Davies Bros. Ltd v Printing & Kindred Industries Union

IN TBE

FED-

COURT OF AUSTRALIA 1

NEW	.SOUTH WALES DISTRICT REGISTRY

No. I 4 of 1984

INDUSTRIAL DIVISION

ON APPEAL FROM MR. JUSTICE GRAY

DAVIES BROS. LIMITED

Appellant

PRINTING AND KINDRED INDUSTRIES UNION

First Respondent

CHRISTOPEER EARVEY

CORAM: Northrop, Keely, Einfeld JJ

OF AUSTRALIA

DATE	:	19 June 1987
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2 8 J A N 2003

EX-TEMPORE JUDGMENT

LIBRARY

EINFELD J:

The application from which this appeal emerges relates

primarily to the interpretation of Schedule

BAA ("the Schedule"), known

as the Saturday Evening Mercury Agreement to the Newspaper Printing

Agreement

1979

("NPA

Agreement")

certified

the

Australian

Conciliation and Arbitration Commission

on 1 December 1981.

The short point at issue

is whether the Schedule applies to casual

publishing employees performing work in the appellant's newspaper, the Saturday Evening Mercury, published in Hobart. The Schedule, which is

incorporated in the NPA Agreement by clause

43 , is set out

full in

the reasons for judgment of

Mr. Justice Gray at first instance.

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On its face, it is clear that the Schedule applies

to all

employees

employed in publishing the Saturday Evening

Mercury. The appellant

argues however that the context of the NPA Agreement requires	that the
Schedule should be read down to exclude casual employees.

Clause 23(a) of the NPA Agreement delineates the employees	who may be
employed by the respondent:

'No employee shall be employed other than as a weekly time-work employee or a weekly piece-work employee or a casual time-work employee or a casual piece-work employee."

Clause 26 defines a casual employee

as being someone other than a

weekly

employee and provides for his or her rates of pay.

While distinguishing

different

rates

of pay for

casual

publishing

and

non-publishing

employees and for those of the first variety working on day or

night

shift, it sets the rates by reference to other clauses by which the rates for weekly employees are also calculated.

The appellant argued that a review of the NPA Agreement, with the Schedule incorporated as it were as one of its clauses, opens the NPA

Agreement to

the

interpretation

in some

clauses

that otherwise

unqualified employees are clearly intended	to be weekly employees	and
not casual employees.

The argument conceded, as I believe rightly, that the NPA Agreement is not consistent in this regard, not only between clauses but sometimes within the same clause. The argument further conceded that some

unqualified references to employees are clearly intended

to include both

casual and

weekly employees. The usual forensic skill and

eloquent

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persistence

Mr.

Bleby

Queens

Counsel

for the

appellant

notwithstanding, these concessions~ carry with them the destruction of

the very arguments he put. There

nothing compelling about the

content: or context of the NPA Agreement nor of the Schedule itself that

require the general and clear ambit

of the Schedule's coverage to be

qualified. Without more, both in the agreement and

in the evidence, it

is not possible to read into unambiguous words not merely

an ambiguity

but

meaning clearly on the branch of the ambiguity opposed to the

apparent meaning.

By way of demonstration, the effect of adopting Mr. Bleby's argument

would mean that casual employees working	on the publication of the
Saturday Evening Mercury:

(a) would receive the same pay whether they work at night or by day

or on Christmas Day

or any ordinary day of the week;

would not be entitled to	a meal break in a full shift of six or
more hours;

would not be included on a roster of workers employed on any shift with the result that foremen or other workers would not know who was performing the work to be done by casual employees;

in the case of junior casuals, that they could be required to do

work regarded as dangerous to or beyond the skills	or strength
of juniors on weekly employment;

would or may not be entitled to protective clothing supplied	to
weekly employees performing the same work.

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view' the word "employees" in

the

Schedule

clearly

and

unambiguously includes casual employees.

It is therefore not necessary

to go to Mr. Bleby's second argument that to resolve the supposed ambiguity, I should go to the circumstances surrounding the making of the agreement to ascertain the parties' intentions in this regard.

However, I believe that the evidence falls far

short of compelling a

construction of the kind contended for even if such an exercise were undertaken. In my view, a limited interpretation of "employees" was not and could not have been intended as the meaning of the agreement

including the Schedule. Not only am I therefore not persuaded

that a

word of clear and general meaning

like "employees" requires a

gloss or

qualification, it seems to me unlikely that the parties did so intend.

For those reasons I would dismiss the appeal.

In the case of Davies Bros. Limited v. Printing and Kindred Industries Union, the appellant, Davies Bros. Limited, challenged the applicability of the Saturday Evening Mercury Agreement (Schedule BAA) to casual publishing employees who worked for the Saturday Evening Mercury in Hobart. The dispute was heard in the Federal Court of Australia's New South Wales District Registry's Industrial Division, with the appeal originating from a decision by Mr. Justice Gray. The central issue before the court was whether the Schedule BAA applied to casual publishing employees under the Newspaper Printing Agreement 1979 (NPA Agreement).

The legal question the court had to resolve was whether the Schedule BAA should be interpreted to exclude casual publishing employees, as argued by the appellant, or whether it should be understood to include them as stated in its plain and clear terms. The appellant contended that the context of the NPA Agreement suggested that casual employees should be excluded from the agreement's coverage. Clause 23(a) of the NPA Agreement specified that employees could only be employed as weekly time-work, weekly piece-work, casual time-work, or casual piece-work employees, with Clause 26 defining a casual employee. The appellant's argument was that the NPA Agreement, including the Schedule BAA, should be interpreted to favour weekly employees over casual employees, as some clauses suggested an intention to limit employment to weekly employees only.

However, the court found that the NPA Agreement and the Schedule BAA were not inconsistent in their application to casual employees. While acknowledging that some clauses might suggest a preference for weekly employees, the court concluded that there was no compelling reason to read an ambiguity into the clear and general terms of the Schedule BAA. The court dismissed the appellant's argument, stating that the plain meaning of the word "employees" in the Schedule BAA unambiguously included casual employees. The court further held that even if the intention of the parties at the time of the agreement's formation was considered, the evidence did not support a limited interpretation of "employees" to exclude casual publishing employees.

The Federal Court of Australia dismissed the appeal, affirming that the Schedule BAA applied to all employees, including casual publishing employees, performing work in the appellant's newspaper. This decision underscores the importance of interpreting agreements according to their plain and unambiguous language, unless there is clear evidence to the contrary.

CaseChat Overview and Summary

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Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established