Chubb Security Australia Pty Ltd v Smith

[1999] FCA 1340

FEDERAL COURT OF AUSTRALIA

Chubb Security Australia Pty Ltd v Smith [1999] FCA 1340

INDUSTRIAL RELATIONS – arrangement between employer and employees for extended daily ordinary hours – whether receipt of document sufficient to constitute the Union’s agreement by the Union – whether the arrangement was valid.

WORDS & PHRASES – “arrangement”.

Workplace Relations Act 1996, s 179D

War Assets Pty Ltd v Federal Commissioner of Taxation (1954) 91 CLR 53.

CHUBB SECURITY AUSTRALIA PTY LTD v ROBERT WILLIAM JAMES SMITH

NO. N 282 OF 1999

JUDGE:         BEAUMONT J.
DATE:           20 SEPTEMBER 1999
PLACE:         SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NO. 282 OF 1999

BETWEEN:	CHUBB SECURITY AUSTRALIA PTY LTD Appellant
AND:	ROBERT WILLIAM JAMES SMITH Respondent
JUDGE:	BEAUMONT J.
DATE OF ORDER:	20 SEPTEMBER 1999
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

The appeal be dismissed.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NO. 282 OF 1999

BETWEEN:	CHUBB SECURITY AUSTRALIA PTY LTD Appellant
AND:	ROBERT WILLIAM JAMES SMITH Respondent

JUDGE:	BEAUMONT J.
DATE:	20 SEPTEMBER 1999
PLACE:	SYDNEY

REASONS FOR JUDGMENT

BEAUMONT J:

1. This is an appeal from a decision of the Chief Industrial Magistrate exercising the small claims jurisdiction under s 179D of the Workplace Relations Act 1996 (“the Act”).  The principal question that arose for determination, and the main question argued on the appeal, turned upon the proper construction of cl 11(e) of the Security Industry (New South Wales) Award 1994 (“the Award”).  That provision dealt with “ordinary working hours” for both full time and part-time employees in the following terms:

   “11.     ...

   Full Time and Part-Time Employees

   (e)Notwithstanding any other provision of this award the ordinary hours of work prescribed herein may be up to 12 hours on any day.  Provided that:

   (i)In any arrangement of ordinary working hours where the ordinary working hours are to exceed 8 on any day but no more than 10, the arrangement of hours shall be subject to the agreement of the employer and the majority of employees concerned;

   (ii)By arrangement between an employer, the Union and the majority of employees concerned, ordinary working hours exceeding 10 but not exceeding 12 on any day may be worked subject to:

   (1)       proper health monitoring procedures being introduced;

   (2)       suitable roster arrangements being made;  and

   (3)       proper supervision being provided.

   (iii)Arrangements made pursuant to paragraphs (i) and (ii) of this subclause shall be committed to writing in the form set out in Appendix A to this award.

   (iv)Arrangements made pursuant to paragraphs (i) and (ii) of this subclause shall continue in force for a period of three (3) months and thereafter unless rescinded by either party to the arrangement by the giving of seven (7) days notice;  provided that the arrangements may be varied at any time by the consent of the parties.

   (v)The document recording agreement reached pursuant to this subclause, that is, Annexure A to this award, shall be signed by all employees concerned within one (1) month of the arrangement being implemented and a copy forwarded to the Union Office.”

2. It appears that there was no evidence before the learned Magistrate, and there was none before this Court, to suggest that the union had any involvement in the present matter except that it did receive a copy of a document in the form of annexure A to the Award.  Annexure A is in the following terms. 

   “APPENDIX A

   1.The following arrangement is made pursuant to paragraph (iii) of subclause (e) of clause 11 – Hours, of the award, in regard to the following site(s)/establishment(s):

   ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ......
   (Location(s) of Site(s)/Establishment(s)

   2.It is agreed between the parties that the following arrangement for extended daily ordinary hours for the above location(s) is as follows.  (See also attached roster(s)):

   ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ......

   3.This agreement shall take effect from the beginning of the first full pay period to commence on or after ........ ........ ........ ........ ........ ........ ........ ......

   and shall remain in force for a period of........ ........ ........ ........ ........ ........ .

   4.Signed on behalf of (COMPANY NAME)

   ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ..
   Signed By:

   ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ..
   (All Employees to sign)

   Signed on behalf of the Union (where required pursuant to paragraph (iii) of subclause (e) of clause 11 – Hours, of this award):

   ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ..
   (Union Secretary)”

3. The document received by the union was, it appears, signed by a majority of employees concerned and by the appellant, the employer.  It is common ground for present purposes that the provisions of cl 11(e)(i) of the Award applied, that is to say, there was an agreement between the employer and the majority of the employees concerned that the ordinary working hours were to exceed eight on any day but not more than ten.

4. The dispute between the parties at first instance and before this Court concerns the possible application of the provisions of cl 11(e)(ii).  As has been seen, under that provision, ordinary hours exceeding ten, but not exceeding twelve, on any day may be worked, subject to the three matters there mentioned.  The critical part of this provision for present purposes consists of its introductory words which, as has been noted, begin as follows:

   “By arrangement between an employer, the Union and the majority of employees concerned, ... .”

5. In essence the question for the Chief Industrial Magistrate and for this Court may be reduced to one of construction as follows:  As a matter of law, can an arrangement be made between an employer, the union and the majority of employees concerned where the only involvement of the union is, as has been stated, the receipt of a copy of a document in the form of annexure A signed by all employees concerned?

6. The learned Magistrate answered the question in the negative and, in my opinion, correctly so.

7. It is true that the concept of an “arrangement” is a broad one and that it will pick up, depending on the context, a relationship which is short of an enforceable contract in the eyes of the law.  It is equally true that a court may infer an agreement or arrangement from conduct.  This conduct can be explicit or it can be inferred from acquiescence in a known situation (cf. War Assets Pty Ltd v Federal Commissioner of Taxation (1954) 91 CLR 53 at 88).

8. Accepting all of this, however, there is in the present case no suggestion of any conduct or action, or activity on the part of the union from which its participation in any arrangement of the kind specified in cl 11(e)(ii) might be inferred.  There is simply no conduct on the part of the union relevant to this question to which the appellant can point.  The mere receipt of a document in the form of annexure A to the Award does not, in my opinion, amount to material from which an inference of acquiescence in a situation giving rise to the existence of an arrangement with the union might legitimately be relied upon for present purposes.  For those reasons, I am of the opinion that the appeal should be dismissed.

9. I would add that, on behalf of the appellant, it was sought to agitate before this Court, an additional point and that is, that it was entitled to offset any liability that might accrue as a result of the Magistrate’s findings against other amounts.  In my opinion, it is not appropriate that this Court deal with that question. 

10. The learned Magistrate found that the “complaint was established” and adjourned the proceedings to allow the parties, if possible, to agree as to the quantum of the orders to be made, on the footing that if such agreement could not be reached, he would hear the parties as to orders.  There has been no agreement as to quantum, but no orders have yet been made by the learned Magistrate. 

11. The questions that have been sought to be agitated before me, on behalf of the appellant, are entirely abstract at this stage and it is premature for me to embark upon them, or upon any consideration of them, in the absence of specific findings or orders by the Magistrate at this stage.  As has been noted, no such findings have been made.

    ORDERS

12. The appeal is dismissed.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Beaumont.

Associate:

Dated:             20 September 1999

Counsel for the Applicant:	Mr Arthur Moses
Solicitor for the Applicant:	Baker & McKenzie
Counsel for the Respondent:	Mr Jim Nolan
Solicitor for the Respondent:	Steve Masselos & Co
Date of Hearing:	20 September 1999
Date of Judgment:	20 September 1999