Davies Bros. Ltd v Printing & Kindred Industries Union

[1987] FCA 819

~.

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 1

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 by 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 in 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 of Mr. Bleby of Queens Counsel for the appellant

notwithstanding, these concessions~ carry with them the destruction of

the very arguments he put. There is 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 a 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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In my 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.