Nicol v Parr

[1985] FCA 176

Re: DANIEL ANTHONY NICOL
And: DENIS BRUCE PARR
No. QLD Q1 of 1985
Industrial Award
11 IR 141

COURT

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
INDUSTRIAL DIVISION
Pincus J.

CATCHWORDS

INDUSTRIAL AWARD - identity of respondent to award - ambiguous designation of respondent - charge of obstruction - meaning of "obstruction" - duties of inspector.

Conciliation and Arbitration Act 1904 (Cth) s.125

Pig Breeding and Raising Award 1977

The Australian Commonwealth Shipping Board v. Federated Seamen's Union of Australasia and Others 35 CLR 462

Perks v. Regatta Carlton Hotel Pty Ltd 74 AILR 320

Hinchcliffe v. Sheldon (1955) 3 All. E.R. 406

O'Reilly and Others v. Commissioners of the State Bank of Victoria and Others (1983) 57 ALJR 342

HEARING

BRISBANE
#DATE 3:5:1985

ORDER

The defendant be convicted and fined $300.

NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

The defendant is charged under s.125(10)(a) of the Conciliation and Arbitration Act 1904 (the "Act") in that he obstructed the prosecutor "an inspector appointed pursuant to s.125(2) of the said Act in the performance of his duties". The particulars of the charge are that on 3 April 1984 the defendant refused the prosecutor access to time and wages records of a company called Warwick Pig Meats Pty Ltd and ordered the prosecutor to leave the property of the company situated at Warner Street, Warwick.

1. During the hearing an application was made on behalf of the prosecutor for an amendment of the charge to allege obstruction in the exercise of powers rather than in the performance of duties. I reserved my decision on that, but now refuse it.

2. The evidence was that the defendant acted as alleged in the particulars, in substance, there being only one point of any significance as to which the witnesses differed. That was the language in which the defendant told the prosecutor to leave the property. Certain it is, however, that he did tell him to do so and that he refused him access to the records mentioned in the particulars.

3. It was submitted for the defendant that upon the correct construction of the relevant Award, namely the Pig Breeding and Raising Award 1977, Warwick Pig Meats Pty Ltd, the company mentioned in the particulars, was not a respondent to the Award. For that reason, it was said, the prosecutor had no right to enter the premises and therefore the defendant was entitled to act as he did. Clause 3 of the Award makes it apply to "the persons and/or organisations listed in the Schedule of respondents hereto" and it was submitted that on the proper construction of the Schedule the company was not made a respondent.

4. The Schedule has two columns, neither of which has a heading; the left-hand column is obviously intended for the names and the right-hand for the addresses. In the left-hand column there appears "Mr James J. Sherran" and in the right-hand "Warwick Pig Meats Pty Ltd, Warner Street, WARWICK. 4370". Mr Murdoch for the defendant said that, because of the position of its name in the Schedule, the company is clearly not a respondent.

5. Mr Murdoch also relied on the terms of a finding of dispute made by Mr Justice Sharpe on 4 August 1976 which, together with associated documents, constitutes exhibit 9. The finding incorporates the log of claims which was served on parties listed in a schedule whose content, so far as relevant, is the same as the Schedule to the Award; I therefore do not think the finding takes the matter any further.

6. The evidence shows that at all material times the business was that of the company. Until late in 1978 it was controlled by James John Sheeran and others, but on 21 December 1978 those people resigned their directorships, whereupon the defendant and others were appointed. It seems clear that apart from the misspelling of "Sheeran" as "Sherran", the log and documents which followed on from it were in error in mentioning Mr Sheeran's name and in including the name of the company in the right-hand column rather than the left. The defendant's contention was that the mention of the company was merely for the purposes of further identification of Mr Sheeran.

7. It was argued by Ms Holmes on behalf of the prosecutor that Clause 3 of the Award makes all the "persons and/or organisations listed in the Schedule" respondents, whatever their physical position in the Schedule. However, a reader of the Schedule who knew nothing of the facts would be uncertain whether the mention of the company was simply a means of additional identification of Mr "Sherran" (sic) or whether, as is the fact, the company was the employer. The question, as it seems to me, is whether it is permissible to have resort to extrinsic evidence to solve the problem, namely the uncertainty as to the true identity of the intended respondent. In my view extrinsic evidence is admissible for this purpose.

8. In The Australian Commonwealth Shipping Board v. Federated Seamen's Union of Australasia and Others 35 CLR 462 the award named as respondent "Commonwealth Government Line of Steamers". The name of the organisation intended to be respondent was Australian Commonwealth Shipping Board (a rather dissimilar name) but the description given was held sufficient, apparently because everyone knew what body was intended. Starke J. remarked at p.493, referring to the description "Commonwealth Government Line of Steamers":-
   
   

"Certainly, want of care has been shown in so naming the party, but the intention to be gathered from the words and from the surrounding circumstances admissible on a question of construction and of identification leaves no doubt that the body owning and carrying on the line is the party bound by the award, namely, the Australian Commonwealth Shipping Board".

1. I sympathise with the view expressed by the authors of "Federal Industrial Law" (1975) at p.171:-
   
   

"It is ... necessary for a federal award to specify with precision the parties to be bound thereby ..."

Yet that was not done in the Shipping Board case. There is, in this matter, no reason to doubt that those concerned would have appreciated that the employer, Warwick Pig Meats Pty Ltd, was the intended respondent. I hold that the loose and inaccurate designation of the respondent is not destructive of the Commission's intention, which clearly was that the employer should be bound. In arriving at this conclusion I have distinguished the result in Perks v. Regatta Carlton Hotel Pty Ltd 74 AILR 320, to which Mr Murdoch referred, on the basis that there the intended respondent was neither named nor described in the award.

1. Even assuming that the company is not bound by the award, it is my opinion that the prosecutor was carrying out his duties. They are prescribed by direction given by the relevant Minister on 28 June 1983 and include, by Clause 3(i) of that direction, the duties:-
   
   

"to make inspections, examinations, investigations and enquiries and to interview persons ... to determine whether the Act, the regulations and any award or order made under the Act are being observed and if not in what respect they are being observed".

The expression "to determine" is purposive and means "in order to determine" or "for the purpose of determining". The prosecutor, acting in the reasonable belief that there were workers on the premises covered by the Award, sought to look at the books to determine whether the Award was being observed. In my view, if (contrary to that expressed above) the Award properly read did not cover the work being done, nevertheless the prosecutor was acting within the scope of his duties. The matter could be tested in this way: if an award covered only work of a certain character, could not an inspector, in the exercise of his duties, make "inspections, examinations, investigations and enquiries" to determine whether particular employees were carrying out work of that character? If the argument advanced for the defendant is right, then the duties to make inspections and the like cannot safely be fulfilled except where it is certain that work covered by an award is being done. I cannot read Clause 3(i) so narrowly.

1. What I have said about the duties of the inspectors under the ministerial direction does not necessarily apply to every instance in which an inspector attempts entry, under the impression that work covered by an award was being done. No doubt the duties, and correlative rights, of inspectors under the Clause are limited by considerations of reasonableness. However, it is unnecessary to consider their limits in that direction here, because there is no suggestion that, other than in the slightly technical sense put forward, the prosecutor was acting beyond the letter or spirit of the law.

2. Mr Murdoch's next point was that s.125(10)(a) should be read down, so as to exclude from its ambit matters falling within s.125(10)(b). The whole sub-section is as follows:-
   
   

"A person who -

(a) hinders or obstructs an Inspector in the exercise of his powers or the performance of his duties;

(b) refuses or fails, without reasonable excuse, to comply with a requirement made by an Inspector in accordance with sub-paragraph

(6)(b)(iv) or paragraph (7)(a); or

(c) makes to an Inspector, in the course of the exercise of his powers or the performance of his duties, a statement, whether orally or in writing, which to his knowledge is false or misleading in any particular,

is guilty of an offence.

Penalty: $500 or imprisonment for 6 months."

1. Here, Mr Murdoch says, in substance what is complained of is failure to comply with the requirement under sub-s.(6)(b)(iv), which empowers an inspector to require production of a book or document relevant to the purpose of ascertaining whether awards have been observed. It is said that unless paragraph (a) is read down to exclude from its scope a failure to comply with such a requirement, then the prosecution can prevent the defence of reasonable excuse (available under (b)) being raised, by choosing to charge under (a). The contention has substance, but the making of the implication cannot be said to be necessary, at least in a case where the obstruction complained of is not merely a failure to produce the books but also a requirement that the inspector leave the premises. In my view, it was permissible to charge the entire conduct of the defendant under sub-s.10(a), whatever may be the position if all that is complained of is refusal of access to books.

2. Next, it was contended that some more positive action than that proved is necessary to constitute obstruction within the meaning of the statute. It was said that, in particular, merely requiring Mr Nicol to leave is insufficient. The weight of authority is against that contention. In Hinchcliffe v. Sheldon (1955) 3 All ER 406, Lord Goddard C.J. at p 408, in a police obstruction case, said that "obstructing" means "making it more difficult for the police to carry out their duties". What the defendant did certainly falls within that description. Further, the submission that in such a context the notion of obstruction requires some positive action is inconsistent with the view expressed by the High Court in O'Reilly and Ors v. Commissioners of the State Bank of Victoria and Ors (1983) 57 ALJR 342 at p 347.

3. I am of opinion, therefore, that the charge has been made out. Mr Murdoch on behalf of the defendant argued for lenient treatment, on the ground that the defendant was acting on legal advice. While I do not think that in every case in which such a claim is made, it should go in mitigation of the penalty, I do not think the defendant acted in deliberate defiance of the law. The penalty is $500 or six months' imprisonment. The latter is obviously inappropriate. I convict the defendant and fine him $300.