In the matter of The Hydro-Electric Commission of Tasmania Carpenters & Painters Award 1979 And in the matter of an application by the Operative Painters & Decorators Union of Australia

[1981] FCA 108

Industrial Law - construction of Award - Hydro-

Electric Commission of Tasmania Carpenters and

Painters Award 1979 - industry allowance -

entitlement of painters to allowance	- Concillatlon
and Arbitration Act s.110

IN THE MATTER of The Hydro-Electric Commission of

Tasmania Carpenters and Painters Award 1979

AND IN THE MATTER of an appllcation by The Operative

Painters and Decorators Union f Australia

for an interpretation of Clause	lO(1) of the
sald Award.

No. N.S.W.	5 of 1981
Morling J.

20 July 1981

Sydney.

IN THE FEDERAL COURT OF AUSTRALIA	)
)
NEW SOUTH WALES DISTRICT REGISTRY	) NO. N.S.W. 5 Of 1981
)
INDUSTRIAL DIVISION	1

IN THE MATTER Of The Hydro-

Electric Commission of Tasmania

Carpenters and Palnters Award

1979

AND IN THE MATTER of an applic-

ation by The Operatlve Painters

and Decorators Union of Australia

for an interpretatlon of Clause l O ( 1 )

of the said Award.

O R D E R

JUDGE MAKING ORDER:	MORLING J.
DATE OF ORDER:	20 JULY 1981

SYDNEY	MADE:	WHERE
THE COURT MAKES A DECLARATION pursuant to S . 110 of the
Conciliation and Arbitration Act, 1904, that on the true
construction of the Hydro-Electrlc Commisslon of Tasmania
Carpenters and Painters Award 1979 all painters employed
under the said Award are entitled to be pald the industry
allowance speclfied In clause lO(1) thereof.

IN THE FEDERAL COURT	OF AUSTRALIA	)
1

NEW SOUTH WALES DISTRICT REGISTRY	)	N.S.W. No.	5 of 1981
1

DIVISION INDUSTRIAL )

IN THE MATTER of The Hydro-Electric

Commission of Tasmania Carpenters -

and Painters Award 1979

AND IN THE MATTER Of an application

by The Operative Painters and

Decorators Unlon of Australla for an interpretation of Clause lO(1)

of the said Award.

MORLING J.

20 July, 1981

REASONS FOR JUDGMENT

This is an appllcation under S. 110 of the

Concillatlon and Arbitratlon Act for the interpretation of the Hydro-Electric Commisslon of Tasmanla Carpenters and Painters Award 1979. The application is brought by the

Operatlve Palnters and Decorators Unlon of Australia (the union) which is an organisatlon reglstered under the Act and one of the respondents to the Award. All other

respondents to the Award were served with notice of th

2.

application and one of them, the Building Workers’

Industrial Union of Australia, was represented at the

hearing. The respondent to the application is the

Hydro-Electric Commission of Tasmania (the Commission).

The application raises the question of

the proper construction of clause 10 1) of the Award.

Clause 10 is in the following terms:

“10 - INDUSTRY ALLOWANCE AND UNDERGROUND

ALLOWANCE

(1) Industry Allowance

In addition to the rates prescribed in clause 11, an employee shall be pald an allowance at the rate of $8.10 per week to

compensate for the following dlsabillties

associated wlth constructlon work (as

deflned) -

Climatic condltions when worklng in

the open on all types of work.

The physical disadvantage of having to climb stairs or ladders.

The disability of dust blowing in the wmd, brlck dust and drlpplngs from newly poured concrete.

sloppy and muddy conditions associated

with the initlal stages of the erectlon

of a building.

The dlsablllty of worklng on all types

of scaffolds or ladders other than a swing scaffold, suspended scaffold or

a bosun’s chalr.

The lack of the usual amenltles associated with factory work (e.g. meal rooms, change rooms, lockers).

3 .

( 2 )

Underground Allowance

An employee required to work underground shall be pald an allowance of $4.00 per week in additlon to the allowance prescribed in

10.1 of this clause and any other amount

prescribed for such employee elsewhere In

this award.

Where a shaft is to be sunk to a depth

greater than 6 metres, the payment of the underground allowance shall commence from the surface.

This allowance shall not be payable to employees engaged upon “pot and drlve“

work at a depth of 3 . 5 metres or less.

( 3 )

The foregoing allowances shall be paid for all

purposes of the award, provlded however that

where an employee is requlred to w rk under-

ground for no more than 4 days or shifts in

an ordinary week, he shall be paid an under-

ground allowance in accordance with the terms

of 12.l(r) - Underground Allowance of clause 12

in lleu of the amount of 10.2 of this clause.”

Clause 11(1) of the Award is ln the following

terms:

“(1) The minimum ordinary rates of pay to be paid

to an adult employee (other than an adult apprentice) shall be as set out hereunder, together with such additions as tool allow-

ance, Industry allowance and other allowances specified and payable in accordance wlth the provisions of this award.

Weekly Special

rate W F t

$ $

carpenter	167.40	5.30
Palnter	166.40	5.30

Provided that a painter employed on signwrlting

work shall be paid at the addltlonal rate of

$5.40 per week for each day or part thereof when

so engaged.

4 .

Provided further that a carpenter employed on model making shall be

paid at the additional rate of $9.00

per week for each day	or part thereof
when so engaged.

The applicant union seeks a declaration

pursuant to s.110 o f the Conciliation and Arbitration Act

that on the true construction of clause lO(1) of the Award

all painters employed under the Award are entitled to be

paid the industry allowance specifled in the clause. The

making of the declaration is opposed by the Commission on

whose behalf It is contended that only those painters

engaged in construction work are entitled to be paid the

industry allowance.

I am satisfied this is a proper case for

the exerclse of the Court’s declaratory ~urlsdlctlon havlng

regard to the nature of that jurisdiction as conferred by

s s . 110 and 118 of the Act. As to the power of the

Court under those sections and the circumstances m which

it may appropriately be exercised, see Master Builders

Association of Victorla v. The Australian Building

Construction Employees and Builders Labourers Federation

(Federal Court of Australia, Full Court, Evatt and

Northrop JJ.	11.	5.81 as yet unreported).
Clause 8 of the Award provides, inter

alia, that for the purposes of the Award -

“‘Constructlon Work’ means all work performed

under thls award in connectlon with the

erection, repalr, renovation, mamtenance,

5.

ornamentation or demolition of buildings or structures, including the making, assembling or fixing of woodwork and flttings

connection therewith, the making, preparing,

assembling and flxing of any material

necessitating the use of tradesmen's tools

or machines; and the prefabricating of

buildlngs. "

"'Employee' means a carpenter or joiner or

painter employed by the respondent and

includes an apprentice."

"Painter' means an employee on pamting

and/or decorating, paper-hanging, glazing

and signwriting in connection wlth the

construction and/or maintenance of the

respondent's property, buildings, structures,

plant, machinery or equipment."

It is the openlng words of clause lO(1)

which give rise to the difficulty in determining the

entitlement of painters to the industry allowance. On

behalf of the union it was contended that clause lO(1)

does not on its face require an employee to be engaged

in construction work for him to be entitled to the

industry allowance. Reliance was placed upon other

provisions of the Award which make it quite clear that

entitlement to other allowances or additional rates of

pay is dependent upon the doing of specified work. For

the Commission it was contended that the presence In

clause l O ( 1 ) of the word "compensate" indicates an intention

that the industry allowance should only be payable when

an employee is engaged on constructlon work in

circumstances where the disabilities specified In sub-

clauses (a) to (f) are encountered or are likely to be

encountered. It was argued on behalf of the Commission

6.

that it was permissible to look at the history of the

Award to arrive at its meaning and that i could be

discerned from the history of clause lO(1) that there

was reflected in past awards a settled policy of granting

the industry allowance only to those employees engaged

In construction work.

The primary task is to discover the meanlng of clause 10(1), reading the Award as a whole. See

Australian Timber Workers' Union v. W. Angliss & Co. Pty.

Limited [l9241 19 C.A.R. 172. Whilst the ordinary

principles of legal interpretation in general govern the

interpretation of awards, as Street J. said in George A.

Bond & Co. Limited (in Liquidation) v. McKenzie, [l9291

A.R. 499 at 503-4:

"Awards are made for the varlous industries

in the light of the customs and working

conditions of each industry, and they

between the parties, couched in terms frequently result ... from an agreement

intelligible to themselves but often

framed without that careful attention to

form and draftsmanship which one expects

to find in an Act of Parliament."

I was informed from the bar table that clause 10 was

incorporated into the Award by agreement between the

parties to it. It appears to have been lifted verbatlm

from clause 10.1 of the National Bullding Trades

Construction Award 1975 - Print C 6006.

Before addressing the specific question which

arises for decislon it is instructlve to conslder the Award

as a whole. Its operation is confined to a limited class of employees of the Commission. It applies only

to carpenters and joiners and painters, including

apprentices. To be covered by the Award a carpenter

must be employed "on carpentry or joinery work in

connection with construction work" - see the definition

of "carpenter" in clause 8 . However, a painter covered

by the Award may not be engaged on construction work.

Notwithstanding the width of the definition in clause 8

of "construction work" it is conceivable that a painter

employed by the Commission may not be engaged on such

work. Thus a painter whose work consists solely of

painting things other than buildings or structures, e.g.

furniture, would not be engaged on construction work. I

think it must be assumed for the purpose of construing statutory functions (see the Hydro-Electric Commission

the Award that such painters may be employed by the

-

Act, 1944 (as amended) (Tasmania) I think it is also

legitimate to assume that most of the Commission's

painters would be employed to paint buildings and

structures and would thus be engaged in "constructlon

work" as defined in clause 8 of the Award.

It is to be observed that the disabilitles

referred to in clause lO(1) (a) to (f) are such as to be almost impossible of precise or objective measurement to determine whether a particular working condition exists

a.

so as to give rise to an entitlement to the industry

allowance. Reference need only be made to "climatic

condltions" in sub-paragraph (a) and "the physical

disadvantage of having to climb stalrs" in sub-paragraph

(b). This indicates that it is not the actual encounter-

ing of the specified disabilities whlch gives rlse to

entitlement to the industry allowance. However, this

does not lead to the result that the speciflcatlon	of the
disabllities is otiose. Their speclfication In the

clause serves the purpose of identifylng the matters

of which account has been taken in fixing the industry

allowance and thus avoids the possibllity that a

subsequent claim wlll be made by employees for a wage

increase or an allowance in respect of the same matters.

In addltion to the Industry allowance, the

Award makes provision for many entitlements to allowances

and special rates of pay. Signlficantly, those provislons

are so framed as to make it clear that such entltlements

are subject to compliance wlth particular work requlrements.

Thus an underground allowance is payable only to an employee

"requlred to work underground" - clause 10 ( 2 ) . This

allowance is expressed to be "In additlon to the allow-

ance prescribed in 10.1 of this clause", words which seem to assume that there is an automatic entltlement to the

industry allowance. To become entitled to the

additlonal rates referred to In clause 11(1) a painter

9.

must be employed on signwriting work or a carpenter employed on model-making. Clause 12 makes provision for many special rates, all of them expressed to be

payable only in the event of the employee actually

experiencing a particular work environment. Thus an

employee who handles charcoal (clause 12 (1)(a)) , or who

is required to work in a confined space (clause 12(l)(d)),

or who is required to use an explosive powered tool

(clause 12 (l) (f) ) , or who is engaged on "unusually

dirty work" (clause 12(1) (h)) is entitled to a special

rate of pay.

The language of the clauses of the Award

in which provision is made for these allowances and rates

of pay is significantly different from the language of

clause lO(1). The industry allowance is not expressed

to be payable only to an employee who is required to work

on construction work or who encounters any of the specifled

working disabilitles. If it had been the intentlon of the

draftsman of the Award to achleve that result, I would have

expected him to use words such as appear in the other

clauses which make provision for entitlements. I do not

overlook the presence of the words "associated with .

construction work" in clause lO(1). There 1s force in the

argument that the words "to compensate for the following

disablllties assoclated with constructlon work" exhlbits

an intention that only an employee engaged on construction

18.

work is to be entitled to the industry allowance. That

argument has caused me to hesitate in concluding, as I do,

that all employees covered by the Award are entitled to

the allowance. It is not merely the change of wording

between clause lO(1) and the balance of the Award which

leads me to this conclusion. Having regard to the

definitions of "carpenter'' I "employee" I "palnter" and

"construction worker" it must have been apparent to the

draftsman of clause lO(1) that most, if not all, of the

Commission's carpenters and palnters would be engaged in construction work. However, it would have been equally apparent that only small sections of the workforce would

be engaged in work of the kind referred to in clause 10(2),

the provisos to clause 11 (1) and clause 12 (l) . T h u makes

readily understandable the absence from clause lO(1) of

words requiring the performance of construction work as a

prerequisite to entitlement to the Industry allowance,

but the presence in other provisions of the Award of words

prescrlbing the condltlons of entitlement. The draftsman

of clause l O ( 1 ) appears to have assumed that all employees

employed by the Commission would encounter to a greater or

lesser extent the dlsabilities referred to and should be

pald an industry allowance for them. It is true that the

draftsman would have made his meaning clearer if he had

not used the words "assoclated with construction work (as

def Ined) 'I. But I think those words should be treated

11.

as descriptive of the disabillties and not words of

limitation such as to require an employee to be engaged

in construction work to become entltled to payment of the

industry allowance. The Award uses other language where

such a result is sought to be achieved.

Counsel for the Commlssion did not argue that it was necessary that an employee should actually encounter all or any of the specifled disabilities ln

order to become entitled to the industry allowance. His

argument accepted that It was sufficient that an employee

be engaged in construction work, whether or not such work

was attended by any of the disabilities. I think he was wise to so argue because it would be very difflcult, if

not impracticable, to make an assessment of each

employee's working conditions in order to determine

whether or not those conditions were attended by all or some

of the disabilities referred to In the section. Thus,

whether the construction of the section contended for by

the Commlssion or the union be adopted, some employees

who may not encounter any of the specified dlsabillties

will receive the Industry allowance.

I have so far considered the question

without reference to the history of the Award. Counsel

for the union argued that It was not permissible to look

at the history of the Award as the terms of It were so

12.

clear as not to give rise to ambiguity. I think there

is sufficient ambiguity in the Award to make it

permissible to consider its history (see Pickard v. - John

Heine & Son Limited L19241 35 C.L.R. at p.9) but I do not

think the history assists the Commission's case. If

anything, it supports the construction for which the

union contends, as I shall attempt to show.

Prior to 1979 there was no award covering

painters employed by the Commission. However, it 1 s

possible to trace the history of the current Award

insofar as it applies to carpenters. Although the

Commission was not bound by The Carpenters and Joiners

Award 1946 (56 C.A.R. 2381, it is common ground that this

award was the forerunner of subsequent awards to which

the Commission did become bound. The Carpenters and

Joiners Award 1946 made a distinction between "construction

work" and other work done by carpenters. It gave to

carpenters "disabilities allowances" but only when they

were engaged upon construction work, whlch was deflned

in the award in terms similar to the defmition appearing

in clause 8 of the current Award. The Commission was a

party to The Carpenters and Jomers Award 1962 and this

award also provlded that only a carpenter engaged on

construction work was entltled to the industry allowance.

It 1s interesting to note that clause 11 of that award

made payment of the industry allowance condltlonal upon

13.

the carpenter being engaged	on constructlon work. The
relevant words were:

“m addition to the rates prescrlbed in

clauses 9 and.10 of thls award, a carpenter

engaged on construction work (as deflned)

of ... to compensate for the followlng	... shall be paid an allowance at the rate
disabillties of the industry, namely . - . ‘ l

The emphasis is mine. This wordmg made entitlement to the allowance conditional upon engagement o constructlon work, and is to be contrasted with the wording of clause lO(1) of the current Award. So far, the history of the

Award disclosed a policy that only carpenters engaged on

construction work should be entitled to the industry

allowance. But this pollcy was abandoned when, by a

variation of The Carpenters and Joiners Award 1962

insofar as it applied to the Commission, the industry

allowance was made payable to carpenters whether engaged

on construction work or malntenance work. See 101 C.A.R. -

692 at 693. This abandonment of the prior policy of

confining the industry allowance to carpenters engaged

on construction work was confirmed by further variations

made in 1963 and 1965. See 103 C.A.R. 452 at 456 and

113 C.A.R. 743 at 755. The Carpenters and Joiners Award

1967 contained provisions which, sofar as carpenters generally

were concerned, conflned the right to the industry allowance

to carpenters working on constructlon work (see 117 C.A.R.

13 at p. 21). But the Award made special provlslon for the payment of an industry allowance to carpenters employed by

14.

the Commission, whether those carpenters were employed

on construction work or not - see 117 C.A.R. 13 at p. 37.

the Commission) the Carpenters and Joiners Award 1967 was superseded by the National Building Trades Construction	Insofar as it applied to most employers (but not including for relevant purposes, in terms identical with clause
l O ( 1 ) of the current Award and was the only provision in
the Award for the payment of an industry allowance. In
the form in which it stood in 1979 when it was superseded
Commission's carpenters and joiners, the Carpenters and
by the current award insofar as it applied to the allowance to all carpenters employed by the Commission.
See Print D 8911 at p. 27. It is signiflcant that the
entitlement to the industry allowance was not conflned to
carpenters engaged on construction work. The relevant portion of the Award was in the following terms:

"In lieu of the provisions of clauses C4 and C7

of this Division, the Hydro-Electrlc Commission

of Tasmania shall- pay, In addition to the tool

allowance prescrlbed by clause C5 of thls

Division, the following rates:

per week

(a) carpenter

Minimum ordinary wage rate 154.80

special 4.90 payment week per

Industry Allowance at the rate of 8.10

.

15.

The industry allowance is payable to cover claims for disabilltles prescrlbed

for in clause 10.1 - Industry Allowance,

of the National Building Trades

Construction Award,	1975, as varled from
time to time."

Thus it will be seen that immedlately prior

to the making of the current Award it was not a condition

of entitlement to the industry allowance that a carpenter

be engaged on construction work. The allowance was

regarded, in effect, as part and parcel of the weekly

emoluments of a carpenter, whether engaged on construction

work or not. Clause lO(1) of the current Award likewise,

in my opinion, treats the allowance as part and parcel of

the weekly emoluments of a carpenter, but extends the

entitlement to+he allowance to an employee, whether he

be a carpenter or painter.

In my oplnlon the history f the current

Award does not lend support to the constructlon of

clause lO(1) contended for by the Commlsslon. On the

Commission's argument, only those carpenters engaged Ln constructlon work are entitled to the industry allowance. But under the Award applicable to the Commission's carpenters immediately prior to the making of the current

Award, all carpenters, whether engaged on construction

work or not, were entitled to the industry allowance.

Whllst it 1 s possible that It was the lntentlon of the

16.

draftsman of the current Award to deprive carpenters not

engaged on construction work of their prior entitlement

to the industry allowance such an intention seems highly

unlikely in an industrial context, particularly as the

current Award was made by consent.

It was urged upon me by Mr. Rothman who

appeared for the Building Workers Industrial Union of the Commission pays the industry allowance to all its

carpenters, whether engaged on construction work or not.

It was agreed that this was the fact, but I do not think

it would be proper to have regard to this circumstance

in construing the Award. In my opinion it is not

permissible to have regard to acts done under the Award

when construing its terms. See Seamen's Union f

Australia v. The Adelaide Steamship Co. Limited & Ors.

(J.B. Sweeney, Evatt and St. John JJ., 25 June 1976 -

Australian Industrial Court) applying L. Schuler A.G. v. Wickman Machine Tool Sales Ltd. (1974) A.C. 235.

For the above reasons I am of the opinion

that the union is entitled to the declaration whlch it

seeks and accordingly I make a declaration pursuant to

S. 110 of the Conciliation and Arbitration Act, 1904,

that on the true construction of the Hydro-Electrlc

Commission of Tasmania Carpenters and Painters Award

"

.

17.

1979 all painters employed under the said Award are

entitled to be paid the industry allowance specified

in clause lO(1) thereof.

I certify that this andthe fl6)

precedingpagesareatrue copy o f t h s

Reasons for;TudgmenthereinofhisHonour

Xr. Justice Morling.