Treharne, Noel v Geo. McEwin & Son Pty Ltd

[1982] FCA 138

Re: NOEL TREHARNE
And: GEO. McEWIN and SON PTY. LIMITED (1982) 63 FLR 112
SA No. 1 of 1982
Industrial Law - Conciliation and Arbitration

COURT

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY
INDUSTRIAL DIVISION
Evatt J.(1)

CATCHWORDS

Industrial Law - alleged breaches of award - such breaches not criminal in nature - submission of "no case to answer" as a matter of law - whether respondent required to elect to call evidence or not prior to Court ruling on such submission - whether Court has overriding discretion whether to put respondent to such election.

Conciliation and Arbitration Act 1904, s.119

Conciliation and Arbitration - Breach of award - Proceedings for recovery of pecuniary penalty - Proceedings non-criminal - Submission of no case to answer by respondent - Whether respondent to be put to election - Conciliation and Arbitration Act 1904 (Cth), s. 119.

HEADNOTE

In proceedings under s. 119 of the Conciliation and Arbitration Act 1904 wherein two breaches by the respondent of the Food Preservers' Award 1973 were proved, the respondent, at the close of the applicant's case, submitted that there was no case to answer in respect of other alleged breaches.

Held: (1) The proceedings were not criminal proceedings.

Gapes v. Commercial Bank of Australia Ltd. (1979) 38 FLR 431, applied.

(2) The question whether the respondent should be put to his election was a matter of procedure or a matter concerning the conduct of the trial as to which the court had a discretion.

Copper Industries Pty. Ltd. v. Hill (1975) 12 SASR 292; Trade Practices Commission v. Nicholas Enterprises Pty. Ltd. (1978) 40 FLR 74, referred to.

HEARING

Adelaide, 1982, May 26-28; June 22. #DATE 22:6:1982

APPLICATION.

The applicant sought the imposition of a penalty upon the respondent pursuant to s. 119 of the Conciliation and Arbitration Act 1904 for alleged breaches of the Food Preservers' Award 1973.

A. Collett, for the applicant.

D. J. Bleby, for the respondent.

Cur. adv. vult.

Solicitors for the applicant: Johnston Withers McCusker & Co.

Solicitors for the respondent: Stratford & Co.

T. J. GINNANE

JUDGE1

By application dated 28 January 1982 Noel Treharne seeks the imposition of a penalty upon Geo. McEwin and Son Proprietary Limited (the respondent) under the provisions of s.119 of the Conciliation and Arbitration Act 1904 (the Act) "for that it did at Houghton in the State of South Australia on 26 January 1982 commit a breach of or failed to observe the provisions of the Food Preservers' Award 1973" (the Award) in certain respects which are thereafter set out. It is not disputed that the applicant is and was at all relevant times the Branch Secretary of the South Australian Branch of the Food Preservers' Union of Australia an organization registered under the Act (the organization); that he is authorised under the rules of the organization to sue on behalf of the organization (s.119(2) (e)) and that the organization is or particular members of the organization are affected by the alleged breaches.

Nine separate breaches or failures to observe the provisions of certain clauses of the Award, all stated in the introductory words as having occurred on 26 January 1982, were particularised. No objection was taken as to the form of the application. Such alleged breaches or failures read:-

"(a) It did not in compliance with Clause 8(b) of the said Award give a statement in writing to employees on commencing engagement with it notifying which class of engagement he or she was being employed on and containing the appropriate terms of such engagement.
(b) In breach of Clause 37 of the Award it did not exhibit in the premises in a place accessible to its employees or at all when the same was available to it the Food Preservers' Award 1973 in accordance with the Award.
(c) In breach of Clause 31(a) of the said Award it failed to appoint at least one competent or any person to be in charge of first aid on each day or shift or at all.
(d) In breach of Clause 31(c) of the Award it did not display on the notice board in the establishment or at all the name of a person in charge of first aid on the appropriate shift or at all.
(e) In breach of Clause 29(a) of the said Award although requested on behalf of the employees so to do and where it was reasonably practical so to do failed to provide seats for the employees.
(f) In breach of Clause 28(a) of the Award failed to provide wooden floors, pads, platforms or inserts of strips or resilient insulating matting or any material at all over the floors constructed as they were of concrete or similar material in the Respondent's premises where the employees were required to stand at their work.
(g) In breach of Clause 36 of the Award when it engaged or retrenched employees and where suitable members of the Union were available as employees or members of the Union were capable of satisfactorily performing the work in question and were available to the Respondent and though a claim for preference was made upon it failed or refused to give to the members of the Food Preservers' Union of Australia preference of employment.
(h) In breach of Clause 26(c) and (d) of the Award though the laws of the State of South Australia relating to work upon which the Respondent's employees were engaged required that the employees wear washable outer garments failed to provide such and otherwise comply with the clauses of the Award.
(i) In breach of Clause 26(g) of the Award though the employees of the Respondent were engaged in handling fruits, vegetables and like preparations, the Respondent failed to make available without charge or at all for the employees barrier cream or other protective ointment as required."

When the matter was called on for hearing counsel for the applicant indicated to the Court that no evidence would be lead in support of the breaches alleged in paras. (g) and (h) and that the allegations set out in those paragraphs were "abandoned".

The applicant tendered in evidence a copy of the Award as varied, certified under s.193 of the Act as at 27 May 1982. The applicant gave oral evidence in addition to his affidavit sworn 28 January 1982 and filed with the application herein. Counsel for the respondent objected to the whole of paragraph 3 of the said affidavit other than the fact that the applicant visited the respondent's premises at Haughton on 26 January 1982. The Court upheld the various objections and rejected sub-paras. (i) to (ix) of para. 3. In addition the respondent in answer to a notice to admit facts (0.18 r.2) admitted, in addition to the admissions referred to earlier herein, that on 26 January 1982 the respondent was (a) a company incorporated in the State of South Australia pursuant to the Companies Act 1962 (South Australia); (b) a person bound by the provisions of the Award and (c) was the employer of persons entitled to the benefits of and bound by the provisions of the said Award and that those persons were employed by the respondent in the industry, the subject of the said Award, at its factory premises situated at Houghton in the State of South Australia.

At the close of the applicant's case counsel for the respondent sought a direction from the Court as to whether a respondent in proceedings brought under s.119 of the Act and issued out of the South Australian registry of the Court and heard in Adelaide could move for "no case to answer" without being subjected to the necessity of electing whether he will call evidence or not.

The Court being unaware of any prior ruling by the Court in this regard in respect of such an application being heard in Adelaide considered that the respondent's counsel's request was reasonable in the circumstances and heard argument in regard thereto (see 0.1 r.9 of Rules of Court). After hearing submissions by both counsel for the respondent and the applicant the Court ruled that the respondent herein should not be put to such an election and then indicated that it would publish its reasons in this regard when giving its reasons for judgment in the proceedings.

A Full Court of the Court in Gapes -v- Commercial Bank of Australia Limited (1979) 38 F.L.R. 431, overruling the decision of the Australian Industrial Court in the Vehicle Builders' Employees' Federation of Australia -v- G.M.H. Pty. Limited (1977) 32 F.L.R. 100, held that proceedings under s.119 of the Act are not criminal proceedings. At p.453 J.B. Sweeney J., (whose reasons for judgment were concurred in by Evatt, Deane and Fisher JJ.) after referring to the reasons for judgment of Street J., a member of a Full Court of the New South Wales Supreme Court in Ex parte Walsh (1912) 12 S.R.(N.S.W.) 306, stated :-

"The judgment of Street J. was concurred in by the other two members of the Bench, Ferguson and Rich JJ. It will be noted that the approach of the Court was to distinguish between civil proceedings on the one hand and criminal on the other. It was not suggested that there was any possible other category. In this regard I have found it unnecessary to consider whether proceedings under s.119 can properly be categorised as civil or belong in a separate category of penal proceedings which are not criminal. All that it is necessary to decide in the present matter is whether they are criminal".

The Rules of Court made pursuant to the Federal Court of Australia Act 1976 make no provision in respect of the procedure to be adopted in either civil or criminal proceedings as to whether a respondent or defendant should be put to his election when moving for "no case to answer" at the conclusion of an applicant's or prosecutor's case. Section 79 of the Judiciary Act 1903 provides that the laws of each State, including the laws relating to procedure and evidence shall, except as otherwise provided by the Constitution or the laws of the Commonwealth, be binding on all Courts exercising Federal jurisdiction in that State in all cases to which they are applicable.

The Rules of the Supreme Court of South Australia make no provision in respect of the relevant procedure to be adopted in this regard. The question was considered by Walters J. in the civil action of Cooper Industries Pty. Limited (in Liquidation) -v- Hill and Hill (1975) 12 S.A.S.R. 292 heard in the Supreme Court of South Australia. Although lengthy, a part of his Honour's reasons at pp.293-5 is set out in full :-

"At the close of the plaintiff's case, Mr Jacobs Q.C., of counsel for the defendants, submitted that there was no case for the defendants to answer. In making submission, Mr Jacobs stressed that his submission was not based on any argument that the evidence adduced for the plaintiff was so unsatisfactory, untrustworthy or unreliable that it did not bear out the allegations contained in the pleadings. His contention was that even accepting, at its face value, the evidence led for the plaintiff, it was insufficient in law to support any one of the causes of action set up against the defendants.
When Mr Jacobs applied for a ruling of no case to answer, I at once raised the question whether he should be called upon to intimate whether he intended to lead evidence. At an early stage of Mr Jacob's argument, Mr Duffy, of counsel for the plaintiff, stated - although he did not expressly make any concession - that "there was probably a strong argument" in favour of Mr Jacob's right to make his submission without being put to an election whether he would call evidence. Later, however, Mr Duffy contended that I should refuse to rule on the submission made at the close of the plaintiff's case, unless Mr Jacobs elected to stand on his submission and to adduce no evidence. Mr Duffy asserted that the practice laid down in Alexander -v- Rayson (1936) 1 K.B. 169, Parry -v- Aluminium Corporation Ltd. (1940) 162 L.T. 236, and Laurie -v- Raglan Building Co. Ltd. (1942) 1 K.B. 152 should prevail.
In my view, however, there is no rule of law or practice in this Court which precludes a Judge, trying a case alone, from ruling on a question of law which may arise at the close of the plaintiff's case, without subjecting the defendant to the necessity of electing whether he will call evidence or not (cf. Tate -v- Johnson (1953) 53 S.R. (N.S.W.) 492, cited with approval by Hannan A.J. in Brauer -v- O'Sullivan (1957) S.A.S.R. 185 @ p. 188). The position would be otherwise if the basis of the submission were that the evidence was so "vague or ambiguous", or "so weak and indefinite that the Court should not accept it". If such a submission were made, an election would properly be a condition precedent to the Judge's hearing the submission of no case to answer and ruling upon it (cf. Brauer -v- O'Sullivan (1957) S.A.S.R. 185, per Hannan A.J. at p.189).
It would be imprudent of me to lay down any general rule as to the circumstances in which counsel should, or should not, be put to an election. There may be cases where, as a matter of convenience, the submission of no case to answer should not be entertained except upon terms that the defendant should undertake not to call any evidence. On the other hand, to use the language of Gavan Duffy J. in Humphrey -v- Collier (1946) A.L.R. 448, @ p.449, "there might be occasions when a strict adherence to it (the practice of putting counsel to his election) would result in unnecessary loss of time and money".
Nevertheless, it is my opinion that in an action which is being tried by a Judge alone, it is ordinarily proper for a defendant, who feels that in point of law a prima-facie case has not been made out against him, to put forward a submission of no case to answer, and that he should be allowed to do so without being required to elect to give no evidence, or to subject himself and his witnesses to examination and cross-examination. But overriding his right, there is a judicial discretion; whether or not counsel should be called upon to elect is a matter in which the Judge should not be left without a discretion. In this respect, I adopt the dictum of Branson J. in Muller -v- Ebbw Vale Steel, Iron and Coal Co. Ltd., (1936) 2 All E.R. 13663 @ pp.1365-1366:-
"It seems to me that it must be a matter for the judge who is to try the case to decide for himself whether, in the particular case before him, and having regard to all the circumstances of it, it is likely to save the litigants before him expense and time and trouble to deal with the case by way of ruling upon the submission without putting any terms upon counsel upon either side, or whether it is better to say" 'In this case I think it would be desirable that before I rule I should hear the whole of the evidence.'" (See also Humphrey -v- Collier (1946) A.L.R. 448, per Gavan Duffy J. at p. 449).
It seems to me, therefore, that at least it is within my discretion not to put Mr Jacobs to an election, and no election having in fact taken place, he is entitled, if his submission is rejected, to call evidence in the same way as if his submission had not been made."

The problem was raised in this Court in Trade Practices Commission -v- Nicholas Enterprises Pty. Limited and Others before Fisher J. in Adelaide in 1978. In those proceedings the applicant sought the recovery of pecuniary penalties against certain hotel proprietors for contravention of s.45(2) (a) (ii) of the Trade Practices Act 1974. At the close of the plaintiff's case the defendants submitted that there was no case to answer. In his judgment delivered 21 December 1978 (1978-1979) 2 A.T.P.R. 17,956) His Honour at 17,958 stated:-

"The question at once arose whether I should before hearing the submissions put the defendants to their election. Counsel for the plaintiff accepted that this being a matter of practice I was entitled to have regard to the practice in South Australia, and of the Supreme Court of South Australia in particular. He did not dispute the propriety of the course adopted by Walters J. in Copper Industries Pty. Ltd. (In Liquidation) -v- Hill (1975) 12 S.A.S.R. 292 but contended that I should in the exercise of my discretion put the defendants to their election. After hearing arguments from all counsel, I exercised my discretion and did not require them to elect. It thus remains open to those defendants who wish, to call evidence."

As to the practice in the United Kingdom and in some of the States of Australia in respect of such applications in both civil and criminal proceedings both with and without a jury, see generally Cross on Evidence, 2nd Australian Edition (1979) at 3.14 and 3.15 (pp.71-72). It is clear that the question whether a respondent should be put to his election in the circumstances under discussion is a matter of procedure or a matter concerning the conduct of the trial as to which this Court has a discretion (see O.32 r.4(i) of the Rules of Court).

Adopting, with respect, the reasons of Walters J. as set out in his judgment referred to above and bearing in mind that the applicant in the present proceeding, though not a criminal proceeding, seeks the imposition of a pecuniary penalty against the respondent for alleged breaches of what in effect is the law of the Commonwealth, the Court in the exercise of its discretion determined that it did not require the respondent to so elect and gave directions accordingly.

Consequently counsel for the respondent submitted that accepting at its face value the evidence led by the applicant together with the admission made by the respondent the respondent had no case to answer in respect of the breaches of the Award alleged in paras. (a), (b), (c), (e), (g), (h) and (i) set out in the application and fully set out earlier herein. After argument the Court determined that the respondent had no case to answer in respect of the allegations set out in those paragraphs.

The respondent then called as a witness Mr Barrie Clyde Waterman, its Managing Director at relevant times who gave evidence generally but in particular in respect of the allegations referred to in paras. (d) and (f), of the application which are fully set out earlier herein. After hearing argument the Court reserved its decision.

The following are reasons for judgment in respect of the determination of "no case to answer" in favour of the respondent in respect of paras. (a), (b), (c), (e), (g), (h) and (i).

As to para. (a)

Clause 8 (b) of the Award reads:-
8. Contracts of Employment
(b) Statement of Class of Employment Upon commencing any engagement for an employer, the employee shall be given a statement in writing by the employer notifying which class of engagement he or she is being employed on and containing the appropriate terms of such engagement as provided for in this clause.

There was no evidence that any person commenced employment with the respondent on 26 January 1982 as alleged in the application. Mr Treharne stated in his evidence in chief that, during his visit to the respondent's premises on 26 January 1982 when he had asked Mr Waterman if he "could see copies of the contracts of employment that were given to the people at the time of their engagement", Mr Waterman replied "Do we have to do that, too?" Mr Treharne then gave the following evidence:
Did you say anything? - I said "It is in the award".
Did he respond when you said that? - No
Did he produce any documents or contracts? - None at all. Actually he did respond: he said that he had not given them any.

On counsel's objection to the form of this answer being upheld, the witness stated - He said "I have not given them any". The Court then asked Mr Treharne if Mr Waterman had during that visit always referred to the company as "I", and not as "we" or "it". Mr Treharne's reply to this question was simply "No." If relevant to this issue, there was no evidence that Mr Waterman was the person who in fact engaged any of the employees of the company or was on each appropriate day the then officer of the company responsible for the giving of the statement in writing referred to in Cl.8(b) of the Award.

As to para. (b)

Clause 37 of the Award reads:-
37. Posting of Award
This award, with any variation made thereto appropriate to employment in the establishment, shall be exhibited, when available, by each employer at his factory in a place accessible to all employees.

There was no evidence that "this award" or a copy of the Award was available to the respondent on 26 January 1982. The Court is not prepared to assume that copies of this Award or indeed any award including variations thereto were available for purchase from the Adelaide Registry of the Commission in January 1982 (see ss.192 and 195 of the Act). It is unnecessary therefore to make a determination regarding the respondent's submission that the use of the word "this" as the opening word to the clause must mean that the phrase "This award" refers to the actual award signed by the member of the Commission pursuant to s.40(4) of the Act.

As to para. (c)

Clause 31(a) of the Award reads:-
31. First Aid Outfit and Attendant
(a) Every employer respondent to this award shall appoint at least one competent person to be in charge of first aid on each day or shift.

There was no evidence that the respondent on 26 January 1982 or on any date had not appointed a competent person to be in charge of first aid on each day or shift.

As to para. (e)

Clause 29 (a) of the Award reads:-
29. Seating Accommodation
In the States of Victoria, South Australia and Tasmania:
(a) When requested by or on behalf of any employees, and where reasonably practicable to do so, seats shall be provided by the employer for employees -
(i) Where work is done standing and reasonable opportunities occur to take advantage of resting during the employment;
(ii) Where a substantial proportion of the work can properly be done sitting down.

There was no evidence that any request had been made on 26 January 1982 or, indeed, on any date by any employee or any person on behalf of any employee of the respondent that seats be so provided.

As to paras.(g) and (h)

Allegations in respect of cl.36 and cl.26(c) and (d) of the Award were withdrawn.

As to para. (i)

Clause 26(g) of the Award reads:-
26. Implements and Protective Clothing
(g) Barrier cream or other protective ointments shall be available without charge for employees engaged in handling fruits, vegetables, pastes, gums lacquer and like preparations.

Mr Treharne's evidence in chief in this regard was that he saw no tube of Barrier Cream either in the first aid box or in the toilet/wash room area. It is clear that his answers in this regard were referring to a cream marketed under the name of "Barrier Cream". The transcript of evidence of his cross-examination in this regard reads:

"You said in your evidence-in-chief that you did not see any Barrier Cream in the first-aid kit? -- That is right.
I guess there were various tubes of this and that and other medications? --- I did not go through them one by one.
You recall seeing a variety of medications and bandages and things? -- I do.
You did not actually look at them to see what they were? --- I had a look at the first-aid box and I saw that it was reasonably full and well stocked up. I did not see any Barrier Cream in the first-aid box.
Neither did you look at all the containers in that first-aid box to see what they were? --- Not one by one, no.
. . . . . . . . .
It is quite possible that some of those tubes or containers that you did not look closely at, contained Barrier Cream?
His Honour: Or the equivalent? -- It could have been the equivalent. Barrier Cream has a distinctive type blue and white label on it. It certainly was not one of those in there.
and later:
"You told us yesterday that you just asked Mr Waterman where the Barrier Cream was kept? -- That is right.
He said, "We don't have any"? -- That is true.
You did not ask him whether he had any type of similar cream? -- No.
You are quite specific you only mentioned Barrier Cream? -- Yes."

On this evidence, the Court was not satisfied that there was a case to answer as to para.(i) of the application. In my view the evidence does not exclude the fact that "other protective ointments" were not available for employees engaged in the pursuits set out in cl.26(g) on 26 January 1982.

This then leaves for consideration paras.(d) and (f) of the application. It will be recalled that no argument directed to the submission for "no case to answer" had been made by the respondent in respect to these two paragraphs.

The evidence showed that Mr Waterman had become the Managing Director of the respondent company in 1979 when he had acquired a financial interest in it. The company had been established by the McEwen family as early as 1862 as the manufacturer of jams and sauces. At its peak during the years before 1979 the company had employed up to 300 people but some time before Mr Waterman acquired his interest the family business had fallen right away. Indeed during the 1980-81 period the company had run into what was described as liquidity problems necessitating retrenchment of all but a few of the permanent employees. At this time negotiations between the organization and the company had taken place and agreement reached regarding such retrenchments. In December 1981 Mr Treharne had cause to visit Mr Waterman at the respondent's premises at Houghton in order to discuss the possible re-employment by the company of a former employee who had been receiving workers compensation for total incapacity but who was then apparently fit for certain light work. During this visit in December 1981 Mr Treharne was surprised to see that production at the respondent's factory had then increased to an extent that some 20 people were apparently being employed. He had requested that Mr Waterman permit him to speak to the employees regarding joining the organization. During that month Mr Treharne returned to the factory and spoke with the employees during one of their breaks but apparently was unable to persuade any more than one person to join the Union. It was suggested during the cross-examination of Mr Treharne that he, Mr Treharne, on 24 December 1981, requested Mr Waterman that he, as employer, speak to the employees about the benefits of becoming members of the Union and that Mr Waterman at that time declined this request.

Mr Treharne then returned to the factory on 26 January 1982 for the stated purpose of carrying out an inspection thereof as an official of the organization.

Mr Waterman gave evidence, which is accepted, concerning both the lay out of the respondent company's premises at Houghton and the number of employees employed in December 1981 and January 1982 and which of those employees were permanent or casual. The total number of employees was 19, of whom only a few tradesmen were permanent.

The factory consists of an L-shape building some 150 feet in length by 75 feet across at its narrower end and 120 feet at its wider end. All employees other than Mr Waterman's secretary (a Miss Brinkley) worked within the building or about the yard immediately adjacent thereto. Employees knew one another quite well as most were residents of the relatively small township of Houghton. The bulk of them had done seasonal work with the respondent company for some years.

As to para (d) of the application

Clause 31(c) of the Award reads:-
31. First Aid Outfit and Attendant
(c) The name of each person or persons in charge of first aid on each shift shall be clearly displayed on the notice board in the establishment.

Mr Treharne's evidence-in-chief in regard to this allegation was that on 26 January 1982, after inspecting the first-aid kit referred to earlier herein, he asked Mr Waterman "where is the name and does he have the whereabouts of the firstaid attendant on the notice board?" and that Mr Waterman had then "just pointed to the notice board which was approximately 10 feet away." On looking at the notice board Mr Treharne saw two or three union notices and a small notice indicating that a Mr Reg Schute was the first-aid officer. Mr Treharne was then asked:

"Can you remember what the notice said?" -- From memory, it had big letters - first aid - and then it had Mr Schute's name and I cannot remember whether it had the whereabouts that he worked in the factory or not.
Did you say anything to Mr Waterman after you had looked at that? -- Yes, I said, "You know as well as I do that Mr Schute has not worked here for a considerable amount of time".
. . . . . . . . . . . . . . .
"Did Mr Waterman respond to you? -- Only by a shrug of the shoulders."

A photocopy of the actual notice was tendered during Mr Waterman's evidence-in-chief. Such notice was clearly an old notice and names of various people appeared thereon as being first-aid attendants. Each of the various names other than the last name had been crossed out. The last name appearing on the copy of the document tendered was a Mr David Owen. This name appeared immediately after Mr Schute's, which had been crossed-out. Mr Waterman agreed that on 26 January 1982 and immediately before that date the notice had not included Mr Owen's name but that Mr Owen had by that date been put in charge of first-aid together with Miss Brinkley, who was a holder of a first-aid certificate. He stated that it was then well known amongst the employees that those two were the first-aid attendants. On being asked why the names of the two first-aid attendants had not appeared on the notice board on 26 January 1982 Mr Waterman frankly admitted that he himself was not aware at that time that the company should have displayed their names on a notice board but that he, being a person who was then actively engaged in the processing work being carried out in the factory, then believed that all employees were aware of everyone else's function in the factory and that they all knew who the firstaid attendants were. In practice, if any employee suffered any injury, that employee knew where the first-aid kit was kept and would either fix up any minor injury himself or would see either Mr Owen, Miss Brinkley or Mrs Waterman at the Waterman's residence which was on the property some little distance away from the factory.

In my view the evidence discloses that a technical breach of Clause 31(c) of the Award occurred on 26 January 1982.

As to para (f)

Clause 28(a) of the Award reads:
28. Floor Covering
(a) Where, in the State of South Australia, the floor of a factory or other workplace is constructed of concrete, masonry, asphalt or similar materials, the employer shall provide wooden floors, pads, platforms or insets or strips of resilient insulating matting over all areas where employees are required to stand at their work.

Mr Treharne in his evidence stated that during his inspection of the premises on 26 January 1982 he had observed employees working on the canning line and elsewhere within the building. The floor of the factory was constructed of cement. During the inspection he had asked Mr Waterman where the duckboards or mattings for the floor were. He was then asked "Did he respond - He did. He said, "We have not got any". With the exception of a platform on which the cook was standing, he had not observed any wooden floors, pads, platforms, insets or strips of resilient insulating matting on the floor of the building on that visit. The transcript of Mr Waterman's evidence in this respect shows:-

"Counsel: On 26 January, whilst inside the factory, did you have any conversation with Mr Treharne about floor coverings? --- Yes.
Would you tell the court what was said, just in relation to that topic only --- Mr Treharne asked me were there walk-boards and he did mention something - I think he asked where the walkboards were.
What did you say? --- I cannot remember my exact answer at that stage. I was not really au fait with what Mr Treharne was trying to ask me. At that stage of the game he had just finished threatening me.
Perhaps to put it in context, what had he said before that? --- He asked me whether I had come to my senses yet over the men joining the union.
Those are the words he used? --- They were his exact words.
What did you say?
His Honour: Keep it in the first person, if you can, as far as you can remember the words. I do not expect you to remember verbatim? --- I repeated the same thing that I have always said to him, "I will not force any man to join the union, nor try to tell him how to vote".
Counsel: Did that conversation relate back to an earlier one that you had had with Mr Treharne? --- Yes.
When was that? --- I think 24 December when he first came to see me, or about the men joining the union.
I will not go into that at this stage, because it is not particularly relevant to the present issues before the court, but when you spoke to him on 26 January in the factory, were you anxious to assist him or co-operate with him in any way? --- He was leaving me very little option at the time. He had already told me that he was going to take proceedings against me. I said, "What for?" He said, "You will soon find out". He repeated this a number of times when I was talking to him.
In that context, in relation to the matting or conversation about the floor, I think you have indicated to his Honour what was said. Did you at any stage say to Mr Treharne, "We have not got any? "--- No.
. . . . . . . . . . . . . . .
Did you in fact have duck-boards or walk-boards or matting of some sort in the factory at that time? --- Yes, but they are only used in limited areas. They are more of a nuisance than they are worth.
Could you describe to his Honour what you did have in the factory? --- The duck-boards or walk-boards are only used in the wet areas in our factory. They are used on the apricot stoners, which is a wet area over by the bin tippers, because there are five stoners there and five girls inspect the fruit coming off those stoners and that is a wet area all the time. Ted (Barker) on the filler has got them on the filler and can closer, the bottom left-hand of that diagram. I think he has matting down there and boards.
. . . . . . . . . . . . . . .
His Honour: Where are the apricot stoners? --- Close to the bin tippers, in between the bin tippers and the bin wash, that is all a wet area.
And the pump? --- All the fruit comes in off one bin tipper and drops directly into it. After the fruit has been washed, it drops into that pump and is taken to the cookers. That fruit is never seen again.
In fact, all around between the entrance from the bin tipper back to the apricot stoners, you would call that a wet area? --- Yes.
There would be walk-boards in that area? --- The only walk-boards that are there are in front of the apricot stoners where, for six to nine weeks of the year, we are receiving apricots.
Where would that be? --- In between the stoners and the bin tippers.
. . . . . . . . . . . . . .
Counsel: At all events, on 26 January were such boards or matting available in the factory if employees, who were in any other area, wanted them available to be used? --- The company used to employ 300 people and everything was done by hand. There are oodles of boards all over the yards and in the shed.
You have never discouraged employees, if they wished to, from using them? --- No.
His Honour: This period of some six weeks for apricots, what part of the year would that be, approximately? --- Sometimes they start in November through to January. It depends on when the apricots ripen and what variety they are.
But it could run into the end of January? --- It could run into February.
Counsel: On this occasion were you processing apricots on 26 January? --- No.
What were you processing? --- Tomatoes.
So the apricot stoner was not being used at all? --- That is correct.
. . . . . . . . . . . . . .
Would it have been possible, where you and Mr Treharne were standing on the occasion of 26 January, to see all the walk-boards or duck-boards or mats that were available? --- No. You cannot even see the men.
Have you ever had any complaints from employees about lack of duck-boards or walk-boards or matting? --- No.

Part of the transcript of the cross-examination of Mr Waterman relating to this issue reads:
Counsel: You told the court that Mr Treharne said words to the effect of "Where are the walk-boards now? "--- I cannot remember exactly what Mr Treharne's words were but they were similar to that. Did you answer that? --- I do not think so.
His Honour: Mr Treharne has stated that you said "We have not got any". You have denied that here today --- I cannot remember my answer to him, but I was not co-operative at all with him on that day.

On the evidence the Court is satisfied on the balance of probabilities that on 26 January 1982 certain employees of the respondent were required to stand at their work on the concrete floor of the factory in an area over which no wooden floors, pads, platforms or insets or strips of resilient insulating matting had then been provided. In my view cl.28(a) clearly states that in the circumstances such floor coverings had to be provided by the respondent over such area, not merely provided for use by an employee if and when that employee so desired. Consequently the Court determines that there was on that date a breach by the respondent of cl.28(a) of the Award.

The respondent has requested that should the Court determine that the respondent breached either cl.28(a) or cl.31(c) of the Award the Court give the respondent the opportunity to call evidence (if so advised) as to penalty and as to any further matters which it may wish to place before the Court. Accordingly the matter will stand adjourned to a date to be arranged.