Australian Collieries Staff Association v Newlands Coal Pty Ltd

[1999] FCA 676

FEDERAL COURT OF AUSTRALIA

Australian Collieries Staff Association v Newlands Coal Pty Ltd [1999] FCA 676

INDUSTRIAL LAW - Awards - “members only” awards - whether provision applies to non-members - obligation of consultation re temporary employees

CONSTRUCTION - of industrial awards - whether application of “members only award” to non-members - provision regarding temporary employee - whether provision has utility if applied only to members of Association - whether provisions may create obligations re non-members - whether practice of consultation relevant to construction

Curragh Queensland Mining Limited v Construction, Forestry, Mining and Energy Union (1997) 77 IR 232 Distinguished, Discussed
Short v FW Hercus Pty Ltd (1993) 46 IR 128 Cited

AUSTRALIAN COLLIERIES STAFF ASSOCIATION v NEWLANDS COAL PTY LTD
QG 160 of 1998

SPENDER, BURCHETT, KIEFEL JJ
BRISBANE
21 MAY 1999

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QG 160 OF 1998

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	AUSTRALIAN COLLIERIES STAFF ASSOCIATION Appellant
AND:	NEWLANDS COAL PTY LTD Respondent
JUDGES:	SPENDER, BURCHETT, KIEFEL JJ
DATE OF ORDER:	21 MAY 1999
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1.        The appeal be dismissed.

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

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QG 160 OF 1998

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	AUSTRALIAN COLLIERIES STAFF ASSOCIATION Appellant
AND:	NEWLANDS COAL PTY LTD Respondent

JUDGES:	SPENDER, BURCHETT, KIEFEL JJ
DATE:	21 MAY 1999
PLACE:	BRISBANE

REASONS FOR JUDGMENT

THE COURT:

1. This appeal, brought by the Australian Collieries Staff Association (“the Association”), concerns the application of an Award provision to persons other than members of the Association.  The only question which arises is one of construction.

   The Award

2. The Award is entitled “The Coal Mining Industry (Supervision and Administration) Interim Consent Award, 1990, Queensland”.  Clause 4(b) (“Incidence and Application”) provides:

   “(b)This award shall be binding upon the employers in the State of Queensland named in Schedule “A” hereto in respect of members of the Australian Collieries Staff Association employed by them in the coal mining industry and upon the Association and its members.”

3. Clause 6 (“Casuals and Temporaries”) provides:

   “(a)     Casuals

   (1)A casual employee is one engaged and paid as such.

   (2)A casual employee, for working ordinary time, shall be paid at an hourly rate ascertained by dividing the appropriate classification rate by 37.5 plus 25 per cent with a minimum of 4 hours payment.

   (3)A casual employee may be engaged after consultation with the nominated representative of the Association to fill any vacancy created by a permanent employee being on leave of absence, or in the event of a short-term requirement.

   (b)Temporaries

   A temporary employee may be engaged for a fixed term or defined task after consultation with the Branch Secretary of the Association or by order of the appropriate industrial authority”.

   (The emphasis is added).

4. The application alleged that one Stephen Hall had been engaged by the respondent (“Newlands”) as a temporary employee without consultation having been undertaken with the Association.  The question which arises is whether clause 6(b) is to be taken to refer only to members of the Association who are to be engaged on a temporary basis or to all such potential employees. 

5. Two other provisions referred to in argument may conveniently be mentioned at this point.  Clause 5 (“Contract of Employment”) provides:

   “(a)Employees shall perform work as the employer shall from time to time reasonably require, including work which is incidental and peripheral to the employee’s main task.  An employee not attending for or not performing such work shall except as otherwise provided lose payment for the actual time of such non-attendance or non-performance.

   (b)Subject to sub-clause (1), employment shall be terminated by 4 weeks notice on either side given at any time during the week or by the payment or forfeiture of 4 weeks wages as the case may be.  This clause shall not affect the right of the employer to deduct payment for any day or portion thereof during which the employee is stood down by the employer as a result of refusal of duty, neglect of duty, or misconduct on the part of the employee.

   (c)This clause shall not affect the right of the employer to dismiss an employee without notice for refusal of duty, neglect of duty or misconduct and in such cases the wages shall be payable up to the time of dismissal only.

   (d)This clause shall not apply to casuals.”

6. Clause 25 deals with the obligations of the employer when it determines upon a reduction of hands, giving preference to members of the Association in various classes of work and having regard to lengthy service.  Clause 27 provides for entitlements to severance and retention pay of “an employee who is retrenched” but Clause 27(d) (“Casuals or Temporaries”) provides that clause 27 “shall not apply to employees engaged on a casual or temporary basis”.

   The Decision Appealed From

7. It was common ground before Drummond J that the Award was a “members only” Award, which is to say that it operated to regulate payments only to employees who were members of the Association;  that Mr Hall was not a member;  and that consultation did not occur with respect to his temporary engagement.  Referring to Curragh Queensland Mining Limited v Construction, Forestry, Mining and Energy Union (1997) 77 IR 232, his Honour accepted that such an Award might contain provisions which imposed obligations on the employer with respect to non-members as well. The Association’s case on appeal relies upon this approach in connexion with the provisions of clause 6(b).

8. His Honour considered that, like clause 5, clause 6 could be seen to have operation, sensibly, with respect to members of the Association only and that there did not appear to be any strong indication to the contrary arising from the terms of the Award.  With respect to the argument that the Award could be seen to prefer permanent positions over temporary positions of employment, an argument which was repeated on this appeal, his Honour held that there was nothing in the Award to create any expectation that Association members were to be preferred with respect to any temporary employment that was available.  The focus of clause 6(b), in his Honour’s view, was upon advancing the interests of members, who are being considered for employment by permitting the Association to press for it on a permanent rather than a temporary basis, because of the additional benefits which attach to a permanent position.  These are the benefits excluded by clause 27(d), which excepts temporary employees from the receipt of severance and retention pay.  Clause 6(b) was not, in his Honour’s view, concerned with the protection of Association members against potential temporary employees who were not members.  This is, in our view, the nub of the matter and we respectfully agree. 

   Contentions on Appeal

9. The central contention of the Association was that clause 6 must be seen to give a benefit, or opportunity, to the Association’s members or else it could have little practical operation.  The Association, it was submitted, had an interest in knowing if any position was being offered.  It may be accepted that the Association would like to be in a position where Newlands was obliged to advise it of any temporary position.  No doubt it would wish to be able to press for the engagement only of existing members.  But neither of these desired outcomes assists in determining what the words in the Award mean.  The Award was agreed to on the basis that it was to apply only to the members of the Association and that must be the starting point (and see Curragh, 237). To reach a different conclusion about clause 6 would require there to be a clear expression concerning its subject or its field of operation which demanded that conclusion. In Curragh that position was reached because the result, were the clause only to apply to members, would have been anomalous (238).

10. The submission concerning benefit in reality is one which presses for a construction which would give a greater advantage to the Association, but that cannot be accepted as a proper approach.  There is nothing in the terms of the Award to suggest that that was the general intention of the parties consenting to it, as one might expect. 

11. One would however expect a purpose or practical outcome to be attributable to a provision obliging consultation.  If one takes that to apply to consultations only about proposals by Newlands to employ members of the Association and not non-members, which a reading of clauses 6(b), and 4(b) would seem to require, the inference may fairly be drawn that it was thought that the Association has an interest in its members receiving the highest entitlement, which a permanent position would give, and perhaps also to reduce any differential treatment as between its members, such as would arise from some being temporary and others permanent employees.  That, in our view, is the purpose fairly to be gleaned from clause 6.  For the obligation of consultation to extend to proposed appointments of non-members would require that an additional purpose, to exclude and inhibit non-members from employment, be implied and there is no warrant for that from the terms of the Award, read as a whole (Curragh, 238).

12. The Association did not directly submit that the protection of its members from non-members was the position it sought to achieve.  Rather it sought to align its purposes with what was said to be an intention underlying the Award, that temporary employment was to be actively discouraged.  A preference for the creation of permanent rather than temporary positions does not follow from a reading of clause 5, nor does it follow from the opening in the terms of the Award for temporary engagements for quite lengthy fixed terms, for instance with respect to consultant geologists, to whom the Award extends.  The relevant point about permanent and temporary appointments is simply that temporary employment confers fewer entitlements.

13. The Association sought to rely upon the decision reached in Curragh, which held that a provision of that Award had application to non-members, but that case stands relevantly only for the proposition earlier referred to, that particular terms of an Award may create specific obligations in respect of employees who are not union members.  Where that can be seen to be its proper field of operation, the provision in question ought to be given effect in accordance with its terms (237).  In that case however, the particular provision clearly required a reference to all employees, for otherwise the preferential retention of employment to which it referred on a “the last to come the first to go” basis would not make sense (see 238).  There is no similar warrant for the construction of clause 6(b) put forward by the Association. We observe that conversely, in this case the provision for preference when a reduction of hands is decided upon has reference only to members of the Association under the terms of clause 25.

14. It was also sought to draw from clause 27(d) of the Award that it necessarily had regard to all employees engaged on a temporary basis and that some consistent approach could be taken in clause 6.  It does not seem to us however that clause 27 has regard to any employee other than a member.  It provides that permanent members receive severance and retrenchment pay but members who are employed on a casual or temporary basis will not.  Non-members will not in any event be entitled to the severance and retrenchment pay for the reason that the Award is a members only Award.  All the references to an employee in clause 27 are, consistent with the other provisions of the Award, to be taken to refer to members.  As we have said, even clause 25, which deals with preferment upon retrenchment is, unlike the provision considered in Curragh, expressly directed to the preferment of members and does not require regard to be had to the position of non-members, save for the consequence that they are not to be preferred. 

15. An award, like other documents, should be understood in its context, including its historical context:  Short v FW Hercus Pty Ltd (1993) 46 IR 128 at 133-138. On this basis, the Association argued that the Court should construe the Award as being in conformity with a practice of consultation with respect to all casual appointments. It was said this practice existed before the Award was made. However, accepting that such a practice was followed, the language of the Award simply does not enshrine any perpetuation of it.

    Conclusion

16. The appeal should be dismissed.

I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Spender, Burchett and Kiefel.

Associate:

Dated:            21 May 1999

Counsel for the Appellant:	Mr S Howells
Solicitor for the Appellant:	Nall Payne
Counsel for the Respondent:	Mr J E Murdoch
Solicitor for the Respondent:	MIM Holdings Limited
Date of Hearing:	17 May 1999
Date of Judgment:	21 May 1999