Casey v F.J. Walker Limited

[1989] HCATrans 282

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No B43 of 1989

B e t w e e n -

THm1As FRAi.~CIS CASEY

Applicant

and

F.J. WALKZR LIMITED

Res?ondent

Application for special
leave to appeal

BRENNAl~ J GAUDRON J

HcHUGH J

Casey

TRANSCRIPT OF PROCEEDINGS

FROM BRISBAl~E BY VIDEO LINK TO CANBER:RA

ON FRIDAY, 17 NOVEMBER 1989, AT 11.27 AM

Copyright in the High Court of Australia

C2T30/l/LR 1 17/11/39

MR C.E.K. HAMPSON, QC: If it please the Court, I appear with

my learned friend, MR D.R. HALL, for the applicant.

(instructed by Poteri Woods & Co)

MR G.C. MARTIN: If it please the Court, I appear for the

respondent. (instructed by Mccrae Jones)

BRENNAN J: Yes, Mr Hampson.

MR HAMPSON: This is an application for special leave to appeal

from a majority decision of the Full Federal Court which reversed a decision of a Federal Court judge construing an award, in the course of adjudicating

upon a claim by the applicant who sued, as he then

could do, for an amount owing to him under an award.

The facts are set out, with respect, I think quite

sufficiently,in the affidavit of James Anderson Esplin.

In paragraph 5 of that affidavit are set out the

- the affidavit commences at page 69. The clause

of the award is set out in paragraph 5, and

right towards the end of the affidavit, in

paragraphs 12, 13 and 14, are set out reasons why

it is said that there are important questions

warranting the grant of special leave in this particular

case.

If I could state the facts shortly, though,

perhaps, without regard to going through the affidavit.

The applicant was a piece-work slicer. That involved

the slicing of meat, which took place - he did his

work after a person called a boner did his work.

The meat was presented to the boner by means of a moving

chain from which it was ·suspended, and once the boner

cut meat from the carcass, the slicer was then able

to do his work slicing up the meat cut in that way.

The speed with which the chain moved in

presenting the carcass, the meat, to the boner and

to the slicer, of course was highly relevant to how

much boning and slicing they could do in any
particular time.	The respondent was the applicant's

employer and the relevant award was one called

the F.J. Walker Queensland Meatworks Industry Award

1976. It was made under the CONCILIATION AND

ARBITRATION ACT 1904.

Piece-work slicers were entitled to be paid at

a rate of a stipulated sum per unit of tally. The

number of units of tally which the applicant could

slice in a given period of time, as I have said, was

really related, indirectly through the boner, to

the rate at which the meat was presented. The

ordinary hours of work totalled eight per day but

there was provision in the award for certain time, paid

breaks and knife sharpening, things of this particular

kind, totalling an hour, so that the total number of

ordinary hours available for work was reduced to seven.

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The rate per unit of tally to which a slicer

was entitled increased after the tally was made out,

after the tally had been cut. Just before, I think it was

about the Friday or so before, the Queen's Birthday weekend

in 1987, differences arose between the empLoyer

and the applicant and his fellow workers. The

respondent took the position that it was entitled

to utilize the whole of the available seven ordinary

hours of work to achieve tally and it could do this,

the employer said, by adjusting the speed of the chain

and presenting the meat at a different rate. Until

that time, it had been working on a six-hour

presentation and ahe employer proposed to make it

seven hours.

(Continued on page 4)

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MR	HAMPSON (continuing):	The applicant, on the other hand,

and his fellow workers, took up the position that

clause 13(tlJ of the award required the respondent to

present carcasses to the boners at a rate which would,

in fact, permit the tally to be cut in six hours,

leaving one hour of ordinary time during which units

of tally might be processed at the higher rate.

So the question ultimately comes to the construction

of clause 13(d).

Factually, what happened was that at the end

of the - that on the Tuesday following the public

holiday, the Queen's Birthday holiday, the employer

told the applicant and his fellow workers to go home

if they were not prepared to work at the rate

nominated by the respondent. The applicant and

his fellows did precisely that and no work took

place on the Tuesday, the Wednesday, the Thursday

or the Friday, each of which four days was an

ordinary working day. A commissioner then of

the Conciliation and Arbitration Commission

intervened and work resumed on the following Monday

and, pursuant to all that, the question as to

whether the applicant and his fellow workers were

entitled to payment for all of those days which I

have mentioned then came to be decided.

BRENNAN J:  What did the construction of clause lJ(d) have

to do with that problem?

MR HAMPSON:  I think the easiest way to look at the matter

really is to go to the judgment of Mr Justice Pincus
because it is not an easy matter. At page 46 of
the appeal book he recites the facts and then he

says:

It is convenient to come straight - - -

GAUDRON J:  It turns on whether or not the men were correctly

stood down in accordance with the award, does it not?

MR HAMPSON:  That is the next question, yes, but the first

question is whether the award permitted the employer

to do what he did.

GAUDRON J: Yes ..

MR HAMPSON:  If, in fact, he was permitted to do what he did,

I suppose the men, in fact, went on strike. They were

not entitled to stay away. If the employer was not

entitled to do what he did, if he committed a breach

of the award by changing the rate of work, then the

men were entitled, it is our submission, to say,

"You are committing a breach of the award by doing

that and that, in effect, is making us be stood down".

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BRENNAN J:	I do not follow that, Mr Hampson.	Let it be

assumed that there was a breach of the award by the

employer; what follows from that?

MR HAMPSON:  There is a continuous breach of the award, he is

requiring the men to work in breach of the award
and, therefore, requiring them to do something which,

in fact, is illegal.

GAUDRON J:  Well, does it not turn on the facts that the

employer was told that the men were not prepared to

work other than with the chain at the speed that they

were used to?

MR HAMPSON:	That is so, Your Honour.
GAUDRON J:	And the employer said, in effect, "If you are not

going to work at the new speed don't present yourself

for work", and the men said, "We're ready, willing

and able to work at the speed to which we have

become accustomed"?

MR HAMPSON:  That is so, yes, Your Honour. That is exactly the

factual situation and that is pursuant to the findings

of Mr Justice Spender who was the primary judge.

They are all set out, and so forth. Euton the

question of the construction then - I was saying

that it is probably easiest to look at the

difficulty - in Mr Justice Pincus' decision at

page 46 at the bottom, he says:

It is convenient to come straight to

the i l ldrawn clause.

He sets out what the clause is and if I could direct

the Court's attention to paragraph (iii):

Piecework boning, slicing -

and so forth. That is the relevant one - which

refers to:

12.5 units per boner plus to 5%

tolerance -

that is important, and also in the proviso could

I draw the at tent ion of the Court not only to the general

matter that a majority of employees' agreement can

change things, but more significantly the use of the

word "minimum". It is a minimum hourly rate.

It is expressed to be "the above-mentioned minimum

hourly rate". It talks ef "the applicable minimum

rate of work" right at the commencement of those

three things there.

C2T31/2/HS	5	17/11/89
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MR HAMPSON (continuing): His Honour went on then to talk

about some of the matters I have already informed

the Court that comes from the evidence and he

pointed out at the bottom of the page that:

At 12.5 units per boner per hour,

the boner gets to tally in six

hours, because his tally is 75 units.

It is for this reason that the parties

say that cl.13(d) involves a six hour

chain.

The dispute about cl.13(d) is simply

stated, but not easily resolved.

And His Honour goes on to the question as to what may be done there. He points out what the

two constructions are of the different persons,

and he said:

On the appellant's argument -

this is at the bottom of the page -

the point of the clause is to impose

an obligation on the employees (i.e. to

work, if required, at the rate set out),

but the clause imposes no obligation on

the employer, except one not to have

the employees working at a rate in excess

of that specified unless a majority

agree.

Now that is what the majority of the judges

really found. His Honour was in dissent - His Honour

Mr Justice Pincus was in dissent:

It should be added that counsel for

the respondent suggested that the clause

requires 12.5 units per boner in every

hour, so that if the chain were set so as to

produce 11.5 units in the first hour and

13.5 in the second, there would be a

breach. On either view of the claus~ -

he says there might be room for an argument as to whether these things should be adjusted hourly or

just at the end of the day, but is not really material.

Counsel contended, and I agree, that to

resolve the problem one should look at other

provisions ..... which are interrelated.

He looked at 7(e) which requires an employee to perform such work:

C2T32/l/FK	6	17/11/89
Casey

On the other hand, there are

provisions which may partially override

that. One is cl.73(f) -

which starts off:

"Subject to sub-clause (d) of clause 13 -

Hours of Work of this agreement-award

the speed of conveyors shall be

regulated and controlled by the employer."

Another provision in that category is clause 74(d).

Clause 74, he points out, specifically deals with

slicing. Again it starts:

"Subject to subclause (d) of clause 13 ..... "

The two provisions ..... were particularly

relied on ..... They seem unequivocally to

subject the employer's right to regulate the

rate of work to cl.13(d) and that implies

that cl.13(d) imposes an obligation on the

employer as well as on employees. The

appellant may be able to answer, however,

by relying on the proviso; it is possible

that cl.73(f) and cl.74(d) were made subject

to cl.13(d) only because under the proviso
the. e_rnployer cannot, without agr·ee,nent of
the majority of affected workers, set the

chain to a rate of work faster than is

stipulated.

BRENNAN J:  Mr Hampson, we do not have to decide the

construction of clause 13(d) - - -

MR HAMPSON:	No.
BRENNAN J:	- - - it is a auestion of whether we should

grant special leave to consider it.

MR HAMPSON: Right. I just was trying, really, to make the

Court quite aware that obviously there is an argument -

well, I suppose one does not have to go further than to

say that two judges of the Federal Court found, in fact,
in favour of our construction: two found against it.

So, obviously there is an issue there.

(Continued on page 8)

C2T32/2/FK	7	17/11/89
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MR HAMPSON (continuing): What I should also inform the

Court is that clause 13(d) after this dispute

was removed from the award. So the clause

is now longer in the award, but however,

of course, the decision of the majority of the

Federal Court has not been removed. The

principles upon which that decision is based

really require the re appraisal of all the

tally awards in the meat industry.

BRENNAN J:	Why do you say that?
MR HAMPSON:	Because the majority read the word

"minimum" in clause 13(d) as "maxi:rnum" to

adapt the award to a notion that they had

that it is in the nature of the tally system

that an employer is entitled to utilize

the whole of the ordinary working hours

to achieve tally. Mr Justice Pincus in

fact set out - he looked at some extrinsic

material and refused to look at some other,

but he points out, at page 52 of the appeal

book, about the various matters that were

there and he said:

The only extrinsic material I find it necessary to refer to is a passage in the relevant decision of Mr Commissioner

McKenzie, given on 3 February 1981 -

and so forth. He said, to:

throw some light ..... upon the point at

issue.

The union wanted the introduction of incentive

schemes and extra pay for work beyond tally.

He went on and he set out - - -

BRENNAN J: That was the history of clause 13(d).

MR HAMPSON: That is the history, yes, showing the -
BRENNAN J:	Why is the construction of clause 13(d)

a matter of general importance now that it

has been removed?

MR HAMPSON:  We would submit because the approach of

the majority was not that a tally system

was to be designed as, for example, this

one was. That is why I referred to this;

it is part of this history, ~tis true.

But it is in conformity with all tally systems so that the employee is able to

make the tally - actually he sets it out,

in my submission, quite well at page 9:

C2T33/l/JM	8	17/11/89
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The speed of the chain to be set so that maximum tally is processed in six hours

or less if agreed between the employer

and majority of workers with the

proviso that should the employer so

require, additional production over tally

will be produced during the remaining one

hour or more of ordinary time.

That is the ordinary concept of a tally system.

BRENNAN J:  But it is not a question of a concept, is it;

it is a question of the construction of a

clause?

MR HAMPSON:  But Their Honours in the majority approached

the matter on the basis that it was purely

the right of the employer - and this appears at

page 78 of the appeal book.	The quotation is
set out in paragraph 13:

The premises upon which the

construction of the A ard adopted by the

majority in the Full Court of the Federal

Court is based, are:-

(a) "The employer retains tn,e power both

under the Award and under the contract of

employment to require the employees to

carry out their duties of employment

during a period of ordinary hours of work

nominated by the employer pursuant to

sub-clause 13(b) of the Award", and

(b) "In the absence of any provision in

the Award imposing an obligation on the

employer to maximise earning opportunities

for pieceworkers, there would appear to be

no reason to make it a term of the Award that

the employer maintain the speed of the

breach of the Award if it does not do so." conveyers at a set speed and make it a

BRENNAN J:  Be it so, but those premises must be based

upon the construction of clause 13(d).

(Continued on page 10)

C2T33/2/JM	9	17/11/89
Casey

MR HAMPSON: Well, with respect, Your Honour, I appreciate

what Your Honour says, but people, who are in
various industries and particularly the meat

industry whether you have a lot of awards with tally

in it, will, no doubt, understand those statements

by the majority of the Full Court of the Federal Court

as being relevant to a question of piece-work, and

as the affidavit,in paragraph 13, says:

Those propositions confuse piecework and

timework and if allowed to stand may effect

the construction of awards and industrial
agreements in the meat processing industry

generally - - -

McHUGH J: Yes, but the paragraph 13 of the affidavit leaves

out the sentence which immediately precedes those

two passages. It is found at page 40 and it says:

Although sub-cl.13(d) was inserted as part of

a clause which appears under the heading

"Hours of Work", the purpose of sub-cl.13 ( d)

is to control the rate of work not the hours

of work.

And Their Honours go on to make the two statements

which are set out in paragraph 13. That makes it

plain it is all effected by subclause 13(d), does

it not?

MR HAMPSON: Well, with respect, no because although they

have said that - I mean, the task they are engaged

in is the interpretation of 13(d), Your Honour,

and although they mention it, in the course of

that, we just submit that there is a confusion

between how tallies should be set when you are

dealing with piece-work in an award and the

ordinary basis of somebody being paid for eight

hours work - for time work.

BRENNAN J: But we cannot grant special leave in order to

remove the risk that somebody is going to pick

up this judgment which, of necessity, must be

founded on a construction of clause 13 (d) and

applied to a different clause?

MR HAMPSON: Well, I can only submit, Your Honour, that in

the industry a lot of people will rely on it in

that way - it will be relied on that way - but

what we are -

BRENNAN J: Perhaps the answer might come when rnisreliance

is placed upon it and the problem arises in an

acute form.

MR HAMPSON: Well, that means, of course, that one has to

wait. Really, instead of curing the damage now,

as it were, one has to wait until that arises

C2T34/l/DR	10	17/11/89
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and one does not know on how many occasions it will

be misapplied before one gets a situation which

would justify bringing the matter before this Court.

The other aspects of why we would submit it is

important, is that in the circumstance of the case

there were about 420 men who made up the work-force

and they are, in effect, deprived of the amount

which amounts really to - what is it - four working

days, yes, it is a week's wages in effect that would

be involved in that construction. So, that is a

significant matter when you consider the number of

people involved in the matter.

Also, we would submit that the decision of the

majority will be acted upon, that there will be an

attempt anyway to - or requirement even - perhaps

to re-appraise all tally awards in the meat industry

and what one might really have is a situation where,

for many years, one has understood what the tally

system really is, one has now a situation, perhaps,

where, as it were, that wheel will have to be re-invented,

have to be re-established again. In any

event, after sub-clause 13(d) - apart from the

construction of 13(d) - there are other important

questions which are involved. I mean, if we

succeeded in 13(d), there are other questions:

whether the employee is entitled to wages under a

contract only when their wage is due and owing;

or whether it is a case of damages; and there are

some other collateral matters too of that particular

kind; is the performance of the Act work a

condition precedent to recovery of the wages under

the award?

(Continued on page 12)

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Casey

MR HAMPSON (continuing):  We would submit that although the

existence of this still in the award, if this clause

13 is still in the award, we would submit that really it would be a clear case for the allowance of special

leave in the peculiar facts of this industry.	The
fact that it has been removed from the award

consequent upon this dispute is not really a reason

why that special leave should now be declined.

I do not know whether there is anything I can usefully

add.

BRENNAN J: We need not trouble you, Mr Martin. In the

Federal Court, the applicant, a meat slicer, sued for

an amount which he claimed was due to him under

the F.J. Walker Queensland Meat Works Industrial

Agreement Award 1976, an award of the

Conciliation and Arbitration Conunission made pursuant

to the CONCILIATION AND ARBITRATION ACT 1904,

Conunonwealth. The claim was for pay for five days

on which the applicant did not work because of an

industrial dispute about the speed at which the
respondent employer proposed to set the chains which

delivered meat for slicing.

The chains had been set at a speed which

delivered meat to slicers in sufficient quantity

to allow the slicing of a daily tally in six hours.

To achieve a better quality product, the employer

proposed to slow the speed to deliver that quantity

in seven hours. As units above tally attracted a

higher unit rate for piece-work slicers, the slowing
of the chains was perceived to diminish their earning

capacity.

In the Federal Court the applicant's claim evoked

a consideration of clause 13(d) of the award in order
to ascertain whether the respondent was responsible
for tbe dispute. Whether or not the fixing of

responsibility for the dispute was necessary for the

determination of the appellant's claim, special leave

is sought in order primarily to canvass the

respondent's obligation under the award to provide

enough meat to allow the daily tally to be cut in

six hours.

This question turns chiefly on the construction

of clause 13(d) which Mr Justice Pincus correctly

described as ill-drawn. The question of construction

of clause 13(d), which has now been deleted from

the award, raises no question of general principle
sufficient to justify the grant of special leave.

Special leave is accordingly refused.

MR MARTIN:	I ask for costs, may it please the Court.
BRENNAN J:	Mr Hampson?

C2T35/l/LR	12	17/11/89
Casey

MR HAMPSON:  I do not think there is anything I can say.

Of course, in the courts below there is no power to

award costs, and there have been no costs awarded

so far.

McHUGH J: There used to be some section in the CONCILIATION

AND ARBITRATION ACT about costs,	somewhere around
section 100 or so.

MR HAMPSON:  That is so, Your Honour.

GAUDRON J: And that has been - - -?

MR HAMPSON:  That has been preserved, but under a different

section. I will just have to look for the number.

BRENNAN J: Has it not been a general practice of this Court,

at least in cases which arise on prohibition or

mandamus, to refuse costs?

MR HAi.'t\fPSON:  Yes.

BRENNAN J: There have been some appeals, I think, where costs

have been allowed.

MR HAMPSON:  Yes, but there have also been a number where

they have been refused without any particular reason

given. It is section 347 of the INDUSTRIAL RELATIONS

ACT 1988:

A party to a proceeding (including an appeal)

in a matter arising under this Act shall not
be ordered to pay costs incurred by any other
party to the proceeding unless the
first-mentioned party instituted the
proceeding vexatiously or without reasonable

cause.

BRENNAN J: Yes. Perhaps we should hear what Mr Martin has

to say about that.

MR MARTIN:  Your Honours, I base my application on the last

part of section 347, that is, that the application

here today was instituted "without reasonable cause"

in that there was, in my respectful submission, not

a case for special leave and, as such, costs should

follow the event in this particular case. It is

correct, as Your Honour has said, that quite often

there is no order as to costs, but I would submit that
this is a different case. It is not a case
involving a prerogative writ. It is a case which

is not outside the ordinary course of special leave

applications and, as such, where special leave is

refused, costs should follow that refusal. Those

are my submissions on the point.

BRENNAN J: Yes, Mr Martin. There will be no order as to costs.

AT 11.54 AM THE MATTER WAS ADJOURNED SINE DIE

C2T35/2/LR 13 17/11/89