CATCHWORDS Industrial law - award - interpretation - introduction of electronic equipment - redundancy - whether employee of pensionable retiring age entitled to compensation. Conciliation and Arbitration Act 1904 s. 110 Country Printing Award 1959 cll. 15, 15A, 15B, 15C PRINTING AND KINDRED INDUSTRIES UNION ve BENDIGO ADVERTISER AND INDEPENDENT PTY. LIMITED No. NSW 23 of 1987 Gray J. MELBOURNE 25TH FEBRUARY 1988 IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY No. NSW 23 of 1987 wwe were INDUSTRIAL DIVISION PRINTING AND KINDRED INDUSTRIES UNION Applicant BENDIGO ADVERTISER AND INDEPENDENT PTY. LIMITED Respondent MINUTES OF ORDER THE COURT ORDERS AND DECLARES that, on the true construction of cl. 15(b) of the Country Printing Award 1959, an employee who has reached pensionable retiring age in the circumstances described in cl. 15(a) of that award is not entitled to the compensation subject of cl. 15¢b)(ii). (NOTE: Settlement and entry of orders is dealt with by 0. 36 of the Federal Court Rules.) IN THE FEDERAL COURT OF AUSTRALIA ) ) NEW SOUTH WALES DISTRICT REGISTRY ) No. NSW 23 of 1987 ) INDUSTRIAL DIVISION ) PRINTING AND KINDRED INDUSTRIES UNION Applicant BENDIGO ADVERTISER AND INDEPENDENT PTY LIMITED Respondent REASONS FOR JUDGMENT JUDGE: Gray J. ad LACE: Melbourne DATE: 25th February 1988 The applicant in this proceeding, the Printing and Kindred Industries Union ("the Union"), is an organization of employees, registered pursuant to the Conciliation and Arbitration Act 1904 ("the Act"). The Union is a party to, and it and its members are bound by the Country Printing Award 1959 ("the Award"), an award made pursuant to the Act. The respondent, Bendigo Advertiser and Independent Pty. Limited, is a company which carries on the business of printing, and which is bound by the Award, by virtue of being named therein as a respondent. This application is made pursuant to s.110 of the Act. A dispute or difference has arisen between the Union and the respondent over the interpretation of certain provisions of the Award. The Union therefore seeks an interpretation, favourable to it. It is convenient to set out the provisions of the Award which are in contention, as well as those provisions which surround them: "15 - INPUT OF EDITORIAL AND ADVERTISING MATERIAL (a) In the event of a newspaper employer which is a member of Regional Dailies of Australia Limited or the Australian Provincial Press Association introducing into his office, which shall include branch offices, electronic equipment to facilitate input of material (both editorial and advertising) into computer banks, the employer shall advise the Branch Secretary at least three months prior to any change taking place or such shorter notice as has been discussed between the employer and the Branch Secretary. (b) The following undertaking shall be observed and applied by the employer: (i) There shall be no retrenchment or compulsory retirement of existing employees (at the date of notification as prescribed by subclause (a)) who have not reached pensionable retiring age provided that where an employee cannot be gainfully employed, the Union will have meaningful discussions with the particular employer to overcome the problem. (ii) In the event of redundancy not being avoidable the employer shall pay to the employee compensation on the basis of: (a) Three weeks' pay for each completed year of service, or pro-rata on the basis of quarter years of service. (b) For the purpose of this clause, employment as a junior or apprentice shall be included in the calculation of completed years of employment. (c) A week's pay shall mean the base rate of Pay at the date of termination of employment. (iii) There shall be no regression in the wage rates of the existing employees referred to in paragraph (b)(i) whilst they are desirous of continuing to be employed by their employer pursuant to this award. (c) (i) (ii) (i) (ii) Subject to paragraph (ii) hereof: (1) The operation of electronic equipment introduced by the employer to facilitate input of editorial material into computer banks and instructions for typesetting including rewriting, revising, checking and correcting of such material shall not be performed by members of the Union unless at the discretion of the employer from time to time they are required to perform such work. (2) The operation of electronic equipment introduced by the employer to facilitate input of advertising material into computer banks and instructions for typesetting as they affect liaison with the customer for the validating, checking and consequential correction functions, whether performed before or after entry of the advertisement into the system shall not be performed by members of the Union unless at the discretion of the employer from time to time they are required to perform such work. The processing of material in 'hard copy' form as defined hereunder, shall be performed by members of the Union. Hard copy definition Advertising hard copy is copy supplied in written form for keyboarding. It may be typed, printed or handwritten and received at the office by post, courier or other means. Editorial hard copy is copy supplied in written form for keyboarding including contributed articles and letters to the editor. It may be typed, printed or handwritten. Hard copy excludes direct input from editorial phone rooms, recagnised editorial wire services and news agencies. (d)As a consequence of the undertaking described in subclauses (a) and (b) the Union will allow the acceptance of unlimited external input of material from editorial phone rooms, recognised editorial wire services and news agencies. (e)The provisions in clauses 15A, 15B and 15C shall continue to apply in respect to the technological changes described therein and shall not be prejudiced in any way by the provisions of this clause. 15A - RETRAINING OF TRADESMEN AND TECHNOLOGICAL CHANGE: (a) In the event of an employer introducing into his office new techniques of production, including tape perforating, photo-composition, paste up, camera techniques and dark-room techniques, photo-lithography and/or web offset printing, the employer shall advise the Branch Secretary at least three months prior to any change taking place or such shorter notice .as has been discussed between the employer and the Branch Secretary. (b)When the employer advises the Branch Secretary pursuant to subclause (a) of this clause, representatives of the employer and of the Branch shall meet and discuss; (1) the tradesmen to be retrained to perform the work of the technique, and (2) the detail of the retraining of those tradesmen including the times and type of training to be undertaken. (c)The retraining of tradesmen shall be undertaken without cost to the tradesmen. (d)Where possible a tradesman being trained in new features of his trade or being retrained to perform the duties of another trade shall be trained in the manner an apprentice is trained pursuant to the appropriate paragraph of subclause 31(b) of this award as it relates to the area of his retraining provided that such retraining is carried out in the employer's own premises or in some other place mutually agreed between the employer and the Branch Secretary. (e)When production for commercial or business purposes using the above techniques is commenced by the employer, the tradesman of one trade engaged in such production in the new trade shall be paid and classified on the records of the employer as such a tradesman. The employer shall advise the Branch Secretary of the names and classifications of those concerned and the date of commencement of the employment. (f)The following undertakings shall be observed and applied by the employer: (21) there shall be no retrenchment of staff except as provided in clause 15C; (ii) an employee shall not be subject to any reduction in his ordinary weekly wage; (iii) all production staff shall, subject to subclause (b) of this clause, be offered to be retrained. (g)Notwithstanding anything elsewhere contained in this clause, a tradesman shall not be prejudiced in his employment in the event of a tradesman in another trade being retrained in the trade of the tradesman first referred to. 15B - FLEXIBILITY OF EMPLOYMENT (a)Where an employer has introduced new techniques as described in subclause 15A(a) or electronic equipment as is prescribed for in clause 15: (i) a compositor may be employed on the work of a graphic reproducer; (1i) a graphic reproducer may be employed on the work of a compositor. (b)In the event of a new compositor or graphic reproducer becoming employed and being required to be retrained in the techniques of his new employer, the provisions of subclauses 15A(c), 15A(d) and 15A(e) shall be observed. (ce) Ci) In the event of a tradesman in the particular trade who is an employee in the establishment not being available to perform the work in connection with the techniques as provided in clause 15 or 1S5A, the employer shall discuss the matter with the union and give the union the opportunity to provide a tradesman of the trade concerned to perform that work. (ii) In the event of the union within two weeks not providing such a tradesman in accordance with paragraph (c)(i) hereof, another person may be employed thereon. In the event of a tradesman of the trade concerned becoming unemployed and that tradesman is ready and willing to be and is capable without further training of being employed in connection with the new technique, he shall be employed to the exclusion of that other person. (iii) Notwithstanding anything contained elsewhere in this subclause 15B(c) persons other than tradesmen employed on techniques of production of the nature referred to in subclause 15A(a) at the date this award is varied to include this clause 15B shall be allowed to remain in their present employment until they leave, resign or retire or the employment is terminated pursuant to clause 8. 15C ~- REDUNDANCY Where all avenues of employment within the establishment have been exhausted and the employee is still considered redundant as a result of the technological change as described in clause 15A, the employer shall discuss this possibility with the Branch Secretary on the basis of seriously endeavouring to maintain staff without any diminution of numbers. In the event of redundancy not being avoidable the employer shall give to the employee notice of termination of employment according to the following: (1) Where the employee has been employed for less than three months, one week's notice or pay in lieu thereof. (2) Where the employee has been employed as an adult employee for three months and up to three years, the employer shall give the employee three weeks' notice or pay in lieu thereof for the first three months' employment as an adult employee and in addition thereto one week's notice or pay in lieu thereof for each subsequent year of employment as an adult employee. (3) Where the employee has been employed as an adult employee for three years or more, the employer shall give the employee three weeks' notice or pay in lieu thereof (at the option of the employee) for the first three months' employment as an adult employee and in addition thereto one week's notice or pay in lieu thereof (at the option of the employee) for each subsequent year of employment as an adult employee." It was conceded by Mr. Barnard Q.C., who appeared with Mrs. Bretherton of counsel for the respondent, that the respondent is a member of one or other of the entities referred to in cl. 15(a), and that cl. 15 is therefore applicable to it. The question which divides the parties is whether cl1.15(b) (ii) of the Award entitles an employee who has' reached pensionable retiring age at the relevant date to the compensation for which that sub-clause provides. Although in its terms the application seeks an interpretation of cl.15C, it is common ground between the parties that cl.15C does not distinguish between employees of pensionable retiring age and other employees. There being no dispute between the parties on this question, it would be inappropriate for the Court to declare an interpretation of cl1.15C. The applicant's argument was based largely on the proposition that, although cl.15(b)(i) contains a distinction between employees who have reached pensionable retiring age and those who have not, no such distinction appears in cl.15(b)(ii). Mr. Moore of counsel, who appeared for the applicant, argued that the two provisions should be read separately. Such a reading would involve the exclusion of employees who have reached pensionable retiring age from the requirement that meaningful discussions take place, in the event that such an employee could not be employed gainfully. If an employee who had reached pensionable retiring age were redundant, however, the payment required by cl.15(b)(ii) would still have to be made. Some support for this argument is found in the change of terminology between "retrenchment or compulsory retirement" in cl.15(b)(i) and "redundancy" in cl1.15(b) (ii). Notwithstanding this change, however, it does appear that sub-cl.(b)(ii) is intended to be read as consequent upon sub-cl.(b)(i). In my view, the redundancy contemplated by sub-cl.(b)(ii) is the redundancy of an employee who cannot be employed gainfully in the circumstances to which cl.15 applies, and whose position has not been resolved as a result of the meaningful discussions required by sub-cl.(b)(i). Such an employee can be subject to retrenchment or compulsory retirement, upon the conditions laid down in sub-cl.(b)(ii) as to payment. If the provisions of cl.15(b) are read in this way, it becomes apparent that the clause is designed to exclude from consideration employees who have reached pensionable retiring age at the relevant date. Such employees can be subjected to retrenchment or compulsory retirement, without attracting either a requirement of meaningful discussions under sub-cl.(b)(i), or the compensation provided for in sub-cl.(b)(ii). In my view, this is the meaning to be gathered from a reading of the provision as a whole. Some attempt was made by Mr. Moore to argue that cl.15(b) should be read ina manner consistent with cl.15C, and should therefore be construed as requiring the payment of compensation to an employee who has reached pensionable retiring age. There is no doubt that some anomaly results from the requirement to pay compensation to such an employee in the events described in c¢1.15A(a), but not in the events described in c1.15(a). The differences in language are obvious, however, and the fact that the two clauses have origins at different points in the history of the Award tends to support the view that different meanings are intended. Some discussion occurred in argument as to whether cl.15(b) of the Award could be construed by reference to its apparent purpose. An attempt to rely on the purpose runs into the difficulty of discerning the purpose of the provisions. If the purpose of the compensation contemplated by cl.15(b) is to assist a redundant employee in seeking to find another job, perhaps by aiding retraining or by providing living expenses while the employee searches for a job, then it is apparent that an employee who has reached pensionable retiring age will be unlikely to require such assistance. If, as Lord Denning M.R. said in Lloyd v. Brassey [1969] 1 All E.R. 382, at p. 383, the object of a redundancy payment is to compensate a person for the loss of a job, the compensation being in proportion to the length of service of the employee, then there is every reason why an employee who has reached pensionable retiring age should receive compensation. It is not apparent from the Award whether cl.15(b) is aimed at securing one or other or both of these purposes. As a consequence, it is unsafe to rely on any supposed purpose. It is no part of the function of the Court, in determining an application pursuant to s.110 of the Act, to determine the facts of any particular case. It is therefore unnecessary for me to determine whether any particular employee 10. has reached pensionable retiring age, and to construe that Phrase. It is also unnecessary to determine whether there may be any overlap between the events described in cl. 15(a), and those referred to in cl. 15A(a) of the Award. Where an applicant for an interpretation of an award fails to persuade the Court that the interpretation sought should be given, it is the practice of the Court nevertheless to declare the true construction of the award in appropriate terms. The Court will therefore make an order declaring that on the true construction of cl.15(b) of the Award, an employee who has reached pensionable retiring age in the circumstances described in cl.15(a) is not entitled to the compensation the subject of c1.15(b) (ii). Appearances applicant: Mr. M. Moore Instructing solicitors: Turner Freeman. respondent: Mr. J. Barnard Q.C. with Mrs. J. Bretherton Instructing solicitors: Freehill, Hollingdale & Page. I certify that this and the preceding nine (9) pages are a true copy of the Reasons for Judgment of the Honourable Justice Gray. Dated: 2S%h Fee cavy ase Associate: | nic » kg