Carey, M.X. v R.R. Hill & Co. Pty Ltd
[1989] FCA 199
•05 MAY 1989
Re: MARK XAVIER CAREY
And: R.R. HILL & CO. PTY LTD
No. ACT 3 of 1988
FED No. 199
Industrial Law
29 IR 442
COURT
IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
INDUSTRIAL DIVISION
Neaves J.(1)
CATCHWORDS
Industrial Law - storemen and Packers (Oil Agents/Contractors) Award 1984 - Construction of award - Employment of junior - Whether entitled to weekly rate of wages prescribed for classification of "Storeman and/or Packer" - Whether requirements of award to be read conjunctively or disjunctively.
Industrial Law - Proceeding for recovery of penalty for breach of award - Proceeding purporting to be instituted by an "Inspector" - Whether applicant had standing to bring proceeding.
Conciliation and Arbitration Act 1904 (Cth), ss.119, 125
HEARING
CANBERRA
#DATE 5:5:1989
Solicitor for the Applicant: Mr C.M. Erskine of the
Australian Government Solicitor's Office
Solicitor for the Respondent: Mr N.A. Young, Solicitor of the Australian
Petroleum Agents and Distributors Assoc
ORDER
The application be dismissed.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
JUDGE1
This proceeding is brought under sub-s.119(1) of the Conciliation and Arbitration Act 1904 (Cth) ("the Act") by Mark Xavier Carey ("the applicant") for the imposition of a penalty on R.R. Hill & Co. Pty Ltd ("the respondent") for an alleged breach of the Storemen and Packers (Oil Agents/Contractors) Award 1984 ("the Award"). The breach alleged is that between 18 March 1986 and 17 October 1986 the respondent failed to pay one Joseph Stapleton all wages due to him in accordance with clauses 15 and 16 of the Award. The applicant also seeks an order pursuant to sub-s.119(3) of the Act that the respondent pay to Mr Stapleton the sum of $2,103.24, being the total amount to which he is said to be entitled under the Award but which has not been paid to him.
Notwithstanding the repeal of the Act with effect from 1 March 1989, this proceeding, which had not been completed before that date, is to be determined as if that Act had not been repealed (Industrial Relations (Consequential Provisions) Act 1988, s.67).
It is not in dispute that at all material times the respondent was bound by the Award. Nor are the relevant facts in dispute. What is in dispute is whether, under the terms of the Award, Mr Stapleton was, at the relevant time, required to be paid at the rate of wages prescribed by clause 15 for the classification "Storeman and/or Packer" (together with the transport and location allowance prescribed by clause 49) or at the percentage of that rate (namely 85%) prescribed by clause 16 for a junior 18 to 19 years of age.
The scope of the Award as in force at the relevant time was set out in clause 3 in the following terms:
"This Award relates to the work performed by agents, contractors, retailers, and resellers engaged in the transport distribution and marketing of petroleum, petroleum related products and other fuel products and such activities as are ancillary to the petroleum and fuel distribution and marketing industry."
Clause 15 prescribed rates of wages to be paid to an adult employee within the seven classifications specified in that clause. Different rates were prescribed within each classification depending upon the employee's period of service within the classification. The classifications were-
Storeman and/or Packer Blender
Assistant Blender
Operator of Fork-lift trucks Pumper and Gauger
Bitumen Plant Operator Assistant Bitumen Plant Operator
The weekly rates of wages prescribed from time to time for the classification "Blender" exceeded those prescribed for the classification "Assistant Blender" which, in turn, exceeded those prescribed for the classification "Storeman and/or Packer".
Clause 5 contained a number of definitions which were to apply unless the contrary intention appeared. They included the following:
"(a) 'APADA' means the Australian Petroleum Agents and Distributors Association.
(b) 'Blender' is an adult employee required to work from prepared formulation and undertake the complete processes involved in the manufacturing or blending of oils and greases which are marketed by the members of APADA. An employee receiving a Blender's wage rate as prescribed herein shall be deemed to be in receipt of the full allowance for all dirty work and unpleasant work associated with blending.
(c) 'Assistant Blender' is an adult employee directly assisting a Blender to work from prepared formulation and assisting in completing the processes involved in the manufacture or blending of oils and greases, but excluding an employee engaged solely in dumping the ingredients required for blending operations or filling the finished production into containers. An employee engaged in a straight-mixing of, or the admixture of ingredients with bitumen gasolene, kerosene, oil fuels or petroleum-based detergents, shall not be regarded as a Blender or Assistant Blender.
....
(f) 'Pumper and Gauger' is an adult Storemen
(sic) and Packer as defined, employed in a bulk tank farm, who for the majority of the hours is engaged in the control and operation of valves and pumps and the gauging of tanks. ....
(i) A 'Storemen (sic) and Packer' shall mean every employee engaged in the work of receiving, stacking, sorting, packing, delivering or handling in any way whatsoever petroleum and/or fuel products, equipment or other merchandise sold, used or employed in connection with petroleum and/or fuel merchant's business, including the painting and stencilling of drums by brush and/or spray gun."
Clause 16 should be set out in full. It provided:
"JUNIOR RATES Where work is performed by a junior male or
junior female the minimum rate of wages shall be
determined by the undermentioned percentages of the
adult rate prescribed for the classification 'Storemen
(sic) and/or Packer' contained in clause 15 of this
Award for the area in which he or she is employed.
Percentage of Storemen Classification and/or Packer adult rate % Under 16 years of age 40 16 to 17 years of age 50 17 to 18 years of age 60 18 to 19 years of age 85 19 years of age and over 100 Notwithstanding anything contained in this clause
no increase in adjustments of junior rates shall exceed
the amount of any increase granted to adults.
The total wage shall be calculated to the nearest
5 cents any broken part of 5 cents in the result not
exceeding 2 cents to be disregarded.
Any employee required to stack or lift drums or
other objects weighing over 50 kg or to fill road or
rail tank wagons shall be paid the appropriate adult
rates.
Any employee of eighteen years and over required
to dip tanks; to open or close valves; to blend or mix
products and/or be engaged in the duties of Blender or
Assistant Blender as defined shall be paid the
appropriate adult rate."
At all material times the respondent carried on business at Queanbeyan as a fuel distribution agent for Mobil Oil Australia Limited. It was, and is, a member of the Australian Petroleum Agents and Distributors Association. For the purpose of its business the respondent operated a depot where quantities of petroleum, diesel fuel, heating oil and lubricating oils were stored pending distribution in the local area. These products were received from bulk storage terminals at Sydney and Melbourne and at Eden on the south coast of New South Wales. They arrived at the depot at Queanbeyan either by road or rail tanker.
Upon the arrival of a tanker at the depot, steps were taken to ascertain that the quantity of fuel being delivered accorded with the quantity shown on the delivery docket. This was done by an employee positioning himself at the top of the tank and inserting a calibrated dipstick. A reading was thus obtained from which, by the use of charts, a calculation could be made of the quantity of fuel in the tank. One of the variables to be taken into account in making this calculation was the temperature of the fuel at the time the dipstick reading was taken compared with the temperature of the fuel at the time of loading at the bulk terminal. To facilitate the making of a true comparison, quantities were adjusted to a common temperature. A similar dipping procedure was followed to ascertain the amount of fuel in the storage tanks at the depot.
According to the uncontradicted evidence of Mr Colin Anthony Hill, managing director of the respondent, Mr Stapleton was employed as a storeman. His duties included dipping tanks, filling drums, discharging rail cars and cleaning the yard of the depot. His duties in dipping tanks were estimated to have occupied him for half an hour a day. Mr Hill also gave evidence that blending did not take place at the depot. He further said that, when he employed Mr Stapleton, he read the Award and determined, having regard to the duties he was to perform, the rate of wages to which he considered Mr Stapleton to be entitled thereunder. He said that Mr Stapleton had never made any complaint of which he was aware that he was not being paid wages in accordance with the Award.
It is common ground that Mr Stapleton was born on 13 November 1967 so that during the whole of the period in question he was 18 years of age. It is also common ground that during the period of his employment he was paid a weekly wage of $286.88, being 85% of the base rate ($337.50) prescribed by clause 15 of the Award for the classification "Storeman and/or Packer". It may be noted that the wage was not calculated to the nearest 5 cents as required by clause 16 but nothing turns on this for present purposes.
The issue between the parties turns on the meaning and effect of the last paragraph in clause 16 of the Award, the text of which is set out above. For the applicant it was submitted that the Award required that a junior employee of eighteen years or over who was required to carry out any of the duties specified in that paragraph was to be paid wages at one or other of the adult rates specified in clause 15 as being appropriate to an adult employee required to perform those duties. This submission required that the paragraph be read as if the word "or" appeared after the second semi-colon and before the words "to blend or mix products and/or be engaged in the duties of Blender or Assistant Blender as defined". It was then submitted that, on the evidence, Mr Stapleton was required to dip tanks and that the appropriate adult rate of wages for an employee required to carry out that duty was one of the rates prescribed by clause 15 for the classification "Storeman and/or Packer" pointing, in that regard, to that part of the definition of "Storeman and Packer" in clause 5 which referred to "every employee engaged in the work of receiving .... or handling in any way whatsoever petroleum and/or fuel products".
The competing contention, advanced on behalf of the respondent, is that the paragraph is to be read as if the word "and" and not the word "or" appeared after the second semi-colon and before the words quoted. Thus, it would be necessary before a junior employee of eighteen years or over became entitled to be paid at an appropriate adult rate that he not only be required to dip tanks but also to operate valves and to blend or mix products. It was submitted that, on the evidence, Mr Stapleton was not required to operate valves or to mix or blend products so that he was entitled to be paid only at a rate representing the appropriate percentage of the rate prescribed by clause 15 for the classification "Storeman and/or Packer".
Before further considering the main issue between the parties, reference should be made to the standing of the applicant to bring the present proceeding. By virtue of sub-s.119(2) of the Act, a proceeding for the recovery of a penalty for a breach of an award may be brought by an Inspector, an expression defined in sub-s.4(1) to include "a person who is an Inspector in pursuance of sub-section 125(2)". Paragraph 1 of the statement of claim filed on behalf of the applicant, a paragraph not pleaded to in the defence, alleges that the applicant was appointed an Inspector under s.125 of the Act on 9 June 1985. The documents evidencing the applicant's appointment as an Inspector were not tendered in evidence.
When the present application was heard, judgment had been reserved but not delivered in the matters of Rickard v. Kelman Nominees Pty Ltd and Rickard v. Cinalda Pty Ltd. Judgment was delivered in those matters on 10 March 1989. Both matters were dismissed on the basis that Mr Rickard, the applicant in each matter, was not, at the date of the institution of the proceeding in each case, an Inspector duly appointed under sub-s.125(2) of the Act.
At the hearing of the present proceeding, counsel for the applicant, quite properly, conceded that, if the conclusion was reached in those cases that Mr Rickard did not have standing to bring the proceedings, it would follow, the facts being relevantly indistinguishable, that the applicant was not, at the date of the institution of the present proceeding, an Inspector duly appointed under the relevant sub-section. The present application must, therefore, be dismissed on that ground. However, as appeals are pending in the cases mentioned and the present matter may also be the subject of an appeal, it is appropriate that I express my opinion on the substantive issue that has been raised.
Returning to the proper meaning and effect of the relevant paragraph in clause 16 of the Award, I am of opinion that the construction for which the applicant contends is correct. It seems to me that, upon its proper construction, the paragraph is dealing compendiously with a number of different situations. The presence of the semi-colons is, I think, of significance in this regard. The first of the situations with which the paragraph deals is expressed in comparatively simple terms. That is a situation in which a junior employee of eighteen years or over is required to dip tanks. The second situation, also expressed in comparatively simple terms, is where such an employee is required to operate valves, either by opening or closing them. The third situation is where the employee is required to blend or mix products. The additional words which refer to an employee being engaged in the duties of a Blender or Assistant Blender as defined, those words being introduced by the symbol "and/or" (as to which see Fadden v. Deputy Federal Commissioner of Taxation (1943) 68 CLR 76 per Williams J. at p 82 and John G. Stein & Co. Ltd v. O'Hanlon (1965) AC 890 per Lord Reid at p 904), do not, in my opinion, describe a fourth situation but form part of the description of the third situation. That those words are to be read conjunctively and disjunctively with the words "to blend or mix products" and not with the earlier words in the paragraph is, I think, dictated by the absence of a semi-colon after the word "products" and the absence of the word "to" before the verb "be engaged".
It would appear that the appropriate adult rate of wages payable to a junior employee of eighteen years or over who is required to dip tanks, the first of the situations referred to above, is a rate prescribed by clause 15 for the classification "Storeman and/or Packer". That would also appear to be the appropriate classification where the employee is required to operate valves, the second situation referred to above. In the case of a junior employee of eighteen years or above whose duties bring him within one of the alternatives encompassed by the third situation to which I have referred, the appropriate adult rate of wages is, subject to the qualification in the second paragraph of the definition of "Assistant Blender", a rate prescribed by clause 15 for the classification "Blender" or the classification "Assistant Blender" depending on the particular circumstances of the case.
To adopt the construction of the paragraph for which the respondent contends would involve the proposition that a junior employee of eighteen years or over who is engaged in the duties of a Blender or Assistant Blender would not be entitled to be paid at a rate prescribed in clause 15 for those classifications unless the employee is also required to dip tanks and operate valves. The evidence, however, clearly suggests that, in practice, a Blender or Assistant Blender would not necessarily be required to perform both those tasks. Equally, a person who is required to dip tanks or operate valves would not be entitled to an increased rate of wages unless he is also required to blend or mix products or is engaged in the duties of a Blender or Assistant Blender. So to construe the paragraph would, in my opinion, unduly restrict its operation and would not accord with what I would perceive to be the intention of its framers.
It follows, in my opinion, that the respondent failed to pay Mr Stapleton all the wages due to him in accordance with the Award in that it failed to pay him at a rate prescribed in clause 15 for the classification "Storeman and/or Packer" and failed to pay him the transport and location allowance prescribed by clause 49.
Counsel for the respondent submitted that the evidence adduced on behalf of the respondent demonstrated that Mr Hill observed an appropriate standard of care in interpreting the Award and in reaching the conclusion that the rate of wages to which Mr Stapleton was entitled was the percentage prescribed by clause 16 of the rate of wages prescribed by clause 15 in relation to the classification of "Storeman and/or Packer" and that the respondent was entitled to rely upon a defence of honest and reasonable mistake, of fact. In support of this submission, counsel referred to Proudman v. Dayman (1941) 67 CLR 536; Lim Chin Aik v. The Queen (1963) AC 160; Sweet v. Parsley (1970) AC 132; Boucher v. G.J. Coles & Co. Ltd (1974) 95 SASR 495; Nationwide News Pty Ltd v. Bitter (1985) 38 SASR 390; He Kaw Teh v. The Queen (1985) 157 CLR 523.
Even if the defence of honest and reasonable mistake of fact be available to a person against whom a penalty is sought under sub-s.119(1) of the Act for the breach of an Award, a question which I do not find it necessary to consider in this case, the evidence before the Court does not establish that the respondent had an honest and reasonable belief in a state of facts which, if they had existed, would have resulted in no breach of the Award being committed. The mistake which the respondent made was not as to any matter of fact but as to the meaning and effect of the Award. No basis for the defence has, therefore, been established, even if the defence were otherwise available.
It can, however, properly be said on the respondent's behalf that the provisions of the relevant paragraph of clause 16 of the Award are not entirely clear, and certainly not to a lay person. This is not a case in which a person bound by an Award has ignored its provisions or has acted without any real attempt to comply with its terms. I accept Mr Hills' evidence that he read the relevant provisions of the Award and concluded that Mr Stapleton's entitlement was to be paid wages at the rate which was in fact paid. I accept that he did so in good faith. I also take into account that no complaint was made at the time that Mr Stapleton was being underpaid and that a considerable period of time has elapsed between the time of the alleged offence and the institution of this proceeding. I also take into account that there is no evidence before the Court as to the way in which the relevant paragraph of the Award has been applied in practice throughout the relevant industry. Taking these matters into account I think the case is one in which, even if the proceeding had been properly instituted, it would have been appropriate to impose no pecuniary penalty.
It remains to quantify the sum to which Mr Stapleton was entitled by way of wages and allowances under the Award and which has not been paid to him. In respect of each week during the period from 18 March 1986 to 19 September 1986, Mr Stapleton was entitled, in my view, to be paid at the rate of $337.50 per week (being the base rate specified in clause 15 of the Award in respect of the classification of "Storeman and/or Packer") plus a transport and location allowance of $8.80 per week, making a total of $346.30 per week. (I note that the rate of $337.50 per week was not inserted in the Award until the amendment thereto made on 22 May 1986 (see Print No.G3148). However, as the order fixing that rate was expressed to come into force from the beginning of the first pay period to commence on or after 4 November 1985, it is appropriate to calculate Mr Stapleton's entitlements in respect of the period prior to 22 May 1986 by reference to the amended rate.) In respect of the four weeks ended respectively 26 September 1986 and 3, 10 and 17 October 1986, Mr Stapleton was entitled to be paid at the rate of $341.90 per week (being the rate specified in clause 15 of the Award in respect of an employee within the classification "Storeman and/or Packer" having 6 months' to 2 years' service in that classification) plus a transport and location allowance of $8.80 per week, making a total of $350.70 per week.
I note that by an amendment to the Award made on 10 December 1986 the rates of $337.50 and $341.90 were increased to $345.30 and $349.80 respectively. Although the order effecting the increases was expressed to come into force from the beginning of the first pay period which commenced on or after 1 July 1986, it is not appropriate to take those increased rates into account in this case as what is alleged in the statement of claim is that the respondent committed the breach alleged between 18 March 1986 and 17 October 1986. Any failure to pay the increased rates could not have occurred between the dates alleged: it could not have arisen until after 10 December 1986.
As Mr Stapleton was paid at the rate of $286.88 per week during the whole of the relevant period, he was underpaid by an amount of $1,859.62. If, therefore, the proceeding had been brought by a person entitled to do so under sub-s.119(2) of the Act, I would have been prepared to make an order under sub-s.119(3) that the respondent pay to Mr Stapleton the sum of $1,859.62. However, by reason of the applicant's lack of standing to bring the proceeding, the application is dismissed.
0
3
0