Poulos v Waltons Stores (Interstate) Ltd

[1986] FCA 159

Re: PETER ANTHONY POULOS
And: WALTONS STORES (INTERSTATE) LIMITED
No. ACT 10 of 1984
Industrial Law
15 IR 313

COURT

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY
DISTRICT REGISTRY
INDUSTRIAL DIVISION
Smithers J.
Keely J.
Gray J.

CATCHWORDS

Industrial Law - operation of common rule in the Australian Capital Territory - employee not a member of any union - entitlement pursuant to common rule.

Conciliation and Arbitration Act 1904 - ss.49(1) and 123.

Retail & Wholesale Shop Employees (Australian Capital Territory) Award 1968

The Constitution (63 and 64 Vic, Chap.12) s.51 (xxxv), s.122

HEARING

MELBOURNE

#DATE 22:4:1986

ORDER

The appeal be allowed.

Judgment be entered for the appellant in the sum of 6,208pounds 30.

Costs be reserved.
NOTE: Settlement and entry of orders is dealt with by Order 36 of the Federal Court Rules.

JUDGE1

The appellant has been employed by the respondent as a store representative since 20 November 1978. By proceedings in this court he sought to recover from the respondent the difference between the remuneration actually paid to him and that which would have been paid to him at the rate applicable to work in the classification of that performed by him under the Retail and Wholesale Shop Employees (Australian Capital Territory) Award 1968 (the Award).

1. There was an issue as to the proper classification for the purposes of the Award of the work performed by the appellant. That issue was determined at first instance in this Court on 10 February 1984 in favour of the respondent. The Court decided that the classification was not that designated in category 4 in clause 5 of the Award with the result that the appellant's claim under that clause was not sustainable. However, upon appeal to this Court it was decided that the work performed by the appellant was work within that classification of the relevant award, namely "order person and outdoor order person, namely employees engaged in collecting orders and/or soliciting business and/or selling away from the employer's place of business". Accordingly, if the applicant was a person entitled to the benefit of the Award, his claim was sustainable.

2. But it was a critical issue between the parties, whether, even if the appellant were covered by clause 5 of the Award he was a person entitled to the benefit thereof. It was contended by the respondent that the appellant was not so entitled because he was not personally a party to the Award and was not a member of any organization of employees which was a party to the relevant Award or of any organization of employees. The respondent was a party to and bound by the Award. The appellant's reply to this contention was that at all material times there was in force a declaration of the Conciliation & Arbitration Commission "that the whole of the terms of the (relevant) Award shall, in the Australian Capital Territory, subject to the specified exclusions, be a common rule of the industry in respect of which the dispute arose…