| > | EX TEMPORE JUDGMENT | IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V No. 17 of 1981 INDUSTRIAL DIVISION IN TIE MATTER OF the Conciliation & Arbitration Act 1904 Between: THE ASSOCIATION OF DRAUGHTING SUPERVISORY AND TECHNICAL , EMPLOYEES (Applicant) And: WILMOT BREEDEN (AUSTRALIA) PTY. LTD. (Respondent) Coram: Smithers J. 30 November 1981 Melbourne REASONS FOR JUDGMENT HIS HONOUR: I think I can give judgment now, subject of course to correction of any verbal errors or errors of substance. The application in this case is brought by the Association of Draughting Supervisory and Technical Employees against Wilmot Breeden (Australia) Pty. Ltd. The claim is for penalties under s.119 of the Conciliation & Arbitration Act 1904 Aa lng nd nln aan ee Rede Sm EAL eA VR ht lata Ate he ae en an em anne mss a ee oe ae ee WEEN Dae ee he SAV Ta EARN ne acm nn nnn etna Se ene i with ancillary relief in the matter of employees' wages. The application is based upon a situation in which two employees, Mr. Price and Mr. Hopgood, were not paid wages in respect of four days, namely, 24, 25, 26 and 27 June 1980 while they were employees, not having been dismissed, and to whom under the award the wages were payable subject, of course, to the provisions of clause 9(b) of part II of the relevant award which is the Metal Industry Award 1971. Under that clause it is provided that:- "Notwithstanding any provision elsewhere contained herein, an employer may deduct payment for any day an employee cannot usefully be employed because of any strike, breakdown of machinery or any stoppage of work by any such cause for which the employer cannot reasonably be held responsible. Provided that such standing down shall not be deemed a break in the continuity of employment for the purpose of any rights under this part." The defendant has asserted that the facts justified a deduction of pay under this clause. It 1s pointed out that on the days in question there was no power supplied by the Electricity Commission. They point out also that the employees in the production part of the establishment who are governed by part I of the award had determined on the day before the 24th, namely the 23rd, that none of the members of that organization would work in any way, on the ground that, if they had worked, auxilliary power might have been obtained from a generator on the premises but the extent of power would only have permitted the employment of only seventy five per cent of the workers. They had determined that 1n that event seeing that the company could not employ all the workers none of that Class of worker would work at all. yee This zrntimation was conveyed to management at a meeting on the 23rd at which seven shop stewards were present and the seven shop stewards present included Mr. Peart who was the shop steward in respect of workers employed under part II of the award. It seems that the workers under part II of the award for whom Mr. Peart was the shop steward have generally maintained their independence from decisions made by the shop stewards of other workers in the establishment, namely the part I people. However, on this occasion Mr. Peart being present at the meeting at which the decision of the part I shop stewards was communicated to management did not point out to management that the statement by Mr. Dale, the leading part I shop steward which might have appeared to be made on behalf of all the shop stewards present, was, in fact not to be taken as a statement binding him, Mr. Peart,or to refer to the workers covered by part II of the award. It is said that management would understand that Mr. Dale was not speaking for Mr. Peart. It is difficult to resolve this, but it appears that later on that day the position was clarified and that Mr. Peart did express to Mr. Cubitt sufficiently clearly that his members were independent off and not covered by the decision which had been expressed by Mr. Dale. He intimated that management would have to decide for itself in respect of those of his members who wanted to work whether they could be usefully employed or not. Management seems to have been satisfied without any specific enquiry that Mr. Price and Mr. Peart and Mr. Hopgood could not usefully be employed the following day. To get clarification of his position, Mr. Cubitt, the managing director then communicated with and received advice from the Employer's Association to which his company was attached. What- ever it was he was advised by that Association did not cause him or anybody in the defendant's management to make enquiries with any precision or in any detail as to whether or not any particular employees in the production planning section of the defendant's operations could be usefully employed. I dare say that management did not expect Mr. Price or Mr. Hopgood to want to work the next day, but in fact each of them did, each one - Mr. Price actually came to work and was told not to work. Mr. Hopgood communicated with the company to find out whether he would be allowed to work and he was told that there was no work for him. Accordingly they did not go to work during the next four days. Accordingly a question of fact arises as to whether, having regard to the nature of the defendant's business and operations, Mr. Price and Mr. Hopgood could have been usefully employed. Whether a person can be usefully employed has been given attention by this Court and the Australian Industrial Court in the Carpenters Case in 1971, 17 F.L.R. 330 and by Mr. Justice Keely in a judgment in the matter of the Technical Staff T.A.A. Award 1974 decided by him on 23 December 1977 in C No. 28 of 1977. It was also given some attention in a decision in Niceski v. Dowell Australia Pty. Ltd. in V No. 14 of 1980 on 23 February 1981. The question of fact is whether, 1n respect of workers who are working under a contract of employment, there was work FORE TW Sn EO Ta available to be performed by them, which, from the point of view of the employer's undertaking 1t would be useful to perform. The work done by Mr. Price contained three elements. First production planning, which involved doing clerical work, which would contribute to the compilation of a book called the work order book in respect of various components to be placed into production by the company. Second, work which was called preliminary identification work which related to the 1dentifi- cation of the stock in hand as it stood in containers called stillages. Thirdly, there was some work which comes under the heading of engineering new products records or requisitions. It is apparent that in relation to clause 9(b) of the award the onus is upon the employer to show either that no work was available or if it was available the performance of it on the days in question would in the circumstances not be useful to him. In this case both those propositions have been put forward and the question is whether the defendant has established both or either of them. In the approach to this problem the defendant 1s at a disadvantage because it had, rightly or wrongly, a clear conscience about not paying Mr. Price and Mr. Hopgood because it thought that the situation was such that they could not be usefully employed. The result is that they made no detailed investigation to establish those particular matters. It might have been well if the Association to which Mr. Cubitt resorted, had mentioned to him a passage in the Carpenters judgment to the effect that pete nee - 2 naka ce renee ah a Bets LANA ae Acre nF 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. The result is that the evidence before me is of two kinds. Firstly, the evidence of Mr. Price and Mr. HMopgood themselves who having performed the various tasks which it fell to their lot to perform in this company over a long period had a fair idea of the kind and volume of work that was likely to be available for them and of course each of them had the very best reasons for having in mind what work was available to them on the 24th, 25th, 26th and 27th because they had wanted to work on those days. Inevitably they had an intimate knowledge as to whether there was any work available for them. ; There has been somewhat of a conflict of evidence in various matters in this case but I am quite satisfied that everybody has tried to do their best. However, of course Mr. Price and Mr. Hopgood have the advantage of being able to say they remembered the very things which are in issue today. The defendant on the other hand has had to resort on the whole to saying what in their opinion must have been the situation and to give that opinion with regard to one important matter on an assumption which it turns out could not be taken as necessarily being true. The onus being upon the defendant, assumptions which are not established as more probably true than otherwise, do not carry the necessary weight. Accordingly the class of evidence given by the defendant has had to be valued as being of less weight than that of the evidence of Mr. Price and Mr. Hopgood. Mr. Price says that he had several days work available to him in respect, 1n particular, of production planning and preliminary identification. It is easier perhaps to approach the matter at the moment by referring to the preliminary identification. He says there was 12 hours of work there, and if that is so and I do not see how it can be suggested that there was not, it cannot be suggested that if done it would not have been useful. The fact that it would have been done considerably in advance of the stock take the date of which was unknown and depended upon the length of the strike is of no importance. The only disadvantage of doing work at an early stage before stock take is that the production processes may perhaps lead to the necessity to revise and correct some of the identifying labels. But of course that problem does not arise when there is no production going on. In relation to the production planning it has been a matter of a lot of consideration to determine as well as I can what the true position is as to the usefulness of the production Planning that could have been done by Mr. Price on the days of the 24th, 25th, 26th and 27th. Here again the onus is upon the defendant to show either that there was no such work to be done or that if done it was in a true sense not useful work. It cannot really be shown by the defendant that there was no such work to be done and I do accept, and I think I must accept, the evidence of Mr. Price on the matter to the effect that there were some days of production planning. Of course there obviously would have been if he was in his third week of a cycle - or first week, as the case may be - and not in the second or fourth week of a cycle. I think the same considerations apply to Mr. Hopgood except for this, that there can be no suggestion that that part of work that he was doing which was carrying out corrections in relation to stock records relating to stock taken over by the defendant from the company which previously carried on the defendant's marine work would not if performed have been useful work. It appears that there was quite a lot of confusion because the method of the previous company in taking records and making schedules of stock was different from that of the defendant. Corrections had to be made and there was still quite a lot of work to be done in this and obviously that would be useful work. In addition to that he himself could have been expected to be employed in the preliminary identification. I think I should accept and I do, having regard to the evidence as a whole that there were in all about six days of useful work available to have been performed by Mr. Price and Mr. Hopgood, and that would be three each. Is there any matter I have not dealt with or any topic? KENNAN: No, your Honour. IIS HONOUR: Accordingly I must make a finding that there has beon a non-observance of the award in the respects alleged and it is necessary that a penalty should be imposed. It is quite clear, to my mind, that the non-payment of these men's wages occurred because of a belief which was bona fide on the part of management that the circumstances were such that payment was not required. There is no question of the non-payment being in support of Ae AN I eee nent teh cernlt Yen eee some indirect industrial object or that had the company been properly advised, I mean as to the facts, 1t would not have paid these amounts of money. It 1s important, however, that the sentence, in the Carpenters Case which I have referred to, should be observed by all employers and that care should be taken before people are stood down in circumstances of any doubt at all. In a case like the present it would not have involved very much expenditure of energy to have had a look, to ascertain whether there were any people coming in to work the next day who thought they were entitled to work and to determine whether they had any work or not and whether it was justifiable to tell them to stay at home. As I have said in argument, the penalty, even the maximum penalty, is not a significant burden for a company employing hundreds of people. All that is necessary to do with the defendant company is to remind it and others that care should be taken in these circumstances as outlined in these remarks and that a penalty of $400 in respect of each of the workmen would be quite sufficient. I order that that penalty be paid to the informant. MR. KENNAN: I do not know if your Honour ... HIS HONOUR: I think the employees should only have three days. I do not think you ought to get the last day in any event. MR. KENNAN: Yes, your Honour. HIS HONOUR: So if you tell me what it is for three days I will order payment of that amount of wages. It will be three-quarters ee 10. of the full amounts for four days. MR. KENNAN: Yes, it will be three-quarters. Mr. Kennan: I thought it was $166.32 for Mr. Hopgood, your Honour. HIS HONOUR: That is the total. MR. KENNAN: Three-quarters. HIS HONOUR: Very well. $166? MR. KENNAN: $166, your Honour. HIS HONOUR: $166. I order that Mr. Hopgood receive in respect of three days the $166 and Mr. Price looks like $140 --- MR. KENNAN: $146, your Honour. HIS HONOUR: $146? MR. KENNAN: $146.70, your Honour. HIS HONOUR: You did not really prove the 4th day, but even if you had, this deduction under 9(b) is on a daily basis. People who are only prepared to work half a day cannot recover. Once it appears that the workman was only going to work half a day I think the employer is entitled to deduct a whole day under that clause. MR. KENNAN: Yes, your Honour. Your Honour, could I just say something about the penalty as it relates to the application? HIS HONOUR: Yes. MR. KENNAN: The application is in the alternative form and I suppose I ought to have indicated in paragraph 2 is on the face 1t in the alternative. HIS HONOUR: In 2? Is it not in respect of each one of them? MR. KENNAN: No, your Honour, it is not. Paragraph I alleges one breach in effect, your Honour. HIS HONOUR: What is 2? MR. KENNAN: Paragraph 2 is a non-observance. HIS HONOUR: All right. MR. KENNAN: I just thought that I should have --- HIS HONOUR: If I declare that there was a non-observance in respect of the payment due to each of the applicants and that the penalty is calculated at the rate of $400 in respect of each non~observance, a totaly penalty of $800. MR. KENNAN: Yes, your Honour. Is your Uonour doing that in respect of paragraph 2? HIS HONOUR: Paragraph 2. I do not impose any penalty on the alternative claim. MR. KENNAN: If your honour pleases. The above represents the shorthand transcript of my remarks at the hearing as edited by me in matters of form. One item of substance I omitted to state and that was that I, was not satisfied on the evidence that the absence of artificial light on the three days in question would have been more than a minor inconvenience not preventing the performance of a full day's work on those days. \ . , i | pyocte =, roy earas - . oer t3ro4 ; 1 Phat rons | Yeas ~ - ' . wt oe ir. de. ++? griiherd | \ Le roel 23 'petcdt 7-12-81 ACB ke | niet teseeentias tease eens me caddaaaeaneeenaneS — a re ee en ee ee weane