Jarrad, Clifford v Silver Top Taxi Service

[1979] FCA 123

FROM TRANSCRIPT OF ORAL JUDGMENT

IN THE FEDERAL COURT OF AUSTRALIA )

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INDUSTRIAL DIVISION

) V. No. 32 of 1979

)

VICTORIA DISTRICT REGISTRY

)

BETWEEN :

CLIFFORD JARRAD Claimant

- and -

SILVER TOP TAXI SERVICE	Respondent
REASONS FOR JUDGMENT

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14 November 1979 KEELY J.

This is a claim for a penalty under s.119 of the

Conciliation and Arbitration Act 1904. The substance of the claim is that the respondent on various days committed a breach of the Vehicle Industry - Repair, Services and Retail -

Award 1976, which I shall call the award, in that they failed

to pay to Mr P. Metcalfe, Mr G. Porter and Mr R. Simpson

the amount of wages prescribed by clause 8 of the award,

without deduction.

Mr Richard Spicer of counsel, on behalf of the

respondent, admitted that at all material times:

(1)	the respondent was incorporated;
(2)	the Vehicle Builders - ~ m ~ l o ~ e e s Federation of
Australia - which I shall call the Federation -
was an organisation of employees registered under

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the Act;

(3)

the Federation was bound by the provisions of the

award ;

(4)	.	the claimant was an officer of the Federation and was	I
authorised under the rules of the Federation to sue
on behalf of the Federation;	I
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(5)	on certain specified days the respondent in paying	I
each of the three employees I have mentioned, deducted from the amounts due under the award
certain specified amounts;
(6)	the respondent was bound by the provisions of the
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award ;
(7)	the work performed by each of the three employees
was work to which the award applies.

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A certified copy of the award was tendered in evidence

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and by clause 4(a)(ii) it is binding upon the respondent in

members of the said organization of employees S-+ out in respect of the employment by them of employees who are award applies".

Mr Howard Nathan of counsel, on behalf of the claimant,

relied upon clause 7(a) of the award which, so far as is

material, reads as follows:

I1 (a) All wages shall be paid weekly except where

it has been the practice to pay fortnightly. II

Such wages shall be paid in cash, ... .

Mr Spicer submitted that the deductions made were

permissible by reason of the provisions of clause 7(g)

of the award, which I set out:

I1 (g) An employer may deduct from moneys due to an

employee such amount as is authorised in writing

by the employee for a lawful purpose specified	If
in the authority.

'Mr Spicer relied upon an authorisation in writing by each

of the three employees, ivhich was in the following terms. employees, and read:

It is hereby agreed that I shall reimburse the company for any shortages incurred in the course of my duty as a Petrol Attendant and the company is authorized to deduct such shortages from my weekly salary. The compazly in turn agrees to refund to me all monies paid which are in excess of my daily sales sheet."

As to clause 7(g) * of the award, Mr Nathan submitted

that deductions from "moneys due to an employee" which

results in the employer paying less than the amount

prescribed by the award cannot in law be a deduction

"fpr a lawful purpose" within the meaning of clause 7(g).

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He further submitted that any deduction from moneys due	I I
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to an employee8', which resulted in an employee receiving
less than the amount prescribed by the award, is necessarily	l
a breach of the award. Mr Nathan further submitted that
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clause 7(g)	is subordinate to clause 7(a)	of the award and	I
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that clause 7(g) should be read in the light of the following I I

provisions of the award:

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Clause 10(a) - Minimum Wage Adults;

Clause 12.- Payment by Results;

.. Clause 14(b) - Minimum Weekly Rate of Wage

for' Apprentices ;

Clause 16(a) - Aged or Infirm Workers.

I am unable to interpret clause 7(g) in the manner

suggested by Mr Nathan. Various clauses of the award operate

to determine the amount of wages to which an employee is

entitled under the award. As to the method of paying the amounts prescribed by the award, clause 7 is the relevant award clause. In my view, clause 7(a) and (g) must be read

together and so read they confer a right upon an employer

to deduct "from moneys due to an employee such amount as

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is authorised" incertain circumstances, i.e. provided that

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the authorisation is in writing", that it is "by the employee" and that it is "for a lawful purpose" which purpose must be "specified in the authority".

I am unable to uphold Mr ~athan's submission that

any deduction by an employer from moneys due to an employee

which resulted in the employer paying less than the amount

prescribed by the award for the work performed by that

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employee cannot be for a lawful purpose". I consider that

such an interpretation would result in clause 7(g)	having	I
virtually no operative effect.

In dealing with that difficulty Mr Nathan submitted that clause 7(g) would operate to permit a deduction to be made by an employer from a wage which was in excess of the amount prescribed by the award provided that after such

deduction the payment made was not less than the ahount due

under the award. I consider that clause 7(g) cannot be interpreted as having application in respect of and only

having application in respect of a wage which is above the

award wage.

In my view, the words "moneys due to an employee"

in clause 7(g) mean moneys due to an employee by reason

of the provisions of the award and are not intended to apply

to moneys due to an employee by reason of some contractual

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obligation. I have considered the cases to which Mr Nathan has referred me, such as the decision of the House of Lords

in Penman v. The Fife Coal Co. Ltd (1936) A.C. 45. Those

cases, although authoritative as to the English Truck Acts,

in my view do not support Mr Nathan's argument as to the

meaning of this award and in particular clause 7(g) of the

award, nor do I consider that the statutory provisions to

which Mr Nathan has referred support the interpretation of

the award for which the claimant contends. Accordingly,

the claim is dismissed.

(On 15 November 1979 after hearing argument on costs.)

I do not think it is necessary for me to give any

detailed reasons on this. I think they appear in the

discussion I have just had with Mr Spicer. However,

broadly I apply for the purpose of considering this

application for costs the principles referred to by

Mr Justice Northrop in Heidt v. Chrysler Australia Ltd

(1976) 26 F.L.R. 257 which is a decision given nearly

three years ago in 1976. The particular matter of costs

was dealt with by his Honour in a separate judgment

commencing at p.271. I agree with what his Honour says

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there at p.272 as to the policy of s.l97A, namely that:

"It is designed to free parties from the risk of	, .
having to pay the costs of an opposing party.
At the same time the section provides a protection	I

to parties defending proceedings which have been	I t	I
instituted vexatiously or without reasonable cause.

In my view, the prima facie view imposed by the legislature as a statutory direction to this Court and the High Court

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and other Courts is that costs shall not be ordered ualess

something appears. What must be made to appear is that the

proceedings were instituted vexatiously or without reasonable

cause .

Mr Spicer has very properly not contended that the	!
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proceedings were instituted vexatiously, and in my view it

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cannot be said on what has been put to m;! in the proceedings	I
so far and the evidence so far, that the proceedings were

launched without reasonable cause, in the meaning of

S. 197A.

. On the face of it there is nothing in the evidence

to gainsay this. Mr Jarrad, as an official of the V.B.E.F., has taken some proceedings in the interests of obtaining a

determination of the Court as to whether an existing

practice of deducting moneys from award wages should

continue. Now it is true that he has not succeeded, by

reason of 'the view which I have taken. That is a view

which I may add I was able to reach the more readily by

reason of having examined the decided cases referred to by

both counsel before the hearing of the case commenced so

that it was not dealt with quite as speedily as perhaps

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might have appeared to have been done yesterday. Despite

that, counsel for the claimant argued the matter at some

length and advanced a strenuous argument. In my view the I

mere fact that I found against him on this argument is not	I
sufficient ground for awarding costs and in the circumstances
I do not propose making any award for the claimant to pay
the costs of the respondent.

I cartify that this and t h e

procedins pages era a t r u e copy of the

Rcasaco for J u d ~ m a n t h e r e l n o f f i i s H o n o u r

M r . JunticeLA