Thompson, Joseph Slater v W.F.M. Motors Pty Ltd trading ans City Ford
[1983] FCA 146
•21 JULY 1983
Re: JOSEPH SLATER THOMPSON
And: W.F.M. MOTORS PTY. LIMITED, trading as CITY FORD
No. NSW45 of 1982
Conciliation and Arbitration Act 1904 Section 119
5 IR 312
COURT
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
INDUSTRIAL DIVISION
St. John J.
CATCHWORDS
Conciliation and Arbitration Act 1904 Section 119 - penalty - breach of award - Preference clause - preference to unionists "qualified to perform the work" - construction.
CONCILIATION AND ARBITRATION ACT 1904 Section 119
THE VEHICLE INDUSTRY - REPAIR, SERVICES AND RETAIL - AWARD 1980
HEARING
SYDNEY
#DATE 21:7:1983
ORDER
1. The respondent was in breach of Clause 32 of the Vehicle Industry - Repair, Services and Retail - Award 1980 in retrenching Barry Charles Pearson, Herman Labra and Raddon Bruce Bushell Reynolds on or about 29th October, 1982 and therefore in breach of Section 119 of the Conciliation and Arbitration Act 1904.
2. A penalty of one hundred dollars ($100.00) be imposed in respect of each of those breaches.
3. Such penalties totalling three hundred dollars ($300.00) be paid to the organisation, The Vehicle Builders Employees' Federation of Australia.
4. The application for an order for payment of wages pursuant to Section 119(3) of the Conciliation and Arbitration Act 1904 is dismissed.
JUDGE1
The applicant, who is the Federal Secretary of The Vehicle Builders Employees' Federation of Australia, ("the organisation"), an organisation registered under the Conciliation and Arbitration Act 1904, ("the Act"), seeks the imposition of penalties for alleged breaches of S.119 of the Act on the respondent, W.F.M. Motors Pty. Limited (trading as City Ford).
All the facts necessary to found the jurisdiction of this court have been agreed, and the issue for determination is whether or not, in the circumstances, Clause 32 of The Vehicle Industry - Repair, Services and Retail - Award 1980 ("the award") has been breached. That clause is in the following terms:-
"32 - PREFERENCE Subject to being qualified to perform the work, preference in engagement in the case of retrenchment because of economic reasons shall be given to persons who are financial members of an appropriate union party to this award."
The respondent conducts a service station centre in Crown Street, East Sydney, where it employs approximately forty motor mechanics and twenty apprentices. The workshop premises are divided into sections or departments, some of which have been variously described, but, for the present purposes, it is sufficient to describe them as follows:-
Pre-Delivery (inspection of new motor vehicles for rectification of defects before delivery to the purchasers).
Main Workshop (where major mechanical repairs are made).
1500 Km. Service Area.
Police and Government Vehicle Service Area (where service and all types of repairs to those vehicles are carried out).
Fast Service Area (where minor repairs are done on motor vehicles calling for that purpose).
Air Conditioning.
Power Steering and Automatic Transmission.
Although employees were assigned to work in a particular section, they were moved to other sections temporarily as the workload demanded.
At the relevant time, in October, 1982, three employees, namely Barry Charles Pearson, Raddon Bruce Bushell Reynolds and Herman Labra, all of whom were employed as motor mechanics, were retrenched for economic reasons. All had been employed by the respondent as motor mechanics or apprentices for long periods and, at the time of retrenchment, were members of the organisation. "Motor Mechanic" is defined in the award, Clause 44(t) as:-
"'Motor mechanic' means a tradesman required to perform work requiring a tradesman's skill on the engine and/or transmission and/or on the fuel, induction, exhaust, electrical, steering, suspension and/or braking systems of motor vehicles and other internal combustion powered equipment."
All three retrenched employees and the relevant three non-union members retained (hereinafter referred to) had this qualification.
At the time of their retrenchment, there were employed six motor mechanics who were not members of the organisation, or any other organisation which was a party to the award. Omitting three, who were described respectively as foreman, tester and auto electrician, those remaining were Messrs. Virtu, Barnaby and Ferreira, all of whom were classified as motor mechanics, but whose work was in different sections of the workshop. At the time of the retrenchments referred to, Mr. Pearson was employed in the Air Conditioning section, Mr. Labra in the Police and Government Vehicles section and Mr. Reynolds in the Pre-Delivery section. The applicant's contention was that, in the circumstances, the retrenchments were made in breach of Clause 32 of the award, as those employees retrenched were "qualified to perform the work", and it is necessary to construe that clause in order to determine whether, in the circumstances, a breach or breaches occurred.
The award, which was a consent award, superseded a previous award made in 1976 in which the same clause in identical terms appeared. The latter award was also made by consent and superseded an award made in 1974, where the relevant preference clause was in the following terms:-
"32 - PREFERENCE All other things being equal, preference in employment shall be given to persons who are financial members of an appropriate union, respondents to this award."
The deletion from the preference clause of the words "All other things being equal" is particularly significant in the construction of the clause in the award under review, which is a consent award. For the respondent, it was submitted that a non-union member could be preferred over a union member if the efficiency or productivity of the non-union member exceeded that of the union member, even by a slight margin. I reject that submission. In my view, the words "qualified to perform the work" are concerned with the basic qualification to perform the work without regard to productivity or efficiency of the particular employee compared with other employees. The award, by Clause 6(d), gives the employer the right to dismiss an employee without notice for, inter alia, inefficiency and neglect of duty. There has been no suggestion that the three retrenched employees were inefficient to the degree that their employment could be terminated on that ground. Indeed, the offer to re-employ them, later referred to, emphasises that they were satisfactory employees. There is evidence that the retrenched employees would be less productive if any one of them performed the work being done by the retained non-union employees. If the words "All other things being equal" had been retained, the respondent's argument would be at least stronger, if not conclusive, but the deliberate discarding of those words favours a construction that the preference is limited solely by qualification and not other factors, including productivity.
At the time of their retrenchment, Mr. Pearson was working in the Air Conditioning section, and complaints were made in evidence as to his punctuality; that he strayed from his designated section and worked in others, and that he had a number of days off. As to his punctuality, the worst complaint that could be made of him was that he was, by a maximum of fifteen minutes late to start work on two occasions, over a period of nine months. On eleven other occasions, he was late for lesser periods. During the same period, he was off sick on nine days, and absent on two. He had been employed by the respondent for a number of years. Mr. Reynolds, who completed his apprenticeship whilst working for the respondent, was employed in the Pre-Delivery section, and the complaint against him was that he was slower in the performance of his duties than other motor mechanics. Mr. Labra was employed in the Police and Government Vehicles section. His efficiency as a mechanic was not questioned, but he had difficulty in reading instructions in English because of his deficiency in that language.
Of the non-union members retained, Mr. Ferreira worked in the Power Steering and Automatic Transmission section, the work in which was described by Mr. Tropiano, service general manager, as boring, repetitive work. A foreman in the respondent's employ gave evidence that there were other mechanics in the employ of the respondent capable of doing that work. Mr. Virtu was employed in the Fast Service section and was described as being particularly suitable for that section as he was adept at communicating with customers. Mr. Barnaby was employed in the General Service section where he did repairs which were described as major, heavy and in-depth. His skill and efficiency was emphasised.
The evidence adduced by the respondent was to the effect that there had been a downturn in activity in the three departments in which the retrenched employees were working, namely, Air Conditioning, Police and Government Vehicles and Pre-Delivery. The downturn in the Police and Government Vehicles section was caused by the fact that the Police Department had selected for use and purchase a vehicle other than a Ford vehicle.
Mr. Tropiano approached the problem of retrenchment by looking first at the sections which were under-utilised and then took into account, as the first consideration, the productivity of the employees in the particular section. The problem was not approached on the basis of re-shuffling the whole workforce. He then went on to consider ability, punctuality and attendance from information gained from the foremen of the three sections. The foremen who gave evidence displayed some differences of opinion as to the capability and capacity of the retrenched employees. It is significant also that the respondent agreed that, when the three employees were retrenched, they were told that, if circumstances changed, they would be re-employed. After officials of the organisation made representations, two of the retrenched employees, namely Mr. Pearson and Mr. Labra, were re-employed; Mr. Reynolds did not wish to be.
Having regard to the conclusions I have reached as to the construction of the award, it is unnecessary for me to consider whether or not the three retrenched employees were less efficient and productive than the non-union employees. They were all qualified and, by inference from their long service and re-employment, they did not merit dismissal for inefficiency. I am of the opinion that the award has been breached in respect of those three retrenchments and a penalty should be imposed.
As to the quantum of the penalty, I take into account that those employees who wished to be re-employed were re-employed, and that no previous interpretation of this clause was available to the respondent. In respect of the three breaches, I impose a penalty of one hundred dollars ($100.00) each, and I direct that those penalties be paid to the organisation.
The applicant also sought orders pursuant to S.119(3) of the Act, that the respondent pay to the retrenched employees an amount equivalent to the wages they would have earned had they not been retrenched. That sub-section is, in my view, designed to deal with situations where an employee has been paid less than he should have been paid according to the award for the work done, and does not appear to be appropriate in the case where a worker is retrenched, even though that retrenchment is contrary to the award. The orders sought are therefore refused.
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