a Sa TO SS BO Se ST EVE Se Oe Svar er ONO O ~—— eat a al wh ee — FROM TRANSCRIPT OF ORAL JUDGMENT lQ3 IN THE FEDERAL COURT OF AUSTRALIA ) ) INDUSTRIAL DIVISION ) V. No. 32 of 1979 ) ) VICTORIA DISTRICT REGISTRY BETWEEN: ~ CLIFFORD JARRAD Claimant - and - SILVER TOP TAXI SERVICE Respondent REASONS FOR JUDGMENT 14 November 1979 KEELY J. This is a claim for a penalty under s.119 of the Conciliation and Arbitration Act 1904. The substance of the claim is that the respondent on various days committed a breach of the Vehicle Industry - Repair, Services and Retail - Award 1976, which I shall call the award, in that they failed to pay to Mr P. Metcalfe, Mr G. Porter and Mr R. Simpson the amount of wages prescribed by clause 8 of the award, without deduction. Mr Richard Spicer of counsel, on behalf of the respondent, admitted that at all material times: (1) the respondent was incorporated; (2) the Vehicle Builders Employees Federation of Australia - which I shall call the Federation - was an organisation of employees registered under the Act; (3) the Federation was bound by the provisions of the award; (4). the claimant was an officer of the Federation and was authorised under the rules of the Federation to sue on behalf of the Federation; (5) on certain specified days the respondent in paying each of the three employees I have mentioned, deducted from the amounts due under the award certain specified amounts; (6) the respondent was bound by the provisions of the award; (7) the work performed by each of the three employees "was work to which the award applies. A certified copy of the award was tendered in evidence and by clause 4(a)(ii) it is binding upon the respondent "in respect of the employment by them of employees who are members of the said organization of employees s-+ out in Schedule 'A' hereto, or not employed on work to which this award applies". Mr Howard Nathan of counsel, on behalf of the claimant, relied upon clause 7(a) of the award which, so far as is material, reads as follows: "(a) All wages shall be paid weekly except where it has been the practice to pay fortnightly. Such wages shall be paid in cash, ...". Mr Spicer submitted that the deductions made were permissible by reason of the provisions of clause 7(g) of the award, which I set out: "(g) An employer may deduct from moneys due to an employee such amount as is authorised in writing by the employee for a lawful purpose specified in the authority." 'Mr Spicer relied upon an authorisation in writing by each of the three employees, which was in the following terms. The authorities are signed on different dates by the three employees, and read: It is hereby agreed that I shall reimburse the company for any shortages incurred in the course of my duty as a Petrol Attendant and the company is authorized to deduct such shortages from my weekly salary. The company in turn agrees to refund to me all monies paid which - are in excess of my daily sales sheet." As to clause 7(g) of the award, Mr Nathan submitted that deductions from "moneys due to an employee" which results in the employer paying less than the amount prescribed by the award cannot in law be a deduction "for a lawful purpose™ within the meaning of clause 7g). He further submitted that any deduction from "moneys due to an employee", which resulted in an employee receiving less than the amount prescribed by the award, is necessarily a breach of the award. Mr Nathan further submitted that clause 7(g) is subordinate to clause 7(a) of the award and that clause 7(g) should be read in the light of the following provisions of the award: x eet pate More a ee =. Clause 10(a) - Minimum Wage Adults; Clause 12.- Payment by Results; Clause 14(b) - Minimum Weekly Rate of Wage for' Apprentices; Clause 16(a) - Aged or Infirm Workers. I am unable to interpret clause 7(g) in the manner suggested by Mr Nathan. Various clauses of the award operate to determine the amount of wages to which an employee is entitled under the award. As to the method of paying the amounts prescribed by the award, clause 7 is the relevant award clause. In my view, clause 7(a) and (g) must be read together and so read they confer a right upon an employer to deduct "from moneys due to an employee such amount as is authorised" in certain circumstances, i.e. provided that the authorisation is "in writing", that it is "by the employee" and that it is "for a lawful purpose" which purpose must be "specified in the authority". I am unable to uphold Mr Nathan's submission that any deduction by an employer from moneys due to an employee which resulted in the employer paying less than the amount prescribed by the award for the work performed by that employee cannot be "for a lawful purpose". I consider that such an interpretation would result in clause 7(g) having virtually no operative effect. In dealing with that difficulty Mr Nathan submitted that clause 7(g) would operate to permit a deduction to be made by an employer from a wage which was in excess of the amount prescribed by the award provided that after such deduction the payment made was not less than the sinount due under the award. I consider that clause 7(g) cannot be interpreted as having application in respect of and only having application in respect of a wage which is above the award wage. In my view, the words "moneys due to an employee" in clause 7(g) mean moneys due to an employee by reason of the provisions of the award and are not intended to apply to moneys due to an employee by reason of some contractual obligation. I have considered the cases to which Mr Nathan has referred me, such as the decision of the House of Lords in Penman v. The Fife Coal Co. Ltd (1936) A.C. 45. Those cases, although authoritative as to the English Truck Acts, in my view do not support Mr Nathan's argument as to the meaning of this award and in particular clause 7(g) of the award, nor do I consider that the statutory provisions to which Mr Nathan has referred support the interpretation of the award for which the claimant contends. Accordingly, the claim is dismissed. Fahvgaaiee te ete ee Ce eT ee eae OUR Ft ern eee Te rats "(on 15 November 1979 after hearing argument on costs.) I do not think it is necessary for me to give any detailed reasons on this. I think they appear in the discussion I have just had with Mr Spicer. However, broadly I apply for the purpose of considering this application for costs the principles referred to by Mr Justice Northrop in Heidt v. Chrysler Australia Ltd (1976) 26 F.L.R. 257 which is a decision given nearly three years ago in 1976. The particular matter of costs was dealt with by his Honour in a separate judgment commencing at p.271. I agree with what his Honour says there at p.272 as to the policy of s.197A, namely that: "Tt is designed to free parties from the risk of having to pay the costs of an opposing party. At the same time the section provides a protection to parties defending proceedings which have been instituted vexatiously or without reasonable cause." In my view, the prima facie view imposed by the legislature as a statutory direction to this Court and the High Court and other Courts is that costs shall not be ordered unless something appears. What must be made to appear is that the proceedings were instituted vexatiously or without reasonable cause. Mr Spicer has very properly not contended that the proceedings were instituted vexatiously, and in my view it cannot be said on what has been put to me in the proceedings so far and the evidence so far, that the proceedings were | t launched without reasonable cause, in the meaning of s.197A. On the face of it there is nothing in the evidence to gainsay this. Mr Jarrad, as an official of the V.B.E.F., has taken some proceedings in the interests of obtaining a determination of the court as to whether an existing practice of deducting moneys from award wages should continue. Now it is true that he has not succeeded, by reason of the view which I have taken. That is a view which I may add I was able to reach the more readily by reason of having examined the decided cases referred to by both counsel before the hearing of the case commenced so that it was not deait with quite as speedily as perhaps might have appeared to have been done yesterday. Despite that, counsel for the claimant argued the matter at some length and advanced a strenuous argument. In my view the mere fact that I found against him on this argument is not sufficient ground for awarding costs and in the circumstances I do not propose making any award for the claimant to pay the costs of the respondent. I certify that this and the Soc preceding pages ere a true copy of the Reasons for Judgment herein of his Honour Mr. Jugtice Kala resootateeaBt,