Casey, T.F. v F.J. Walker Ltd
[1989] FCA 104
•22 MARCH 1989
Re: THOMAS FRANCIS CASEY
And: F.J. WALKER LIMITED
No. QI 10 of 1987
FED No. 104
Industrial Law
27 IR 248
COURT
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
INDUSTRIAL DIVISION
Spender J.(1)
CATCHWORDS
Industrial Law - commonwealth award - interpretation - working hours for tallyworkers in abattoir - extent of employer's entitlement under the award to slow pace of work - relevance of employer's concern as to quality of meat produced
Industrial Law - Commonwealth award - interpretation - "attend and offer himself for employment" - employee willing and able to work in accordance with award - employee absent whilst breach of award by employer continued - employee's entitlement to pay
Conciliation and Arbitration Act (1904), s. 123
F. J. Walker Queensland Meatworks Industrial Agreement-Award, 1976.
Vehicle Builders Employees Federation of Australia v. British Motor Corporation (Aust.) Pty. Ltd. (1966) 8 FLR 70 followed
HEARING
BRISBANE
#DATE 22:3:1989
Counsel for applicant: Mr. D. Hall
instructed by: Messrs. Poteri, Woods & Co.
Counsel for respondent: Mr. J. Trew Q.C., with
Mr. J. Murdoch
instructed by: Richardsons
ORDER
The respondent pay to the applicant the sum of $407.70.
NOTE: Settlement and entry of orders is dealt with by Order 36 of the Federal Court Rules.
JUDGE1
The applicant, Mr. Thomas Casey, claims $407.70 "being a payment due to him under the F. J. Walker Queensland Meatworks Industrial Agreement-Award 1976, an award of the Industrial Conciliation and Arbitration Commission."
The claim is made pursuant to s. 123 of the Conciliation and Arbitration Act 1904, which provided:-
"An employee entitled to the benefit of an award may, at any time within 6 years from any payment becoming due to him under the award, but not later, sue for the amount of the payment in the Court, or in any other court of competent jurisdiction."
The claim by Mr. Casey is one of a large number of similar claims and has been treated by both parties as something of a test case. It arises out of an industrial dispute which occurred immediately after the Queen's Birthday weekend in 1987 at the meatworks, including the boning and packing room, operated by the respondent at Stuart River near Townsville. The meatworks has an export licence, and the meat produced is manufacturing class, mainly for export. The Stuart meatworks is conducted on a seasonal basis: the 1986 season concluded in November 1986, and the 1987 season commenced on 18 March 1987. On 30 October 1986 - i.e. before the commencement of the 1987 season - ten meatworks in Queensland, including the respondent, were consolidated into a corporate structure, The Australian Meat Holdings Group.
The applicant at all relevant times was a member of the Australasian Meat Industry Employees' Union (AMIEU), an organisation of employees registered under the then Conciliation and Arbitration Act 1904 (Cth.), and was a regular daily employee, working as a beef slicer for the respondent. He has been employed at the works over a period of approximately 36 years. His duties at the meatworks were combined with his obligations as President of the Union's Board of Control at the meatworks. The AMIEU and F. J. Walker Limited are both bound by the F. J. Walker Queensland Meatworks Industrial Agreement-Award 1976 ('the Award').
Mr. Casey, being a member of the AMIEU employed by F. J. Walker Limited in an award classification, is entitled to the benefit of the award: Leontiades v. F T. Manfield (1980) 43 FLR 193.
Whether payment is due to Mr. Casey under the Award depends upon the construction of the award and on the application of the award, properly construed, to the facts at the relevant time.
On 25 March 1982, Mr. Commissioner McKenzie varied the Award by, inter alia, adding a new sub-clause (d) to clause 13 of the award, which required pieceworkers and follow-on labour to complete such work on production to and beyond tally as the employer may require at an applicable minimum rate of work, specified in the sub-clause. From that time until Friday, 5 June 1987, chains which regulated the rate of production had been set at six hours.
This vernacular expression relates to the time in which daily tally is achieved. That time is influenced by the speed of the conveyors which convey the sides or quarters of a carcass to the boners, who in turn transfer the meat to slicers and then to packers. A slicer has responsibilities in respect of the quality of the product, and a slicer's duties include the detection, by visual inspection or palpation, of product which does not conform to export specifications. Packers have a similar concern in respect of defective product and the activities in the boning room are supervised by company inspectors. Any product which, after inspection, is rejected, is sold at a reduced price on the local market for canning. Any product exported to the United States of America but rejected there as sub-standard, is a complete loss to the respondent.
In circumstances it will be necessary to detail later, on the morning of Tuesday, 9 June 1987, the chains at the Stuart River Meatworks were to be set at seven hours. The union members at the works were of the view that this was in breach of clause 13(d) of the award as it then was. Mr. Casey left the site that day, having declared that he was ready, willing and able to perform work subject to and in accordance with the award. A group of union representatives, including Mr. Casey, had been told that, if the members of the AMIEU did not want to work at the seven hour rate, they could go home. Mr. Casey said:-
"If I and the other members went home, I would claim wages for all members, including myself. I made a point of telling them that, because...it is necessary to do so in order to claim lost wages."
After the Union gave notification of a dispute to the Australian Conciliation and Arbitration Commission, Mr. Commissioner McKenzie on 11 June 1987 set the matter down for 9.30 a.m. on Friday, 19 June for hearing and directed the parties "to return to the 'status quo' and resume normal work". Work recommenced with the chains set at 6 hours, on Monday, 15 June 1987.
Mr. Casey, through his solicitors, Messrs. Poteri Woods & Co., demanded payment in respect of 8-12 June 1987 inclusive. That is the claim the subject of this application.
The nature of the operations of the F. J. Walker Limited abattoir at Stuart appears sufficiently from the affidavit of John Thomas Hughes, the Meatworks Supervisor and Industrial and Operations Manager for Australian Meat Holdings Pty. Ltd. As at 5 June 1987, there were approximately 500 employees at the Stuart meatworks employed under the F. J. Walker award, of whom approximately 150 were tally workers as opposed to time-workers. They included 41 slaughtermen, 47 boners and approximately 54 slicers. Slaughtering tasks performed by slaughtermen were more skilled than those of boners, who in turn were more skilled than slicers. Each of the categories of tally workers work on the process of killing and dressing the carcass within procedures prescribed by the Department of Primary Industries, the purpose being to achieve a body of meat dressed to an export standard of hygiene. The slaughtering task is complete at the point that two sides of the carcass enter a chamber for chilling. After the sides are brought down to a temperature between 100C and 150C, they are transferred to the boning room, where the boner and slicer perform their functions. The boning task involves the dissection and removal of the meat from the bones in a manner nominated by the employer, and the boner dissects the skeleton as the side of the carcass passes along the chain. The meat that is recovered from the bones is passed to the slicers, whose function is to dress and present the cuts of meat. It is necessary for the slicers to remove blood clots, bone chips, ingesta and other foreign matter. The meat is then transferred to the point where it is ready for packaging. Packers also have a role in checking the quality of the product.
At the relevant time the conveyor belt or chain at the Stuart meatworks operated under normal circumstances with 38 boners on one side chain, and 9 boners on a separate quarter chain. Each boner was required to perform a tally which was 75 units of beef per day per man. As a consequence, the main chain would produce 2,850 units of beef per day and the side chain 675 units of beef per day. When the chain is set at a six hour rate, 475 units of beef are processed off the main chain per hour, which is to say that each individual boner would be boning 12.5 units per hour. If the chain was set at a seven-hourly rate, each boner would be boning 10.71 units per hour.
The significance of the chain speed is that it dictates the entire boning room operations. The primary complaint of the respondent is that, by working at the faster rate, the quality of the end product was deleteriously affected, and hence the unilateral decision taken by the respondent to slow the speed down as from the commencement of work on Tuesday, 9 June 1987.
The nature of the central question in this application appears at paragraph 13 of Mr. Hughes' affidavit, in which he says:-
"Under Section 13(a) of that Award, the employees are required to work a 40 hour week. The hours of work clause was, in March 1982, varied by the addition of a new sub-clause (d) which states that the speed at which the chains or conveyors will be set. Taken at face value, it appears to conflict with sub-clause (a). The Australian Meat Industry Employees Union (AMIEU) have interpreted this new sub-clause as an entitlement to a 6 hour working day."
The applicant disputes the contention of Mr. Hughes in the first sentence, as to the effect of clause 13(a) of the Award.
Mr. Hughes deposes that in March 1987 a meeting was held between officers of the respondent and workers at the Stuart plant, at which a letter indicating that the Stuart plant was contributing disproportionately to the number of rejections of beef exported out of Queensland to the United States of America was tabled. Mr. Hughes says that from that time until June 1987 a great deal of negotiation took place between himself and members of the Union with the object of improving the standard of work. He expressed the opinion:-
"the problem that the chain speeds in the boning room and slaughtering floor was causing was that boning room employees and slaughtering floor employees, in order to keep up with the pace of the chain, were short-cutting and not fulfilling their task in a proper manner."
There are other causes of defective product. Evidence concerning quality control, the reasons for rejection of product, and the reasons for such defective product escaping inspection was given by the Chief Veterinary Officer of the Commonwealth Department of Primary Industries and Energy, Mr. David Matthews. While the speed of the chain was one possible cause of defective product, other causes include the level of manning of the chain, whether the cattle being processed were drought affected and the temperature of the carcass being processed. The evidence suggests that one would anticipate more difficulties in quality control in northern abattoirs.
On 4 June 1987, Mr. Hughes negotiated with Union delegates at a meatworks in Cairns. A proposal by him that the speed of the chain at those works be retarded to seven hours was agreed to by the Union representatives, with the new hours of work to begin on 5 June 1987.
Mr. Hughes says that at a meeting with Union representatives, including Mr. Casey, at the Stuart Meatworks on Friday, 5 June 1987:-
"...it was decided by myself and the local management that from Tuesday, 9th June, 1987, the chain speed would be set to work out over seven hours. This decision was told to the Union Representatives at that meeting. A dispute arose as Union Representatives ... all said that they would not work if the speed of the chain was slowed."
Mr. Hughes indicated that the entitlement of the management to set the chain at seven hours was based on its view of clause 13(a) of the Award which provided that:-
"The ordinary hours of work shall not exceed eight hours on any day or forty hours in any week to be worked..."
He said:-
"...I considered it necessary to slow the operation down in order to utilise the full span of hours prescribed by the award so that the standard of work may be lifted."
(my emphasis)
On Tuesday, 9 June 1987, the chains were set at the seven hours. No one commenced work. Mr. Les Day, the State Secretary of the AMIEU advised Mr. Hughes by telephone on that day that the instructions by the respondent to slow the chain down was in breach of the Award. One of the consequences of extending the chain to seven hours to achieve the same volume of production was, according to Mr. Hughes, to:-
"...create the necessity to do work outside the ordinary hours attracting the penalty of 50 percent."
Mr. Hughes claimed in his affidavit that, even if the employer was not entitled under the Award to lengthen the chain,
"it was... unnecessary at that time for the employees to take the drastic step of electing to go on strike rather than make a claim for one extra hours overtime payment."
He said in his affidavit that:-
"should the applicant be successful in his demands, then those demands should be determined on the variation of the speed of the chain by the retardation time of one hour and the applicable overtime agreement rates that may therefrom arise."
After work was resumed on Monday, 15 June 1987, with the chain set at six hours, an application was made by the Meat and Allied Trades Federation of Australia (Queensland Division) on behalf of the respondent to vary the F. J. Walker Queensland Meatworks Industrial Agreement-Award 1976. Mr. Commissioner Caesar, on 24 July 1987, varied the Award by , inter alia, deleting sub-clause (d) of clause 13, the effect of which was to permit the chains to be set at seven hours.
In those proceedings, the representative who appeared on behalf of the respondent was assisted by Mr. Hughes. Speaking of the application by the respondent which led to the insertion of clause 13(d), the advocate for the respondent said:-
"...the employer sought to have the chain speed set at a constant rate to complete tally in six hours, and utilise the remaining ordinary hours of work to complete over-tally production."
It was submitted on behalf of the respondent:-
"...what this application is seeking is to extend the current uniform provisions that are applying in industry and to remove the shackles from this employer which are restraining him from producing his product to which his customer requires."
It was said on behalf of the respondent to Mr. Commissioner Caesar:-
"As Mr. Hughes indicated in evidence, the way the award is written at the present time, a piece worker is required to produce his work in six hours. Every other meat processing plant and every other employee in industry has the ability to process that work in seven hours. Now, there is an added strain on the employees working at these two plants to produce their requirements in one hour less per day than all other employees in industry."
It was said on behalf of the respondent in that application:-
"The application that was granted by Commissioner Macken (sic McKenzie) set the speed of the chain at six hours. It did not in any way directly affect the earning capacity of the employees except that it gave them the ability to earn extra production within the ordinary hours at a 50 per cent loading."
In those proceedings, Mr. Commissioner Caesar, addressing the employees' representative, said:-
"Just before you get off that point, as I understand it, the argument being presented by the company is not so much as to whether or not tally can be got in six hours; the argument is that they should have the right to adjust the chain according to the circumstances prevailing at a given time, whether it relates to mechanical, labour, or type and size of beef, it being the kill."
The representative of the respondent in his final submission to Mr. Commissioner Caesar said:-
"In relation to the commitment given by AMH, the commitment that was given was to abide by the award. Now, Mr Day raised the case that was brought before Commissioner McKenzie recently where I again reiterated that commitment that the companies would abide by the award. That is precisely what we are doing. We are abiding by the award, and that is precisely why we are here this morning before this commission, to have the award varied.
If we were not abiding by the award irrespective of what the commission said in June, we would continue to work a seven hour day."
These comments were made at a time when the Stuart meatworks were working a six hour chain subsequent to the direction of Mr. Commissioner McKenzie.
It will be necessary to turn in some detail to the provisions of the Award, but it should be said that the case as deposed to by Mr. Hughes is quite at odds with the statements made by the present respondent during the course of the variation proceedings before Mr. Commissioner Caesar. The resistance to the present claim is based on an alleged entitlement by the respondent to set the chains at seven hours. My conclusion of the evidence of Mr. Hughes was that he was of the opinion, as at 9 June 1987, that setting the chains at seven hours was in breach of the terms of the Award; that decision was deliberately made, in the hope of securing the agreement of the employees to the change. His intention in agitating the question of the speed of the chain was with the ultimate objective of securing a variation to the Award enabling the chain to operate at the slower speed. I think his attitude to the speed of the chain is summarised by his evidence, where he said:-
"My intention was that they would accept as they had in Cairns to do what I had requested in an endeavour to improve the product. Cairns was prepared to do it. I did everything in my power to persuade the people on the job to accept what I was putting up as a reasonable way of fixing the problem. It was my intention for them to work and I did everything in my power to see that work continued and not as you are suggesting promote a dispute."
By letter dated 2 June 1987, Mr. Hughes, describing himself as Meatworks Manager, wrote to Mr. Les Day, the State Secretary of the Union. This letter was received in the Union office by facsimile on 2 June, and seen by Mr. Day on the following day. The letter says, in part:-
"As you are aware, the Meatworks previously owned and operated at Cairns and Townsville by F.J. Walker Limited, have by agreement, worked to a six hour day. This agreement was entered into with the clear undertaking that the transition from a seven hour to a six hour day would not increase the labour content and costs; that the product would not suffer, either by not being produced to specifications and hygiene standards and requirements.
It has been our unfortunate experience that the product and cost have suffered to the degree that we are now in a position that the U.S.D.A. Licence to export beef, is, in our opinion, in jeopardy. ...
Facts are that to continue to allow an early finish in the form of a six hour working day will have disastrous effects on the quality of product leaving our establishments.
Therefore, I now give you notice that we will be using the full span of seven hours to achieve the tally set in the award.
When and if the product is being processed to specification and we are satisfied that our customer requirements are met, we will control the chain speed to suit the product being processed on any day. This will take effect from Tuesday, 9th June, 1987."
The fact is that the six hour day was not a matter of agreement but was a matter of variation by Mr. Commissioner McKenzie on the application of the respondent. Mr. Day says that he telephoned Mr. Hughes on 3 June 1987 and complained that Mr. Hughes was not able to alter the six hour provision in the Award to the seven hours as indicated in the letter, and that if Mr. Hughes wanted to vary the order, he would have to make an application through the Commission. Mr. Day informed Mr. Hughes that the Union would not agree to a change in the piecework provision and Mr. Hughes said he was going to change the chains regardless.
That the control of the product was very important is not to be doubted. The causes of deficiencies in that regard are a matter of dispute, but the application falls to be determined by a consideration of the terms of the Award and not by any idiosyncratic view of one party or another of what might be best for the operations of the respondent at the Stuart works, independently of the provisions of the Award.
In Gapes v. Commercial Bank of Australia Ltd. (1981) 37 ALR 20, Smithers and Evatt JJ. said at 21:-
"The obligation under the award to pay a salary depends upon its terms express or implied. If the terms of the award provide unconditionally for the payment of a yearly salary in stated proportions at stated times during the continuance of the relevant relationship of employer and employee, it is not to the point that, at common law, obligations to pay salary under a similar class of contract to which no award was relevant, might have been regarded by the law as conditional on a particular degree of work performance. Where there is an award applicable to a contract of employment it is necessary to ascertain what the award does provide expressly or impliedly about payment of remuneration."
And at p 26, Deane J. said:-
"It is, of course, true that an award will ordinarily operate within the general context of the law of master and servant. It is also true that many of the matters governing the relationship between a particular employer and a particular employee will commonly be left by an award to be dealt with by the particular contract of service between them. Where, however, an award contains a specific provision for payment of an employee at an annual rate, and spells out in some detail the circumstances in which deductions from that annual salary can properly be made, it will not ordinarily be permissible for employer and employee to emasculate the express terms of the award entitling the employee to payment by engrafting upon it provisions such as that the employee will only be entitled to such payment which he complies with contractual conditions that he work honestly or diligently or, as suggested in the present case, while he is ready and willing to perform all the duties of his employment. Such additional contractual provisions may not be inconsistent with the provisions of the award establishing entitlement to payment if the effect of any breach of them is left to lie in contract. Such inconsistency will, however, exist if the effect of the purportedly added contractual obligation is to absolve the employer from his liability to pay to the employee, in respect of a period in which, with his employer's informed consent, he is actually working for his employer, the salary which the award stipulates the employee shall be paid."
I accept that the scheme of the F. J. Walker Queensland Meatworks Industrial Agreement-Award 1976 is that, so long as the engagement of a regular daily employee subsists, a worker is entitled to be paid unless the employer can avail itself of one of the provisions of the award authorising it to forfeit or deduct wages. The Award is of the same general type as that considered in Gapes. The presence of "deduction" and "loss of pay" clauses in the Award is explicable only on the basis that there is otherwise an obligation to pay.
The whole of the F. J. Walker Meatworks Industrial Agreement-Award 1976 has to be looked at, but particular clauses of that Award have a particular relevance in these proceedings. By clause 2, the Agreement-Award -
"is binding on The Australasian Meat Industry Employees Union, its officers and its members and on F. J. Walker Ltd. in respect of all their employees in the classifications contained herein, ...employed at...(the works of F. J. Walker Ltd. at Stuart (Townsville))."
Clause 5, dealing with the application of Division 2 of the Award concerning general conditions, provides that the provisions of Division 2 shall apply to all employees except to the extent that a provision inconsistent therewith is made elsewhere in the agreement-award, in which case such provision is to prevail in respect of the employee concerned. The other divisions of the Award deal with particular parts of the process of slaughtering, boning and slicing.
By clause 6, an employee may be engaged as a regular daily employee, either pieceworker or time-worker, or as a casual employee, again either a pieceworker or a time-worker.
Clause 7 provides, inter alia:-
"(a) A regular daily employee shall be employed by the day or shift and without prejudice to the provisions of this agreement-award as to payment for award holidays, sick leave, compassionate leave, jury service, annual leave and season allowance, his employment shall terminate at the end of each day or shift on which he is employed.
(b) Notwithstanding the termination of his employment at the end of each day or shift, the engagement of a regular daily employee shall continue and he shall remain a regular daily employee until his engagement as such is terminated as herein prescribed. Such engagement may be terminated by notice on either side as from the end of the ordinary working hours on the day on which it is given, whether the employee is employed on that day or not, or at any later time specified by the notice....
(c) Nothing in this agreement-award shall affect any common-law right of an employer to terminate summarily the employment of any employee, provided that in lieu of dismissing an employee an employer may suspend him for any period not exceeding 10 working days. In such cases the wages shall be paid up to the time of suspension or dismissal only. The Union may, by application made by its Federal Secretary, Assistant Federal Secretary, Federal President, Branch Secretary or Branch President, within fourteen days after the dismissal of any employee, bring a dispute concerning the dismissal before a Commissioner for determination.
(d) An employer shall have the right to deduct payment for any day during which an employee cannot be usefully employed (proof of which fact shall lie on the employer) because of any strike, power failure, or any breakdown of machinery or due to any cause for which the employer cannot reasonably be held responsible, other than a shortage of stock which is not the result of a strike or of the misconduct of employees of the employer (not being employees on his salaried staff). An employer shall have the right to deduct payment for any part of a day during which an employee cannot be usefully employed (proof of which fact shall lie on the employer) because of a strike in the meat industry or by reason of circumstances brought about by the misconduct of employees of the employer (not being employees on his salaried staff).
(There follows a proviso to (d) not presently relevant.)
(e) An employee shall perform such work as the employer may from time to time require and, subject to this agreement-award shall perform it at such time as the employer may require. An employee not attending for or not performing his duty shall, except where otherwise expressly provided in this agreement-award, lose his pay for the actual time of such non-attendance or non-performance."
In respect of clause 7(e), the applicant contends that the entitlement of the employer to require an employee to perform work is restricted to lawful requirements and, in particular, the clause does not entitle an employer to require an employee to work contrary to the terms of the award. I agree. Further, any entitlement of the employer as to the time of performance of the work is expressly "subject to this agreement-award".
Clause 7(f), the relevant terms of which were inserted on 21 January 1983, is in these terms:-
"(i) In consideration of the rights conferred on Regular Daily Employees by this Agreement-Award, a Regular Daily Employee shall attend and offer himself for employment at a place specified by the employer at the normal starting time on each ordinary working day unless notified that on a particular day he is not required to attend, and, if notified to attend, at such other times as employees may be required to work pursuant to clause 18 - OVERTIME.
(ii) Provided that, subject to the rights conferred on the employer under sub-clause (d) of this clause, a Regular Daily Employee who has not been notified on the immediate working day before that he is not required to attend for work in his classification on the following working day, and such employee has attended and offered himself for employment at the normal starting time on that day and has not been offered employment, shall be paid for the day according to the rate of pay prescribed for his classification subject to the employer's being offered the opportunity of providing alternative employment and the employee's announcing any claim under these provisions prior to departure from the plant site.
(iii) Provided further that the above paragraph
(ii) of this sub-clause shall not apply where an employee has not been offered employment in his classification because of any strike, absenteeism or any such extenuating circumstance for which the employer cannot reasonably be held responsible."
Clause 13 is concerned with hours of work, and sub-clause (a) provides:-
"The ordinary hours of work shall not exceed eight hours on any day or forty hours in any week to be worked in the case of employees other than shift workers on five days of the week, Monday to Friday inclusive between the hours of 6 a.m. and 6 p.m."
Clause 13(b) is concerned with starting and finishing times, and 13(c) with disputes as to starting and finishing times.
Clause 13(d), which is of central importance in these proceedings, was inserted in the Award by the decision of Mr. Commissioner McKenzie on 25 March 1982. It is in these terms:-
"Pieceworkers and follow-on labour shall, within the ordinary hours of work prescribed by this clause, complete such work on production to and beyond tally as the employer may require at the applicable minimum rate of work as follows:
(i) Piecework killing 1/6th of number of and dressing of head required for cattle tally plus to 15% tolerance
(ii) Piecework killing 1/6th of number of and dressing of head required for calves tally plus 5% to tolerance
(iii)Piecework boning, 12.5 units per boner slicing revising plus to 5% tolerance packaging and
weighing - conveyor
or rail system.
Provided that where the majority of employees, members of a particular piecework team, and the employer agree upon a rate of work in excess of the above-mentioned minimum hourly rate of work then such agreed rate may be substituted therefor."
It is to be noted that there is no provision for an agreement as to a slower rate of work.
Clause 18(j) provides:-
"It is a condition of engagement and of employment that an employer may require an employee to work reasonable overtime (including overtime on Saturdays, Sundays and award holidays) at overtime rates, and such employee shall work overtime in accordance with such requirements."
Clause 19 deals with award holidays and provides for non-payment in respect of those holidays:-
"where an employee fails without leave or reasonable excuse to attend and offer for employment (unless notified by the employer that he is not required so to do) or fails without reasonable excuse to accept employment (if offered such employment) on the working day before or the working day after the award holiday (or in the case of a consecutive award holiday on the nearest of such working days)."
Clause 32 is concerned with payment of wages, and sub-clause (a) provides:-
"Wages shall be paid to regular daily employees, whether time workers or pieceworkers, during the ordinary hours of work prescribed by this agreement-award, not later than Thursday of each week..."
Clause 38 deals with the ordinary rates of pay.
Clause 45 is concerned with disputes procedures. Clause 45(2)(a) is in these terms:-
"No stoppage of work shall take place, and if one does take place it shall not continue, in relation to any dispute until seven (7) days after the Works representative has notified the Branch secretary of the Union and the Works Industrial officer has notified the Chief Industrial officer that the dispute exists and is likely to lead to a stoppage of work, nor unless prior to its commencement it has been directed by the Branch Executive, the Branch Committee of Management, the Federal Executive or the Federal Council of the Union."
Clause 45(2)(c) importantly provides:-
"The employer concerned shall not, by its manager, industrial officer, foreman, other staff employee in a supervisory capacity or agent, authorize advise, direct or be party to any act in breach of this agreement-award, and shall take all possible steps to prevent the occurrence, continuation or repetition of any breach on the part of such persons. The Union shall not by any Federal, Branch or Sub-branch Executive Committee or Council, or by any official, representative, agent or member, authorize, advise, direct or be party to any act in breach of this agreement-award, and shall take all possible steps to prevent the occurrence, continuation or repetition of any breach on the part of such persons."
Clause 46, dealing with the performance of work provides:-
"(a) All work, whether of a pieceworker or of a timeworker, shall be performed to a standard of workmanship satisfactory to the employer.
(b) No employee, whether pieceworker or timeworker, shall cease work without the permission of the employer before the finishing time fixed for him in accordance with the provisions of this agreement-award, or before the completion of any overtime lawfully required to be worked pursuant to this agreement-award."
Clause 46(e) provides:-
"Where any work may be performed under this agreement-award on timework or piecework or under more than one system of work, the employer shall decide whether it shall be performed on timework or on piecework, or under which system of work it shall be performed. Before introducing any change pursuant to this sub-clause an employer shall consult with a representative of the Union. This sub-clause is without prejudice to the rights of the Union under clause 48."
Clause 71 provides a classification for "Boner" and "Slicer" and prescribes the regular daily rates.
Clause 73, dealing with Piecework Boning, provides in sub-clause (f) under the heading "Regulation of Conveyors":-
"Subject to subclause (d) of clause 13 - Hours of Work of this agreement-award the speed of conveyors shall be regulated and controlled by the employer."
This, in my opinion, is but one of a number of important indications that clause 13(d) precludes the employer from setting the chain at a rate slower than six hours.
Clause 74 is headed "Tally, Beef Slicing". Clause 74(b)(iv) provides for a minimum payment for tally to be paid to a slicer if insufficient boned-out meat to provide at least minimum tally has been provided. Clause 74(d) relating to "Regulation of Work", is in these terms:-
"Subject to subclause (d) of clause 13 - Hours of Work in this agreement-award, the rate of work through the day or shift shall be regulated and controlled by the employer for the purpose of securing a reasonable distribution of tally and work beyond tally required over the prescribed working time."
This sub-clause has the same tendency as sub-clause 73(f).
The submissions on behalf of the respondent were put under four headings.
It was first submitted that the work required, namely that the employees work on a chain working at seven hours rather than six hours, was permitted by the Award, and that the employee was required to perform that work and was not entitled to receive any payment for failing to work. As part of that submission, it was submitted that clause 13(d) imposed an obligation only on the employee: there was no correlative obligation upon the employer and it was competent for the employer to waive or not insist upon compliance by the employee of his performance of his obligation under clause 13(d). This contention, in my opinion, cannot be accepted.
There are many clauses, to some of which reference has earlier been given, which indicate that the employer's power to regulate the rate of work is subject to clause 13(d). The employer places great reliance on clause 46(a), but that clause does not, it seems to me, create rights. In particular, it does not say what is to happen if the work is not performed to a standard of workmanship satisfactory to the employer. What it does do is nominate the employer's opinion as the yardstick to be applied in the application of clauses referring to the standard of workmanship. In particular, in my opinion, it cannot be relied upon as a basis by which an employer can waive an obligation that is imposed by the Award on an employee. This is even more clearly the case if the employee does not choose to be relieved of the obligation.
Clause 74(iv) is in these terms:-
"A slicer shall slice such number of units of tally and units beyond tally within the ordinary hours of work as the employer...may require..."
If the chain is set at seven hours, and one has regard to the provisions of the Award which permit two fifteen minute smokos and three five minute relief periods and an entitlement on completion of tally of fifteen minutes to attend to knives, up-to-tally production would occupy eight hours. On that premise, there is no basis on which over-tally work could be done in the ordinary hours of work. Such a conclusion seems to me to support the construction of the Award as contended for by the applicant in respect of clause 13(d); that construction permits a meaning to be given to clause 74(iv).
As earlier indicated, my view is that Mr. Hughes and the other members of management, before the stipulation of a seven hour chain on 9 June 1987, themselves were of the opinion that the Award called for the employer to set the chain no slower than six hours. I am fortified in this conclusion by the representations made on the respondent's behalf in the application to vary the Award by deleting the requirement that the chain operate no slower than six hours.
Secondly, it was submitted that, if clause 13(d) was binding on the employer, that obligation was subject to the employee performing his work to the standard of workmanship required by the employer, and to the employee being competent and willing to peform the range of work required of him as a slicer and to complete the tally within the ordinary hours of work. The submission, in essence, is that the employer was relieved of the obligation to set the chain at six hours because the employees did not perform their work in accordance with those conditions. Merely to state the proposition leads to its rejection. No such condition is to be gleaned from clause 13(d). Clause 74(d) was varied at the same time as clause 13(d) was inserted. In addition, it seems to me that the terms of the proviso to clause 13(d) are of assistance. To construe clause 13(d) as permitting the employer to set a lower rate is to substitute for the word "minimum", the word "maximum" wherever it appears.
Thirdly, it was submitted on behalf of the respondent that, irrespective of the employee's view about the operation of clause 13(d), an employee was not entitled to payment under the Award where he offered himself for work subject to the condition that the chain operated at a particular speed. It was said that the employee's proper course was to offer himself for work and to have his dispute with the employer resolved pursuant to clause 13(c) or clause 45(2)(a) of the Award. Implicit in this submission is the suggestion that, notwithstanding that an employer is in breach of the Award, an employee can be required by the employer to work in breach of the Award. His only course is to work in breach of the Award and submit his dispute to the procedures envisaged by the Award. This submission ignores clause 45(2)(c). In my opinion, the obligation of an employee is to attend at the normal starting time for an ordinary working day: a working day which is predicated on the employer operating in breach of the Award is not an ordinary working day.
It was also submitted under this head that Mr. Casey did not offer himself for work at all on Wednesday, Thursday or Friday. Having regard to clauses 7(e) and 7(f), it was then submitted that he did not attend and offer himself for employment at the normal starting time and consequently was not entitled to be paid in respect of those days.
The effect of the events of the morning of Tuesday, 9 June, was that Mr. Casey was notified he was not required to attend at the works unless he was prepared to work with the chains set at seven hours.
In my opinion, the applicant cannot be characterised as not attending and offering himself for duty. He was at all times ready and willing to work in accordance with the Award.
He attended on Tuesday, 9 June, at the normal starting time, was refused permission to work in accordance with the Award, and told to go home. Further, his affidavit evidence that he claimed wages on Tuesday, 9 June, was not challenged.
In Vehicle Builders Employees Federation of Australia v. British Motor Corporation (Aust.) Pty. Ltd. (1966) 8 FLR 70, the Commonwealth Industrial Court consisting of Spicer C.J., Joske and Eggleston JJ. said at 74:-
"We start, therefore, from the position that an employee who is on a weekly engagement is prima facie entitled to a week's wages. If, being ready and willing to work, he is told by his employer that he need not report for work the next day as there is no work for him to do, he is nevertheless entitled to be paid for that day, unless the employer can show that the employee cannot be usefully employed on that day for a reason falling within the clause above quoted. It was argued for the respondent that cl. 7 (c) is an imperative provision that an employee who does not attend is not to be paid, but we think the important words in this sub-clause are 'not attending for duty' and that an employee who is told that he need not attend, and who does not do so, cannot be described as 'an employee...not attending for duty.'"
In my opinion, what the employer did and the instructions it gave to the employee resulted in an unlawful standing down. During the period 9 June to 12 June, there was no notification by management to Mr. Casey that his services were not required (cf. clause 7(f)(ii)), or that, contrary to its stated position on Tuesday, 9 June, the chain would be recommenced at the six-hourly rate in accordance with the Award.
Morling J. noted in Townsend v. General Motors-Holden's Limited (1983) 4 IR 358 at 365:-
"It seems to have been accepted in other cases in which employers have been proceeded against for failing to pay wages to employees who have been improperly stood down, that it is the breach of the relevant award provision dealing with payment of wages which gives rise to the liability to a penalty under s. 119. See, for example, Jarrad v. Melbourne and Metropolitan Tramways Board (1978) 31 ALR 201."
See also Kidd v. Savage River Mines (1984) 9 IR 362 per Gray J..
Mr. Casey attended at the works on Thursday, 11 June 1987. On the facts it seems to me that the respondent told Mr. Casey that he need not attend unless and until he was prepared to work on the chain set at seven hours. Once an employee has been wrongly sent away, and is effectively told that work would only be offered on terms in breach of the Award, it seems to me there is no obligation on the employee to continue coming around to the place of employment to see if the employer had changed his mind. In my opinion, Mr. Casey cannot be characterised as not attending and offering himself for employment on Wednesday, Thursday or Friday, 10, 11 and 12 June 1987. This ground fails.
Finally, it was submitted that the circumstances of dealings and the transactions between the parties on Friday, 5 June and/or Tuesday, 9 June 1987, constituted a constructive termination of Mr. Casey's engagement either by both the employer and the employee or alternatively by either of them.
It was submitted that the letter of 2 June 1987 by Mr. Hughes to Mr. Les Day terminated Mr. Casey's employment as a pieceworker. The submission essentially is that, if an employer in breach of the Award specifies a seven-hour chain instead of a six-hour chain, the piecework basis of the employment of the worker is terminated and his employment, if any, is as a time-worker. In my opinion, the circumstances of Friday, 5 June 1987 and Tuesday, 9 June 1987, do not amount to any constructive termination of the engagement of Mr. Casey and that he continued to be employed by the respondent as a pieceworker.
As to the quantum of the claim, the ascertainment of Award rate at the relevant time is difficult, given the multiplicity of amendments, but Mr. Casey has deposed that he was being paid $81.54 per day and his evidence in that respect was unchallenged. In all the circumstances I am satisfied that he is entitled to be paid in respect of the Sovereign's Birthday on Monday, 8 June 1987, and in respect of the remaining four days of that week. The applicant's claim is made out. I give judgment for the applicant against the respondent in the sum of $407.70.
0
4
0