Rickard, J.S. v Kelman Nominees P/L

Re: JOHN STEPHEN RICKARD
And: KELMAN NOMINEES PTY LIMITED
No. ACT 1 of 1988
FED No. 67
Industrial Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY
DISTRICT REGISTRY
INDUSTRIAL DIVISION
Neaves J.(1)

CATCHWORDS

Industrial Law - metal Trades (Australian Capital Territory) Award 1982 - Construction of award - Employment of minor - Whether entitled to wages and other benefits prescribed for classification of "Motor mechanic".

Industrial Law - Proceeding for recovery of penalty for breach of award - Proceedings purporting to be instituted by an "Inspector" - Applicant appointed Inspector by an officer of Department of Employment and Industrial Relations pursuant to an authority given by the Minister administering that Department - Department abolished prior to institution of proceeding and Department of Industrial Relations created, that Department being administered by Minister for Industrial Relations - Whether applicant had standing to bring proceeding.

Conciliation and Arbitration Act 1904 (Cth), ss.119, 125

Apprenticeship Ordinance 1936 (ACT.), s.19

HEARING

CANBERRA

#DATE 10:3:1989

Counsel for the applicant : Mr J. Phillips

Solicitor for the applicant: Australian Government Solicitor

The respondent was not legally represented. Mr B.E. Kelleher, a director, was heard on its behalf.

ORDER

THE COURT ORDERS THAT the application be dismissed.

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

JUDGE1

By this proceeding, which is brought pursuant to sub-s.119(1) of the Conciliation and Arbitration Act 1904 (Cth) ("the Act"), John Stephen Rickard ("the applicant") sues Kelman Nominees Pty Limited ("the respondent") to recover penalties for breaches of the terms of the Metal Trades (Australian Capital Territory) Award 1982 ("the Award"). Three breaches of the Award are alleged, namely -

(a) that between 2 August 1985 and 17 January 1986 the respondent failed to pay one Andrew Muir the wages due to him in accordance with clause 4 of the Award;

(b) that on the termination on 17 January 1986 of Mr Muir's employment the respondent failed to pay him, in accordance with clause 20(c) of the Award, the correct amount payable in respect of annual leave calculated on a pro rata basis for each completed month of service; and

(c) that between 2 August 1985 and 17 January 1986 the respondent failed to pay Mr Muir a tool allowance in accordance with clause 34 of the Award.

The applicant also seeks an order pursuant to sub-s.119(3) of the Act that the respondent pay to Mr Muir the sum of $4,600.24 described as being the amount to which he was entitled under the Award but which was not paid to him.

The respondent is a company which was incorporated in the Australian Capital Territory on 8 June 1982. The sole shareholders and directors of the respondent are, and have at all relevant times been, Brian Edward Kelleher and his wife. The respondent at all material times carried on business at 29 Lonsdale Street, Braddon in the Australian Capital Territory under the business name "The Stable". The business comprised the selling of motor cycles and automotive spare parts and accessories and the servicing and repair of motor cycles, including motor cycle engines. The respondent's business premises consisted of a sales area and an area at the rear used as a workshop.
Mr Muir was born on 25 November 1969. In or about July 1985, when he was 15 years of age and still attending secondary school, he approached Mr Kelleher seeking employment with a view to becoming an apprentice motor cycle mechanic at the end of the year. Mr Kelleher said that he was prepared to discuss the matter with Mr Muir's father and this he subsequently did. In the result, Mr Kelleher agreed to employ Mr Muir in the respondent's workshop whereupon Mr Muir left school. His employment commenced on 2 August 1985 and continued until 17 January 1986. Mr Kelleher, who was himself a qualified motor mechanic, already had an apprentice. He applied on two occasions to the Apprenticeship Board established under the Apprenticeship Ordinance 1936 (ACT.) ("the Ordinance") for permission to employ Mr Muir as an additional apprentice but the application was on each occasion refused. The evidence of Mr Muir and his father is that Mr Kelleher agreed to pay Mr Muir a percentage of the wage payable to an adult tradesman's assistant. Neither Mr Muir nor his father gave evidence as to what the percentage was. Mr Kelleher said, though not on oath, that for the first three months of his employment he was paid as a junior and that, after he turned 16 years of age, he was paid as an apprentice.
The case made by the applicant is that, in respect of the period of his employment with the respondent, Mr Muir was entitled to be paid wages at the rate from time to time prescribed by the Award for an employee of the classification "Motor mechanic" and to receive the other benefits from time to time prescribed by the Award in respect of an employee of that classification.
At all material times clause 3 of the Award relevantly provided:

"This award shall be binding on the Australasian Society of Engineers, Electrical Trades Union of Australia and The Amalgamated Metals Foundry and Shipwrights' Union and the members thereof, together with all employees, whether members of such organisations or not, engaged in any of the occupations, industries or callings covered by this award within the Australian Capital Territory, and the Confederation of ACT. Industry, the Master Builders' Association of the Australian Capital Territory and the Metal Trades Industry Association of Australia and each of the members of those organizations. The Electricity Commission of New South Wales and employees thereof are exempt from the provisions of this award."

There is evidence before the Court, which was not disputed, that during the period 1 July 1985 to 1 February 1986 (inclusive) the respondent was a member of The Confederation of ACT. Industry. The evidence does not show that Mr Muir was at the relevant time a member of any of the organizations of employees referred to in clause 3 of the Award.

Clause 4 of the Award provided that employees of the classifications set out in that clause, other than apprentices and employees in respect of whom a certificate under s.48 of the Act (a provision of no relevance to the present case) was in force, were to be paid not less than the wage per week set out in the table appended thereto. The table included some 47 classifications in Division A and 7 classifications in Division B. One of the classifications in Division A, classification numbered 25, was "Motor mechanic", an expression defined in clause 47 as follows:

"'Motor mechanic' means a tradesman engaged (in) repairing, altering, overhauling, assembling (except for the first time in Australia), or testing metal and/or electrical parts of the engine or chassis of motor cars, motor cycles or other motor vehicles."

The weekly wage prescribed by the Award for the classification of motor mechanic as in force at the time of Mr Muir's employment does not appear from the evidence before the Court. The Award was, however, varied on 3 September 1985, that variation prescribing an amount of $264.10 as the weekly wage for such classification. That variation was expressed to have come into force from the beginning of the first pay period to commence on or after 6 April 1985. A further variation of the Award was made on 7 March 1986, that is to say after Mr Muir's employment had been terminated. That variation prescribed an amount of $274.10 as the weekly wage for the classification of motor mechanic. It was expressed to have come into force from the beginning of the first pay period to commence on or after 4 November 1985.
Clause 8 of the Award prescribed minimum rates of wages payable to an employee apprenticed in employment in accordance with the provisions of the Ordinance, those rates being percentages of the rates of wages, including tool allowance and industry allowance where applicable, fixed for journeymen in terms of the Award. Clause 7 prescribed minimum weekly rates of pay for unapprenticed juniors, the rates varying according to the employee's age. Clause 7(c) provided that junior employees employed on certain specified machines or operations were to be paid at not less than the appropriate adult minimum rates. It is not suggested that that provision had any application to the duties which Mr Muir performed during his employment with the respondent.
Clause 34(a) of the Award provided that a tradesman was to be paid an allowance per week for supplying and maintaining tools ordinarily required in the performance of his work as a tradesman. The amount of the allowance per week payable to a tradesman at the date Mr Muir's employment commenced was $7.40. By a variation of the Award made on 3 September 1985 that amount was increased to $7.60, that variation being expressed to have come into force from the beginning of the first pay period to commence on or after 6 April 1985. A further variation made on 7 March 1986 increased the allowance to $7.90 per week, that variation being expressed to have come into force from the beginning of the first pay period to commence on or after 4 November 1985.
Clause 20 of the Award dealt with annual leave. Sub-clause (a)(i) provided that, in addition to the public holidays specified in the Award, an employee was to be entitled to leave of absence on full pay for a period equal to four working weeks for each continuous twelve months' service (less the period of annual leave) with his employer. By sub-clause (a)(ii), an employee, before going on leave, was to be paid the amount of wages he would have received in respect of ordinary time he would have worked had he not been on leave during the relevant period. The employee was, where applicable, to have the amount of wages to be received for annual leave calculated at the rate applicable to him as prescribed by, inter alia, clauses 4 and 34 of the Award. Clause 20(c) provided:

"(c)Should an employee not complete twelve months' service he shall on the termination of his employment, provided that he has been employed continuously for one month or more, be entitled to pay on a pro rata basis for each completed month of service at the appropriate rate of wage prescribed by paragraph (a)(ii) of this clause in respect of leave which has not been granted under this clause. In computation of pro rata leave the period of any previous recreation leave which may be involved shall be computed as a period of service."

It further appears from the material before the Court that the whole of the terms of the Award were, on 22 August 1984, declared to be a common rule of the metal industry in the Australian Capital Territory and to be binding on all employers in the metal industry in respect of the employment by them of employees in the classifications for which provision was made in the Award and to be binding on all such employees. That declaration was expressed to operate from 14 February 1984.
Reference should also be made to certain provisions of the Ordinance on which the applicant relied. Section 19 at the relevant time provided:

"(1) Subject to this section, a person under the age of twenty-one years shall not be employed in, or engage in, an apprenticeship trade.

(2)Sub-section (1) does not apply to or in relation to a person who -

(a) is an apprentice;

(b) is an applicant for apprenticeship and is employed on probation; or

(c) satisfies the Board that he has completed an apprenticeship.

(3)A person who customarily works with the recognized tools of trade, for consideration or under the direction of an employer in the trade, shall be deemed to be employed or engaged in the trade."

An apprenticeship trade is a trade declared, in pursuance of s.16 of the Ordinance, to be an apprenticeship trade (s.5). Section 16 provides that the Minister or the Apprenticeship Board established under the Ordinance may, by notice published in the Commonwealth of Australia Gazette ("the Gazette"), declare any trade to be an apprenticeship trade. By notice published in the Gazette on 26 September 1968, "Motor cycle mechanics" was declared by the Board to be an apprenticeship trade.

The evidence establishes that Mr Muir was paid wages at the rate of $87.75 per week during the period from 2 August 1985 to 22 November 1985 inclusive and at the rate of $104.20 per week during the period from 23 November 1985 to 17 January 1986 inclusive. The evidence further establishes that he was not paid a tool allowance during the period of his employment. At the termination of his employment he was paid an amount of $204.00 on account of annual leave together with an amount of $56.89 described as "back pay".
It must be accepted that at the time Mr Muir commenced employment on 2 August 1985 he had had no relevant experience in the trade. He gave evidence that in the course of his employment with the respondent he changed motor cycle tyres, changed sprockets and chains, replaced oil, oil filters and spark plugs, checked and adjusted spokes and carried out a variety of tasks by way of servicing motor cycles. He said he had also carried out work which he described as "putting new motor cycles together out of the crate". He further said that, on one occasion, he was engaged, under guidance, in stripping down a motor cycle engine so that the piston rings might be replaced. He also gave evidence that in the course of his duties he had been required to use a variety of hand tools commonly used by qualified motor mechanics.
Mr Muir's evidence was not seriously challenged but it is clear from the evidence of Michael Charles Towers, a qualified motor cycle mechanic who was employed by the respondent at its premises in Braddon for a period of approximately three months commencing towards the end of August 1985, that Mr Muir carried out his work under the direct supervision of Mr Kelleher and Mr Towers. Mr Towers said that the work which Mr Muir performed "would be more along the lines of an apprentice - what you would expect of an apprentice". Asked what percentage of the work of a motor cycle mechanic Mr Muir could do, Mr Towers said: "You could not call him a fully qualified motor cycle mechanic. He could not do that work. It takes a long time to gain that experience but, on a percentage basis, probably 75 per cent. - round the three-quarters mark, I would say."
On the whole of the evidence I find that while Mr Muir performed some of the work which would fall within the description set out in the definition of motor mechanic in the Award, he did so under supervision and guidance and for the purpose of learning the trade. He was not qualified as a tradesman and he did not perform the work of a tradesman.
There can be no doubt that, if a valid award prescribes that a person doing a particular class of work is to receive a certain rate of pay, then for that class of work, by whomsoever performed, that rate must be paid. Whether the award does so prescribe turns on the true meaning and effect of its provisions. It may be that, on its proper construction, it requires an additional criterion, or additional criteria, to be satisfied before that rate is payable. What, then, is the position under the award here in question?
As has already been noted, clause 4 of the Award prescribed rates of wages in respect of some 54 classifications. A perusal of the various definitions in clause 47 of the Award discloses that, in the case of some classifications, the sole criterion by which to determine whether an employee was within the classification and was, in consequence, entitled to receive the rate of pay prescribed for that classification was the nature of the work performed. This was the position in respect of two classifications, those of furnaceman and process worker. In the case of other classifications, there was an additional criterion expressed, namely that the person concerned be an adult employee. Some examples were electroplater, machinist 2nd class, sheet metal worker 2nd class and storeman and/or packer. In the case of yet other classifications, the relevant definition expressly required that the employee be a tradesman and, in the case of one classification, that of typewriter mechanic, the definition required that the employee be an adult tradesman. The classifications the definition of which required that the employee be a tradesman included boilermaker, electrical mechanic, fitter, locksmith, machinist 1st class, toolmaker and, significantly for present purposes, motor mechanic.
As has already been mentioned, the Award not only prescribed rates of pay for the classifications referred to in clause 4. It also prescribed minimum rates of pay for unapprenticed juniors (clause 7) and for apprentices (clause 8). In some cases it provided (clause 7(c)) for a junior to be paid at not less than the adult minimum rate. The Award did not prohibit the employment of juniors, except as apprentices, to do work of the kind encompassed within the definition of motor mechanic. There were no words of prohibition in the Award as it stood at the relevant time nor was there anything in its provisions leading to the conclusion that such a prohibition was intended. Section 19 of the Ordinance, operating upon the prescription of motor cycle mechanics as an apprenticeship trade, did so provide. However, the presence of s.19 in the Ordinance provides, in my view, no warrant for reading the terms of the Award as if the requirement in the definition of motor mechanic that the employee be a tradesman were deleted.
Counsel for the applicant, to support the submission that Mr Muir was entitled to be paid at the rate prescribed by the Award for a motor mechanic, referred to Drury v. Grainger (1910) AR (NSW) 123, Thyer v. Evass (1911) AR (NSW) 630, Downie v. Wilson (1924) AR (NSW) 17 and Reeves v. Le Blanc (1935) AR (NSW) 285. Those decisions, however, turned upon the particular provisions of the awards there in question and are distinguishable from the present case in that each of the awards there considered prescribed, as the sole criterion by which to determine the rate of pay to which the employee was entitled, the nature of the work performed.
In my opinion, the applicant has failed to demonstrate that Mr Muir was, during the period 2 August 1985 to 17 January 1986, entitled to be paid wages at the rate from time to time prescribed by the Award for an employee of the classification "Motor mechanic". Nor has the applicant demonstrated that Mr Muir was entitled, on the termination of his employment, to receive a sum in respect of annual leave calculated by reference to the rate of wages prescribed for an employee within that classification.
The remaining question is whether Mr Muir was entitled during his employment with the respondent to receive a tool allowance in accordance with clause 34 of the Award. It is clear from the language of that clause that such an allowance was payable only to a tradesman. As Mr Muir was not a tradesman, that allowance was not payable to him.
During the course of the hearing, the question was raised whether the applicant had standing to bring the proceeding. He had such standing only if, at the date the proceeding was instituted, viz. 28 March 1988, he was an Inspector within the meaning of that expression in sub-s.119(2) of the Act. A definition of that expression appears in sub-s.4(1). As so defined, "Inspector" includes "a person who is an Inspector in pursuance of sub-section 125(2)". That sub-section provides -

"(2)The Minister, or a person authorized by him in writing for the purposes of this sub-section, may appoint a person, being a person appointed or employed under the Public Service Act 1922, to be an Inspector for the purposes of this Act."

To establish that the applicant was authorized to institute the proceeding, three documents were tendered in evidence. The first of these, Exhibit B, is a document dated 23 June 1983 bearing the signature and designation "R. Willis, Minister of State for Employment and Industrial Relations". It reads:

"In pursuance of sub-section 125(2) of the Conciliation and Arbitration Act 1904, I, Ralph Willis, the Minister of State for Employment and Industrial Relations, hereby authorize the person holding or performing the duties of the office of First Assistant Secretary, Industrial Relations and Arbitration Inspectorate Division (Position No.6596), in the Department of Employment and Industrial Relations, to appoint a person to be an Inspector for the purposes of the Act."

The second document, Exhibit D, bears date 24 June 1983 and reads:

"In pursuance of sub-section 125(2) of the Conciliation and Arbitration Act 1904, I, James Patrick O'Shea being the person holding the office of First Assistant Secretary, Industrial Relations and Arbitration Inspectorate Division (Position No 6596), in the Department of Employment and Industrial Relations, and thereby being authorised by the Minister of State for Employment and Industrial Relations to appoint a person to be an Inspector for the purposes of the Act, do so appoint John Stephen Rickard as an Inspector for such purposes."

The document bears the signature "J. O'Shea". The third document, Exhibit C, is an extract from the Commonwealth of Australia Gazette No. G 17 of 8 May 1984 containing an order expressed to have been made on 12 April 1984 under s.4 of the Evidence Act 1905 (Cth). That order declared, inter alia, the office of First Assistant Secretary, Industrial Relations and Arbitration Inspectorate Division, Department of Employment and Industrial Relations to be an office to which that section applied. Section 4 of the Evidence Act 1905 (Cth) has, since a date prior to 12 April 1984, provided that all Courts are to take judicial notice of the official signature of any person who holds or has held the office of Minister of State or of any office to which the Governor-General, by order published in the Commonwealth of Australia Gazette, declares the section to apply and of the fact that such person holds or has held that office.

After the hearing had concluded and judgment had been reserved, the applicant submitted for the Court's consideration certain written submissions to which were annexed copies of notifications appearing in the Gazette. The applicant also submitted an affidavit which he had sworn on 28 August 1988. In his affidavit, the applicant refers to his appointment as an Inspector on 24 June 1983 and states that since that time he has acted in accordance with the powers and duties given to him as an Inspector, that he has received no notice that the appointment has been revoked and that he verily believes the appointment to be still in force. It appears from the notifications in the Gazette that in June 1983 and from then until 24 July 1987 the relevant provisions of the Act were administered by the Minister of State for Employment and Industrial Relations and that Mr Ralph Willis, M.P. held that office. It further appears that on 24 July 1987 there ceased to be a Minister of State for Employment and Industrial Relations, the Department of Employment and Industrial Relations was abolished, the Department of Industrial Relations was created and Mr Willis was appointed to the office of Minister of State for Industrial Relations. On and after that date the relevant provisions of the Act were administered by the Minister of State for Industrial Relations.
It may be accepted that the applicant was on 24 June 1983 validly appointed an Inspector pursuant to sub-s.125(2) of the Act. The crucial question, however, is whether he was such an Inspector on 28 March 1988, the date on which the present proceeding was instituted. As at that date, the reference to the Minister in sub-s.125(2) is to be read as a reference to the Minister of State for Industrial Relations (see Acts Interpretation Act 1901 (Cth), s.19A). In my opinion, the applicant did not, as at that date, answer the description of a person who had been appointed an Inspector by the Minister of State for Industrial Relations or by a person authorized by him in writing for the purposes of sub-s.125(2). The circumstances here are, in my view, to be distinguished from a case where the office remains but the occupant of the office changes after the relevant authorization is given. It follows from what is said above that the proceeding was not instituted in accordance with the provisions of sub-s.119(2).
For the reasons set out above, the application is dismissed.

[1989] FCA 67

10 MARCH 1989