Seymour v Stawell Timber Industries Pty Ltd
[1985] FCA 310
•05 JULY 1985
Re: IAN SEYMOUR
And: STAWELL TIMBER INDUSTRIES PTY. LTD.
Nos. V. 20 and 21 of 1983
Industrial Law
13 IR 289
COURT
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
INDUSTRIAL DIVISION
Northrop J.
Keely J.
Gray J.
CATCHWORDS
Industrial law - award - breach - reference in award to state legislation - whether reference includes state legislation as subsequently amended, repealed and re-enacted - whether state legislation enforceable as part of award - whether preface to award may be used as aid to construction - whether breaches of award with respect to two employees arose out of "a course of conduct" - whether penalty payable to employee not entitled to amount under award.
Industrial law - contract of employment - whether terminated by appointment of receiver and manager - whether terminated by dismissal in breach of contract.
Conciliation and Arbitration Act 1904 s. 52, s. 119, s. 120, s. 122, s. 125, s. 118C, s. 59
Crimes Act 1914 s. 13, s. 21B
Audit Act 1901
Industrial Training Act 1975 (Vic.) s. 56, s. 7, s. 2, s. 28, s. 33, s. 35, s. 38
Apprenticeship Act 1958 (Vic.) s. 7, s. 44, s. 45
Labour and Industry Act 1958 (Vic.)
Commonwealth of Australia Constitution s. 109
Federal Firefighters Union v. Minister of State for the Capital Territory (1982) 62 F.L.R. 341
Wright v. T.I.L. Services Pty. Ltd (1956) S.R. (N.S.W.) 413
McManus v. General Electric Co. of Australia Ltd. (1971) 18 F.L.R. 374
T.A. Robinson & Sons Pty. Ltd. v. Haylor (1957) 97 C.L.R. 177
Rowe v. Capital Territory Health Commission (1982) 62 F.L.R. 383
HEARING
MELBOURNE
#DATE 5:7:1985
ORDER
V.No. 20 of 1983
The Court Orders That pursuant to sub-section 119(1A) of the Conciliation and Arbitration Act 1904, a penalty having been imposed in matter V. No. 21 of 1983 in respect of the breach or non-observance of award the subject of this proceeding, the application be dismissed.
V. No. 21 of 1983
1. Pursuant to sub-sections 119(1), 119(1A), 119(1D) and 119(2) of the Conciliation and Arbitration Act 1904 a pecuniary penalty of $800.00 be imposed upon the respondent.
Judgment be entered for the applicant in the said sum of $800.00.
Pursuant to section 120 of the Conciliation and Arbitration Act 1904 the said pecuniary penalty imposed in pursuance of section 119 be paid into the Consolidated Revenue Fund.
Pursuant to sub-section 119(3) of the Conciliation and Arbitration Act 1904 the respondent pay to Geoffrey Miller the amount of underpayment of his entitlement under the Award being $1,152.12.
(Settlement and entry of Orders is dealt with in 0.36 of the Rules of Court.)
JUDGE1
The substantial question raised in these proceedings is whether Part III of Clause E35 of the Carpenters and Joiners Award 1967 ("the award") imposes an obligation upon the respondent to pay to its apprentices the rates of pay prescribed by the award. That Part is as follows:
"Except where inconsistent with this Division, the Regulations of the Apprenticeship Commission of Victoria shall apply to apprentices in that State."
The question is whether those Regulations apply to the respondent as part of the law of the State of Victoria or whether the award makes those Regulations apply to the respondent as part of the law of the Commonwealth. On this question, I agree with the conclusions reached by Gray J. and, in general, agree with his reasons for coming to those conclusions but desire to make a few general observations on why I have come to the same conclusion.
Section 52 of the Conciliation and Arbitration Act 1904 provides as follows:
"52 In determining an industrial dispute in which the rates of pay or conditions of employment applying to apprentices in an industry are in question, the Commission shall take into consideration any scheme of apprenticeship provided by or under the law of any State or Territory."
This section gives a clear direction to the Commission. It does not prevent the Commission from making an award binding upon employers with respect to apprentices employed by them but it does give recognition to the special nature of apprenticeships in industry.
It is clear that if the award contained a provision to the effect that the award was not to apply to the employment of apprentices, within Victoria, the Regulations of the State authority, or rather the successors of those Regulations, would apply to the respondent as part of the law of the State of Victoria. In fact, the draftsman of the award has adopted clear words to that effect where the award is not to apply to the employment of apprentices. Thus the introductory paragraph of Part II of Clause E35 of the award which applies to apprentices in the State of South Australia provides:
"This Division shall not apply to the employment of apprenticed carpenters or joiners in South Australia except to the extent prescribed in the sub-clauses of this Part."
Sub-clause (e) of that Part further supports that exclusion by making it clear that the award is subject to the law of that State. That sub-clause provides:
"(e) Except where inconsistent with the South Australian Apprentices Act 1950-1971, the general provisions of this Division shall apply to apprentices employed on work within the scope of this Division."
These provisions of Part II must be contrasted with the provisions of the award contained in Part III relating to apprentices in the State of Victoria.
As a general rule, the draftsman of the award has used the verb "apply" in the sense of bringing a law into contact with facts, to put into practical operation; compare Shorter Oxford Dictionary. The draftsman has used the verb "apply" to make the award binding upon employers; see the illustrations contained in the reasons of Gray J. The draftsman, in his use of the verb "apply" in Part III has been consistent with this general use of the word. Under Part III, the Regulations of the State authority are made to apply to apprentices in the State of Victoria. Primacy is given to the award, see the opening phrase, and the award gives legal efficacy to the Regulations of the State authority as Commonwealth law insofar as those Regulations are not inconsistent with the particular provisions contained in that Division. The draftsman has used the verb "apply" in the sense of bringing the Regulations of the State authority to bear as part of the award. On this construction, it is clear that the Commission has had regard to the direction contained in s. 52 of the Conciliation and Arbitration Act.
I have received no assistance in determining the substantive question by reference to what was said at the request of the parties to the dispute by Mr. Commissioner Mathews when making the award. The relevant passages are set out in the reasons of Keely J. and I quote part of what is there set out:
"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 III 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."
In that statement, the reference to Clause B36 is noted. At that time, what is now Clause B35 was numbered B36.
Statement numbered (5) contains its own ambiguities and in particular it does not appear to be directed to the question of whether the Regulations of the State authority should apply as part of the law of the State of Victoria or whether the award makes those Regulations apply as part of the law of the Commonwealth.
This matter illustrates the wisdom of the principle of law which prevents reference to negotiations between parties leading to the making of an agreement as an aid to the construction of the agreement. This principle was referred to by Evatt and Northrop JJ. in Federal Firefighters' Union v. Minister of State for the Capital Territory (1982) 62 F.L.R. 341 at pp. 344-5:
"In support of his contentions, counsel for the union tendered and sought to rely upon material from which the award is derived as well as the logs of claim on which the award is based. He contended that that material formed a matrix of facts by which the award should be construed. He relied upon the opinion expressed by Lord Wilberforce in Prenn v. Simmonds (1971) 1 W.L.R. 1381. The material was of interest but not of assistance in considering cl. 23 of the award. The material itself used words and expressions which were unclear and confused. In reality the material was unhelpful. In this respect, it is important to note that Lord Wilberforce said, at pp. 1384-1385: 'There were prolonged negotiations between solicitors, with exchanges of draft clauses ultimately emerging in clause 2 of the agreement. The reason for not admitting evidence of these exchanges is not a technical one or even mainly one of convenience, (although the attempt to admit it did greatly prolong the case and add to its expense). It is simply that such evidence is unhelpful. By the nature of things, where negotiations are difficult, the parties' positions, with each passing letter, are changing and until the final agreement, though converging, still divergent. It is only the final document which records a consensus. If the previous documents use different expressions, how does construction of those expressions, itself a doubtful process, help on the construction of the contractual words? If the same expressions are used, nothing is gained by looking back; indeed, something may be lost since the relevant surrounding circumstances may be different. And at this stage there is no consensus of the parties to appeal to.'"
I agree with the reasons and conclusion of Gray J. that the conduct of the respondent in failing to pay to its two apprentices, Mr. Miller and Mr. Hughes, wages in accordance with the terms of the award, constituted a number of breaches of the award but that those breaches arose out of a course of conduct and thus, under sub-section 119(1A) of the Conciliation and Arbitration Act, must be treated as constituting a single breach of those terms. Likewise, I agree with the reasons and conclusion of Gray J. that it is appropriate that a penalty of $800 should be imposed upon the respondent.
I agree with the reasons and conclusion of Gray J. that under sub-section 119(3) of the Conciliation and Arbitration Act, the Court should order that the respondent pay to Mr. Miller the sum of $1,152.12, but that since Mr. Hughes was not a member of any relevant organization, the Court has no power to make a similar order with respect to the amount of wages not paid to him.
Counsel for the applicant submitted that the Court, pursuant to the powers conferred by s. 120 of the Conciliation and Arbitration Act, should order that the penalty of $800 be paid to Mr. Hughes in part satisfaction of the amount of wages that are owed to him by the respondent. That section provides:
"120 Where any Court imposes a penalty in pursuance of section 119, or in pursuance of section 122, it may order that the penalty, or any part thereof, be paid into the Consolidated Revenue Fund, or to such organization or person as is specified in the order."The power conferred by that section arises where the Court imposes a penalty in proceedings under s. 119 or s. 122. The nature of a penalty imposed in pursuance of s. 119 is different in nature from a penalty imposed in pursuance of s. 122. A proceeding in pursuance of s. 119 is based on the concept of an action brought by a common informer; see Vehicle Builders' Employees' Federation of Australia v. General Motors-Holdens Pty. Ltd. (1977) 32 F.L.R. 100 per Nimmo, St. John and Northrop JJ. at pp. 111-114. A proceeding under s. 119 is not a proceeding for a criminal offence; see Gapes v. Commercial Bank of Australia Ltd. (1979) 27 A.L.R. 87. Normally in proceedings for a penalty brought by a common informer, any penalty imposed is ordered to be paid to the person who brought the proceedings. Sub-section 119(2) specifies classes of persons who may bring proceedings for the imposition of a penalty under s. 119. That sub-section is set out:
"119(2) Any such penalty may be sued for an recovered by -
(a) the Registrar; or
(aa) an Inspector; or
(b) any organization which is affected, or whose members or any of them are affected, by the breach; or
(c) any member of any organization who is affected by the breach; or
(d) any party to the award or order; or
(e) any officer of any organization which is affected, or any of whose members are affected, by the breach, who is authorized under the rules of the organization to sue on behalf of the organization."
A proceeding brought in pursuance of s. 122 is a proceeding for a criminal offence. Under s. 13 of the Crimes Act 1914, unless the contrary intention appears in the Act or regulation creating the offence, any person may institute proceedings for the summary conviction of any person in respect of any offence against the law of the Commonwealth punishable on summary conviction. It is noted that Mr. Hughes would have been able to bring proceedings for the imposition of a penalty under s. 122. It is noted further that any penalty imposed upon conviction for a criminal offence, normally, is paid into Consolidated Revenue, see the Audit Act 1901 and the Finance Regulations.
In the present case, the proceedings are brought by the applicant in his capacity as an Inspector. Consistently with the nature of the proceedings and the position of the applicant, the penalty imposed should be ordered to be paid into the Consolidated Revenue Fund, the applicant not having brought these proceedings for his own financial benefit.
Mr. Hughes does not come within any of the classes specified in sub-section 119(2) of the Conciliation and Arbitration Act. It follows therefore that he is not authorised to sue for a penalty under s. 119. Under s. 120 where a penalty is imposed, the Court is empowered to order that the penalty be paid into the Consolidated Revenue Fund or to such organization or person as is specified in the order. Section 120 must be read in conjunction with sub-section 119(2) and, in this respect, to the classes of persons who are authorised to bring proceedings which are in the nature of proceedings brought by a common informer. In my opinion, insofar as proceedings are brought pursuant to s. 119 and a penalty is imposed, s. 120 should be construed as limiting the words "such organization or person" to organizations or persons who have brought or who are capable of bringing proceedings under s. 119 and thus of necessity, come within one of the classes of organizations or persons specified in sub-section 119(2).
Accordingly, I am of the opinion that the Court has no power to make the order under s. 120 of the Conciliation and Arbitration Act sought by counsel for the applicant, namely, that the penalty of $800.00 be paid to Mr. Hughes.
If my opinion is wrong, in the exercise of the discretion conferred by s. 120, I would refuse to make the order sought. By sub-section 119(3) the Legislature has made clear the classes of persons who may benefit from an order for payment of moneys due under an award. Mr. Hughes does not come within any of those classes. I consider that it would be wrong for a Court to exercise a general power to nullify a particular privilege conferred upon classes of persons by the exercise of a particular power. To do so would be to negative the limited power conferred by sub-section 119(3) by relying upon the general power contained in s. 120. It is interesting to note that if the respondent had been convicted of an offence under s. 122, apart from the power conferred by s. 120, it is probable that the Court would have had power to order that the respondent pay to Mr. Hughes the amount of the wages unpaid; see s. 21B of the Crimes Act.
In the result, I agree with the orders proposed by Gray J.
JUDGE2
Two applications under s. 119 of the Conciliation and Arbitration Act 1904 (the Act) have been brought by Ian Seymour (the applicant), an inspector appointed under the Act. Pursuant to an order under s. 118C of the Act the proceedings have been heard and are to be determined by a Full Court. 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 breaches is alleged to consist of a failure to pay to an apprentice (Mr. Hughes in matter V. 20 of 1983 and Mr. Miller in matter V. 21 of 1983) "all wages, allowances and other monies . . . due to the said employee pursuant to Clause E35 Part 111 and the Industrial Training (Carpentry and 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.:"
On 7 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. In my opinion the appointment of a receiver and manager, referred to in the particulars, did not operate to determine or suspend the two apprenticeships in question, nor did it result in the respondent being "not bound by the Award by operation of law" - as contended in the respondent's defence (see Griffith v Secretary of State for Social Services (1974) Q.B. 468).
Mr. T. Ginnane, of counsel, appeared for the applicant in both matters which were heard together. The respondent was not represented before the Full Court but at an earlier hearing, before the order that the proceedings be heard and determined by a Full Court, Mr. N. Fryde, solicitor, who appeared for the respondent, stated that "it no longer wished to appear in these proceedings, as the company is insolvent and legal costs can no longer be met".
The award consisted of five divisions. Division E, which was headed "Joinery Shops", included clauses E1, E30 and E35 which contained the following provisions:-
"E1 - Application of Division E
(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 I, which was headed "Unapprenticed, South Australia", included the following provision:-
"(b) Unapprenticed junior employees shall be paid the same rate prescribed in sub-clause (b) of Part II hereof provided that at the completion of four years employment or on attaining 21 years of age, whichever is the sooner, such employee shall be paid the appropriate adult rate prescribed by this Division".
Part II of clause E35, which was headed "Apprentices South Australia", provided, amongst other things, that:-
"This Division shall not apply to the employment of apprenticed carpenters or joiners in South Australia except to the extent prescribed in the sub-clauses of this Part.
. . .
(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".
Sub-clause (b) then set out a Table which prescribed various percentages per week for first, second, third and fourth year apprentices in South Australia.
Part III of clause E35 was in terms quite different from the award prescription of rates of pay for apprentices in South Australia set out in sub-clause (b) above. It read as follows:-
"Part III - Apprentices, Victoria
Except where inconsistent with this Division, the Regulations of the Apprenticeship Commission of Victoria shall apply to apprentices in that State."
The applicant submitted that Part III of clause E35 of the award imposed upon the respondent an obligation to comply with "the regulations of the Apprenticeship Commission of Victoria". A question has arisen as to whether clause E35 Part III was intended to incorporate into the award "the Regulations of the Apprenticeship Commission of Victoria" or was intended to simply preserve the operation of those regulations as State law.
A similar question of construction arose in McManus v General Electric Co. of Australia Ltd. (1971) 18 F.L.R. 374 where the Commonwealth Industrial Court considered the meaning of clause 7(q) of the Metal Trades Award, which provided that:-
"In any State in which any statute relating to 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."
Spicer C.J. (at p. 375-6) said:-
"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(q) in effect incorporates the State law in the Federal award to the extent indicated in the clause."
Mr. Ginnane submitted that, as a matter of construction, Part III of Clause E35 did not merely preserve the operation of the regulations as regulations made under State law but that it incorporated the regulations into the award. He acknowledged that in clause E1(b) where it was sought to "incorporate" into the award the provisions of another document, the award had expressly used the words "specifically incorporated herein". That sub-clause provided as follows:-
"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 . . ."
In McManus' Case (supra at p. 376) Spicer C.J. made it clear that the absence of words "that expressly incorporate State law" weighed against the submission advanced in that case (the same submission as that of the present applicant), saying:-
"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."
His Honour then explained why the absence of such a provision would nonetheless be outweighed by other matters which were present in that case, saying:-
"However there are other features of cl. 7(q) which point in the other direction. It appears to give to 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 be adopted . . ."
The reference by Spicer C.J. to "other features of cl. 7(q) (of the Metal Trades Award) which point in the other direction" (namely, giving "to the State law an operation it would not otherwise have") does not assist the present applicant, however, because those "other features" are absent from the Carpenters and Joiners Award.
It should be added that Smithers J., who with Spicer C.J. constituted the majority of the Court in that case, was of the same opinion as Spicer C.J., namely, that the award clause gave to the State law an operation it would not otherwise have. Smithers J. pointed out (p. 377) that the apprenticeship there under consideration "was the creature of the award . . . entered into pursuant to the elaborate provisions of cl. 7 of the award" whereas (p. 381) the State law provisions "relate only to apprentices who have entered into indentures under State law".
In the present case it has not been contended, and, in my opinion, could not have been contended, that clause E35 Part III gave "to the State law an operation it would not otherwise have" - the matter mentioned by Spicer C.J. as pointing "in other direction" and also referred to by Smithers J.. The present matter is distinguishable from McManus' Case because the award did not contain "the elaborate provisions" as to apprenticeships referred to by the Court in McManus' Case; further, the apprenticeships to which the present proceedings relate were not in any sense "the creature of the award" and had been entered into under State law.
In my opinion, clause E35 Part III, construed in its context, does not (in the words of Spicer C.J.) incorporate "the State law in the Federal award"; instead it "preserves the operation of State law as State law save to the extent that State law directly collides with the provisions of the award".
There are three matters which support that conclusion as a matter of construction. The first matter is the absence from clause E35 Part 111 of any words expressly incorporating State law; the absence of such words is significant, particularly as the award in clause E1(b), (to which reference was made earlier) expressly uses the words "as if it had been specifically incorporated herein". The second matter is that, where it was intended that rates of pay for apprentices should operate by force of the award itself but by reference to other rates, the award said so explicitly. For example, in clause E35 Part I(b), it used the words "shall be paid the same rate prescribed in sub-clause (b) of Part 11. . ."; again, in clause E35 Part II(b) it used the words "rate of pay . . . shall be in accordance with the percentages as set out in the table herein of the rate of pay prescribed by clause E4 . . .". The third matter is that (as Joske J. said in his dissenting judgment in McManus' case, supra at p. 376), it is "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".
Mr. Ginnane put several submissions in support of the applicant's proposition that the award incorporated State law. First, it was contended that "the award governs many of the apprentices' conditions of employment" in Victoria. Relying upon clause E2(7) of the award, which defined "employee" as including "an apprentice or (in South Australia) an unapprenticed junior", he contended that clauses E8, E15, E16, E20, E21, E23, E28, E29 and E39 of the award governed the conditions of apprentices although they did not specifically refer to apprentices. However, the submission fails in my opinion because those clauses, with the possible exception of one clause and of part of another, did not govern the conditions of employment of Victorian apprentices unless it is first accepted that clause E35 Part 111 has the meaning for which the applicant contends.
It is necessary to deal briefly with each of those clauses. Clause E8 ("special rates"), in providing that "extra rates shall be paid", specified that they were to be "in addition to the rates otherwise prescribed in this Division"; however, the support sought to be obtained from that clause depends upon the very question whether those rates were "rates otherwise prescribed in his Division". Similarly, the prescription in clause E16 ("overtime and special time") only applied in respect of "time worked beyond the ordinary time of work as prescribed in clause E13 of this Division"; again, the argument depends upon whether the "ordinary time of work" of Victorian apprentices was so prescribed by the award. For the same reason, the applicant's submission is not assisted by clause E20 ("meal allowance") which only applied to employees working overtime "after working ordinary hours". Similarly, sub-clause (ii) of clause E21 (payment for "travelling time") is dependent upon the meaning of "ordinary rate of pay".
Clause E28 ("annual leave") similarly referred to "ordinary rate of payment" and was therefore dependent upon that rate being prescribed by the award. Clause E29 ("sick leave") did not expressly refer to the "ordinary rate of pay" but in my opinion the words "without deduction of pay" must, in context, have referred to the "pay" due under the award. Similarly, sub-clauses (b), (c) and (d) of clause E15 ("rest periods and crib times") used the words "without deduction of pay". Clause E38 ("accident pay") which referred to "the employee's appropriate 40 hour award rate", plainly applied only to those employees in respect of whom an award rate had been prescribed.
Of all the clauses cited, the only clauses which may have governed a condition of employment of the Victorian apprentices, irrespective of the construction placed upon clause E35 Part 111, were sub-clause E21(i) ("fares") and clause E23 ("compensation for clothes and tools"). In my opinion the existence of those clauses does not support the applicant's submission that "the award governs many of the apprentices' conditions of employment", and that, accordingly, it "might be thought to be unlikely that the central matter of wages would be left for enforcement under State regulation".
Mr. Ginnane's second contention was that the verb "apply", used in clause E35 Part III, was an apt word to create an enforceable right. However, the words "shall apply" in clause E35 Part III are no stronger than the words "shall operate", which appeared in clause 7(q) of the Metal Trades award (set out earlier in these reasons) as to which Spicer C.J. in McManus' Case said that two views were open. The words "shall apply", taken on their own, are capable of conveying either of those two meanings but, in my opinion, when read in the context of the award, they do not incorporate the State law into the Federal award.
For similar reasons I am unable to uphold Mr. Ginnane's third contention, namely, that "a presumption exists that an award stating that particular regulations are to apply conveys the intention that they will apply to confer rights and impose duties upon the parties to the award" - seeking to rely upon a statement by Smithers J. in McManus' Case (supra at p. 380) that such a presumption existed. However, it must be recalled that the apprenticeships concerned in that case had been entered into under the provisions of the award itself - not under any State apprenticeship provisions. If the view had been adopted that the clause merely preserved the operation of the State regulations as State law and did not incorporate them into the Federal award, then there would have been no prescription as to the rights or obligations of the apprentices by either the State regulations or by the Federal award; in other words their conditions of employment would not have been prescribed by any industrial authority, State or Federal. In the circumstances of that case it is not surprising that Smithers J. spoke in terms of a presumption but no such presumption applies to the construction of the award in the present proceedings.
Mr. Ginnane's fourth contention was based upon the existence in the Act of s. 52. That section was in the following terms in 1967 when the award was made:-
"In determining an industrial dispute in which the rates of pay or conditions of employment applying to apprentices in an industry are in question, the Commission shall take into consideration any scheme of apprenticeship provided by or under the law of any State or Territory."
He submitted that "the incorporation of such schemes in Federal Awards is particularly likely in the area of apprenticeship.
In my opinion the terms of that section do not assist the applicant; plainly an award may "take into account" an apprenticeship scheme either by preserving the operation of State law or by incorporating the State law into the Federal award (cf. the "two views" referred to by Spicer C.J. in McManus Case - at p. 375). It may be noted that the predecessor of that section (the terms of which did not differ in any material respect from s. 52) was referred to by Dr. Foenander in "Industrial Regulation in Australia" (1947) in the following passage (at p. 143):-
"The Commonwealth itself has, under the Constitution, no direct legislative power in this field, and the Court, in making provision in its awards, has been compelled to lean heavily on the State apprenticeship institutions. Indeed, Section 25C of the Act specifically directs the Court, . . . . to take into consideration any scheme of apprenticeship provided by or under any State law, . . . . the Court usually prescribes that State regulation governing apprenticeship shall apply as if incorporated in the award, to the extent that it is not inconsistent with the provisions of the award itself."
The award under consideration in the present proceedings did not contain that usual prescription that State regulation governing apprenticeship shall apply "as if incorporated in the award".
The regulations placed in evidence included (A) the Apprenticeship (General Regulations 1970, as amended by the Apprenticeship (General) (Amendment No. 2) Regulations 1978, made under the Apprenticeship Act 1958 (Vic.) (B) the Apprenticeship (Carpentry and Joinery Trades) Regulations 1968, made under that Act and (C) 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. Having regard to the conclusion already expressed as to the construction of clause E35 Part III, it is not necessary for me to consider whether the 1967 Federal award (assuming, contrary to the opinion already expressed, that it incorporated the "Regulations of the Apprenticeship Commission of Victoria"), also incorporated the regulations made by the Governor-in-Council in 1970 and in later years after the Apprenticeship Commission of Victoria had ceased to exist.
Nor is it necessary to consider whether all of those regulations - and, if not, then precisely what parts of them - were to "apply to apprentices" in Victoria as if incorporated into the award. In this connexion interesting questions might arise as to whether an apprentice would be committing a breach of the award if he failed to observe the requirements of the Regulations that he "shall enrol and attend . . . classes for instruction", "shall attend punctually at the time appointed . ." and "shall be diligent and behave in a decorous manner while in the school or class".
Another difficulty facing the applicant was that the regulations referred to in (B) and (C) in the preceding paragraph (even if they were incorporated into the award) did not prescribe minimum weekly rates of pay to be paid to apprentices in the joinery trade in the State of Victoria; the regulations provided for rates of wages as a percentage of "the wage rate and the tool allowance prescribed from time to time for the classification "Joiner (as defined) in Part II" of the Determination of the Carpenters Board made under the Labour and Industry Act 1958 (Vic.). Accordingly, the applicant's contention is necessarily that the Federal award in 1967 imposed a legally enforceable duty on each employer to pay to his apprentices rates of pay which would be fixed from time to time by a State Wages Board in meetings in which the employer could not be heard.
In the light of the conclusion already expressed as to the construction of clause E35 Part III, it is not necessary for me to express any concluded opinion as to whether the Commissioner, in making an award in settlement of a dispute under the Act, had power to require employers to pay to their apprentices in Victoria (a) rates of pay which had been determined not by him but by an authority under State law and (b) whatever rates of pay that authority might fix in the future. Apparently in McManus' Case it was not argued that the Commissioner had no power to insert such a provision in an award.
In the present proceedings the applicant, in his written summary of submissions, contended that a "provision of a Federal Award may incorporate or render enforceable under the Award, State Regulations as they are from time to time. John Heine & Son Ltd. v Pickard (1921) 29 C.L.R. 592; McManus v General Electric Co. of Australia Ltd. (1972) 18 F.L.R. 374; Australian Tramway Employees' Association v Commissioner for Road Transport and Tramways (N.S.W.) (1935) 53 C.L.R. 90, 111." The applicant's submission, in my opinion, is not established by those authorities; they included an obiter dictum of Evatt and McTiernan JJ. in the Australian Tramways Employees' case (supra at p. 111) that :-
"We do not accept the argument that clause 35 is bad because it works a delegation of the arbitral power to the State Legislature. This is not a case of delegation at all."
The dictum may well be explicable on the basis of the meaning of the particular clause in the context of the award and its resultant legal effect. On any view the clause did not operate to allow the State Legislature to fix or determine wage rates or other conditions of employment for the employees concerned and, accordingly, it is not suprising that it was described as "not a case of delegation at all". In the other cases cited, the courts did not have to consider the validity of the award provisions because no question was raised as to whether a federal arbitrator had power to incorporate in an award State regulations to be made at some unspecified future date, including a date after the expiration of the period of operation of the award, i.e. at a time when it is no longer "the will of the arbitrator which now gives force to his settlement of the dispute" - per Full High Court in T.A. Robinson & Sons Pty. Ltd. v Haylor (1957) 97 C.L.R. 177 at 184.
It does not appear to me to be clear beyond argument that the Commissioner's power to hear and determine an industrial dispute by arbitration includes the power to make an award incorporating rates fixed not by the Commissioner, nor by any State regulations "incorporated" into the award but fixed by a State Wages Board, which rates have themselves been notionally "adopted" by the State regulation before they have been fixed by the Wages Board. However, it may be that the Carpenters and Joiners Award 1967 was within the conciliation powers of the Conciliation and Arbitration Commission because the award was made "in terms agreed" upon by the parties, following upon "a long series of conferences in the final stages of which the Commission participated at the parties' request" (see 117 C.A.R. 14 at p. 14-15 - set out more fully later in these reasons).
If the opinion already expressed, that clause E35 Part III, construed in its context, merely preserved the operation of the regulations as State law, is not correct, then in my opinion the sub-clause is not free from ambiguity. In those circumstances, although extrinsic evidence cannot be admitted to add to or to subtract from its terms nor to vary those terms, evidence is admissible of a statement made jointly by both parties at the time of the agreement, explaining the meaning of the language used by both parties; such evidence is admissible in order to ensure that the language used is construed in such a way as to reveal "the real mind" of the parties. Chitty on Contracts (24th ed., (1977), Vol. 1, p. 343-4, para. 751) states:-
"(e) Evidence to Explain the Written Agreement
Generally. Although extrinsic evidence cannot be admitted to vary or contradict the written agreement, it is admissible in some circumstances to explain it. The rule on this subject was stated by Tindal C.J. in Shore v Wilson (1842) 9 Cl. & Fin. 355, 565.
'. . . . The true interpetation, however, of every instrument being manifestly that which will make the instrument speak the intention of the party at the time it was made, it has always been considered an exception, or perhaps, to speak more precisely, not so much an exception from, as a corollary to, the general rule above stated, that where any doubt arises upon the true sense and meaning of the words themselves, or any difficulty as to their application under the surrounding circumstances, the sense and meaning of the language may be investigated and ascertained by evidence dehors the instrument itself; for both reason and common sense agree that by no other means can the language of the instrument be made to speak the real mind of the party.'
Extrinsic evidence of this sort does not usurp the authority of a written instrument. It is the instrument which operates. The extrinsic evidence does no more than assist its operation, by assigning a definite meaning to terms capable of such explanation or by pointing out and connecting them with the proper subject-matter. Thorpe v Brumfitt (1873) L.R. 8 Ch.App. 650; Johnstone v Holdway (1963) 1 Q.B. 601; The Shannon Ltd. v Venner Ltd. (1965) Ch. 682."
At the hearing before these proceedings were referred to a Full Court, Mr. Ginnane very properly placed before the Court certain material as to the circumstances in which the award was made, notwithstanding that in his submission it was not permissible for the Court to have recourse to that material in construing the award. Before the Full Court that submission was renewed, reliance being placed upon T.A. Robinson & Sons Pty. Ltd. v Haylor (supra at pp. 183-184; Life Insurance Co., of Aust. Ltd. v Phillips (1925) 36 C.L.R. 60 and Re Tugboat Industry Award (1976) 46 F.L.R. 444. In my opinion the applicant's submission is not supported by those authorities and it is inconsistent with the dictum of Tindal C.J. in Shore v Wilson cited by Chitty (supra).
The material tendered showed, amongst other things, that on 5 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 p. 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 III 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."
It should be explained that Part III of clause E35 is in identical terms with "Part III of clause B36" which is referred to in paragraph (5) above. As to the meaning of the word "prefaced", the Shorter Oxford English Dictionary gives one of the meanings of the word "preface" as: "II.1. The introduction to a literary work, usu. explaining its subject, purpose, scope and method."
In my opinion the passage quoted from the decision of the Commissioner, (reported in the Commonwealth Arbitration Report on the page immediately preceding the award) removes any ambiguity and makes it clear that Part III of clause E35 merely preserved the operation of the regulations as State law. In this connexion the following aspects of the statement should be noted:-
(a) The parties, who had reached agreement on the terms of the award, and the Commissioner, who was making the award, all considered "that it is desirable" that the award should be "prefaced" by the statement; that unanimous view appears to me to be quite inconsistent with any intention that the award was intended to "incorporate" the State regulations into the award - particularly having regard to the terms of paragraph (5).
(b) It explicitly stated that the "regulation" of the conditions of Victorian apprentices "has been left to the State authority . .". In other words the Commonwealth Commission would not determine those matters; instead the "regulation" of them would be performed by "the State authority" to whom such matters had been deliberately "left" by agreement of the parties.
(c) The leaving of the "regulation" of the apprentices' conditions to the State authority was expressly stated as being "for the present".
(d) At some future date there might be "regulation" by the Commonwealth Commission because the "rights of the parties on this matter are reserved". However, it is clear that "for the present" the parties jointly intended that there should be "regulation" by the State authority.
(e) The express reservation of the "rights of the parties on this matter" supports the view that there was no intention to incorporate the State regulations into the award. If the regulations had been incorporated into the award, then any such reservation of rights would have been quite unnecessary because all parties would have had the right to apply at any time for a variation of the award.
In my opinion, even if the clause be ambiguous, the statements by which the award is "prefaced" are unequivocal and make it clear that Part III of clause E35 in this award, unlike the sub-clause in the Metal Trades award, was intended to preserve the operation of State law as State law and was not intended to incorporate the State law in the award. It was suggested that little or no assistance could be obtained from the preface in 1967 because clause E35 Part III was in the same terms as that in the previous award; however, reference to the transcript of the proceedings leading to that previous award, which is contained in the applicant's reference book, supports the opinion that the intention was to merely preserve the operation of the regulations as State law.
Accordingly, in my opinion no breaches of the award occurred and both applications should be dismissed.
JUDGE3
Each of these matters involves a series of claims for alleged breaches or non-observances of an award, pursuant to s. 119 of the Conciliation and Arbitration Act 1904 ("the Act"). The award concerned is the Carpenters and Joiners Award 1967 ("the Award"), an award originally made by the Commonwealth Conciliation and Arbitration Commission, and subsequently varied by the Australian Conciliation and Arbitration Commission.
In matter V No. 20 of 1983, the breaches or non-observances are alleged to have occurred in relation to one Timothy John Hughes. In matter V No. 21 of 1983, the employee concerned is one Geoffrey Miller. Each of Mr. Hughes and Mr. Miller was an apprentice, alleged to have been employed by the Respondent at its premises at Lake Road, Stawell in the State of Victoria, performing joinery work.
Each of the applications alleges that on various dates the Respondent did "fail to pay all wages, allowances and other monies . . . due to the said employee pursuant to Clause E35 Part III and the Industrial Training (Carpentry and 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". In each case, the first date alleged is 29th June 1978, the last is 7th September 1978, and the other dates alleged fall at weekly intervals between these two dates.
The trial of each of the matters began before Keely J. on 1st October 1984. The matters were heard together. Mr. Ginnane of counsel appeared for the applicant, who is an inspector appointed pursuant to s. 125 of the Act, and a person designated pursuant to s. 29(1)(b) of Act No. 33 of 1983 to take the place of the Industrial Relations Bureau in the proceedings. There was no appearance on behalf of the respondent. The court had previously been informed by the solicitor for the respondent that the respondent could not meet its legal costs and did not wish to appear in the proceedings. After hearing the evidence and submissions on behalf of the applicant, Keely J. referred the matter to a Full Court, pursuant to s. 118C of the Act. This order was made on 19th November 1984.
The evidence which was led before Keely J., and to which the Full Court may have regard by virtue of s. 118C(2) of the Act, established the following facts. Each of Mr. Hughes and Mr. Miller entered into an indenture of apprenticeship with the respondent for the trade of carpentry and joinery. The term of each apprenticeship commenced on 13th January 1977. Mr. Hughes was required to complete a four year apprenticeship, whereas Mr. Miller's term was three years and six months, he having obtained six months' credit by virtue of having achieved a higher educational standard at school than did Mr. Hughes. Each indenture was in a form prescribed under the Industrial Training Act 1975 (Vic.). Clause 7(a) of each indenture provided as follows:
"7. It is hereby agreed and declared between the parties hereto
(a) That this indenture shall not be cancelled except in accordance with the provisions of the Industrial Training Act 1975."
On 12th June 1978, Desmond Livingstone Nicholl and James Peter Grant, jointly and severally, were appointed as receiver and manager of the property of the respondent. On the following Monday, 19th June 1978, a number of employees of the respondent were called together by a Mr. Knights, the construction manager of the respondent. These employees included Mr. Hughes and Mr. Miller, each of whom was responsible to Mr. Knights in his employment. Mr. Knights told these employees that no work was available for them and that their contracts of employment would have to be terminated.
Thereafter, each of Mr. Hughes and Mr. Miller attended the premises of the respondent on each day on which he would have been obliged to work, seeking work. Each also attended school when required under the terms of his indenture. No payment was made in respect of any time until 4th September 1978, when Mr. Hughes and Mr. Miller were again given work by the respondent.
On the applicant's calculations, the respondent failed to pay Mr. Hughes sums totalling $919.02 and Mr. Miller sums totalling $1,152.12. The greater amount claimed in respect of Mr. Miller is due to his being entitled to a higher rate of pay, by reason of his six months' credit for additional educational qualifications.
At all relevant times, Mr. Miller was a member of the Building Workers' Industrial Union of Australia, an organization of employees registered pursuant to the Act. It was conceded by counsel for the applicant that Mr. Hughes was not at any relevant time a member of any organisation registered under the Act. The respondent was, at all relevant times, bound by the Award, by reason of its membership of the Victorian Chamber of Manufactures, an organization of employers registered pursuant to the Act.
The Award contains five divisions. Division A is of general application. Each of the other divisions relates to a specific type or area of carpentry and joinery work. Division E relates to joinery shops. Clause E30, which is headed "Payment of Wages", provides, in part, as follows:
"(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 is headed "Junior Labour". Part I is headed "Unapprenticed, South Australia". Part II is headed "Apprentices, South Australia". It commences with the words:
"This Division shall not apply to the employment of apprenticed carpenters or joiners in South Australia except to the extent prescribed in the sub-clauses of this Part."
Sub-clause (e) of Part II is as follows:
"(e) Except where inconsistent with the South Australian Apprentices Act 1950-1971, the general provisions of this Division shall apply to apprentices employed on work within the scope of this Division."
This sub-clause is followed immediately by the heading "Part III - Apprentices, Victoria". The following words appear under that heading:
"Except where inconsistent with this Division, the Regulations of the Apprenticeship Commission of Victoria shall apply to apprentices in that State."
At the heart of this matter is the question of construction of clause E35 part III. The central issue is whether that clause makes enforceable under the Act State legislation dealing with apprentices. Several difficulties arise in the resolution of this issue.
A body known as the Apprenticeship Commission of Victoria was created under the legislation of the State of Victoria as it existed prior to 1975. This legislation was last consolidated in the Apprenticeship Act 1958 (Vic.). Section 7 of that Act set up a board of seven members to be called the Apprenticeship Commission of Victoria. The Industrial Training Act 1975 (Vic.) repealed the Apprenticeship Act 1958. Section 7 of that Act established a ten member board known as the Industrial Training Commission of Victoria. The functions of this Commission were similar to those of the former Apprenticeship Commission of Victoria.
Neither of these Commissions had power to make regulations. Each had a power and a duty to "prepare draft regulations for submission to the Governor in Council for or with respect to" a number of matters, including forms of indentures of apprenticeship and rates of pay for apprentices. Reference should be made to s. 44(1)(i) and (k) of the Apprenticeship Act 1958, and s. 56(1)(h) and (m) of the Industrial Training Act 1975. Each of those Acts empowered the Governor in Council to make regulations for or with respect to a number of matters, including matters the subject of draft regulations submitted by the relevant commission. Reference should be made to s. 45(a) of the Apprenticeship Act 1958 and s. 57(a) of the Industrial Training Act 1975. Section 2 of the Industrial Training Act 1975, which repealed earlier legislation, contained a saving clause in respect of all persons things and circumstances appointed or created by or under the repealed legislation, and a particular provision that the repeal should "not disturb the continuity of status operation or effect of any . . . regulation".
Certain regulations made by the Governor in Council were tendered in evidence before Keely J. The first was the Apprenticeship (General) Regulations 1970, described as having been made under the Apprenticeship Act 1958. These regulations dealt, among other things, with the employment of apprentices and the forms of indentures of apprenticeship. Next there was tendered the Apprenticeship (General) (Amendment No. 2) Regulations 1973, also made under the Apprenticeship Act 1958, which amended the form of indenture of apprenticeship prescribed by the earlier regulations. Also tendered were the Apprenticeship (Carpentry and Joinery Trades) Regulations 1968, also made under the Apprenticeship Act 1958. The only regulations tendered which were made under the Industrial Training Act 1975 were the Industrial Training (Carpentry and Joinery Trades Apprenticeship) (Amendment) Regulations 1977. These described the Apprenticeship (Carpentry and Joinery Trades) Regulations 1968 as "the Principal Regulations". They contained certain amendments of those 1968 regulations.
Clause 8 of the 1968 regulations fixed the minimum wage rates for apprentices of various kinds involved in carpentry, joinery and carpentry and joinery. The 1977 regulations substituted for the earlier clause 8 a new clause 8, part of which is set out:
"8. (1) Subject to sub-regulation (2) the minimum weekly rates of wages to be paid to apprentices in the trades shall be the under-mentioned percentages of the aggregate of the following constituents:-
(a) for those apprentices engaged in 'construction work' the weekly base rate, 80 per cent of the special allowance, the industry allowance the tool allowance prescribed from time to time for such class of work in Part I. of the Determination of the Carpenters Board, made under the Labour and Industry Act 1958 as amended from time to time;
(b) for those apprentices engaged in 'shopfitting work' the wage rate, the industry allowance and the tool allowance prescribed from time to time for the classification 'Carpenter engaged in shopfitting work (as defined)' in Part II. of the aforesaid Determination; and
(c) for those apprentices engaged in work not subject to paragraphs (a) or (b) of this sub-regulation the wage rate and the tool allowance prescribed from time to time for the classification 'Joiner (as defined)' in Part II. of the aforesaid Determination, viz:-
Year of Apprenticeship Percentage 1st 1st 3 months . . . . 35 Thereafter . . . . 45 2nd . . . . . . 55 3rd . . . . . . 75 4th . . . . . . 90
The wage rates shall be calculated to the nearest 5c, but where there is a reminder exceeding 2c, the rate shall be taken to the next highest 5c;
(d) for the purposes of this sub-regulation, 'construction work' and 'shopfitting work' shall mean construction work and shopfitting work respectively as defined as at the 18th June, 1976 in the Determination of the Carpenters Board made under the Labour and Industry Act 1958 as amended from time to time."
Also in evidence was the determination of the Carpenters Board (No. 2 of 1978), a determination made under the Labour and Industry Act 1958 (Vic.). Part II of this determination prescribed, among other things, rates of pay. In clause 2 of part II, there is found a rate for "Joiner (as defined)", specified as $157.60 per week. The amounts fixed by the applicant as those which have not been paid to Mr. Hughes and Mr. Miller by the respondent have been calculated as the appropriate percentage of this rate, the percentage being ascertained from the table in clause 8(1)(c) set out above.
The first question which arises is whether the words "the Regulations of the Apprenticeship Commission of Victoria" in clause E35 part III of the Award are apt to apply to regulations made by the Governor in Council under the Apprenticeship Act 1958. If a strict construction of those words were adopted, so that they could only apply to regulations made by the Apprenticeship Commission of Victoria itself, the clause itself would be meaningless. The Apprenticeship Commission of Victoria had no power to make and did not make any regulations itself. If such a strict construction were adopted, the meaningless clause might be severed from the Award; other provisions of the Award, presently intended not to bind employers in relation to apprentices, might then be regarded as so binding, to the exclusion of the provisions of Victorian law. This is plainly not the result intended by the maker of the Award. A court should strive to give meaning to words in a document, whether the document is a legislative instrument or a contract: Fawcett Properties Ltd. v. Buckingham County Council (1961) A.C. 636, and Cugden Rutile (No. 2) Pty. Ltd. v. Chalk (1975) A.C. 520, at p. 536. To resolve a latent ambiguity such as this, it is legitimate for the court to have regard to the obvious intention of the maker of the Award. Clearly, that intention was to refer to regulations made under the laws of the State of Victoria and governing the terms and conditions of the employment of apprentices in the relevant industry. The regulations made by the Governor in Council under the Apprenticeship Act 1958 answer this description. Nor is there difficulty in construing the words of the Award as applicable to those regulations. The probability is that regulations of the kinds which were tendered were in fact drafted by the Apprenticeship Commission of Victoria and submitted to the Governor in Council, pursuant to the duty of the Apprenticeship Commission of Victoria to do so. In addition, in the exercise of its powers under the Apprenticeship Act 1958, the Apprenticeship Commission of Victoria was required to administer the regulations. For these reasons, in ordinary language, the description of the regulations as "the Regulations of the Apprenticeship Commission of Victoria" is appropriate.
The next question which arises is whether, as a matter of construction, clause E35 part III applies to regulations made after the making of the Award. All of the regulations tendered in evidence were made after 1st March 1967, the date of operation of the Award, by virtue of clause A3 thereof. In Wright v. T.I.L Services Pty. Ltd. (1956) S.R. (N.S.W.) 413, the Full Court of the Supreme Court of New South Wales dealt with a regulation which required that "electrical devices, including wiring and switches, shall comply with the relevant rules of the Standards Association of Australia relating to electrical equipment in hazardous locations . . .". At page 422, Walsh J, with whom Herron J. agreed on this point, said:
"Secondly, it was urged that the reference in the paragraph might be either to the rules of the Standards Association as in existence when the regulation was promulgated or to those rules as in existence from time to time thereafter. In my opinion, having regard to the nature and purpose of the provisions of reg. 35 and to the subject matter with which it deals, it is sufficiently clear that the obligation imposed is that the workroom should comply with the requirement that the electrical devices shall be in accordance with the rules which are current at the time when the product to which reg. 35 refers is being manufactured, repaired, manipulated or used in a workroom."
I respectfully adopt this approach to the construction of the Award in the present case. It is widely understood that wages and conditions of work are not matters of static prescription. In the circumstances in which an award is made governing the terms and conditions of employment of persons, it would be strange if the maker of the award, in examining the terms and conditions of one class of those employees, should choose to have them frozen in the terms of whatever regulations happen to be in force at the date of coming into operation of the award. Under s. 52 of the Act, the Australian Conciliation and Arbitration Commission has a duty to take into consideration any scheme of apprenticeship provided by or under the law of any State or Territory. In the exercise of this duty, the Commission would no doubt be aware of the fact that State regulations which constituted such a scheme were amended from time to time. Subsequent history also indicates an intention to refer to future regulations in clause E35 part III. From time to time the Award has been varied in many respects, most notably to provide for increases in wages. The fact that clause E35 part III has been left untouched when each of those variations have been made is indicative of an intention by the arbitrator that it should be construed as referring to the regulations as amended from time to time. I am therefore of the view that the phrase "the Regulations of the Apprenticeship Commission of Victoria" refers to such regulations as amended from time to time.
The further question arises whether this ambulatory effect of clause E35 part III is sufficiently broad to include regulations made under the Industrial Training Act 1975, after the Apprenticeship Commission of Victoria was abolished. Having regard to my conclusions as to the proper construction of clause E35 part III, I have no difficulty in holding that these regulations are included, as a matter of construction, in the words of the clause in the Award. The Industrial Training Commission of Victoria was the direct successor of the Apprenticeship Commission of Victoria; it took over the functions of the former Commission. To describe it in ordinary language as "the Apprenticeship Commission of Victoria" would not be inappropriate in the circumstances.
It is now necessary to confront the central issue in this case. This issue was posed by Spicer C.J. in McManus v. General Electric Co. of Australia Ltd. (1971) 18 F.L.R. 374, at pages 375-6, with reference to the clause of the award there in question, as follows:
"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."
In that case, a majority of the Commonwealth Industrial Court held that a clause in an award which provided that State statutes and regulations relating to apprentices "shall operate" in their respective States incorporated those State statutes and regulations by reference into the award, and made them enforceable under the Act. The court saw some importance in the fact that the award considered in that case created its own scheme of apprenticeship; if that scheme had been construed as covering the field, no State law could have had any effect in relation to it. A provision that the State law was to "operate" was regarded as giving to the State law an operation which it could not otherwise have had. No such scheme is set up by the Award in this case, but it does not follow from the absence of such a scheme that clause E35 part III of the Award merely preserves the Victorian regulations from the operation of s. 109 of the Constitution.
There can be little doubt that, in the exercise of its power of arbitration to settle a dispute under the Act, the Australian Conciliation and Arbitration Commission has power to incorporate by reference into an award the terms of another document, legislative or otherwise. The existence of this power was recognized in McManus. Joske J., in dissent, was concerned about incorporation into an award of "possible future provisions of an entirely unknown character". It must be remembered, however, that an award is capable of variation under s. 59 of the Act. If the legislative provisions of a State, having been adopted, are amended in a way which does not constitute a satisfactory settlement of the dispute settled by an award, that award can be varied to exclude the operation of such provisions, or to insert provisions which are regarded as a proper settlement of the dispute. The duty imposed by s. 52 of the Act, to have regard to any scheme of apprenticeship provided by or under the law of any State or Territory, will tend to produce a situation in which the provisions of such a scheme are kept under review, and the award is maintained in a satisfactory state. Other cases in which the power to incorporate State law by reference into an award has been recognized are John Heine & Son Limited v. Pickard (1921) 29 C.L.R. 592, especially at page 595 per Starke J., Australian Tramway Employees Association v. Commissioner for Road Transport and Tramways (New South Wales) (1935) 53 C.L.R. 90, especially at page 111 per Evatt and McTiernan JJ., and Municipal Officers' Association v. Shire of Yalgoo (1978) 45 F.L.R. 257.
Some discussion took place as to whether a provision incorporating by reference existing and future State legislative provisions on a particular subject could fall within the ambit of a dispute leading to the creation of an award under the Act. I see no difficulty about this as an abstract question. It is entirely a matter of determining the ambit of the dispute in a particular case. In this case, the Award was based on two disputes, given the designations C No. 1553 and C No. 1720 of 1965. The first of these disputes resulted from the failure of the employers served to accede to the demands made in a letter of demand and log of claims from the Amalgamated Society of Carpenters and Joiners of Australia. The second dispute resulted in a similar way from a letter of demand and log of claims served by the Building Workers' Industrial Union of Australia. The disputes were joined by the Commonwealth Conciliation and Arbitration Commission, and the Award was made in part settlement of each of them. Each letter of demand and log of claims sought the terms and conditions contained in it in respect of all employees of each employer served, whether or not they were members of the organization serving the log. The log of claims in matter C No. 1720 of 1965 was in the form of a draft award. It contained a demand that, except where inconsistent with the award, the regulations of the Apprenticeship Commission of Victoria, New South Wales or Tasmania as the case may be should apply to apprentices in those States. There is some evidence that this demand may have been amended after service of the log of claims and replaced by a demand that the apprenticeship provisions of the proposed award should not apply to the employment of any apprentice in any trade proclaimed in the State of Victoria to be an apprenticeship trade under the provisions of the Victorian Apprenticeship Act 1958. Whichever of these was the demand made, the failure by employers to accede to it plainly created a dispute which was capable of being settled by the Arbitration Commission in any of a number of ways. One of these ways was to make an award in relation to Victoria in the terms of clause E35 part III of the Award. Such provision clearly fell within the ambit of the dispute.
The question whether the State regulations are given force and effect as part of the Award, therefore, is one of construction. In McManus, at p. 380, Smithers J. said:
"An award is an instrument settling an industrial dispute between parties by prescribing the terms and conditions which are to govern their future relationships.
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."
With all respect to his Honour, I have serious doubts whether such a presumption exists. In my view, the question of construction should be resolved upon the terms of the award in each case, looking at the instrument as a whole, but without any pre-disposition as to its effect. If this approach is taken in the present case, there are two factors which weigh most heavily. The first is that the word "apply", which is used in clause E35 part III, is used in a number of other clauses in the Award in circumstances which make it clear that what is being "applied" is being given force and effect. Examples are clause E1 (which applies divisions A and E of the Award to all persons employed in the classifications of joinery work defined), clauses E11 and E12 (which apply certain specific provisions to employers in individual States in circumstances of power rationing), clause E29 (which applies certain provisions in relation to sick leave), clause E31 (which applies certain provisions to the termination of employment) and clause E38 (which applies certain provisions to employees in Victoria with respect to accident pay). Part of clause E16 (b) provides that "this sub-clause shall not apply" in certain cases. It is true that there are other provisions of the Award which do incorporate by reference the provisions of the National Building Trades Construction Award 1975 and certain provisions of State laws, and which use more specific wording than the word "apply" to accomplish this. In their context, however, these provisions are not surprising. They do not detract from the construction of the word "apply" in clause E35 part III, any more than did similar inconsistent provisions detract from the construction of the word "operate" in the clause considered in the McManus case.
The second important factor is that, when the framers of the Award did seek specifically to exclude the operation of the Award in a particular State, they did so with great clarity. The provisions of clause E35 part II, to which I have referred earlier, indicate that the drafting technique of specifically excluding the Award from operation in relation to some particular subject in a State, so as to preserve the operation of State laws, was a technique known to the framers of the Award. The proximity of this clause to clause E35 part III suggests strongly that the intention was not simply to exclude the operation of the Award in relation to apprentices in Victoria, but to incorporate into it those provisions of the law of Victoria which related to that subject.
Counsel for the applicant referred the Court to the history of the Award, and particularly to the ancestral provisions of clause E35 part III. His contention was that an examination of the history threw no real light on the meaning of the clause. The first award seems to have been made in 1928. It contained, in clause 19, its own scheme of apprenticeship. Specific provision was made that "this clause shall not apply to the employment of apprentices in New South Wales." There was also a provision that:
"Either the Union or an employer may apply to the Court for a variation of this clause consequent on or pursuant to any recommendation of the Apprenticeship Commission, Victoria, or any legislation of that or any other State where respondents are bound by this award."
Plainly, employers of apprentices in Victoria were then bound by this Federal scheme. A further award made in 1946 contained some provisions relating to apprentices, including a provision:
"This clause shall not apply to the employment of apprentices in New South Wales or in such parts of Victoria in which the Apprenticeship Commission appointed under the Apprenticeship Act for 1927 is operating."
Plainly, the terms and conditions of employment of apprentices in those parts of Victoria were not governed by that award. In 1953, the clause which is now clause E35 part III was first introduced. If it had been intended simply to exclude Victoria from the provisions of the award relating to apprentices, the historical precedent for such a clause existed. The fact that it was not adopted tends to support the submission that clause E35 part III and its immediate predecessor were intended to give force and effect to the provisions of the Victorian law as part of the award.
Attention was also directed to a preface to the Award, which was apparently agreed by all parties, and which appears in the decision of Mr. Commissioner Matthews in which the Award was made. See (1967) 117 C.A.R. 13, at pages 15 and 16. Clause 5 of this preface is as follows:
"As to apprentices in Victoria, it will be noted from Part III 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."
Mr. Ginnane contended that it was not permissible for the Court to look at such a preface, even a preface to a consent award, which preface was agreed to by the parties. He relied on T.A. Robinson & Sons Pty. Ltd. v. Haylor (1957) 97 C.L.R. 177, especially at pages 183-4. An examination of that passage, which is in the judgment of the High Court of Australia, tends to suggest that it was permissible to look at the reasons expressed by a commissioner for failing to make any provision in an award for a particular subject. The Court did decide that such expression of reasons did not show that the Commissioner intended to cover the field of that subject by excluding State law from operating with respect to it. There are difficulties in deciding whether it is proper to look at the reasons of an arbitrator in announcing his decision on the making of an award. In the ordinary case when an award is being construed, the personnel manager of the employer and the shop steward representing the employees will not be expected to have available to them documents such as the reasons for decision of a commissioner, or a statement of the parties prefacing an award. On the other hand, organizations of employers and employees will normally have access to such materials, and those who find themselves charged with the task of interpreting awards in relation to particular matters arising in the work place will normally turn to such organizations for advice and support. It is well recognized that the drafting of documents such as awards so as to exclude all ambiguity is impossible. If a court is required to face the task of construing an ambiguous provision in an award, and if the means exist of resolving that ambiguity by reference to the actual expressed intention, either of the arbitrator, or of the parties in the case of a consent award, it is difficult for the court to turn its back on such means. I therefore favour the view that resort should be had to such means as will assist in ascertaining the intention of the maker or makers of the award, in the case of an ambiguity.
Regrettably, however, resort to clause 5 of the agreed preface to the Award in the present case does nothing to resolve the question. That clause states that the regulation of the conditions of apprentices in Victoria has been left to the State authority. This is an accurate statement, whether or not the result of such regulation is given the force and effect of the Award by clause E35 part III. On that question, the agreed preface throws no light at all. The reservation of the rights of the parties is consistent with the intention that the Australian Conciliation and Arbitration Commission may be asked to lay down specific provisions for the terms and conditions of employment of Victorian apprentices, if the provisions of the regulations, which are incorporated by reference into the Award, cease to be regarded by any party as an adequate settlement of the disputes settled by the Award. Still less guidance does the preface provide when it is recognized that clause E35 part III was in the same terms as the equivalent clause in an award which was being repealed.
I therefore conclude that the Award itself created an obligation falling on the respondent to pay to Mr. Hughes and Mr. Miller each week wages in sums not less than those calculated by the applicant as being underpaid. It follows that, unless the contracts of employment of Mr. Hughes and Mr. Miller were validly terminated by the respondent, this obligation was unfulfilled in respect of each of the periods the subject of the applications.
The contracts of employment were constituted by the indentures of apprenticeship in the case of each apprentice. Those indentures contained clause 7(a) which I have set out earlier, and which restricted the right of the respondent to terminate, except insofar as the Industrial Training Act 1975 (Vic.) permitted termination. That Act provides, in s. 28, for cancellation of indentures of apprenticeship by mutual consent, and in s. 33 for the cancellation of such indentures by the Industrial Training Commission of Victoria if, in the opinion of that Commission there are special circumstances which render such cancellation desirable. Under s. 35, an apprentice may be transferred to another employer, with the assignment of the indentures of that apprenticeship. In s. 38, there is provision for the Industrial Training Commission of Victoria to reduce the working hours and wages of an apprentice, or to suspend or cancel indentures where an employer is unable to provide sufficient work for an apprentice. Otherwise, there is no provision for the termination of the contract of employment. Nothing in the Award overrides this right of an apprentice to security of employment. Clause E31 deals with the termination of employment of employees engaged by the week, and casual employees. Apprentices fall within neither of these categories. There is no other provision in division E of the Award for the termination of employment.
In purporting to dismiss Mr. Hughes and Mr. Miller summarily, the respondent was not performing an act which could validly lead to the termination of their contracts. Unless, therefore, Mr. Hughes and Mr. Miller accepted the summary dismissal as a repudiation of their contracts of employment, and as bringing those contracts to an end, the contracts continued. See Turner v. Australasian Coal and Shale Employees Federation (1984) 55 A.L.R. 635, especially at pages 645-9. It is clear that neither Mr. Hughes nor Mr. Miller acted in such a way as to bring about the termination of his contract. By continuing to attend at the respondent's premises on each working day, seeking work, and to attend the educational program required by his indentures of apprenticeship, each of Mr. Hughes and Mr. Miller demonstrated his intention of keeping the contract on foot. Insofar as the remuneration payable under the terms of the regulations incorporated into clause E35 part III was payable in consideration of readiness and willingness to perform work, each of Mr. Hughes and Mr. Miller demonstrated such readiness and willingness by his regular attendances at the respondent's premises and at school.
In points of defence which were filed on behalf of the respondent at an early stage of the proceedings, it was asserted that the respondent was not bound by the Award by operation of law. The appointment of the receiver and manager on 12th June 1978 was relied upon as bringing about this result. The appointment of a receiver and manager, out of court, does not automatically terminate contracts of employment of a company by operation of law. See Griffiths v. Secretary of State for Social Services (1974) 1 Q.B. 468 and James Miller Holdings Ltd. v. Graham (1978) 3 A.C.L.R. 604. Even the appointment of a receiver and manager by the court does not determine the contracts of employment previously entered into by the company; whether such termination occurs is a question of fact in each case. See International Harvester Export Company v. International Harvester Australia Limited (1983) 1 V.R. 539. The appointment of the receiver and manager for the respondent was out of court. If it were necessary to look at the particular circumstances, the court does not have available to it the instrument under which the appointment was effected; the production of that instrument would be a matter of the evidential onus which would fall upon the respondent, an onus which the respondent has not attempted to discharge. So far as the circumstances are known to the court, they are inconsistent with automatic termination. One week after the appointment of the receiver and manager, some of the employees of the respondent were told by one of its officers, to whom they had been responsible prior to the appointment of the receiver and manager, that their employment was being terminated because there was insufficient work available. In any event, I have serious doubt whether the appointment of a receiver and manager could bring about the termination of a contract of employment otherwise than in compliance with a relevant Federal award. There is, however, no need to decide that matter in this case.
In the absence of any termination of the contracts of employment of Mr. Hughes and Mr. Miller, the obligation of the respondent to pay at least the minimum remuneration each week subsisted. The company is guilty of a breach or non-observance of the Award in respect of each of Mr. Hughes and Mr. Miller, for each week in which payment was not made. Section 119(1A) of the Act requires that, where the court finds that two or more breaches by the same person of a term of an award have been committed and those breaches appear to the court to have arisen out of the course of conduct by that person, those breaches shall, for the purposes of s. 119, be treated as constituting a single breach of that term. Mr. Ginnane conceded that breaches of the provision of the Award requiring that payment be made on a particular day each week, which occurred in successive weeks, were to be regarded as breaches arising out of a course of conduct by the respondent. In my view, that concession is correct. It accords with the decisions in Quinn v. Martin (1977) 31 F.L.R. 25, especially at p. 31, Industrial Relations Bureau v. Hassan (1982) 62 F.L.R. 169, especially at p. 172, and Lynch v. Buckley Sawmills Pty. Ltd. (unreported, Federal Court of Australia, Keely J., 25th October 1984, at pp. 11-12). Mr. Ginnane contended, however, that the breaches with respect to Mr. Hughes were to be regarded as having arisen out of a separate course of conduct from those with respect to Mr. Miller, and that the Court was required to deal with two breaches under s. 119(1A). The three cases to which I have just referred do not touch the question whether a separate "course of conduct" exists when an employer is guilty of identical breaches of the same term of an award with respect to more than one employee. In Jarrad v. Melbourne and Metropolitan Tramways Board (1978) 21 A.L.R. 201, at p. 209, it was held that the standing down of a number of employees was to be treated as a single breach. In Townsend v. General Motors-Holden's Ltd. (1981) 50 F.L.R. 355, a single penalty was imposed in respect of a failure to give proper notice to two employees of a shut-down. It seems to have been assumed that the two breaches had arisen out of a single "course of conduct". In Rowe v. Capital Territory Health Commission (1982) 62 F.L.R. 383, at p. 412, it was held that a "course of conduct" did not exist in respect of failure to pay proper wages to two student nurses; the nurses had begun employment in separate years, and were affected by separate decisions of the employer as to the manner in which they would be treated. Keely J. expressed the view that, "Any other breaches in respect of student nurses enrolled in the 1980 two-year course would have arisen out of the one course of conduct". This judgment was upheld by a Full Court on appeal, without discussion of this point. See Rowe v. Capital Territory Health Commission (1982) 2 I.R. 27. In the present case, the breaches with respect to each of the apprentices arose from a single act by the respondent in purporting to dismiss a number of its employees. That act, and any failure to pay any employee which arose from it, is properly described as a course of conduct, for the purposes of s. 119(1A). The Court is, therefore, obliged to treat the matter as involving one breach.
It is then necessary for the Court to determine the appropriate penalty to be imposed. The Court has heard nothing in mitigation of penalty on behalf of the respondent. The facts as they appear from the evidence warrant a heavy penalty. The protective nature of a contract of employment of an apprentice is well known. The respondent should have been aware that it could not simply dispense with the services of its apprentices in the manner in which it attempted to do so. Even if Mr. Hughes and Mr. Miller had not been apprentices, summary dismissal of them would have been inappropriate. The amount of the penalty imposed should demonstrate the Court's strong disapproval of such high-handed disregard for the job security and lives of working people. In my view, a penalty of $800.00 is appropriate.
Mr. Ginnane sought an order under s. 119(3) of the Act for the payment to Mr. Miller of the amount to which he is entitled, which has not been paid by the respondent. Plainly, such an order is appropriate. No similar order was sought with respect to Mr. Hughes. Mr. Hughes was not at any relevant time a member of any organization of employees. It was recognized in Australian Insurance Employees Union v. W.P. Insurance Services Pty. Ltd. (1982) 42 A.L.R. 598, at p. 607, and Industrial Relations Bureau v. Hassan (1982) 62 F.L.R. 169, at pp. 173-175, that s. 119(3) of the Act does not empower the Court to order payment of wages to an employee who was not at the relevant time a member of an organization. Such an employee is not "entitled" to any amount under an award, even though the award may cast on the employer an obligation to make payments to that employee.
To overcome this problem, Mr. Ginnane suggested that an order under s. 120 be made, ordering that any penalty imposed by the Court be paid to Mr. Hughes. The purpose of seeking such an order was plainly to give to Mr. Hughes an amount of money to compensate for his lost wages, in circumstances where the Court cannot directly order those wages to be paid to him. In my view, the Court should not permit the use of such a device. The legal obligation remains on the respondent to pay wages to Mr. Hughes. It is true that the Court cannot, under either s. 119(3) or s. 123 of the Act, order the respondent to make those payments. See the cases to which I have referred earlier, and Leontiades v. F.T. Manfield Pty. Ltd. (1980) 43 F.L.R. 193. Nevertheless, I would expect the company to fulfill its legal obligation, once it is made aware of the existence of that obligation by reason of the decision of the Court. If the company were to go into liquidation, it may be that the liquidator would have an obligation to pay Mr. Hughes's outstanding wages. If the amount of the penalty were paid to Mr. Hughes, and the company discharged its legal obligation by paying him wages, Mr. Hughes would have received a windfall benefit. He would have received this benefit by reason of his not having been a member of an organization. In my view, to confer such a benefit would be a denial of the central role of organizations in the system of conciliation and arbitration set up under the Act, and would run contrary to the objects of the Act, especially that found in s. 2(e). I would order the payment of the penalty into the Consolidated Revenue Fund, pursuant to s. 120 of the Act.
I would therefore make the following orders:
1. That a penalty in the sum of $800.00 be imposed on the respondent for breach or non-observance of the Carpenters and Joiners Award 1967. 2. That the whole of the penalty be paid into the Consolidated Revenue Fund.
3. That the sum of $1152.12 be paid to Geoffrey Miller, the person the subject of matter V No. 21 of 1983.
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