° IN TIE FEDERAL COURT OF AUSTRALTA (107) INDUSTRIAL DIVISION JUDGE MAKING ORDER: DATE OF ORDER: WHERE MADE: THE COURT ORDERS: JUDGMENT No, OH. TE. V No. 28 of 1977 IN THE MATTER of the Technical Staff (T.A.A.) Award 1974 AND_IN THE MATTER of an application for an interpretation of -he above Award as varied on 10th May 1977. ORDER Keely, J. 23 December 1977. Melbourne. That upon the true meaning and intent of the variation of the Technical Staff (T.A.A.) Award 1974 made on 10 May 1977 by Mr. Justice Coldham inserting a stand down provision the Australian National Airlines Commission (T.A.A.) did not have the right to deduct payment for the 13th day of May 1977 from the salaries respectively payable to Peter Christian Hans Fallscheer, Evert Kampman, David O'Hara, Terence Holbrook, Maxwell Forbes and Malcolm Evans. aN IN THE FEDERAL COURT OF AUSTRALIA INDUSTRIAL DIVISION V No. 28 of 1977 IN THE MATTER of the Technical Staff! (T.A.A.) Award 1974 | i AND IN THE MATTER of an application | for an interpretation of the above ., Award as varied on 10th May 1977. ' 23 DECEMBER 1977 KEELY, J. JUDGMENT This is an application by the Association of Architects, Engineers, Surveyors and Draftsmen of Australia (the Association) for an interpretation of a provision of the Technical Staff (T.A.A.) Award 1974 (the Award) which was inserted in the Award by Coldham, J. on 10 May 1977 by way of variation. The Australian National Airlines Commission (T.A.A.), which I shall call T.A.A., is a respondent to the Award, The provision concerned reads as follows:~ "The employer shall have the right to deduct payment for any day an employee cannot be usefully employed because of a strike or stoppage of work through any cause for . which the employer cannot reascnably he held responsible. The right given hereunder is subject to the following conditions: ~ 1. When the employer proposes to exercise the right L given hereunder it shall notify the employee. During the period such notification remains in force the employee shall be deemed to be stood down for the purpose of this sub-clause. An employee who is stood down as aforesaid shall be treated for all purposes (other than payment of wages) as having continuity of service and employment notwithstanding such standing down. An employee who is stood down as aforesaid may at any time during the period he is stood down terminate his employment without notice and shall be entitled to receive from the employer as soon as practicable any moneys due to him at the time of termination. The day on which the employee exercises the right of termination without notice shall be the day on which the employment is terminated. An employee whose employment is terminated under sub- paragraph (3) hereof shall for all purposes (other than payment in lieu of notice) be treated as if his employment! has been terminated by the employer without default of the employee. An employee who is stood down as aforesaid hereof shall be at liberty to take other employment. Save and except an emplcyee who is a member of an organisation engaged in a strike or stoppage at any establishment of the employer, an employee stood down hereunder for a period of more than five working days who has exercised the right to take other employment shall be entitled to work out in such other employment notice of up to one week provided he notifies the employer of his so doing. An employee whom the employer proposes to stand down as aforesaid may elect to take, for the period of the stand down only and for such further time as is reasonably required for the employee to return to his normal place of abode, any annual leave to which he is entitled or which is accruing to him and upon such election being exercised the employee's annual leave shall be reduced accordingly. Notwithstanding anything hereinbefore contained the employer will not deduct payment for any day prescribed- by the Award or Agreement affecting the particular employer as a public holiday which occurs during the period of stand down of an employee (other than of an employee who is a member of an organisation engaged in a strike or stoppage at any establishment of the employer) except to the extent that such employee has become entitled to payment for the holiday in other employment. An employee claiming payment for a holiday shall, if required by the employer, furnish a statutory declaration setting out details of any other employment during this period and the remuneration received therein." Mr. J. Kennan, who appeared on behalf of the Association, submitted that the provision should be interpreted in the following mammer, namely:- "That upon the true meaning and intent of the said provision, the Australian National Airlines Commission (T.A.A.) did not have the right to deduct payment for the 13th day of May, 1977 from the salaries respectively payable to Peter Christian Hans Fallscheer, Evert Kampman, David O'Hara, Terence Holbrook, Maxwell Forbes and Malcolm Evans." Late on Thursday, 12 May 1977, each of the employees referred to in the Association's proposed interpretation was given notice that he had been "stood down from (his) employment with T.A.A. until further advised". It was common ground that this action was taken by T.A.A. in circumstances in which a strike by Air Traffic Controllers had effectively terminated its flying operations. At that time the strike was regarded by T.A.A. as being of indeterminate duration. The application was supported by affidavits by each of the employees referred to in the Association's proposed interpretation. Those affidavits described the work which was waiting to be done by each of the employees on the afternoon of Thursday, 12 May 1977. On the evidence it is clear that at that time in respect of each employee there was work:- (a) proper to be done; (b) which would be done by each employee at some time; (c) which could be done on 13 May 1977. T.A.A. called as witnesses Trevor Charles Fenton, its Personnel Director, and Frank Wallace Austin, its Engineering Director. On their evidence it is clear that, as at the afternoon of 12 May 1977, T.A.A. expected the strike to continue indefinitely' and, as Mr. Austin put it, "We wanted to minimise our costs. We wanted to minimise all the wages and salaries we had to pay. It was only because we envisaged a long-term strike and there would not be flying that we took that action" (i.e. of standing down various employees). The foregoing briefly sets out the background against which T.A.A. purported to exercise its right under the Award "to deduct payment for any day the employee cannot be usefully employed because of any strike or stoppage of work by any cause for which the employer cannot reasonably be held responsible". Mr. Barnard, Q.C., who appeared with Mr. Les Kaufman for T.A.A., argued that "the draftsmen who were concerned are primarily concerned in the operation of the aircraft and the maintenance of the aircraft ... the major purpose, or even the over-riding purpose, of their employment is associated with or dependent upon the operation of the aircraft". He invited the Court to find on the evidence that "the usefulness of their employment is directly related to and dependent upon the operation of the aircraft". He argued that that portion of the work of the draftsmen which is not directly concerned with the operation and maintenance of aircraft is nonetheless done "in association with" such operation and maintenance of aircraft and unless it is done "in association with" the operation and maintenance of aircraft then it is not of "benefit to the employer". From this proposition he moved to the further proposition that where, by reason of a strike preventing flying operations, that type of draftsmen's work cannot on any given . day be performed "in association with the operation or maintenance of aircraft" then it is necessarily not work upon which the draftsmen can "be usefully employed". Mr. Barnard Q.C. submitted that the performance of work which has been waiting for the : employee to perform it for some months is not necessarily "work that is useful to the employer". In his submission the question of whether en employee performing such work would be "usefully employed" would depend on whether the planes were operating at that time. In my opinion on the unchallenged evidence of the employees concerned, at the time when they were informed on the afternoon of 12 May 1977 that they had been "stood down" in respect of an indefinite period including Friday, 13 May 1977, there was work waiting to be done by each employee, which could be done on Friday, 13 May 1977, which work was part of the normal work of the employees concerned and which work would be performed at some future date if not done on Friday, 13 May 1977. Accepting that T.A.A.'s planes were not able to operate on 13 May 1977 by reason of the strike and assuming that the primary purpose of the employees' employment was, as Mr. Barnard put it, "associated with or dependent upon the operation of aircraft", in my opinion the work waiting to be performed was nevertheless work upon which the employees concerned could "be usefully employed". In my view that result follows even if one assumes that in each case the work under consideration was:- 1. work which was not required to be completed on that day; 2. work which in some instances had been waiting Lo be done for some weeks; 3. work which in some instances was not in fact completed on that day nor until a considerably later time; 4. work as to which other work, more directly related to the operation or maintenance of aircraft, would always take priority; 5. work which was not work falling within the class of work which could be fairly regarded as the primary purpose for the employment of the particular employee. Mr. Barnard sought to support T.A.A.'s view that it was entitled to stand down the employees in the circumstances by arguments which fell under three heads. The first was based on references to Australian and English cases relating to the meaning of the word "employed" in a worker's compensation context. In my opinion those cases do not support the T.A.A. argument as to the meaning of the word "empioyed" in the context of the words "cannot be usefully employed" appearing in the Award provision under consideration here. 1 The second argument was expressed as follows:- "These words have been inserted in this particular award at a particular time, We submit that it is a proper process in the interpretation or construction of the award to have regard to the mischief or defect for which it was inserted and for which the award did not apply, and that this principle applies where there is ambiguity - and we submit there is clearly ambiguity here - and that the court is entitled to look at the defect which led to ' the award being amended." ; . In my view this argument fails for two reasons. First I do not consider that there is an ambiguity in the provision notwith- standing that there may be some difficulties at times in determining whether the employer's right to deduct payment exists in particular factual circumstances. Secondly, even if it be permissible to examine the surrounding circumstances as "to the mischief or defect for which it was inserted", I am not satisfied on the material before the Court that Coldham, J., in inserting the "stand down" provision, intended to authorise the standing down of the employees in the circumstances which are under consideration in the application for interpretation. In support : of that view I draw attention to the fact that, in his reasons for decision, dated 10 May 1977, Coldham, J. expressly contemplated that "groups of employees in many categories of work may continue to be usefully employed". Coldham, J. also referred to the problem of whether employees could "be effectively employed" which in my view means whether there was work on which (within their contract of employment) those employees could be effectively occupied during the strike. In my view His Honour did not intend that T.A.A. should have the right to stand down without pay "where people's work was not essential for the operation of aircraft". Those words are taken from the evidence of the witness Fenton in the following passage (transcript, p. 50):- "TI might be misunderstanding this and it is important that I should not. Perhaps if I nut it in a way that you can dissent from if you want. It rather seems to me that you are saying that you looked at it in terms of whether it was necessary to keep on employing them given that the aircraft were not flying rather than that you looked at it in terms of whether there was any work you could usefully employ them on, any work you could give them of their normal duties, and it is the distinction between those two that I would like to be quite sure I understand your evidence on? --- Perhaps I could put it another way. We were concerned with standing down people and with preserving the profitability of the revenues of the airline which had stopped, and we looked at the situation on the basis that where people's work was not essential for the operation of aircraft, then they should be stood down," Further, it must be assumed that Coldham, J. in inserting the "stand down" provision was aware of the decision of the Australian Industrial Court in Re Carpenters and Joiners Award (1971) 17 F.L.R. 330 as to the meaning of the words "cannot be usefully employed". That case was an interpretation of clauses B.10 and C.10 of the Carpenters and Joiners Award 9. 1967, both of which provided that:- "The employer may deduct payment for any day upon which an employee cannot be usefully employed because of any strike ..." Spicer, C.J. and Smithers, J. in a joint judgment made "the following observations by vay of interpretation" (at p. 333):- "In circumstances where it is reasonable to anticipate that consequent upon the cessation of the strike by reason of which cl. B10 is brought into operation, or for some other reason, production in the employer's business will be resumed within a time that will permit continuance of relevant production - (a) An employee cannot be said to be one who cannot be usefully employed if there is useful work available the performance of which is within the terms of his contract of employment, although work of the class upon which he is usually employed or was last employed is not available. In cases where a man is employed to work generally as a carpenter under the award then the work within the terms of his contract of employment would extend to all the aspects of the work of a carpenter defined in cl. B2 of the award. (b) (i) Where useful employment is not available for all the employees normally engaged in a class of work performed in some aspect of production but is available for one or more of such employees it cannot on that ground be said with respect to any particular employee that he cannot be usefully employed. (ii) ..... (44i)..... (c) ceeee (d) Where work which may be usefully performed by an employee on a particular day can be performed on that day notwithstanding that other workers are on strike, it cannot be said that the employee cannot be usefully employed on that day by reason of the fact that if he does so perform it the amount of work available to be performed on the day of resumption of work on the cessation of the strike will thereby be reduced." ~—-< 10. Reference to Re Carpenters and Joiners Avard leads me to Mr. Barnard's third argument which was that that case, in so far as it stood in the way of his submission, was wrongly decided, was not a binding precedent on the Iederal Court of Australia and should not be followed in this case. I agree that no formally binding doctrine of precedent has been pronounced requiring a single Judge of the Federal Court of Australia to follow a decision of a Full Court of the Australian Industrial Court. The question may be dealt with at some future date by a Full Court of the Federal Court. However the question of whether I am bound to follow that precedent or whether I should regard it as being persuasive does not arise because I respectfully agree with the passages which I have earlier quoted from the joint judgment of Spicer, C.J. and Smithers, J. in that case. In my view under the stand down provision an employer is not entitled to "deduct payment for any day an employee cannot be usefully employed" where on the day in question there is work available for performance by that employee which work the employer could as a matter of law ask the employee to perform as being work pursuant to or reasonably incidental to his contract of employment. In my view where such work is available to be performed the employer cannot "deduct payment" even though:- 11. 1. the performance of that work on the day in question will necessarily result in there being less work available for that employee to perform at the cessation of the strike upon which the employer relies as leading to his claimed "right to deduct payment"; 2. looking at the question (of whether to "stand down" an employee) as a matter of commercial management, it would be in the employer's financial interests to stand down the employee and thereby avoid having to pay him for the day or days in question, e.g. where, as in this case, the employer is suffering a loss of all or virtually all of its revenue. I point out that the provision does not confer upon an employer "a right to deduct payment ... where it would be in the employer's financial interests to do so" but "a right to deduct payment for any day an employee cannot be usefully employed ..." Spicer, C.J. and Smithers, J. in Re Carpenters and Joiners Award (supra at p. 335) concluded their joint judgment by saying:- : "in each case diligence is required to ensure that the facts as to the availability of work on large construction sites are ascertained with some care before men are laid off." In my view that statement has application not only to large construction sites but to all cases in which an employer is considering exercising a right under an award "to deduct payment 12. for any day an employee cannot be usefully employed" Accordingly, the Court makes an order that the award provision be interpreted in the manner sought by the applicant which I have set out earlier. I certify that this and the glee es are a tlue cony of the preceding b- Reason: for Judgment heresn of bis Honour Mr. Jun. ice Keok, J Cela ipa Assdé1ate patea: 23/12/1977 . —a-wr sore