Building Workers Industrial Union of Australia v M.B.A. of NSW - [1987] FCA 9

Re: BUILDING WORKERS' INDUSTRIAL UNION OF AUSTRALIA
And: MASTER BUILDERS' ASSOCIATION OF NEW SOUTH WALES and FYNA CONSTRUCTIONS
(NSW) PTY LIMITED
No. I19 of 1985
Industrial Law
20 IR 226

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
INDUSTRIAL DIVISION
Evatt J.

CATCHWORDS

Industrial Law - whether injured employee entitled to public holidays without deduction of pay whilst in receipt of or entitled to worker's compensation payments under NSW Compensation Act - Interpretation of Award.

Re Rubber Plastic and Cable Making Industry Award (1965-6) 8 FLR 395

Carmichael v. Colonial Sugar Refining Co Limited (1944) 44 SR (NSW) 233

Thompson v. Armstrong and Royse Pty Ltd (1950) 81 CLR 585

Clifford Smith v. Australian Wire Industries Pty Limited

Conciliation and Arbitration Act 1904 s.110

Workers' Compensation Act 1926 (NSW) s.7

National Building Trades Construction Award 1975, Print No. C6006 Clause 20

HEARING

SYDNEY

#DATE 22:1:1987

Counsel for the Applicant: Mr J. Shaw

Solicitor for the Applicant: W C Taylor & Scott, Sydney

Solicitor for the Respondent: Mr J. Norton

ORDER

That on the proper interpretation of Clause 20 - Public Holidays of the National Building Trades Construction Award, the Court determines that an employee employed under the National Building Trades Construction Award 1975 is, pursuant to the said clause, entitled to payment by his employer for any public holiday set out therein which falls during any period when he is receiving or is entitled to receive any payment of compensation from such employer or that employer's insurer under the Workers' Compensation Act 1926 (NSW). Orders Accordingly.

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

JUDGE1

Application has been made by the Building Workers' Industrial Union of Australia (the organization), an organization of employees registered under the Conciliation and Arbitration Act 1904 (the Act) pursuant to s.110 of the Act, wherein the organization sought an interpretation of Cl. 20 of the National Building Trades Construction Award 1975, as varied, (the award). The applicant and the two named respondents, the Master Builders' Association of New South Wales (MBA) and Fyna Constructions (NSW) Pty Limited (Fyna), as a member of the MBA were at all relevant times bound by the award.

The Court is satisfied that service of the application, together with the affidavit of Patrick Clancy, the then National Secretary of the organization, sworn 5 December 1985 was effected on each of the two respondents and that both respondents were notified of the hearing date of the application. When the matter was called on for hearing Mr Jeff Shaw of Counsel appeared for the applicant organization, whilst Mr J. Norton, in-house solicitor for the MBA then indicated to the Court that although he was on the High Court of Australia roll of barristers and solicitors, he did not hold a practising certificate and accordingly had not filed a notice of appearance for the respondent MBA but sought the Court's leave to appear for the MBA. He indicated that the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Building Workers Industrial Union of Australia v. M.B.A. of NSW [1987] FCA 9 (20 IR 226)
Case: [1987] FCA 9
Decision Date: 22 JANUARY 1987

CaseChat Overview and Summary

The case of Building Workers Industrial Union of Australia v M.B.A. of NSW involved a dispute regarding the entitlement of an injured employee to public holidays without any deduction of pay while they were receiving worker's compensation payments under the Workers' Compensation Act 1926 (NSW). The matter was brought before the court to determine the proper interpretation of Clause 20 - Public Holidays of the National Building Trades Construction Award 1975.

The legal issues that the court was required to decide centred on the interpretation of Clause 20 of the Award. Specifically, whether an employee who was receiving or entitled to receive compensation payments under the Workers' Compensation Act 1926 (NSW) was also entitled to payment for public holidays without any deduction from their compensation payments. The central question was whether the clause applied to employees who were receiving compensation and, if so, to what extent.

The court considered the plain language of Clause 20, which provided that employees were entitled to payment for public holidays set out in the Award. The court found that there was no language in the clause that excluded employees who were receiving compensation from this entitlement. Furthermore, the court held that the plain language of the clause did not limit the entitlement to public holidays to those employees who were not receiving compensation. Consequently, the court determined that employees who were receiving or entitled to receive compensation were also entitled to payment for any public holiday that fell during their period of compensation. The court's interpretation of Clause 20 was consistent with the purpose of the Award, which was to provide fair and reasonable conditions of employment for building workers.

The court's decision was that an employee employed under the National Building Trades Construction Award 1975 was entitled to payment by their employer for any public holiday set out in the Award which fell during any period when they were receiving or entitled to receive any payment of compensation from their employer or that employer's insurer under the Workers' Compensation Act 1926 (NSW). This decision was based on the proper interpretation of Clause 20 - Public Holidays of the Award. The court's orders provided that settlement and entry of orders were to be dealt with in Order 36 of the Federal Court Rules.

Orders

Orders of the court

That on the proper interpretation of Clause 20 - Public Holidays of the National Building Trades Construction Award, the Court determines that an employee employed under the National Building Trades Construction Award 1975 is, pursuant to the said clause, entitled to payment by his employer for any public holiday set out therein which falls during any period when he is receiving or is entitled to receive any payment of compensation from such employer or that employer's insurer under the Workers' Compensation Act 1926 (NSW). Orders Accordingly.

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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