions used in any award shall, unless the contrary intention appears in the award, have the same meaning as is applied to those expressions by the Acts Interpretation Act. He then referred to s.36(1) of the Acts Interpretation Act which provides "Where in an Act any period of time, dating from a given day, act or event, is prescribed or allowed for any purpose, the time shall, unless the contrary intention appears, be reckoned exclusive of such day or of the day of such act or event."

I do not think that the cases cited by Mr. Gray or s.36(1) have any application to the construction of the stand-down clause. The cases referred to were cases in which consideration was given to provisions quite different to the stand-down clause. For instance, in Forster v. Jododex the question was whether an application was made "not later than one month before . . ." a certain event. The cases referred to by Gibbs J. at p. 444 of his judgment in Forster v. Jododex are, as his Honour points out, cases where a statute has required something to be done "not later than" or "not less than" or "at least" so many days before a given event. In the stand-down clause the phrase is "any period not being less than three consecutive working days". Mr. Gray was unable to point to any case which would lead to the surprising result that "any period not being less than three . . . days" means four days or more.

Mr. Gray put an alternative argument arising out of the alleged ambiguity in the clause. The argument was that, as the clause was ambiguous, and as it had been acted upon by the parties as if it had the meaning contended for by him, the court should adopt the same construction as that put upon it by the parties. In support of the submission he relied upon Merchant Service Guild of Australia v. Sydney Steam Collier Owners etc. Assoc. (1958) 1 F.L.R. 248; re The Timber Workers Award 1941; ex parte Circular Head Amalgamated Timber Co. Pty. Limited (1946) 56 C.A.R. 149 and Operative Stonemasons Society of Australia v. The Apex Step Co. (1938) 39 C.A.R. 310. It may well be a question whether this is a sound principle of construction and I do not find it necessary to decide that question. It is sufficient to say that the evidence does not support the application of the principle, even if it is sound. The current stand-down clause is of recent origin, having been inserted in the award in October 1979. The evidence does not show that all employers who are bound by the award have accepted that the stand-down clause has the meaning attributed to it by the respondent unions. Indeed, there is evidence that there has been a sharp disagreement as to the meaning of the clause. In those circumstances there is no warrant for construing the clause otherwise than in accordance with its terms.

Accordingly, I make the following declaration:

That upon the true meaning and intent of sub-paragraph (ii) of paragraph (b) of sub-clause (1) of clause 4 of the Pulp and Paper Industry (Production) Award 1973, as varied, each of the applicants may deduct payment from the wage of an employee covered by the said award for the whole of any period during which such employee cannot be usefully employed because of any strike, breakdown of machinery or any stoppage of work for any cause for which the applicants or any of them cannot reasonably be held responsible; provided that if the said period of lack of useful employment -

(a) is less than three consecutive working days, other than in the circumstances where an employee cannot be usefully employed as a consequence of a strike or other industrial action by employees being members of a union party to this award, or

(b) is less than one day in circumstances where an employee cannot be usefully employed as a consequence of a strike or other industrial action by employees being members of a union party to this award,

no such deduction from the wage may be made.