Ned "- JUDGMENT No. ban e1. CATCHWORDS Industrial Law ~ award - breach - right to inspect time and wages record - whether power to make award - whether statutory right of entry exclusive - construction of award - conditions of exercise of right of inspection ~ whether general authority sufficient - whether notice and demand can be combined - whether implied right to enter premises - whether breaches proved - inference from conversations of refusal to produce records at any time during specified hours. Acts Interpretation Act 1901 ss.17, 22, 23(b) Conciliation and Arbitration Act 1904 ss.4(1), 119, 42A, 190 Northern Territory Meat Processing Award 1984 cll. 23, 25 MENELING STATION PTY. LTD v. AUSTRALASIAN MEAT INDUSTRY EMPLOYEES' UNION No. 9 of 1987 Keely, Gray and Ryan JJ Melbourne 19 November 1987 'g re . vad IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY No. 9 of 1987 INDUSTRIAL DIVISION ON APPEAL from a single Judge of the Federal Court of Australia Between: MENELING STATION PTY. LTD. (Appellant) And: AUSTRALASIAN MEAT INDUSTRY EMPLOYEES' UNION (Respondent) Coram: Keely, Gray and Ryan JJ. Date: 19 November 1987 Place: Melbourne MINUTE OF ORDER THE COURT ORDERS THAT: 1. The Appeal is dismissed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA ) ) NEW SOUTH WALES DISTRICT REGISTRY ) No. 9 of 1987 ) ) INDUSTRIAL DIVISION ON APPEAL from a single Judge of the Federal Court of Australia Between: MENELING STATION PTY. LTD. (Appellant) And: AUSTRALASIAN MEAT INDUSTRY EMPLOYEES' UNION (Respondent) Coram: Keely, Gray and Ryan JJ. Date: 19 November 1987 Place: Melbourne REASONS FOR JUDGMENT THE COURT: By this appeal, the appellant seeks to set aside penalties imposed by Evatt J. pursuant to s.119 of the Conciliation and Arbitration Act 1904 ("the Act") for four breaches of sub-cl. 23(c) of the Northern Territory Meat Processing Award 1984 ("the Award") which allegedly occurred on 16 April, 20 May, 30 May and 2 June 1986 respectively. Clause 23 of the Award 1s in the following terms: (a)(2) (i1) {111) "23. TIME AND WAGES RECORD Except where mechanical timing devices are used for the purpose of recording starting times and finishing times of employees, or where time and wages records are Maintained on a computer or microfilm System, each employer shall provide a time book or time sheet in which shall be entered the employees name and classification. The employer shall cause to be entered each day in the time book or time sheet each days starting and finishing times, the times allowed for meals, each days hours of work of each employee and the wages received each week (including overtime and other payments). Such entries shall at least once a week be certified by the employee as a true record of the time worked 1f he 1s so satisfied and shall be vouched for by the signature of the employer or his representative or manager. It shall be a breach of this Award if any person knowingly makes, certifies or vouches for a false entry in such time book or time sheet. Where mechanical timing devices are used for the purposes of recording starting and finishing times of employees, each employer shall keep a record from which can be readily ascertained the name and classification of each employee, the hours worked each day and the wages received each week (including overtime and other Payments). Where time and wages records are Maintained on microfilm or on a computer system of recording, such microfilm or computer record shall be capable of producing records from which it can be readily ascertained the name and classification of each employee, the hours worked each week and the wages received each week (including overtime and other payments). (b) The time book or time sheet shall conform to the specimen contained within this Clause. (c) (d) (e) (£) (g) The roster and time and wages record shall on demand upon reasonable notice be produced by the employer for inspection at the place where the employer carries on business and employs the employee whose time has been recorded or at the employer's election at the employer's head office at any time between 10 a.m. and 4 p.m. Monday to Thursday inclusive and between 10 a.m. and 1 p.m. on Friday, to an official of the Australasian Meat Industry Employees' Union who has been authorised, in writing, to inspect it by the General Secretary or the Secretary of a State branch of the said Union or to an official of the Meat and Allied Trades Federation of Australia who has been authorised, in writing to inspect it by the General Secretary or the Secretary of a State division of the said Federation. An inspection shall not be demanded unless the Secretary of the Union or Federation or the District Secretary or organizer of any division of the Union or Federation suspects that a breach of this Award is being or has been committed. Only one demand for such inspection may be made in any one fortnight at the same establishment and no anspection shall be demanded on a Saturday. Provided that one further demand may be made within a fortnight of the previous demand if the Secretary, District Secretary Or Organiser certifires in writing that the reason for such further demand 1s that he suspects that a breach of this Award 1s being or has been committed and that such certificate is produced to and a copy thereof handed to the employer or his representative at the time of demanding such further inspection. The officer making an inspection shall be entitled to take a copy of entries in the time book, time sheet or roster relating to the suspected breach of this Award. Time books, time sheets or mechanical records shall be kept for at least 12 months after they have been completed. (h) (1) (ii) Each employer shall cause to be maintained 1m respect of each employee during the period of employment with the employer a record containing the following information:- (a) The full name and address of the employee. (b) The date of commencement and the date of termination of the employee's service with the employer. (c) The date of commencement and the date of termination of any sick leave taken by the employee during his service with the employer. (d) The date of commencement and the date of termination of any period of annual leave taken by the employee during his service with the employer. (e) The date of commencement and the date of termination of any period of long service leave taken by the employee during his service with the employer. Such a record of each employee shall on demand upon reasonable notice be produced by the employer for inspection at the place where the employer carries on business or at the employer's head office at any time between 10 a.m. and 4 p.m. Monday to Thursday inclusive and between 10 a.m. and 1 p.m. on Friday to an official of the Australasian Meat Industry Employees' Union who has been authorized 1n writing to inspect it by the General Secretary or the Secretary of a State branch of the said Union or to an official of the Meat and Allied Trades Federation of Australia who has been authorised in writing to inspect it by the Federal Secretary or the Secretary of a State division of the said Federation but such inspection shall not be demanded unless the Secretary of the Union or Federation or the District Secretary or organiser of any division of the Union or Federation suspects that a breach of this Award 1s being or has been committed. (iii) The off1c1al making an inspection shall be entitled to take a copy of entries in such record of any employee relating to the suspected breach of this Award. (iv) Only one demand for such inspection may be made in any one period of three months in respect of such record of any employee. (v) Such record shall be retained by the employer for at least twelve months after the termination of the employment of the employee concerned." The official of the respondent Australasian Meat Industry Employees' Union ("the Union") who sought to exercise the right of inspection conferred by cl. 23 on each of the occasions on which Evatt J. found a breach of the Award to have been committed was a Mr. Pat Roughan. On or about 12 November 1985 Mr. Roughan had been issued with the following written authorization by Mr. O'Toole, the Federal Secretary of the Union: "AUTHORISATION I, Jack O'Toole, Federal Secretary of the Australasian Meat Industry Employees' Union, Authorise Pat Roughan, an official of the Australasian Meat Industry Employees' Union, to inspect the time and wages records of all employees held by Menaling ([(sic.}] Station Pty Limited. This authorisation 1s given under the Clause 23 of the Northern Territory Meat Processing Award 1984. [SIGNED] JACK O'TOOLE FEDERAL SECRETARY" Also on 12 November 1985, Mr. O'Toole sent to Mr. Bright, the Manager/proprietor of the appellant's abattoir, a_ telex message which read: "DEAR MR BRIGHT, AS FEDERAL SECRETARY OF THE AUSTRALASIAN MEAT INDUSTRY EMPLOYEES UNION I SUSPECT THAT BREACHES OF THE NORTHERN TERRITORY MEAT PROCESSING AWARD 1984 HAVE BEEN AND CONTINUE TO BE COMMITTED AT YOUR ESTABLISHMENT. PURSUANT TO CLAUSE 23 OF THE AWARD I REQUIRE YOU TO PRODUCE AT MENELING ABATTOIR TO MR PAT ROUGHAN THE ROSTER AND TIME AND WAGES RECORDS FOR ALL EMPLOYEES AT MENELING ABATTOIR AT 10AM ON THURSDAY NOV14 MR ROUGHAN IS AUTHORISED BY ME IN WRITING TO INSPECT THESE DOCUMENTS. THIS VISIT WILL BE IN CONJUNCTION WITH REQUEST MADE YESTERDAY L1INOV85 BY TELEGRAM REGARDS JACK OTOOLE FEDERAL SECRETARY" It appears that, as foreshadowed in that message, Mr. Roughan on 14 November 1985 carried out an inspection of the appellant's roster and time and wages records. The learned Judge at first instance found that on 14 April 1986 Mr. Roughan telephoned the appellant's abattoir, spoke with the foreman, a Mr. Glen Storer, and intimated that he would be visiting the abattoir on Wednesday 16 April 1986 "to address members and to look at time and wages records". His Honour further found that although Mr. Roughan attended at the abattoir on 16 April 1986 and spoke to employees of the appellant in the lunch room, Mr. Bright said to him, "Why should I allow your organization into my work when so far I have kept you out? Why should I make problems for myself by having this a union shed?" No time and wages books were then produced to Mr. Roughan. No challenge was made before us as to his Honour's findings of fact in respect of Mr. Roughan's visit on 16 April 1986. On Saturday 17 May 1986, Mr. Roughan was at the appellant's premises in company with another Union official, Mr. Surplice. Mr. Roughan then said to Mr. Storer, "Glen, we'll be coming back this way on Tuesday, and we'll come in and inspect the wage and time records and speak to your employees". Messrs Roughan and Surplice then travelled to Meneling, arriving on 20 May 1986. Then, as his Honour found, "Mr. Storer informed them that Bobby (that is Mr. Bright) was not there and that he could not let them see the 'books'. He went on to say 'Bobby is the only one who has the right to show anyone the wage and time books. It would be worth my job to show them to you'. No books or records were then produced ..." Again, the appellant did not challenge those findings of fact relevant to the alleged breach on 20 May 1986, but it pointed to evidence that Mr. Roughan said in reply to Mr. Storer, "Alright, I understand." On 29 May 1986, Mr. Roughan telephoned Mr. Bright from Darwin and said: "Bobby, it's Pat Roughan here. Trevor Surplice and I will be coming to Meneling tomorrow to see you and to inspect your books. Is that alright.?" Sa Mr. Bright replied, "Don't bring Trevor". Mr. Roughan then responded, "Trevor is the Northern Territory Organiser and he will be present at any discussion I have with you." On Friday 30 May, Mr. Roughan, accompanied by Mr. Surplice, arrived at Meneling at about 8.30a.m., and had a conversation with Mr. Bright, in the course of which Mr. Roughan said "I would like to look at your wage and time records". Mr. Bright replied to this effect: "I am not going to show them to you; if I show them to you it will only give you more information to use against me. There are some areas of the Award that I am in breach of but I have reasons for this, and I will give my reasons if you take me to Court." According to Mr. Roughan, in an affidavit which was in evidence at first instance, "There was further discussion and shortly after that I left the premises." There was no more specific evidence as to whether Mr. Roughan or Mr. Surplice remained in attendance at Meneling until 10.00a.m. on 30 May 1986. Nor was there any direct evidence that no roster or time and wages records were produced for inspection by either of them on that day. Apparently no point based on the absence of such evidence was taken on behalf of the appellant before Evatt J. His Honour's findings of fact in relation to the alleged breach on 2 June 1986 were expressed as follows: "It is accepted that on Sunday evening, 1 June 1986, Mr Roughan telephoned Mr Bright at Meneling abattoir and said, Bobby, am I right to come down Tuesday? Are you going to be there? To which Mr Bright replied, No, I won't be here. I have got to go out and buy stock. Mr Roughan then stated, It doesn't matter, I am still coming down to talk to the employees. To which Mr Bright replied, Well, if you are going to come down I am not going. On Monday, 2 June 1986 Mr Roughan and Mr Surplice travelled to Meneling Station arriving at about 10.00am. Later during the lunch period Mr Roughan spoke to the respondent's employees after which he spoke to Mr Bright briefly as follows, You're not going to show me those books, are you Bobby? To which Mr Bright replied, No." There was no finding by his Honour, and apparently no evidence, as to whether either Mr. Roughan or Mr. Surplice was at Meneling at any time on Tuesday, 3 June. The contentions on behalf of the appellant fall into three categories. The first is based on the proposition that since the insertion into the Act of s.42A, the power of the Conciliation and Arbitration Commission ("the Commission") to make awards in respect of rights of entry to union officials 10. has been limited to the imposition of conditions upon the right of entry conferred by s.42A. Accordingly, so it was argued, to the extent that cl. 23 of the Award purported to go further than the imposition of such conditions, it was invalid. The second argument advanced by the appellant assumed the validity of cl. 23 of the Award as a whole. It involved the contention that on each of the occasions on which an alleged breach occurred, some condition precedent to an obligation in the appellant to produce its time and wages records for inspection which cl. 23, on its proper construction, imposed, had not been satisfied. Thirdly, it was argued that even if the construction of cl. 23 for which the appellant contended was wrong, Evatt J. should not have imposed penalties in respect of each of the alleged breaches of the Award because of deficiencies in the applicant's proof. The appellant's counsel conceded that, but for the insertion of s.42A into the Act in 1973, the High Court's decision in Federated Clothing Trades of the Commonwealth of Australia v. Archer and Ors. (1919) 27 C.L.R. 207 would have prevented it from submitting to this Court that the Commission lacked the power to make an award containing cl. 23(c) i.e. imposing upon an employer the duty to produce to 11. an official of the Union for inspection a time and wages record, kept by the employer pursuant to the duty imposed by sub-cl. 23(a) of the Award. Counsel accepted that the grant eof a right to inspect premises where award breaches are suspected and to have access to wage books and time sheets may be made in settlement of an industrial dispute created by a demand for such a right, or may be ancidental to the settlement of an industrial dispute. As to the use that had been made of that power, Foenander, Industrial Regulation in Australia (published in 1947), an dealing with the "usual provisions in an award" says (at 26-27 and 28): "2. The Right of Entry Clause A typical right of entry clause in an award provides for the right of accredited union officials to enter the premises of the factory or workshop, or other place of work, at reasonable times for the purpose of ... transacting the legitimate business of the union - e.g., ... the inspection of time and wages records .... Judge O'Mara in the Keefer Brothers Pty. Ltd. Case warned employers that he took a 'serious view of any deliberate and unmitigated refusal to produce time and wages records' [47 CAR at p. 563] for inspection by union officials. The Court, in fact, regards the union official while exercising the right of entry allowed to him, as acting in the capacity of a Court officer for purposes of policing the award. [Clothing Trades Case (1928) 26 CAR 76 at 91]" As early as 1922 an award requiring employers to keep records of hours and wages, and to produce those records toa 12. union official on demand, was the subject of a prosecution for a breach of the award - see appeal proceedings in the High Court in Federated Carters and Drivers' Industrial Union of Australia v. McKay (1922) 30 C.L.R. 139. The Metal Trades Award, as consolidated by O'Mara J. in 1946 (57 C.A.R. 325), contained a time and wages book clause which included the following provision:- "Time and Wages Book. 25. {c) The time and wages record shall be open for inspection to a duly accredited union official during the usual office hours at the employer's office or other convenient place: Provided that an inspection shall not be demanded unless the secretary of the union or the district secretary Or organizer of any division suspects that a breach of the award has been committed: Provided also that only one demand for such inspection shall be made in one fortnight at the same establishment. " In 1957 the Commission said in the Pastoral Industry Award case (88 C.A.R. 66 at 78):- "The claim before me on this occasion is for the keeping of a time and wages record by the employer and that such records be open. for inspection at any reasonable time by an accredited union official. I have decided to grant the Union's claim, which is reasonable and is in line with present day industrial practice." 13. Section 42A, which was inserted by Act No. 138 of 1973 15 in the following terms:- "42a. (1) An officer of an organization authorized in writing by the secretary of the organization or of a branch of the organization to act under this sub-section may, at any time during working' hours, but subject to any conditions provided by the relevant award, enter any premises in which work to which an award binding on the organization is applicable is being carried on, being premises specified in the authority, or premises occupied by an employer who 1s bound by the award and is specified in the authority, for the purpose of ensuring observance of the award, and may for that purpose inspect any work, books or documents and interview any employee, being a member or a person eligible to be a member of his organization, on _ those premises, but an officer so authorized shall not hinder or obstruct an employee in the performance of his work during working time. (2) If an officer of an organization Proposing to enter, or being in or on, premises in pursuance of this section is required by the occupier or person in charge of the premises to produce evidence of his authority to that occupler or person, the officer is not entitled to enter or remain on the premises unless he produces to that occupier or other person the authority in writing referred to in sub-section (1). (3) A person shall not hinder or obstruct an officer of an organization in the exercise of a power conferred by this section. Penalty: One hundred dollars. (4) In this section- "officer", in relation to an organization, means a person holding an office in, or employed by, the organization or a branch of the organization; "premises" includes any building, structure, mine, mine working, ship, vessel or place." 14, The appellant's counsel accepted that the 1973 amending Act, in inserting that section, did not expressly take away the general power to insert a clause like sub-cl. 23(c) of the Award but they contended that that power had been taken away by the Legislature by implication. They submitted that s.42A "is a special provision regulating the Commission's power to deal with the right of officials of an organization (where authorized by the organization) to enter premises to ensure observance of an award binding upon the organization. The general power conferred upon the Commission to make awards, including the prima facre power to regulate such right of entry, cannot be exercised to do that which is the subject of the special power." Counsel submitted that, by reason of the 1973 amendment, the Commission's power was limited to imposing conditions upon the rights of entry and of inspection conferred by s.42A. In support of that submission they cited a number of decisions of the High Court uncluding R_v. Gaudron and Ors.; Ex parte Uniroyal Pty. Limited. (1978) 141 C.L.R. 204 and Leon Fink Holdings Pty. Ltd. v. Australian Film Commission (1979) 141 C.L.R. 672. In order to succeed in that contention, the appellant must show in terms of Jacobs J.'s dictum in R_v. Gaudron (supra) at 221 that, in introducing s.42A into the Act in 1973, it was the legislative intention that s.42A "should constitute an inviolable restraint upon the power of the Commission" to make an award granting to an officer of a 15. registered organization a power to inspect wage books and time sheets where award breaches are suspected. In our opinion no such legislative intention was manifested by the language of the 1973 amending Act. Section 42A was intended to confer upon an appropriately authorized officer of an organization the right, amongst other things, to enter certain premises and to inspect "any work, books or documents". The right was only conferred if there was a "relevant award" under the Act, and it was expressly stated in the new section that that award could impose conditions upon the exercise of the right. The right so conferred was a general one (subject to the qualifications mentioned), intended to exist without the need for the "relevant award" to contain a clause, like sub-cl. 23(c) expressly conferring a right to inspect time and wages records. However, in our opinion, the new s.42A, in removing the need for such a clause, did not impose any restraint upon the power of the Commission to grant a right to inspect time and wages records. In support of their submission as to the legislative antention, the appellant's counsel asked the rhetorical question "what is the point of a general power when s.42A specifically provides conditions upon which an officer of the organization may be granted a right of access?" The answer to that question 1s that 1n some awards the Commission may 16. consider 1t appropriate, by reason of the past conduct of employers, to insert a particular provision as to the production of those records for inspection expressed in wider terms than in those in s.42A. On the other hand, in some awards the Commission may consider 1t appropriate, by reason of the past abuse by union officials of a provision for the inspection of such records, to impose conditions upon the exercise of the right conferred by s.42A. The possibility of such conduct by employers "flouting the award" or by union officials "who may abuse the confidence of the Court" was a matter expressly referred to in the Clothing Trades Case (cited earlier - 26 C.A.R. 76 at 91). In our opinion s.42A was not intended to restrict in any way the powers of the Commission. On the question of the proper construction of cl. 23 of the Award, the argument on behalf of the appellant was based heavily on the use of singular expressions in sub-cl. 23(c), especially the words "record", "employee" and "it". The argument was also based on the proposition that sub-cll. (c), (d), (e) and (£) of cl. 23 form a coherent scheme, and that the provisions of each of these sub-clauses must be borne in mind when construing sub-cl. (c). In its most extreme form, the argument was that any inspection of a roster and time and wages record on behalf of the Union can take place only subject to the following conditions:- 10. One of the relevant persons referred to in sub-cl. 23(d), 1.e. the Secretary of the Union, a District Secretary or an organizer of any division of the Union, must form a suspicion that a particular breach of the Award 1s being or has been committed. Such suspicion must be of a breach in relation to a particular employee. Unless 1t is the Secretary of the Union himself who forms the suspicion, the person forming the suspicion must communicate the suspicion to the Secretary of the Union, or to the Secretary of a state branch of the Union. The Secretary of the Union, or the Secretary of a state branch of the Union, must then authorize an official in writing to inspect the record. Such authority must specify the particular employee, the particular suspected breach, and the period to which the record relates, which the official is authorized to inspect. A separate authority is required for each suspected breach in relation to each employee. Reasonable notice must be given that a demand will be made for inspection on a particular day. The authority and the notice cannot both be in the one document. On the day notified, the authorized official must attend at the relevant place (being either of the premises specified in sub-cl. (c)) and demand production of the relevant records. The demand must be unmistakable as a demand, i.e. 1t must not be a request or some oblique reference to a desire to inspect the record. 18. It must be specific as to the employee concerned, the breach suspected and the period in respect of which the record is to be produced. 11. The demand and the notice cannot be in the Same conversation or document. Nor can the demand be in the same document as_ the authority. 12. In order to gain access to the relevant premises, the official must also be duly authorized in writing pursuant to s.42A of the Act or cl. 25 of the Award, as cl. 23 of the Award contains no express power to enter premises. 13. The authorized official must remain on the premises throughout the hours specified in sub-cl (c), 1.e. 10.00a.m. to 4.00p.m. Monday to Thursday and 10.00a.m. to 1.00p.m. on Friday; it cannot be said that a breach has occurred unless the employer has had the opportunity to produce the books at any time of the employer's choosing during the specified hours on that day. 14. If the demand 1s met with a refusal, and the authorized official says anything which might be construed as acceptance of this position, that will amount to condonation of the non-production of the record, and will excuse a breach of the obligation to produce it. 15. Once a demand is made, whether or not it is satisfied by inspection, that demand is exhausted and no further demand may be made within a fortnight. 16. No demand may be made on a Saturday. 17. The inspection must be confined to that part of the record which would reveal the suspected breach, 1f 1t occurred. 18. Once an inspection is made, the particular authority 1s exhausted and can no longer be relied on. It 1s fair to say that on some points, the appellant retreated from this extreme position. In particular, counsel 19. for the appellant found 1t difficult to sustain the argument that a separate authority is required for each suspected breach in relation to a particular employee, and was forced to concede that a refusal to produce the record for inspection on a particular occasion might be inferred short of the official waiting a full six hours to see if the books are produced. Counsel also conceded that an inspection may take place on several days, and that one demand may give rise to several inspections. They did adhere, however, to the central proposition that the scheme of cl. 23 18 to require separate inspection of the record relating to each particular employee. There 1S some support for the appellant's argument in the language of sub-cl. 23(c), particularly the concentration on expressions in the singular. Comparison may be made with sub-cl. (g), which provides:- "(g) Time books, time sheets or mechanical records shall be kept for at least 12 months after they have been completed." There is no provision in the Award to the effect that the singular is to be taken to include the plural. Section 190 of the Act provides:- "Expressions used in any award made under this Act shall, unless the contrary intention appears in the award, have the same meaning as 1s applied to those expressions by the Acts Interpretation Act 1901". 20. There must be some doubt whether this provision operates to import the provision in sub-s.23(b) of the Acts Interpretation Act 1901 whereby the singular includes the plural, or only imports the definitions of "expressions", such as those to be found in ss. 17 and 22 of the Acts Interpretation Act 1901. This having been said, there 1s nothing in cl. 23 which compels it to be read in the manner desired by the appellant. The word "record" in sub-cl. (c) 1s capable of application to a single record containing details of the rosters, times and wages of a number of employees. The word "it" may, of course, refer to such a multiple record. The use of the word "employee" in the singular, appearing as it does in a phrase which qualifies the reference to one of the places at which inspection may take place, affords little assistance in the construction of the word "record". Even in the absence of a provision expressly equating the singular with the plural, there appears to be nothing in the language of sub-cl. (c) which precludes the Union from giving an official a general authority to inspect the roster, time and wages records of all employees. Nor can we discern any intention that such a general authority may not be given in advance of the formation of a suspicion of a particular breach. Support for these propositions is to be found in the use of the words "has been authorised" in sub-cl. (c), and in 21. the specification in sub-cl. (d) of the categories of persons who may form suspicions that breaches of the Award are being, or have been, committed. In our view, the scheme of the Award is such that an official of the Union may be authorized generally to inspect the roster time and wages' records pursuant to sub-cl. (c), and the occasion for such inspection may arise upon the formation of a suspicion of breach by any of the persons specified in sub-cl. (d). There 1s no need for the suspicion to ante-date the authority, nor for the authority to specify a particular employee, a particular suspected breach, or a particular period. It 1s noted that sub-cl. (g) requires the keeping of the records for at least twelve months after their completion, whereas sub-cl. (h) requires a record of the date of commencement and termination of each employee's service and of any period of annual or long service leave taken by him to be retained by the employer for at least twelve months after the termination of the employment of the employee concerned. There can be no doubt that reasonable notice must be given before an inspection is to take place. There 1s no reason, however, why that notice cannot be coupled with the demand for the production of the records. For instance, a positive statement that an employer would be required to produce the relevant records for inspection at a particular time on a particular day, given a reasonable time before that day, could amount both to notice and to a demand. If it were 22. thought fit to give to an official a specific authority, it would be open to combine that specific authority in the same document with the notice or the demand or both. Provided that the notice 1s reasonable, and it is clear that production of the books 1s demanded, the requirements of sub-cl. (c) are satisfied. Tt is, in our view, quite unnecessary for _ the authorized official to remain in attendance at the employer's premises throughout the specified hours on the day appointed for an inspection. For the reasons developed below in respect of the alleged breach on 30 May 1986, we consider that if it 1s made clear by the employer that the records will not be produced at any time during the specified hours on the appointed day, that 1s sufficient to amount to a breach of the obligation to produce them. We are also of the view that sub-cl. 23(c) gives by implication to the authorized official a right to enter the premises on which the records are to be inspected. It 1s unlikely that the framer of the Award intended that a right to inspect should be frustrated merely because the authorized official does not possess some other authority permitting entry to the premises. It 1s noted that cl. 25 of the Award restricts the right of a duly accredited representative of the Union to enter an employer's premises to entry during the meal hour, for the purpose of interviewing employees on 23. legitimate union business, and imposes a number of conditions on such entry. It 1s obvious that sub-cl. 23(c) contemplates the presence on the premises of the authorized official at times other than simply during the meal hour. The right of entry contemplated by s.42A of the Act 1S available at any time during working hours, and for other purposes than the inspection of roster, time and wages records. It is also subject to conditions. Clause 23 has been framed, in our view, to strike a balance between the interest of a union party to an award in monitoring its observance and detecting breaches of it by an employer, and the interest, on the other hand, of an employer in carrying on business without interruption or harassment. A construction of the clause which favours one of those interests to a point where the other can be given scarcely any recognition is, therefore, to be avoided unless the language of the clause compels its adoption. Accordingly, since cl. 23 of the Award provides a right to inspect records, 1t 1s reasonable to construe 1t as incidentally conferring a specific, preliminary, right to enter premises for that purpose. Nor 1s the inspection to be confined to the area of the suspected breach of the Award. It 1S to be noted that sub-cl. (f) gives a specific right to take copies of entries relating to the suspected breach. The inclusion of such a specific right suggests that the right to inspect is a more general one. When a particular breach 1s suspected, the 24. Union may well wish its authorized official to inspect the records of all employees, for the purpose of ascertaining whether the same or a similar suspected breach is also being committed, or had also been committed, in relation to other employees. Counsel for the respondent did argue that any suspected breach of the Award would found the right to inspect all roster, time and wages records of all employees. She instanced a suspected failure to provide a sufficient first aid kit, in accordance with the obligation found in cl. 21 of the Award. We doubt whether such a breach, which would not be revealed by an inspection of the roster, time and wages records, would be sufficient to justify a full scale search of those records; it 1s unnecessary to decide this question, however. A suspected breach of a kind which would be revealed by those records does, in our view, justify a broad right to search those records which are retained. We also agree with the learned trial Judge that the purpose of sub-cl. 23(e) 1s to protect an employer who has produced for inspection the relevant records from being required to produce those records again within a fortnight; the sub-clause should not be construed so as to protect an employer who fails or refuses to produce the records for inspection from a further demand for compliance with the obligation imposed by the Award. Similarly, we agree with the learned trial Judge's conclusion that sub-cl. (e) Prohibits the making of a demand which is intended to be 25. satisfied by an inspection carried out on a Saturday, as distinct from the making of a demand on a Saturday which is intended to be satisfied by an inspection on a weekday. It follows from what we have said that the written authority given by Mr. O'Toole to Mr. Roughan on or about 12 November 1985 was not invalidated because it was phrased in general language, and was not exhausted by the inspection which took place on 14 November 1985. It was suggested on behalf of the appellant that the authority could not be a valid one for the purposes of sub-cl. 23(c) of the Award, because 1t purported to authorize Mr. Roughan to inspect the time and wages records of "all employees" of the appellant, and that this phrase included at least Mr. Bright, who was the manager, and Mr. Storer, who was the foreman, neither of whom was employed in a classification specified in the Award. In our view, the authority when read as a whole, particularly with the specific reference to cl. 23 of the Award, gave a sufficient indication of the records which Mr. Roughan was authorized to inspect, and was a proper authority for the purpose of sub-cl. 23(c). The provision in sub-cl. (da) was met by the formation of the required suspicion of breach at a time before Mr. Roughan made the demand for the records to be produced for inspection. The first of the breaches in respect of which the appellant contended the Union's proof had been deficient was 26. that alleged to have occurred on 16 April 1986. It was contended on behalf of the appellant that there was no evidence of any demand or request on that day for access to or inspection of wages and time records. All that occurred on that day was that Mr. Roughan was physically present at the abattoir, and that Mr. Bright said to him, "Why should I allow your organization into my work when so far I have kept you out? Why should I make problems for myself by having this a union shed?" It is common ground that no time and wages records were produced to Mr. Roughan on that day. It follows from what we have said about the proper interpretation of cl. 23 that it 1s not necessary for a demand for inspection to be made on the day on which inspection 1s required. Nor, as we have indicated, 1s it necessary for the demand to specify that inspection is required of the roster, time and wages records of one or more particular employees. In our view, Mr. Roughan's telephone call on 14 April 1986 in which he told Mr. Storer that he would be visiting the abattoir on 16 April 1986 to address members and to look at time and wages records, amounted to both a demand that the roster time and wages records of all the appellant's employees be produced for inspection and the giving of notice that such inspection was to take place on the following Wednesday. It 1s an available inference, which Evatt J. appears to have drawn, from Mr. Bright's statement to Mr. Roughan and the absence of any evidence to 27. the contrary from Mr. Bright, that Mr. Bright understood a demand to have been made that the appellant produce for inspection by Mr. Roughan on that day, 16 April 1986, all the roster, time and wages records which it was required by the Award to keep. It was next argued on behalf of the appellant that the award permits an employer to produce its roster, time and wages records at any time between 10.00a.m. and 4.00p.m., and that there was no evidence of conduct amounting to a failure to produce continuing for the whole of the period between those hours on 16 April 1986. As we have already outlined, the times specified in sub-cl. 23(c) are intended to impose a limit, for the benefit of the employer, on the times during which inspection must be afforded to an authorized official. The specification of those times does not entail the conclusion that a breach of the clause will only occur if a refusal to produce documents is persisted in continuously for the whole of the specified period. On the contrary view, taken to its logical conclusion, an employer could be said to have performed its obligations under the clause, if it produced the records for inspection at 3.59p.m. on the day nominated in the demand and withdrew them at 4.00p.m. On the interpretation of the clause which we prefer, it is a question of fact to be decided in the circumstances of each case whether an employer has produced or failed to produce its records on a given day. In our view, the evidence amply 28. justified the conclusion on the balance of probabilities that the appellant failed to produce its roster, time and wages records for inspection by Mr. Roughan on 16 April 1986. The next alleged breach of which the evidence 1s said to have been deficient was found by the learned trial Judge to have occurred on Tuesday, 20 May 1986. Before that day, on Saturday, 17 May, Mr. Roughan had told Mr. Storer "We'll be coming back this way on Tuesday, and we'll come in and inspect the wage and time records and speak to your employees". On the interpretation of cl. 23 of the Award which, as we have already indicated, 1s to be preferred that statement was capable of operating as both a demand for inspection and the giving of notice that inspection was to take place at the employer's place of business on Tuesday, 20 May 1986. It may be inferred that Mr. Storer understood the statement in that way when he said on 20 May 1986, apparently without any prompting or further request from Mr. Roughan, that Mr. Bright was not there and that he (Mr. Storer) could not let them see "the books". Mr. Roughan's reply that he understood could not reasonably be regarded as a withdrawal of his request for production of the documents on that day, and there was no evidence that Mr. Storer understood it in that way. Accordingly it was open on the whole of the evidence to conclude, as his Honour did at first instance, that the appellant refused or failed to produce its roster, time and wages records for inspection on 20 May 1986. 29. Thirdly, it was argued that there was no evidence to support a finding that the appellant failed to produce its roster, time and wages records for inspection on 30 May 1986. However, we regard it as eminently open on the evidence to find that a demand was made on 29 May 1986 that all of the appellant's relevant roster time and wages records be produced for inspection at its place of business on the following day. That demand was repeated in the form of a polite request at 8.30a.m. on 30 May and was unequivocally refused by Mr. Bright. The only question which arises on the evidence is whether the Court could be satisfied of a breach by the appellant of its obligation to produce the roster, time and wages records between the hours of 10.00a.m. and 4.00p.m. on 30 May. Sub-s.119(1) of the Act provides: "(1) Where any organization or person bound by an order or award has committed a breach or non-observance of a term of the order or award, a penalty may be imposed by the Court or, except in the case of a breach or non-observance of a term of an order or award of the kind referred to in sub-section 33(1), by any District, County or Local Court or Court of summary jurisdiction that 1S constituted by a Judge, by a _ Police, Stipendiary or Special Magistrate or by an Industrial Magistrate appointed under any State Act who 1s also a Police, Stipendiary or Special Magistrate." In sub-s.4(1) 1t 18 provided that: ""Breach", in relation to a term of an order or award, includes a non-observance of that term." 30. There is no definition in the Act of "non-observance". However, in The Queen v. Commonwealth Court of Conciliation and Arbitration; Ex Parte Amalgamated Engineering Union, Australian Section, (1953) 89 C.L.R. 636, Dixon CJ., Webb, Fullagar and Kitto JJ. in a joint judgment said at 649 of what was then par. s.29(c) of the Act as amended by Act No 18. of 1951: "The word "contravention" 1s quite apt to include a disobedience which consists merely in abstaining from doing an act, ard the use of the words "breach or non-observance" in the part which was added in 1951 indicate strongly that it was intended to cover a failure to perform a positive requirement as well as disobedience of a negative command." Where compliance with a term of an award is predicated on a request or demand being made of a party to the award, a breach of the award may be constituted by a refusal of the request or demand. Thus in Federated Carters and Drivers' Industrial Union of Australia Vv. McKay (supra) the iunformation for a breach of a clause of an award, in substantially similar terms to cl. 23 of the Award in the present case, charged that the respondent:- "did, after a demand by one John Elliott an organizer of the Union duly authorized in that behalf, refuse to produce to the said John Elliott the record or time-book prescribed to be kept by the said award." or Ty 31. In that case, Higgins J., with whom Starke J. agreed, observed at 142 "...Mr. Lowe [counsel for the respondent] has taken, as he is entitled to take, two other points in support of this order dismissing the information. One 1s that there is no evidence on the notes disclosing a refusal to produce the time-book between the hours of 10 a.m. and noon as prescribed by the award; and the second 1s that no proof was given at the hearing in the Police Court that there was good reason to suspect a breach of the award. With regard to that first point the Police Magistrate has said that "he found all the facts as deposed by the witnesses for the informant were correct, and that there was evidence on which he could convict 1f the ianformant's view of the law was correct." Looking at the Police Magistrate's statement and at the conduct of the case at the trial in the Police Court, 1t would be a hideous injustice if the mere absence from the notes of evidence that the refusal to produce took place between 10 a.m. and noon were to be decisive of the fate of this information. If the case be remitted, the point can be settled at the rehearing. With regard to the second point there is nothing in the award which, in my opinion, makes it necessary to prove that there was good reason to suspect. As my brother Starke has said, that is a matter which precedes the giving of the authority and is not a Matter for proof at the trial. It may well be that the Union may be guilty of a breach of the award 1f it were to issue an authority without having good reason to suspect a breach." Had we considered it incumbent on the Union, in the circumstances, to adduce evidence that Mr. Roughan was in attendance at the abattoir after 10.00a.m. on 30 May, we would have afforded an opportunity, even at this late stage, to prove that fact, since, as in McKay's case, (above), the point was not taken at the hearing of the application. However, in our view, a breach of a term of an award 32. constituted by refusal to comply with a demand or request may arise in one of two ways. It is most commonly proved by establishing a failure to perform the obligation at, or within, the time stipulated by the request or demand in accordance with the term of the award. Secondly, it may arise from an explicit statement by a party to the award that he will not perform his obligation thereunder. Such a statement does not have the consequences imported by the law of contract where one party accepts what is sometimes called an "anticipatory breach" by another party. Accordingly, an applicant under s.119 of the Act, who relies on such a refusal to perform in the future an obligation imposed by a term of an award, runs the risk of the respondent's adducing evidence that he resiled from the anticipatory refusal before the time for performance had arrived. Where, as in this case, no evidence of that kind is adduced, the Court is entitled to presume, as the learned trial Judge apparently did, that the unequivocal refusal continued up to the time fixed for performance. In Purex Corporation Ltd v. Vanguard Trading Co (1965) 112 C.L.R. 532, for example, Kitto J. unferred from evidence of earlier acts of infringement of the plaintiff's patent that infringements had continued to occur during the period in question as to which the evidence was silent. See also Nash v. Commissioner for Railways (1963) S.R. (N.S.W.) 357 where a Full Court of the Supreme 33. Court of New South Wales indicated that an inference could be drawn that an earlier expressed intention continued at a later date in issue in the proceedings. Counsel for the appellant contended finally that the Union's proof of a breach of the Award on 2 June 1986 was deficient. It 1s clear that no demand for production of roster, time or wages records was made on 1 June when Mr. Roughan only foreshadowed a visit to Meneling "to talk to the employees". What was relied on as the demand was Mr. Roughan's question to Mr. Bright during the luncheon period on 2 June, "You're not going to show me those books, are you Bobby?". The learned trial Judge regarded that question as a valid demand to be shown the relevant time and wages records, saying of it:- " ,..that statement was a valid demand to be shown the relevant time and wages records. I am satisfied that the statement was understood by Mr Bright in that light. It 1S noted of course that this request by Mr Roughan was made on Monday, 2 June 1986 and not on the Tuesday, 3 June 1986, which was the day that Mr Roughan had informed Mr Bright that he would be coming down to visit the abattoir. Nevertheless, the Court 1s satisfied that 1t 1s to be inferred from the said conversation that what Mr Roughan was saying (and what Mr Bright probably so inferred) was that ""1f I return tomorrow, 3 June 1986, I take it you w1ll not show me the books"." 34. In our view, it is proper to regard Mr Roughan's request as a demand that the time and wages records be produced for inspection by Mr. Roughan at the respondent's convenience either in the afternoon of 2 June, or on 3 June which had earlier been foreshadowed as the date of the visit to the abattoir by the Union officials. So regarded the demand, in the circumstances, afforded reasonable notice to the employer within the meaning of sub-cl. 23(c) of the Award. Moreover, Mr. Bright's terse answer "no" to Mr. Roughan's request was, on its face, an unequivocal refusal to produce the records at any of the times on 2 or 3 June which we consider that request could be found to have contemplated. It 18 a very strong inference, in the absence of evidence from Mr. Bright, that he intended his answer to be understood as just such an unequivocal refusal. Accordingly, for the reasons we have already indicated in respect of the refusal which occurred on 29 May 1986, the later unequivocal refusal of 2 June was capable of operating as a breach of the Award from the first moment when the request could have been complied with. That was on the afternoon of 2 June 1986, which was specified in paragraph (1v) of the particulars subjoined to paragraph 1 of the amended application as the date of the fourth alleged breach of sub-cl. 23(c) of the Award. For all of these 35. reasons the decision to impose a penalty for each of the alleged breaches is affirmed, and the appeal is dismissed. Appearances Counsel for Appellant Instructing Solicitors Counsel for Respondent Instructing Solicitors Date of Hearing Date of Judgment I certify that this and the thirty-four (34) preceding pages are a true copy of the Reasons for ema ein of the Court. Associate Dated: |X UNG on onl Ss Mr. Trew, Q.C. with Ms. P. Bergin Messrs Tress Cocks & Maddox, Sydney, as agents for Mildren Silvester & Partners, Darwin Ms. C. Simpson Maurice May & Co 1, 2 June 1987 19 November 1987