Nicol v Parr

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,…