Metro Meat Ltd v A.M.I.E.U.

[1988] FCA 376

.

CATCHWORDS

INDUSTRIAL LAW - interpretatlon of award - rates of pay -

repugnancy between general provlsion a d that dealing with a

particular subject - construction of penal provision

Conciliation and Arbitration Act 1904 S. 110

Refrigeration Express Lines (A/asia) Pty. Ltd. v Australlan Meat and Live-stock Corporation & Ors. (No. 2) (1980) 44 FLR

455

Scott v Cawsey (1907) 5 CLR 132

METRO MEAT LTD. V AUSTRALASIAN MEAT INDUSTRY EMPLOYEES UNION

21 JULY, 1900

NO. SA 3 OF 1987
MELBOURNE
KEELY J.

': $ '\--l , j

GENERAL DISTRIBUTION NOT REQUIRED .- .L.. - ' 4..

- ~ --.

IN THE	FEDERAL COURT OF AUSTRALIA	)
)

SOUTH AUSTRALIA DISTRICT REGISTRY ) No. SA 3 of 1987

)

DIVISION	INDUSTRIAL	)
B E T W E E N :

METRO MEAT LTD.

Applicant

A N D :

AUSTRALASIAN	ME T
INDUSTRY	EMPLOYEES
UNION

Respondent

21 JULY, 1988 KEELY J.

REASONS FOR JUDGMENT

This is an appllcation by Metro Meat Ltd. ("the

applicant") under S. 110 of the Conciliation and Arbitratlon

Act	- 1904 ("the Act") for an Interpretation of The South
Australian Meatworks Industrial Agreement-Award, 1982 ("the
Award").
the questions of payment f o r public holidays, annual leave

Paragraphs 1, 3 and 5 of the application relate to

and sick leave respectively. Paragraphs	2, 4 and 6, which
relate to orders sought in	the alternative to those sought In

paragraphs 1, 3 and 5 respectively, may be put to one side.

Mr. Bleby, of Queens Counsel, and Miss A. Harrison, of

counsel, appeared for the appllcant, which 1 s incorporated In

the State of South	Australla. The Australaslan Meat Industry
Employees Union ("the Union") was represented by Mr. F.	L.
Wright, of counsel.	The applrcant is a person bound by the
Award.	Mr. Teasdale, its State Personnel Manager, stated
that it operates, by means	of 3 "divislons", at the 3

different locations referred to in the Award.

In an affidavit Mr. Teasdale stated that the

application concerned mutton slaughtermen employed as

pieceworkers at the Hurray Brldge Division where the applicant employed 450 "regular dally hired" employees, of whom 4 3 were classified as mutton slaughtermen. His affidavit included the following statements:-

"6. . . . When achieving the maximum head tally on an ordinary working day a mutton

slaughterman's wage for, the day will

contain a number of components. Flrstly his ordinary rate of pay, will be included, secondly certain penalty rates for handling

overweight mutton, thirdly payments on

account of waiting time, fourthly penalties

for handling diseased stock and fifthly

penalties for	the handling and slaughtering
of rams. The amount whlch attaches	to each
of these component parts	of the daily rate

is calculated	in	accordance	with	the
Award .
....

8 . When a mutton slaughterman is entltled

to take paid leave of absence on account of annual leave each of the payments that form

the component parts in the dally pay as

referred to in paragraph 6 are used for the purposes of calculating his ordinary rate which then forms the basis of calculating

payment for annual	leave."
It is convenient	to refer flrst to the appllcation In

respect of annual leave. Under paragraph 3 the appllcant

contended that the Award provisions, on their proper

construction, only require it to pay to its mutton

slaughtermen, when on annual leave, the amounts referred to in clause 14 of the Award, namely, "4/48 of total ordinary

pay as defined [in clause 41 of the Award] .. . plus a loading

of 17-1/2%". It will be seen that the interpretatlon for

which the applicant contended dld not accord wlth its

existing practice (paragraph 8 of Nr. Teasdale's affidavlt);

the application expressly stated that it sought that

interpretation "notwithstanding the provisions	of sub-clause
(g) of Clause 34 Division	B of the Award".

Clause 14 of the Award included the followlng

provision:  .

"14 - Annual Leave

....
Payment of Wages	and Loading

( j ) (i) Payment for annual leave, . . . shall

be on the basis of four forty-eighths (4/48) of total

ordinary pay as defined earned

during the period of continuous

service ... plus a loading of

17-1/2 per centum or ..."

Clause 41 of the Award included the following

provisions:

"41 - Definltions

In this agreement-award in relation to an employee -

(a) "Ordinary pay" or "ordlnary rate" (for
the purpose of other than annual leave)
shall mean an employee's pay or rate of pay
prescribed by this agreement-award for the
classification in which he or she is
employed for time-work performed in the
ordinary hours of work prescrlbed by this
agreement-award, and In the case of

piece-workers all tally completed up to and

including maxlmum tally and shall not

include any payment in respect of overtime,

any additional payment in respect of shift work or any allowance (other than leadlng hand allowance and the allowance for knives and tools of trade) or any penalty or any

other additional payments.

For the purpose of calculatlng the payment	....
which a piece-worker or member of a piecework team is entitled to receive for sick leave or Award holidays:

(i) any amount paid for all tally

completed on any working day

during ordlnary hours	of work,
up to maxlmum tally, and

I

(ii) any amount paid in respect of

Waiting Time payments in lieu of tally up to maxlmum tally on an

ordinary working day during

ordinary hours of work,

shall be deemed to be ordlnary pay.

"Ordinary pay" or "ordinary rate" (for the
purpose of annual leave) In relation to any
employee shall mean the employee's pay or
rate of pay rescribed by this
agreement-award for the classification in

which he or she is employed for work

performed in the ordinary hours of work

prescribed by this agreement-award, and

shall include any additional payment in
respect of shift work, and any other rate
to which the employee is entitled in
accordance with his or her contract of
employment for ordinary hours of work;
provided that this provision shall not
operate so as to include any payment whlch
is of a similar nature to or is paid for
the same reasons as or is paid in lleu of

MEAL INTERVALS, clause 12 - OVERTIME,	those payments prescribed by clause 11 -
clause 17 - TRAVELLING EXPENSES of this agreement-award, nor any payment which might become payable to the employee as relmbursement for expenses Incurred.
....
F O T the purpose of calculating the payment
which a piece-worker or member of a piecework team is entitled to receive for annual leave, there shall be included In addition to other payments prescribed by this clause -

(i) any amount pald for tally up to

and including maximum tally, and in
the case of slaughtermen forming
part of the piecework dressing-and-
killing team any amount paid for
penalties (i.e. overweight cattle,
calves or bulls) incurred during the
achievement of maximum tally based
on the number of cattle or calves

(i.e., head tally); and

(ii) any amount paid in respect o€

Waiting Time payments made in lieu of tally up to maxipm tally on an

ordinaryworking day	during ordinary
hours of work.

They shall be deemed to be part of his ordinary pay."

Turning from annual leave to publlc holidays and sick

leave, the general subject of payment is dealt with in

sub-clauses 13(d) and 16(f) respectively, whlch	read as
follows:-

"13 - public Holidays

....

(d) Payment for Award holidays shall be on

the basis of an average of the ordinary

rate as defined in thls agreement-award

received for the days actually worked

during the previous pay	period immediately
preceding the holiday.

A Regular Daily Employee shall be paid the average of the ordinary pay or ordinary rate, as defined, earned by hlm o r her during the preceding five working days on which he or she was required to attend and offer himself or herself for employment and

did not fail to accept work if offered, o r

the	ordinary	rate per day for the
classification in which he	o r	she was

employed, whichever is the greater ...
16 - Sick Leave
(f) Payment for sick leave shall be on the ....

basis of an average of the ordlnary pay

received for the ordlnary days actually

worked during the pay period immediately

preceding the absence on sick leave for

each day o r shift, being an ordlnary

working day o r shift, on which he or she would have been required by or in accordance wlth this agreement-award to attend or offer for employment, on which he

or she is absent on slck leave ..."

Under paragraphs 1 and 5 of its appllcation, the applicant contended that the Awafd provisions, on their proper construction, only require it to pay to its mutton slaughtermen in respect of public holidays, and when they are

absent on sick leave, the amounts prescribed In clause 13 and

clause 16 of the Award, respectively, read in the llght of
the definltrons of "ordinary rate"	and "ordinary pay" in
clause 41.	In each case the interpretation order proposed
was	tated

to be "notwithstanding the provisions of sub-clause (g) of Clause 34 Division B of the Award".It

contended that the "ordinary rate" and "ordinary pay",

l .

referred to in sub-clauses 13(d) and 16(f), is that deflned
by the first part of sub-clause 41(a) of the Award which
refers to "'ordinary pay' or 'ordinary rate' (for the purpose

of other than annual leave)".

Clause 34 of the Award included the following

provision:

"Division B - Sheep Slaughtering on Rail

Payment to Members of a Piece-work Team	....
(vii)

(g) For the purpose of calculatlng	....
the payment whlch a member of a
piecework team is entitled to receive
in respect of Award holidays, annual leave and slck leave, any amount paid
for tally up to and Including maximum
tally, and Waiting Tlme payments made
in lieu of tally up to maxlmum tally,
and in the case of slaughtermen forming part of the piecework dressing-and-killing team any amount
paid for penalties (i.e., overweights) incurrOd during the achievement of maximum tally based on the number of stock (i.e., head tally) shall be deemed to be part of his or her .ordinary pay."

Mr. Wright, on behalf of the Union, relied on that sub-clause and contended that payment for public holidays, annual leave and sick leave is to be calculated on the basis of payments up to and including maximum tally, walting time

payments and penalty payments - including those for

over-weights and those prescrlbed by clause 3 4 Division B

(ix)(a) of the Award. It may be observed that the word

"overweights", appearing in sub-clause (g) above, was

inserted in the Award on 11 September 1985 by Mr.

Commissioner Sheather in	place of the words "overweight
cattle and bulls", whlch	had appeared In sub-clause (g) when

the Award was first made by consent.

The principles applicable to this application for

interpretation are clear. As Isaacs and Rich JJ. said in The Metropolitan Gas Company v The Federated Gas Employees'

Industrial Union & Anor. (1925) 3 5 CLR 449 at 455:-

"It is a received canon of interpretatlon that every passage in a document must be read, not as if it were entirely dlvorced from its context, but as part of the whole instrument: Ex antecedentibus et consequentibus fit optima interpretatio.

In construing an instrument "every part of

it should be brouaht into action. in o r d e r ~ ~~ ~, ~~~ ____.

to collect from t%e whole one uniform and consistent sense, if that may be done; or, in other words, the constpction must be made upon the entire instrument, and not merely upon dis~ointed parts of it; the whole context must be considered, in endeavouring to .collect the intention of the parties, although the Immediate ob~ect

of inquiry be the meaning of an Isolated
clause" (Bro;m's	Legal Maxims,, 9th ed., pp.

3 6 7 - 3 6 8 , an cases there clted; and per

Lord Haldane L.C. in Toronto Suburban

Railwa v Toronto Corpora-

4 p. 597."

Applying that principle to the Award, it wlll be seen that clause 34, "Division B - Sheep slaughtering	on rail" is
a provision dealing with a	particular subject matter, namely,

the members of a piecework team, includlng payments to them

(sub-clause (vii)). The clauses preceding clause 34 are

general provisions, which deal with matters affecting

employees generally. Illustratlons of the general provlsions are preference of employment (clause S), wage rates (clause 6), hours of work (clause 10) , and overtime (clause 12). Similarly, in my opinion, clauses 13, 14, 16 and 41, which are the clauses particularly relied upon by the applicant,

are general provisions	affecting employees generally, as will
be seen from an examination	of the terms of those clauses.

Clause 13 is a provision dealing with the condltions

of employees generally, in that sub-clause (a) confers, upon

employees generally, an entltlement to certaln public

holidays; sub-clause (d) contains a general provision as to

the basis of payment for publlc holldays.

Clause 14 is a provision degling with the conditions

of employees generally, in that sub-clause (b) confers an

entitlement to annual leave with	pay	upon "an employee
employed under this	agreement-award, other than a casual

employee ..." i.e. it confers upon employees generally (wlth

the exception of casual employees) an entitlement to annual leave; sub-clause (j)(i) contains a general provislon as to the basis of payment to employees for annual leave.

Similarly, clause 16 deals with the conditions of

employees generally, in that sub-clause (a) confers upon an

"employee other than a casual employee" an entitlement "to leave of absence wlthout deduction of pay, subject to

[certain] conditions and limitations . . ."; sub-clause (f)

contains a general provision	as to the basis of payment for
sick leave.

As Deane J. said in Refrigerated Express Lines

(A/asia) Pty. Ltd. v Australian Meat and Live-Stock Corporation & Others (No. 2 ) (1980) 44 FLR 455 at 468-469:-

"As a matter of general construction, where

there is repugnancy between the general provision of a statute and provisions dealing with a particular sublect matter, the latter must prevail and, to the extent of any such repugnancy, the general provisions will be inapplicable to the subject matter of the special provisions. "The rule is, that wherever there is a

particular enactment and general a

enactment in the same statute, and the latter, taken in its most comprehensive sense, would overrule the former, the particular enactment must be taken to be operative . . ." (per Romilly M.R. in Prett (1859) 26 Beav. 60d, at p. 6 d

at p. 1034). Repugnancy can be present in cases where there^ is no direct

contradiction between the relevant

legislative provisions. It 1 s present

where it appears, as matter of

construction, that speclal provlsions were

intended exhaustively to govern their

particular subject	matter and where general
provisions, if held to be	applicable to the

particular subject matter, would constitute

departure a from that intention by

encroaching on that subject matter."

In my opinion, after considering the Award as a whole,

the provisions of clause 34 Division B, sub-clause (vli) are

intended to be given full force and effect on the subject of "Payment to Members of a Piece-work Team" - which 1 s the

heading to that sub-clause. Sub-clause (vii)(g)	in my
opinion must prevail over	the general provisions contained In

clauses 13, 14 and 16 of the Award, notwithstanding the specific words, relled upon by Mr. Bleby, ~n the definitlon

of "ordinary pay" and of "ordlnary rate" appearing in

sub-clause 41(a) of the Award. Applying the words of Deane

J. in the Refrigerated Express case (supra, at 469), in my opinion it would constitute a departure from the intention shown by clause 34 Dlvision B (vii)(g) if the general

provisions in clauses 13, 14 and 16 of the Award, read in the

llght of clause 41, were held to be applicable to the employees who are members of a plece-work team withln the meaning of clause 34 Division B.

I am unable to uphold Mr. Bleby's submission that

clause 41, read in conjunction wifh clauses 13, 14 and 16, represents a "code" in the sense used by Deane J. in that case. Nor his suggestion, in final address in speaking of

modifying words so as to avoid repugnancy, that repugnancy

should be avoided by ignoring - rather than modifying -

clause 34 Dlvision B (vii)(g). I am also not prepared to

uphold his submission that clause 41 should prevail over

clause 34 Division B (vii)(g) by reason of the fact that clause 41 appears in the Award after that clause - although inserted at the same time.

In reaching my concluslons I have not overlooked the

applicant's reliance upon the principle that a penal

provision should receive a strict construction, nor its

citation of the reasons for judgment of Drake-Brockman CJ.

and Kelly J. in the Ship Painters and Dockers case (1947)	59
CAR l211 at 1212.	However, as Isaacs J. said, in Scott v
Cawsey (1907) 5	CLR 132 at 154:

"When It is said that penal Acts or fiscal apprehend it amounts to nothlng more than this. Where Parliament has in the publlc

Acts should receive a strict construction I

interest thought fit	in the one case to
restrain private action	to a limited extent

and to penalise a contravention of its

directions, and in the other to extract from individuals certain contributlons to

the general revenue, a Court should be

specially careful, in vlew of the

consequences on both sldes, to ascertain

and enforce the actual commands of the

legislature, not weakenlng them in favour of private persons to the detriment of the

public welfare, nor enlarging them as

against the indivlduals toyards whom they

are directed."

In Beckwith v The Queen (1976) 135 CLR 569 at 576,

Gibbs J. stated that the princlple that statutes creating

offences are to be strictly construed "has lost much of Its
importance in modern times". On the other hand, the courts

"will not extend a statute to cover a particular situation

merely because it appears that the legislature has acted

inadvertently" (Pearce's Statutory Interpretation i

Australia (second edition) at paragraph 191).

For the above reasons, I refuse to make the orders of

Interpretation sought in paragraphs 1, 3 and 5 of the application. At the conclusion of the hearing the parties both asked that the court should not make any order at the tlme of delivering reasons for ~udgment. They were agreed that the successful party should prepare short minutes of a

proposed order and furnish them to the other party in the hope that the parties might be able to reach agreement as to the terms of the order to be submitted to the court. If that

hope is not realized either party may apply for the matter to

be re-listed; an alternatlve, which the parties should consider with a view to avoiding the expense of a further hearing, is that the form of the order be dealt with by written submissions, exchanged between the partles and then forwarded to the Registrar for conslderation by the court before any order is made.

1

It is scarcely necessary to add that nothing in these

reasons for judgment is .intended to affect in any way the right of any party to apply to the Australian Concillation

and Arbitration Commisslon for a variation of the Award, for

any purpose, including that of clarlfying its terms.

I certify that this and the

preceding twelve pages are a
true copy of the Reasons for
Judgment herein of his Honour
Mr. Justice Keely delivered on

21 July, 1988.

Associate:  7'J a/LQ

Dates of Hearing	: 15, 16 & 17 February, 1988
Solicitors for applicant	: Baker McEwin
Counsel for applicant	: Mr. D. Bleby, Q.C. and miss

A. Harrison

Solicitors for respondent	: Maurice May & Co.
Counsel for respondent	: Mr. F. L. Wright
Judgment Delivered	:  21 July, 1988