CATCHWORDS Industrial law - breach of award - stand down of employees - whether useful work available - whether "strike" - whether "cause for which the employer cannot reasonably be held responsible". Estoppel - exercise of one of two inconsistent rights - whether inconsistency between rights - whether detriment - whether estoppel available against assertion of right under award - whether officer of organization estopped. Conciliation and Arbitration Act 1904 s. 119 Re Carpenters and Joiners Award (1971) 17 F.L.R. 330 Jarrad v. Melbourne and Metropolitan Tramways Board (1978) 21 A.L.R. 201 Niceski v. Dowell Australia Ltd. (1981) 52 F.L.R. 371 McKernan v. Fraser (1931) 46 C.L.R. 343 Thompson v. Palmer (1933) 49 C.L.R. 507 Legione v. Hateley (1983) 46 A.L.R. 1 Walsh ev. Commercial Travellers' Association of Victoria C1940] V.L.R. 259 Dukes v. Davidson £1930] A.R.(N.S.W.) 411 JACK GORDON KIDD v. SAVAGE RIVER MINES GRAY J. 21ST DECEMBER 1984 MELBOURNE. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N.S.W. No. 3 of 1984 , INDUSTRIAL DIVISION BETWEEN : JACK GORDON KIDD AND SAVAGE RIVER MINES JUDGE: GRAY J. DATE: 21ST DECEMBER 1984 REASONS FOR JUDGMENT This is an application pursuant to s. 119 of the Conciliation and Arbitration Act 1904 ("the Act"), seeking the imposition of a penalty upon the Respondent for alleged breach of an award, and an order that the Respondent pay the amount of .an underpayment, being wages lost by reason of a wrongful "stand down". The Applicant is the National Secretary of the Amalgamated Metals Foundry and Shipwrights' Union ("the Union"), an organization of employees registered under the Act. He is authorized under the rules of the Union to sue on behalf of the Union. The provision of which breach is alleged is cl. 13 of the Iron Ore Mining and Processing (Savage River Mines) Award 1974 ("the Award"). At the time of the events described below, that clause had been the subject of a variation. It is convenient to set out the whole of the clause as varied: 13-TERMS OF ENGAGEMENT (a) Employment shall be by the week and an employee shall perform such work as the employer shall from time to time require on the days and during the hours usually worked by an employee of his class. (b) Any employee not attending for duty shall, except as provided in clauses 23, 24 and 25 of this award, lose his pay for the actual time of such non-attendance. (c) Employment shall be terminated only by a week's notice on either side which notice may be given at any time during a week and notice shall not be continued from week to week. This clause shall not affect the riant of the employer to dismiss any employee without notice for inefficiency neglect of duty or misconduct and in such cases wages shall be paid up to the time of dismissal only or the right of the employer to deduct payment for any day the employee cannot be usefully employed on account of any strike by the union or any other union or its members or through any general stoppage of work through any cause for which the employer cannot reasonably be held responsible. Where an employee has given or been given notice as aforesaid he shall continue in his employment until the date of the expiration of such notice. Any employee who, having given or been given notice as aforesaid, without reasonable cause (proof whereof shall lie upon him) absents himself from work during such period, shall be deemed to have abandoned his employment and shall not be entitled to payment for work done by him within that period. (d) The right given by subclause (c) to the Company to deduct payment for any day an employee cannot be usefully employed because of a strike or through any cause for which the employer cannot reasonably be held responsible is subject to the following conditions (i) When the Company proposes to exercise the (ii) (111) (iv) (v) (vi) right conferred by subclause (c), it shall notify the employee. During the period such notification remains in force the employee shall he deemed to .be stood down for the purposes of this subclause. An employee who is stood down under this subclause 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 under this subclause may at any time during the period he is stood down, terminate his employment without notice and shall be entitled to receive as soon as practicable, all wages and other payments to which he is entitled up to the time of termination. An employee whose employment is terminated under paragraph (ii1) hereof shall for all purposes (other than payment in MJlieu of notice) be treated as if his employment had been terminated by the employer without default of the employee. An employee who 1s stood down under this subclause shall be at liberty to take other employment providing that he notifies the Company of the address at which he may he contacted. In the event that the employee takes other employment it shall be a reasonable excuse for not reporting for work after being notified that he 1s required to attend for work with the Company if he notified the Company that he 18 working out a period of notice not exceeding one week which he is required to give in such other employment. An employee whom the Company proposes to stand down under this subclause shall be entitled to elect to take any annual leave to which he 1s entitled or which is accruing to him. Notwithstanding anything hereinbefore contained, the Company shall not be entitled to deduct payment for any day prescribed by the award as a public holiday which occurs during the period in which an employee is stood down except to the extent that the employee has become entitled to payment for the holiday in other employment. An employee claiming payment for a holiday shall, if required by the Company, furnish a statutory declaration setting out details of any other employment during this period, and the remuneration received therefrom." The Respondent is and has been at all relevant times bound by the Award. Similarly, the Union and its members are and have been at all relevant times bound by the Award. The Respondent operates an iron ore mine at Savage River in north-western Tasmania. It also operates a pelletizing plant at Port Latta on the north coast of Tasmania. These are connected by a pipe line approximately 85 kilometres long. Iron ore 18 pumped along the pipe line in the form of a slurry. At the pelletizing plant, water is removed from the slurry; the ore is then filtered, mixed with a bonding compound known as bentonite, and rolled into balls ina large drum. The balls are then fired in a furnace at a very high temperature. There are five furnace lines. From the furnaces, the pellets travel by conveyor belt to a stacker. This is a large machine on rails, with a long arm, from the end of which the pellets are stacked. The main stockpiles are on either side of the rails on which the stacker runs. Each main stockpile has a bucket wheel reclaimer. When the pellets are cool, anda ship is available, the pellets are transferred by the bucket wheel reclaimers onto a conveyor belt which takes them out to the ship for loading. Although each of the bucket wheel reclaimers is a vehicle equipped with caterpillar tracks and capable of independent movement, each 1s connected by a conveyor to a travelling hopper which runs on the Same rails as those used by the stacker. ny Members of the Union are employed by the Respondent at both Savage River and Port Latta. They are concerned with maintenance. On of them is Lawrence Joseph Bugg, who gave evidence before me, and on whose particular case the proceeding concentrated. Mr. Bugg was employed by the Respondent at Port Latta as a tradesman's assistant during 1983. The majority of his time was in fact spent working as a rigger, which involved payment at a higher rate. The maintenance employees consist of tradesmen, mostly boilermakers, fitters and electricians, and tradesmen's assistants. They are divided into various groups. The wet Process group looks after all machinery involved in the processing of the iron ore up to the stage when 1t goes into one of the furnaces. The dry process group is responsible for the furnaces, including their feeders, an overhead crane, and one or more of the conveyor belts which carry the pellets away from the furnaces. The off-shore group is responsible for maintaining the stacker, the bucket wheel reclaimers and the off-shore ship loading facilities. The workshop group services pieces of equipment which are regularly serviced in the workshop, and provides a pool of labour which can be allocated to other groups if the need arises. These employees are all day workers. In addition, there is one fitter, one tradesman's assistant and an electrician employed to handle breakdowns and small jobs throughout the entire plant on each shift. The plant normally operates continuously, i.e. three shifts per day, seven days per week. At the relevant times, Mr. Bugg was allocated to the wet process group. From time to time, a person employed to work in one of these maintenance groups could be called upon to work in any other. As well as the maintenance employees, there are other groups of employees in the pelletizing plant. Those who actually operate the plant, known as process workers or mill operators, are members of the Australian Workers Union. The bucket wheel reclaimers, a mobile crane and a forklift are operated by members of the Federated Engine Drivers and Firemens Association. Other members of the Australian Workers Union act as labourers around the plant, ancluding the driving of a front-end loader, and operate the off-shore machinery which loads the ore onto ships. In May of 1983 a dispute developed between the Respondent and the Federated Engine Drivers and Firemens Association ("the F.E.D.F.A."). The subject matter of the dispute was not explored in this proceeding. It resulted in bans being placed by members of the F.E.D.F.A. employed by the Respondent against overtime, and bans by the F.E.D.F.A. itself on the bringing into the plant of any machines owned by contractors and operated by F.E.D.F.A. members. At the time, no ship had visited Port Latta for the purpose of taking away iron ore pellets for some time. Each of the stock piles fed directly by the stacker was full. A small emergency stock pile was also full. Some action had been taken ta broaden the base of one of the main stock piles, using a back hoe, for the purpose of enabling more pellets to be stored in that' stock pile. In addition, the Respondent had been taking steps to transport pellets to vacant land near the Marine Administration Building, several hundred metres from the stock piles, by means of the front end loader driven by a member of the Australian Workers Union. Part of the effect of the F.E.D.F.A. bans was to prevent the Respondent from engaging contractors to provide a back hoe or a further front end loader to assist in moving the stock piles. The single front end loader owned by the company, and driven by a member of the Australian Workers Union, was unable to keep up with the production of pellets 1n moving them to the area near the Marine Administration Building. From time to time, that front end loader was also required to perform other work in the plant, particularly the moving of stocks of bentonite. On Saturday 21st May 1983, the General Manager of the Respondent and its resident Manager at Port Latta, Mr. Ivan John Wagin, inspected the stock piles. After the inspection, a decision was made to close down the pelletizing plant. This necessitated a closure of the mine. Notice was given to employees at Port Latta that they would be stood down from 4.00pm on 22nd May 1983, and would be notified when they were required to return to work. The effect of this was that mone of the maintenance personnel worked on Monday 23rd May 1983. Work was resumed on Tuesday 24th May 1983. On or about 28th May 1983, two vessels arrived to be loaded. The first had a capacity of approximately 60,000 tonnes, and was loaded to capacity by about 30th May. The second vessel came in to be loaded directly after that. When it had been partially loaded, to the extent of about 30,000 tonnes, the members of the F.E.D.F.A. employed by the Respondent at Port Latta ceased work altogether, by reason of their dispute with the Respondent. This cessation of work took place on or about 3rd June. All those employed by the Respondent at Port Latta were again stood down from 3rd June, and returned to work on 14th June. The pelletizing plant and the mine were both shut down for this period. In respect of what would otherwise have been a working day on 23rd May 1983, Mr. Bugg was credited with a leisure day. A leisure day was a rostered day off, provided to each employee so as to give effectively a 38 hour working week. On the evidence before me, 1t 1s impossible to say whether Mr. Bugg would have had a leisure day on 23rd May 1983 if the Fort Latta plant had not been shut down, or whether it had previously been arranged that he would have a leisure day on that day, or opted to have the day treated as a leisure day subsequently, in order to receive pay. In respect of the longer shut down in June, Mr. Bugg was paid for the entire period as annual leave. After the shut down had occurred, he requested that 1t be treated as part of his annual leave, in order that he might receive payment for that period. In Townsend v. General Motors~Holden's Ltd. (1983) 4 I.R. 358, at pages 363-367, Morling J. held that an employer which failed to pay employees during a period of stand down carried the onus of proving that the circumstances specified in the relevant award as justifying a stand down existed. In the present case, Dr. Jessup, who appeared for the Respondent, accepted that the Respondent carried the onus of proving the existence of the circumstances referred to incl. 13(c) of the Award as entitling the Respondent to deduct payment. The concentration of the Respondent's evidence was onthe closing down of production at the pelletizing plant, and on the factors which were said to justify that closing down. Strictly speaking, it is unnecessary for me to determine whether the Respondent was justified in ceasing production at the plant during the period of either stand down. Evidence was led of the gross over stocking of the stock pile areas immediately prior to the May stand down, and of the practical inability of the Respondent to move pellets from the normal stock pile area at a sufficient rate to enable production to be continued, without the use of machines which would otherwise be operated by members of the F.E.D.F.A. Even though, to some extent, these stock piles had been reduced substantially by the full loading of one ship and the partial loading of another before the second stand down occurred, there was evidence that the stacking of hot pellets straight from the furnace over cool pellets on the stock piles would interfere substantially with the ability of the Respondent to continue loading any ship if the stoppage of work by F.E.D.F.A. members in June had ceased. There was no evidence which would enable the Court to determine whether the overstocking was a matter for which the Respondent could not "reasonably be held responsible" in the terms of cl. 13(c) of the Award. The Respondent's case was based on the assumption that each of the stand downs was on account of a strike". I shall return to this question later. In any event, as I have said, it 1s unnecessary for me to determine whether a shut down of production was proper. Even on the assumption that the Repondent was entitled to stand down its mill - 10 - operators, the question remains whether those employees whose duties involved maintenance could be "usefully employed". On this issue, the Respondent did not make a serious attempt to prove that useful employment was not available for Maintenance employees, or at least for some of them. The only witness called on behalf of the Respondent was Mr. Wagin, its resident Manager at Port Latta. In evidence in chief, Mr. Wagin was asked whether there was work available for maintenance personnel (other than those in the off-shore group) which they could usefully do. His answer was "I do not believe so, no". In cross examination, however, Mr. Wagin readily conceded that there was maintenance work which could have been done during both stand downs, that it could have been done by boilermakers, fitters and tradesman's assistants, and that some of ait would have been useful work. He conceded that there was a backlog of maintenance work at the time of each of the stand downs. Written records kept by the Respondent of outstanding maintenance work were not produced. On this evidence, I find that work was available for maintenance employees, and particularly for Mr. Bugg, during both stand down periods, being work of a kind which those employees, and particularly Mr. Bugg, could have been directed to perform within their contracts of employment, and which had not been allocated specifically to any employee. The work would have been of value to the Respondent. See Re Carpenters and Joiners Award (1971) 17 F.L.R. 330 at page 333 in the judgment of Spicer C.J. and Smithers J., and Jarrad _v. Melbourne and Metropolitan Tramways Board (1978) 21 A.L.R. 201 at pages 207-208. - ll - An attempt was made by the Respondent to assert that it refrained from selecting some of its maintenance employees to perform maintenance work during the stand down periods on the basis that the Union had a recognized policy of "one out all out", i.e. on the basis that 1t was expected that maintenance employees selected to perform work during the stand down would refuse to do so unless all maintenance employees were given work. On the evidence, however, 1t seems that little weight was in fact given to this consideration. No attempt was made to approach the Union, or any of the employees concerned, to ascertain whether the giving of work to some maintenance employees would te countenanced. Evidence was given by Mr. Bugg that the question whether the "one out all out" policy was applied would have depended upon a meeting of members of the Union employed by the Respondent at Port Latta. On a subseguent occasion, when it again became necessary to shut down production at Port Latta, work was in fact given to and accepted by some of the maintenance employees, without the Union or any of its members raising any objection. I therefore find that Mr. Bugg, and some other members of the maintenance group of employees could have been usefully employed during the period of each stand down. In the normal case, this would conclude the matter, but other issues were argued. One question which arises is as to whether the first stand down was "on account of any strike". It certainly did not result from any complete stoppage of work; rather, insofar as it - 12- resulted from anything done or not done by F.E.D.F.A. members employed by the Respondent, it resulted from specific bans. In the absence of authority, I should have thought that the ordinary and natural meaning of the word "strike" did not include the continuance of work, combined with an unwillingness to work overtime, or to perform certain tasks. The relevant definition of "strike" in the Oxford English Dictionary 1s as follows: "A concerted cessation of work on the part of a body of workers, for the purpose of obtaining some concession from the employer or employers." The emphasis in this definition is on a complete cessation of work. In support of the proposition that a continuation of work, subject to the banning of certain specified tasks, could amount to a strike, Dr. Jessup relied upon three decisions of the New South Wales Industrial Commission. These were Australian Iron and Steel Limited v. The Amalgamated Engineering Union, Australian Section (19503 A.R.(N.S.W.) 501, Lysaghts Works Pty. Limited v. The Amalgamated Engineering Union, Australian Section C1950] A.R.(N.S.W.) 573 and Board of Fire Commissioners of New South Wales v. New South Wales Fire Brigade Employees' Union C1953] A.R.(N.S.W.) 622. In the first of these, it was conceded by the solicitor who appeared for the trade union charged with engaging in an illegal strike, by means of bans on overtime, that the union was engaged in an 21llegal strike. In the second case, which also concerned overtime bans by members of the same union, the concession does not appear to have been made on behalf of the union, but the Commission did not engage in a detailed analysis -~13- of the ordinary meaning of the word "strike" for the purpose of deciding whether overtime bans constituted a strike. In the third case, the Commission referred to the two earlier cases in the context of bans ona number of specific duties, but not on overtime. At page 629, the Commission said: "The refusal by officers and men to carry out all work and duties but those permitted by the union obviously was a strike not only within the statutory meaning of the word, but within its ordinary meaning also." Dr. Jessup also relied upon what was said by Smithers J. in Niceski v. Dowell Australia Ltd. (1981) 52 F.L.R. 371, at pages 376-7: "It was made clear in Board of Fire Commissioners of New South Wales v. New South Wales Fire Brigade Employees' Union (C1953 A.R.(N.S.W.) 622) that a cessation of work by employees acting in combination and a_ concerted refusal to carry out their well-defined and recognized duties and work is a strike within the ordinary meaning of that work, notwithstanding that they are prepared to, and do, carry out some of their duties." In none of these cases was reference made to what was said by members of the High Court of Australia in McKernan v. Fraser (1931) 46 C.L.R. 343, and the cases referred to ain _ those judgments. In that case, the High Court was called upon to determine whether a concerted refusal by persons who were not employees to accept employment in the customary manner amounted to a "strike" within a statutory definition which preserved the ordinary meaning of the word. At pages 360-1, Dixon J. (as he then was), with whom Rich and McTiernan JJ. concurred said: "It is not easy to know what is necessary to constitute a "strike". The word "does not represent any legal definition or description" (per Lord James of Hereford, Denaby and Cadeby Main Collieries Ltd. v. Yorkshire - 14 =- Miners'Association ((1906) A.C. 384, at p. 405); and perhaps it has no certain connotation which is settled or accepted. When the accustomed course of the supply of commodities or services is interrupted or disturbed because labour is withdrawn or withheld, those who are affected by the consequence and are not much' concerned with the cause naturally tend to call it aie strike without further inquiry or discrimination. But it is noticeable that, in most of the attempts to state what amounts to a strike, prominence is given to the cessation or relinquishment of work, or at least the failure to resume work after a normal interruption or suspension. See the definition in New Oxford Dictionary, s.v. "strike," sub. ss. 9 and verb ss. 24, the passage 1n the judgment of Hannen J. in Farrer v. Close ((1869) L.R. 4Q0.B., at p. 612) and in that of Kelly C.B. in King v. Parker ((1876) 34 L.T. 887). It is true that in the Commonwealth Conciliation and Arbitration Act 1904-1930 the word is defined to include "the total or partial refusal of employees, acting in combination, to accept work, if the refusal is unreasonable": but it ais to be observed that ain Australian Commonwealth Shipping Board v. Seamen's Union of Australasia ((1925) 35 C.L.R. 462, at p. 483), where seamen refused in combination to accept employment on a ship until particular members of a crew were dismissed, Higgins J. said that if it were not for this definition "the refusal in combination to accept work would not be a strike at all. The ordinary meaning of strike is confined to ceasing work-'downing tools.''"" Reference should also be made to the judgment of Evatt J. at pages 372-378. If the attention of the members of the New South Wales Industrial Commission, and of Smithers J., had been directed to these passages, each of them would have had considerably greater difficulty in determining that a continuation of work, with a ban on certain duties, amounted toa strike, within the ordinary meaning of that word. The emphasis in McKernan v. Fraser, as in the dictionary definition, 1S upon a complete cessation of work. In my view, the word "strike" incl. 13(c) of the Award means a stoppage of work, and does not include a continuation of work, subject to the banning of certain tasks. In the present case, the bans imposed by the F.E.D.F.A. and its members were upon the working of overtime, and the operation at the Port Latta plant of any contractors' vehicles which would normally be driven by F.E.D.F.A. members. There is no evidence of the nature of the business of any contractor whose vehicles would have been likely to be used, and consequently no evidence that the ban on such vehicles at Port Latta would have led to a complete cessation of work by any employees of any such contractor. Accordingly, the Respondent has failed to establish that that ban amounted toa "strike" within the meaning of cl. 13(c) of the Award. The position with respect to bans on overtime is slightly more difficult. Clause 19(}) of the Award provides that an employee 1s bound to work overtime in accordance with a requirement by the Respondent to work reasonable overtime. The working of overtime was, therefore, not merely a matter of voluntary act by an employee. It might be said that a concerted refusal to work overtime in the face of a requirement actually made amounted to a "strike". For the period for which overtime was required to be worked, the employees concerned would be anvolved in a complete cessation of work. If they were still working their normal hours, it may be regarded as over-technical to characterize a refusal to obey a requirement to work overtime as a total cessation of work. I do not need to reach a_ final decision on this point, however, as there 1s no evidence before the Court of any actual requirement addressed to anybody to work overtime. It is reasonable to suppose that, faced with an announcement that there was a ban on overtime, the Respondent would refrain from going through the motions of addressing requirements to its employees who were F.E.D.F.A. members to work specific hours of overtime. - 16 - The result of this reasoning 1s that the Respondent has failed to establish, with respect to the first period of stand down, that 1t was "on account of any strike" within cl. 13(c) of the Award. This means that the Respondent must fall back an the words "through any general stoppage of work through any cause for which the employer cannot reasonably be held responsible" in that clause. Where an employer and a union of employees are engaged in a dispute concerning the industrial interests of the members of the union, 1t will often be extremely difficult to determine whether one or other of them can reasonably be held responsible for any stoppage of work which results. Such a determination would involve an assessment of the positions of the paries ain relation to the dispute, including any efforts made to compromise it. In the circumstances of this case, however, no such determination 15 necessary. The Respondent offered no evidence as to the causes of the dispute with the F.E.D.F.A., nor as to the course which the dispute took, either before or after the period of the first stand down, save that it led to the stoppage of work which produced the second stand down. It follows that the Respondent failed to establish that the first stand down eccurred through a cause for which the Respondent could not reasonably be held responsible. Even if there had been no useful work for Mr. Bugg, or other employees of the Respondent, on the occasion of the first stand down, on the evidence before me the Respondent could not lawfully have deducted payment from the wages of any employee for the day of that stand down. - 17 - It does not follow from this, however, that the Respondent was in breach of the Award with respect to Mr. Buag on the occasion of the first stand down. As I have said, Mr. Bugg took the day of that stand down, Monday 24th May 1983, as a "leisure day". The evidence does not disclose whether he did so by prior or subsequent arrangement. Accordingly, the Applicant has not satisifed the onus which rests on him of proving that there was a deduction of payment. I am unable to find, on the evidence before me, that there was any breach of the Award in relation to Mr. Bugg in respect of the day of the first stand down. Dr. Jessup also argued that no deduction of payment from Mr. Bugg had been proved in respect of the period of the second stand down. His argument was that, by virtue of electing to take annual leave for this period, Mr. Buaq had been paid for that period. The conclusion which Dr. Jessup sought to draw from this was that no breach of the Award occurred, As I have said earlier, the evidence does show that, with respect to this second stand down period, Mr. Bugg elected after the completion of the stand down to have the period treated as annual leave. He did so in order to receive payment of wages for that period. There can be no doubt that, if the Respondent had not stood down Mr. Bugg, and informed him that he would receive no wages so long as he was stood down, Mr. Bugg would not have requested payment of monies in respect of annual leave during this period. Instead, he would have been entitled to take that period of paid leave at a later date, possibly more convenient to him. In this sense, the receipt by Mr. Bugg of the whole of his award entitlements was - 18 - adjusted by reason of a stand down which was not justified by cl. 13(c) of the Award. Such adjustment of the entitlements of Mr. Bugg amounted to a breach or non-observance of the Award. Whether such breach or non-observance is characterized as a failure to pay wages, with a payment of annual leave instead, or as a failure to accord to Mr. Bugg his full entitlement to annual leave, is not a matter of great significance in the context of the present case. One final argument was relied on by Dr. Jessup. He contended that the Applicant was estopped from alleging any breach or non-observance of the Award by reason of the election which Mr. Bugg made to accept payment for annual leave. The estoppel relied upon was said tao be a species of common law estoppel not based upon any representation by Mr. Bugg, but based upon his election between two inconsistent rights. Dr. Jessup argued that, when he was stood down, it was open to Mr. Bugg to challenge the deduction of payment by legal proceedings, or to ask for and accept a payment of annual leave. He could only take the latter course upon the footing that he could not be usefully employed throughout the relevant period. By his election to take annual leave, Dr. Jessup argued that Mr. Bugg was estopped fror alleging that there was useful work which he could have performed. It is well established that, in some circumstances, an estoppel will arise against a person who has elected between two inconsistent rights. See Halsbury's Law of England, Fourth Edition, Vol. 16 pars. 1507 and 1508. This form of estoppel was placed in its context with other forms of estoppel by Dixon J. (as he then was) in Thompson v. Palmer (1933) 49 C.L.R. 507, at page 547: "The object of estoppel in pais is to prevent an unjust departure by one person from an assumption adopted by another as the basis of some act or omission which, unless the assumption be adhered to, would operate to that other's detriment. Whether a departure by a party from the assumption should be considered unjust and inadmissabie depends on the part taken by him ain occasioning its adoption by the other party. He may he required to abide by the assumption because it formed the conventional basis upon which the parties entered into contractual or other mutual relations, such as bailment; or because he has exercised against the other party rights which would exist only if the assumption were correct, as in Yorkshire Insurance Co. v. Craine ((1922) 2 A.C.541, at pp. 546-547); cp. Cave v. Mills ((1862) 7H. & N. 913, at pp. 927-928; 158 E.R. 740, at pp. 746-747}; Smith v. Baker ((1873) L.R. 8 C.P. 350, at p. 357); Verschures Creameries Ltd. v. Hull and Netherlands Steamship Co. ((1921) 2 K.B. 608, AT P,. 612); and Ambu Nair v. Kelu Nair ((1933) 60 I.A. 266, at p. 271); or because knowing the mistake the other laboured under, he refrained from correcting him when it was his duty to do so; or because his imprudence, where care was required of him, was a proximate cause of the other party's adopting and acting upon the faith of the assumption; or because he directly made representations upon which the other party founded the assumption. But, in each case, he 18 not bound to adhere to the assumption unless, as a result of adepting it as the basis of action or inaction, the other party will have placed himself in a position of material disadvantage if departure from the assumption be permitted." This passage was quoted with approval and explained by Mason and Deane JJ. ain Legione v. Hateley (1983) 46 A.L.R. 1, at pages 17-19. Having regard to what was said in these judgments of the High Court of Australia, it appears that a court cannot give vent to its own notions of justice in determining whether a party is estopped from alleging a particular fact. If what Mason and - 20 - Deane JJ. described as "idiosyncratic concepts of justice and fairness" were to prevail, there could be no doubt that no estoppel should exist in the present case. Where an employee 15 stood down by his employer for a period of several days, the employer having full knowledge of the facts which do not justify such a stand down, and the employee seeks to avail himself of what then appears to be the only avenue by which he may obtain payment for that period, it is an extraordinary suggestion that justice requires that the employee should afterwards be estopped from alleging a breach of the relevant award. Even though concepts of abstract justice cannot be applied in a case such as this, there are several reasons recognized by the law why no estoppel arises in the present case. In the first place, there is nothing necessarily inconsistent between the acceptance of payment for annual leave and the subsequent assertion of aright to payment of wages without using up annual leave entitlements. It is only if Mr. Bugg's decision to claim annual leave is viewed as anything more than a reaction to the fact of the stand down that such decision could be said to rest upon an assumption of fact, namely that no useful employment was available for him. In the case of either payment of annual leave or payment of wages, all that is required is subsequent adjustment of amounts of money, or possibly of leave time. More importantly, it has not been shown that any detriment to the Respondent arose from Mr. Bugg's alleged election. The detriment relied upon by Dr. Jessup was the wn - 21 - payment by the Respondent of annual leave entitlements, which included a loading above the normal wage rate. It was said that this involved a payment to Mr. Bugg of more than he would have received if he had been simply paid whilst stood down. The true position is that the Respondent would have been obliged to pay Mr. Bugg for annual leave, including the loading, at some later time. By making the payment early, it procured Mr. Bugg''s services during a subsequent period when he would have taken the leave to which he was entitled, or, if his employment had been determined in the meantime, relieved itself of the obligation to pay some or all of his accrued annual leave entitlements. In the former case, on the assumption that Mr. Bugg's employment continued (which it in fact did), the Respondent gained extra service from Mr. Bugg by paying him annual leave in respect of the stand down period. On balance, 1t cannot be said that any detriment was suffered by the Respondent. There are two further reasons why an estoppel does not arise in this case. The first is of general application to cases of this kind. The second arises from the particular status of the Applicant. In Walsh ov. Commercial Travellers' Association of Victoria £19401 V.L.R. 259, the Full Court of the Supreme Court of Victoria held that the appellant was entitled to recover the difference between wages prescribed for him under a determination of a wages board and those actually paid to him. The appellant had been employed as a result of a misrepresentation by him as to his age. He had been paid at the rate applicable to the age he - 22 - represented himself to be. Having been dismissed, he then sued for his full entitlement. It was argued that he was estopped from denying that his age was as he had represented 1t to be. The Full Court held that no estoppel could prevail against the terms of the Factories and Shops Act 1928 (Vic), which gave an absolute entitlement to the appellant to be paid the amount of wages laid down in the determination. The Court rejected the argument that estoppel is simply part of the law of evidence, and held that the provisions of a statute such as the Factories and Shops Act could not be ousted by what would otherwise be estoppel. In making that decision, the Full Court did not have the benefit of a citation of the earlier decision of the New South Wales Industrial Commission in Dukes v. Davidson C1930] A.R.(N.S.W.) 411. That case also involved a misrepresentation by an infant as to his age. The Commission held that an estoppel arose from such misrepresentation, even with respect to a claim against a subsequent employer. Notwithstanding that the Full Court of the Supreme Court of Victoria did not consider the decision of the New South Wales Industrial Commission, I prefer to follow the decision in Walsh v. Commercial Travellers Association. It is a sound principle that statutory rights should not be defeated by estoppel, especially statutory rights created for the benefit of the public or a section of the public. The rights given by the Award in the present case are of such a nature. They have statutory force by virtue of the terms of the Act. The obligations laid down by the Award are absolute, and prevail against any contract to the contrary, as did the provisions of the statute considered by the Full Court in Walsh's case. In my view, a claim under an award cannot be defeated by estoppel. The remaining difficulty about the application of estoppel to the present case arises from the fact that the Applicant is the National Secretary of the Union, who brings the proceeding in reliance upon the right given to him by s. 119(2)(e) of the Act. It would have been open to Mr. Budqg to bring a proceeding in respect of the same breach or non-observance of the Award, by virtue of s. 119(2)(c). Dr. Jessup was forced to argue, by analogy from cases involving personal representatives of deceased persons or persons under legal disability, that sufficient privity existed between the Applicant and Mr. Bugg to cause the Applicant to be estopped. The analogy is clearly inappropriate. The right which the Act gives to an officer of an organization te pursue a claim under s. 119 is clearly a separate right from that which 1s given to a member of an organization who may be affected by the breach or non-observance which has occurred. There 1S no reason why each should not separately pursue his or her proceeding, although such a course would clearly have an effect on the question of the imposition of a penalty. The officer of an crganization who takes a proceeding of this nature does not in any way derive his or her right to do so from the existence or non-existence of a right of the member concerned either to take, or to succeed in, a similar application. The only question is whether the member concerned is "affected by" the breach concerned. Even 1f Mr. Bugg might have been estopped from proceeding under s. 119 in respect of the breach by the Respondent of its award obligations to him, the Applicant 15 not so estopped. I therefore hold that the Applicant has established a breach or non-observance of the Award by the Respondent. I shall hear the parties on the question of penalty, and also on the question whether any other order should be made. ee as ad fun TRE Ar | \a [74