Seymour, I. v Stawell Timber Industries Proprietary Ltd

VICTORIA DISTRICT REGISTRY

)

Nos.

20 and 21 of 1983

)

INDUSTRIAL DIVISION

__.. -

)

I	I	-
I

I	B E T W E E N :

IAN SEYMOUR

Applicant

A N D :

STAWELL

TIMBER

INDUSTRIES

PROPRIETARY LIMITED

i	(RECEIVER AND MANAGER APPOINTED)

Respondent

19 NOVEMBER, 1984

KEELY J.

REASONS FOR DECISION

Ian Seymour (the applicant),an inspector appointed

under the Conciliation and Arbitration

Act 1904 (the Act),has

brought two applications under

S . 119 of the

Act. Each

application seeks the imposition

of a penalty upon Stawell

Timber Industries Proprietary Limited (Receiver and Manager appointed) (the respondent) for allegedly breaching the

Carpenters and Joiners Award 1967 (the award)

on 11 occasions

in successive weeks commencing on 29 June, 1978 and

concluding on 7 September, 1978. Each of

the

alleged

breaches consists of a failure to pay to an apprentice (Mr. Timothy John Hughes in matter V. 20 of 1983 and Mr. Geoffrey Miller in matter V. 21 of 1983) "all wages, allowances and

other monies . . . due to the said employee pursuant to Clause

E35 Part I11 and the Industrial Training (Carpentry and

I	2.
I

Joinery Trades Apprenticeship) (Amendment) Regulations

1977

not

later

than

the

time

of cessation

of work on that

day

contrary to the provisions of Clause

E30 of the Award."

November, 1983 the respondent's solicitors

filed points of defence in which

the respondent made no

admissions, save for the incorporation

of the respondent. It

denied that it was bound by the award and contended further

that "it was not bound by the Award by operation of

law",

giving as particulars that a receiver and manager-

of the

respondent was duly appointed

on 12 June, 1978. Relying

upon the same particulars, it also contended that each of the

two apprenticeships "was determined by operation of

law" on

or about 12 June, 1978, "alternatively suspended by operation

of law" between 29 June, 1978 and 7 September,

1978.

If I

were required to decide the issue raised by that defence it

would be my opinion

on the basis of the authorities cited

me by the applicant, that the appointment of a receiver and

manager, as particularized, did not determine the two

apprenticeships in question.

Mr. T. Ginnane,

counsel,

appeared

for

the

applicant in both matters which,

on his application, were

heard together.

At the commencement of the hearing

on 1

October, 1984,

Mr.

Fryde, solicitor, appeared for the

respondent to

state that "it no longer wished to appear in

these proceedings, as the company

is insolvent and legal

costs can

longer be met", confirming a statement in a

letter,

dated 28 September,

1984,

from

the

respondent's

solicitor to the applicant'

S solicitors, a copy

of which had

been forwarded

the Registrar. Mr. Fryde told the Court

that a reference in that letter

the respondent being in

liquidation was incorrect and that the respondent is not	in
liquidation.

The award consisted of five divisions. Division E,

which was headed "Joinery Shops", contained clauses El, E30

and E35 which included the following provisions

"El - Application of Division

(a)	Subject to the exceptions and modifications

contained in this Division, Divisions A and E shall

apply to the employment of all persons employed in

the classifications of joinery work defined in this

Division.

...

E30 - Payment of Wages

(a)

All

wages,

allowances

and

other moneys due

shall be paid not later than the time of cessation of work on Thursday of each working week or "

otherwise by mutual arrangement..

Clause E35, which was headed "Junior Labour", was divided into three parts. Part

1 was headed "Unapprenticed,

South Australia". Part 11, which

was headed "Apprentices.

South Australia", provided, amongst other things, that

"(b) The minimum ordinary rate of pay to be paid to apprentices shall be in accordance with the percentages as set out in the table herein of the

rate of pay prescribed by clause

E4 for a Carpenter

or Joiner

in the locality in which they are

employed.

4 .

Sub-clause

(b)

then

prescribed

various

percentages.

The

award prescription in relation

to apprentices in Victoria

was

in terms quite different from the award prescription which

determined the rates of pay for apprentices in South

Australia, contained in sub-clause (b). The full text of

that prescription, which was contained in Part 111

of clause

E35, was as follows

"Part 111

- Apprentices, Victoria

Except where inconsistent with this Division, the

Regulations of the Apprenticeship Commission of

Victoria shall apply

to apprentices in that State."

Mr. Ginnane, on behalf

of the applicant, submitted

that, as

a matter of construction, Part 111 of Clause E35

did not merely preserve the operation of the regulations as regulations made under State law (except where inconsistent with Division E of the award) but that it incorporated the regulations into the award. He acknowledged that in clause

El of the award, where it was sought to "incorporate" into

the award the provisions of another document, it had provision :-

expressly used the words "Specifically incorporated herein".

"Otherwise such respondents shall observe the provisions of the Timber Workers Award with respect

to such employees and that award shall be read and

construed as if it had been specifically

incorporated herein ..."

The applicant submitted that Part 111

of clause

E35 of the award imposed upon the respondent

an obligation,

enforceable by proceedings for the imposition of a penalty under the Act, to comply with the regulations of the Apprenticeship Commission of Victoria which were in force at

the time of the making of the award in 1967 and also with

amendments to those regulations made from time to time. He

contended that the respondent breached clause E30 of the

award by failing to pay to the two apprentices, within the

time prescribed

by that clause, the "wages

.. and other

monies .. due .. pursuant to clause E35 Part 111".

Accordingly a question has arisen as to which of

two possible constructions

of clause E35 Part 111

of the

award is correct. The applicant contended that the clause

imposed a duty to pay prescribed wages

apprentices in

Victoria, notwithstanding the different language used in

clause E35 Part 11 which expressly imposed such a duty in

respect of

apprentices in South Australia. The alternative

construction

that clause E35 Part 111 manifested an

intention to preserve the operation of the Victorian

regulations "as State law save to the extent that State law

$ 1

directly collides with the provisions	of the award" - per	1	,
i

Spicer C.J.

in McManus v General Electric Co. of Australia

(1971)

Ltd.

375-6

18 F.L.R. 374

The regulations tendered in evidence in the proceedings were made by the Governor-in-Council. They were	I
!
(1) the Apprenticeship (General) Regulations 1970, as amended

by the Apprenticeship (General) (Amendment

No. 2) Regulations

1973, made under the Apprenticeship Act 1958 (Vic.)	(2) the
Apprenticeship (Carpentry and Joinery Trades) Regulations

1968, made

under that Act and (3) the Industrial Training

(Carpentry and Joinery Trades Apprenticeship) (Amendment)

Regulations 1977, made under the Industrial Training Act 1975

(Vic.), which amended the Apprenticeship (Carpentry and

Joinery Trades) Regulations 1968 as amended. The regulations

referred to in

(2) and (3) above prescribed minimum weekly

rates of wages

to be paid to apprentices in the Joinery Trade

the

State

Victoria.

Those

rates

of wages

were

expressed as a percentage

“the wage rate and the tool

allowance prescribed from time to time for the classification

‘Joiner (as defined)’ in Part

11” of the Determination of the

Carpenters Board made under the Labour and Industry

Act 1958

(Vic.), which determination was also tendered

in evidence.

Because

the strong reliance placed

by the

applicant upon the decision

of the Commonwealth Industrial

Court in McManus v General Electric Co.

of Australia Ltd.

(supra), it is desirable that the relevant passages from the

reasons for judgment of the judges

who

constituted the

majority (Spicer C.J. and Smithers J.) be set out in

considerable detail. Spicer C.J.

at pp. 375-376 said :-

“The complaint in this matter alleges a breach

the respondent (defendant)

of cl. 7 (9)

of the Metal

Trades Award in that it failed to comply with cl. 9(b) of Apprenticeship Regulation ll(Q.) made under The Apprenticeship Act of 1964 (Q.) in relation to an apprentlce employed by it.

Clause 7(q) of the Metal Trades Award is as follows:

'In any State in which any statute relating

apprentices is now or hereafter in force

or in

which any authority with statutory power has

issued or may issue any regulations relating

to apprentices such statute and such

regulations shall operate in such State

provided that the provisions thereof are not

inconsistent with this award.

The provision of any statute, award or

regulation relating to the attendance of apprentices at technical school during ordinary working hours or to disciplinary powers of apprenticeship authorities over apprentices and employers shall not be deemed

to be inconsistent with this award.

Clause 9(b) of Apprenticeship Regulation 11 reads	a
follows :

'Employers shall purchase and supply

to their

apprentices who have been indentured for a

period of four years tools	of trade as stated
herein :-

(i) To apprentice electrical fitters and/or

mechanics tools to the value of $15 per year

during each year

of experience.

(ii) To apprentice electrical mechanics (automotive) tools to the value of $11 per year during each year of experience.'

To succeed with his complaint the complainant must

in the first instance establish that cl. 9 (b) of the

regulations

operates

in relation to the

apprenticeship scheme established under the award

part of that award. Whether this is so or not depends upon the interpretation of cl. 7 (9) of the award.

It seems to me that there are

two views which can be

taken as to the meaning and intent

of cl. 7(q).

One is that it operates

to indicate the field in

which the Federal award applies and avoids the

operation of that award in such a way as

to override

the State laws

to the extent indicated in the

clause. On this view the award is not to be taken

as covering the whole field but preserves the

operation of State law as State law save to the

extent that State law directly collides with the

provisions of the award.

The other view is that cl. 7 (9) in effect incorporates the State law in the Federal award to

the extent indicated

in the clause.

It is to be noted that there are provisions in the award that expressly incorporate State law, for

example, cl. 6(e).

The absence of such a provision

in cl.

7(q) weighs against the

view now being

considered.

However there are other features of cl. 7(q)

which

point in the other direction. It appears to give

I .

the State law an operation it would not otherwise

have. It is to operate in relation to the scheme of

apprenticeship established by the award and to

apprentices under that scheme

...

On the whole therefore I have reached the conclusion

that this second view is the one which should

adopted .

. .

Smithers J. said :-

(at p. 377)

' l . .

If the apprentice Flynn were an

apprentice who had entered into apprenticeship under

the State statute then clearly, the failure to

supply the tools to him would be a breach of the

regulations and presumably of the State Act. No

doubt he could be prosecuted in respect of such a

breach. But apprentice Flynn had not entered into

an indenture of apprenticeship with the respondent

pursuant to the provisions

the State Act. His

apprenticeship was the creature of the award. His

indenture was entered into pursuant

to the elaborate

provisions of cl. 7 of the award. ...

Although it appeared to be conceded that the relevant regulation purports of its own force as

such and considered independently

of the award to

impose

the

obligatlon

in question upon the

respondent in respect of Flynn in his capacity as a

Commonwealth apprentice,	I am not satisfied that
this is so.

(at p. 380) It is therefore necessary to consider

the alternative contention of the respondent.

cl.

7 (9) declaratory

or does it

"enact"

something?

...

The presumption is that a term

of an award saying

that certain statutes and regulations are

to operate

expresses the intention to prescribe that they shall

operate to confer rights and impose duties upon the

parties to the award. .

. .

(at p. 381)

On this basis cl.

7(q) is seen to

provide that the provisions of State laws concerning

apprentices and relating to the schooling and

discipline matters referred to and other State laws,

provided the provisions

of these latter are not

inconsistent with the award, are

to operate as terms

of	the award prescribing the mutual rights and

duties of employers and employees.

...

If on its proper interpretation cl.

7(q) does say

that such laws are to operate with respect

parties bound by the award, it seems to me to be inescapable that the clause must be read as saying that the provisions of those laws shall operate in relation to Commonwealth apprentices as though they

were provisions relating to them.

...

However, it is competent

for a Commonwealth award to

prescribe by reference thereto that the provisions

of a State law which applies to persons and

situations specified therein shall operate with

respect to particular persons and situations within

the jurisdiction of the award-making authority.

it	does this then rights and duties similar in

nature and extent to those conferred and imposed by the provisions of the State law in relation to the parties the subject of the State law are thereby

conferred and imposed by the award itself upon the

parties specified in the award.

It appears to me that this is what cl

.7 (9) sets out

to achieve and does achieve despite difficulties

interpretation due to a paucity

of words..."

Joske J. in his dissenting judgment said that it tras "hard to believe that the conciliation commissioner intended to incorporate into his award, in addition to existing provisions of the State law, possible future provisions of an entirely unknown character".

The apprenticeship governing the employment

of the

apprentice in that case

was entered into pursuant o a scheme

of apprenticeship established under clause

7 of the Metal

Trades Award. Smithers J.

(at p.

377 - see also p. 381)

10.

concluded that the relevant State regulation did not

of its

own force, considered independently of the award, impose the

obligation in question upon the respondent in respect

of he

apprentice in his capacity as a "Commonwealth apprentice"(see

also Spicer C.J. at p. 3 7 6 ) . Having expressed that opinion

Smithers J. proceeded to consider the question "Is cl. 7 ( q )

declaratory or does it 'enact' something?".

It was in the

context of the consideration f that question (based upon his Honour's conclusion that State law did not operate in relation to "Commonwealth apprentices") that Smithers J.

referred to a "presumption . . . that a term

of an award saying

that certain statutes are

to operate expresses the intention

to prescribe that they shall operate

confer rights and

impose duties upon parties

to the award".

M r .

Ginnane conceded that the decision is not an

authority which binds this Court constituted

by a single

judge but correctly described it

as a decision

of high

persuasive

authority.

However

there

are

certain

matters

which arise in considering whether

the decision as

to the

meaning of the Metal Trades award clause should be applied

the present case

(l) the reasons for judgment

of Spicer C.J.

suggest that the

choice between the "two views which can be taken as to the meaning and intent" (p. 375-6) of the clause was one

of some difficulty which was made by reference

to "other

features" of the clause and to "the

scheme of

apprenticeship established by the award"

- matters which

are not present in the award under consideration in the

11.

present proceedings:

( 2 )

the reasons for judgment of Smithers J. refer to the "difficulties of interpretation due to a paucity of

words

" ;

( 3 )

the reasons for judgment

of Smithers J. appear to

founded partly upon the "presumption"

to which reference

has been made.

Mr. Ginnane relied strongly upon that

"presumption", submitting that clear language would

required

rebut the presumption. He did not advance

any authority in support

of his contention that the

presumption referred to by Smithers J., being one of general application, applied equally to the construction

of the award under consideration in the present

proceedings. He relied upon the principle that an award

provision is intended to achieve a purpose and should not

be construed in such a manner as

to make it redundant or

unnecessary. However, each

of the "two views" of the

clause referred to

by Spicer C.J.

plainly permits the

existence of such a purpose and accordingly no question

of redundancy arises.

Accordingly the decision may well

distinguishable on the ground that the apprenticeship there Under consideration had been "entered into pursuant to the

elaborate provisions of clause 7 of the award".

As to this

aspect Mr. Ginnane submitted (T. 92) that the judgment

of the

majority was not significantly influenced by that aspect. He

submitted that McManus' case could not

be distinguished on

the basis that

there the award contained "elaborate

12.

provisions" in respect

of apprenticeships, which had no

i	counterpart in the awaid presently being considered.

should also

be noted that the reasons for

judgment of the three judges do not suggest that the award there under consideration had been issued with

a preface

similar to that issued with the Carpenters and Joiners Award

1967 (117 C.A.R. at p. 16 -set out later) which stated that

"regulation of their conditions has been left to the State

authority for the present. The rights of the parties on this

matter are reserved, however."

It	may be added that there is nothing in the

reasons for judgment

to suggest that any submission

was

advanced to the Court that the Arbitration Commission had no

power to insert in an award

a provision incorporating

not

only the known provisions of an existing State law but

"possible future provisions of

an entirely unknown

character" (cf. Joske J. at p. 376).

No member of the Court

dealt with the question

f the commission's power

to so award

- and presumably no such argument was put

to he Court.

On the second day of the hearing, doubtless after considering certain matters raised

on the first day, the

applicant placed before the Court photocopies

of decisions

and awards

of the Conciliation and Arbitration Commission

(and of its predecessor the Commonwealth Court of Conciliation and Arbitration) relating to the history of the

award.

That material showed, amongst other things, that on

January, 1967,

Mr. Commissioner Matthews, when making the

award the subject

of the present proceedings, issued a

decision which included the following passage (reported in

117 C.A.R. 13 at pp. 14-15, 16) :-

"After a long series

of conferences in the final

stages of which the Commission participated at the parties' request, the two organizations of employees representing carpenters and joiners have now sought

that the Commission make

a new award

for such

employees in the States of Victoria, South Australia

and Tasmania in terms agreed	on	with employers
concerned.

The parties desire, and the Commission agrees that it is desirable, that the new award should be

prefaced by the following statements	:-
...

(5) As to apprentices in Victoria,

it will be noted

from Part 111

of clause B36, for instance, that

regulation of their conditions has been left to

the

State

authority

for

the

present.

The

rights of the parties on this matter are reserved, however." ("Part 111 of clause B36" and Part 111 of clause E35 were in identical terms),

That passage shows that, when the award now under

consideration was made in 1967, the parties desired (and the

Commission agreed that

it was desirable) that the award be

prefaced by a statement, in relation

apprentices

Victoria, "that regulation of their conditions has been left

to the State authority for the present", and that "the rights

the parties

this matter are reserved". Those words

appear to give some support

o a contention that Part 111

clause E35 was intended to preserve "the operation of State

14.

law as State law save

to the extent that State law directly

collides with the provisions

of the award"

- per Spicer C. J.

in McManus

v General Electric Co.

of Australia (supra

- at

pp.

3 7 5 - 6 ) .

Mr.

Ginnane' submitted that the words used did

not support such a contention as they were equivocal.

also pointed

out

(T. 135) that the clause in that form had

been first inserted in the award which

was made in 1953 (75

C.A.R.

535) and said that there was no explanatory statement

in that report

as to the clause then inserted

- either by way

of preface or otherwise. In order to assist the Court, he tendered a transcript of part of the proceedings leading to

the making of the award in

1953: that document was marked for

identification (W) but the Court made

it clear that it did

not involve any concession

by the applicant

its

admissibility and that the applicant's rights were reserved

(T. 138).

It should be mentioned that

Mr. Ginnane also placed

some reliance upon an unreported decision

of the Supreme

Court of Victoria (O'Bryan J.) in -

R. v The President of the

Industrial Training Commission of Victoria and F.L. Bergin

(ex parte Ford Motor Co.

of Aust.) (delivered 25 June, 1980).

However, the decision in that case does not appear

to rovide

any further support for the applicant's contention based

upon McManus' case.

Because of the matters referred to in these reasons

I	and because the question of the meaning and effect of Part
111 of clause E35 is of an importance that extends beyond the

15.

present proceedings, the Court gave

the applicant an

opportunity to consider applying under

S . 118C(1) of the Act

for an order that the proceedings

be heard and determined by

Full

Court.

The

applicant

declined

to make

such

I I

8 .

application but

I have nonetheless formed the opinion that

this is a proper case for the Court t exercise that power of its own motion and accordingly I so order. The applicant is

directed to serve upon the respondent within 7 days a copy of

these reasons for decision.

It should perhaps be added that, at the conclusion

of the first day of the hearing, the two applications were

adjourned for two weeks

to permit the applicant and the Court

to	give further consideration to various matters which had

been raised. One of those matters arose out of

the

applicant'

S reference to the possibility that one

r more of

the logs of

claim, which led to the making of the award in

1967, (which logs of claim were

- and are - not in evidence)

contained a specific claim that the State law from time to time regulating apprentices should be incorporated into the

Federal

award

settlement

of the

dispute.

The

Court

invited the applicant

to give consideration, during the

adjournment, to obtaining and tendering in evidence the logs

of claim upon which the award

was founded; the applicant was

referred to Australian Timber Workers' Union

v Stewart (1936)

55 C.L.R.

72 at p. 77 where Starke

J. said :-

"The case is thoroughly unsatisfactory from my point

of view, for the Court does not know the ambit of

the dispute the foundation

of the award, nor the

claims made before the Arbitration Court."

16.

On the resumption

of the hearing the Court was

I	informed that .the applicant had been unable	to	obtain the
I

1 .

I	logs of claim leading	to the making of the award. Presumably
I

the difficulty in obtaining them was due to the relative shortness of time available: there could be little doubt that, given sufficient time for the examination of the

records kept by the Industrial Registrar, the logs

f claim,

and the findings

dispute based upon them, could

obtained and placed before

the Full Court when the matters

cane on for hearing next year.

[1984] FCA 394

19 Nov 1984