JUDGMENT No. ZQhr. Tnnld Banned CATCHWORDS INDUSTRIAL LAW - interpretation of award - rates of pay ~ repugnancy between general provision and that dealing with a particular subject - construction of penal provision Conciliation and Arbitration Act 1904 s. 110 Refrigeration Express Lines (A/asia) Pty. Ltd. v Australian Meat and Live-stock Corporation & Ors. (No. 2) (1980) 44 FLR Scott v Cawsey (1907) 5 CLR 132 METRO MEAT LTD. v AUSTRALASIAN MEAT INDUSTRY EMPLOYEES UNION NO. SA 3 OF 1987 MELBOURNE KEELY J. 21 JULY, 1988 GENERAL DISTRIBUTION NOT REQUIRED " IN THE FEDERAL COURT OF AUSTRALIA ) ) SOUTH AUSTRALIA DISTRICT REGISTRY )} No. SA 3 of 1987 ) INDUSTRIAL DIVISION ) BETWEEN METRO MEAT LTD. Applicant AND AUSTRALASIAN MEAT INDUSTRY EMPLOYEES UNION Respondent 21 JULY, 1988 KEELY J. REASONS FOR JUDGMENT This is an application by Metro Meat Ltd. ("the applicant") under s. 110 of the Concilzation and Arbitration Act 1904 ("the Act") for an interpretation of The South Australian Meatworks Industrial Agreement-Award, 1982 ("the Award"). Paragraphs 1, 3 and 5 of the application relate to the questions of payment for public holidays, annual leave and sick leave respectively. Paragraphs 2, 4 and 6, which relate to orders sought in the alternative to those sought in paragraphs 1, 3 and 5 respectively, may be put to one side. Mr. Bleby, of Queens Counsel, and Miss A. Harrison, of counsel, appeared for the applicant, which 1s incorporated in the State of South Austral1a. The Australasian Meat Industry Employees Union ("the Union") was represented by Mr. F. L. Wright, of counsel. The applicant is a person bound by the Award. Mr. Teasdale, its State Personnel Manager, stated that it operates, by means of 3 "divisions", at the 3 different locations referred to in the Award. In an affidavit Mr. Teasdale stated that the application concerned mutton slaughtermen employed as pieceworkers at the Murray Bridge Division where the applicant employed 450 "regular daily hired" employees, of whom 43 were classified as mutton slaughtermen. His affidavit included the following statements:- "6. ... When achieving the maximum head tally on an ordinary working day a mutton Slaughterman's wage for, the day will contain a number of components. Firstly his ordinary rate of pay, will be included, secondly certain penalty rates for handling overweight mutton, thirdly payments 9 on account of waiting time, fourthly penalties for handling diseased stock and fifthly penalties for the handling and slaughtering of rams. The amount which attaches to each of these component parts of the daily rate is calculated in accordance with the Award. 8. When a mutton slaughterman is entitled to take paid leave of absence on account of annual leave each of the payments that form the component parts in the daily pay as referred to in paragraph 6 are used for the purposes of calculating his ordinary rate which then forms the basis of calculating payment for annual leave." It is convenient to refer first to the application in respect of annual leave. Under paragraph 3 the applicant contended that the Award provisions, on their proper construction, only require it to pay to its mutton slaughtermen, when on annual leave, the amounts referred to in clause 14 of the Award, namely, "4/48 of total ordinary pay as defined [in clause 41 of the Award] ... plus a loading of 17-1/2%". It will be seen that the interpretation for which the applicant contended did not accord with its existing practice (paragraph 8 of Mr. Teasdale's affidavit); the application expressly stated that it sought that interpretation "notwithstanding the provisions of sub-clause (g) of Clause 34 Division B of the Award". Clause 14 of the Award included the following Provision: s "14 - Annual Leave Payment of Wages and Loading (j) (i) Payment for annual leave, ... shall be on the basis of four forty-~eighths (4748) of total ordinary pay as defined earned during the period of continuous service ... plus a loading of tt 17-1/2 per centum or ... Clause 41 of the Award included the following provisions: "41 - Definitions In this agreement-award in relation to an employee - (a) "Ordinary pay" or "ordinary rate" (for the purpose of other than annual leave) shall mean an employee's pay or rate of pay Prescribed by this agreement-award for the Classification in which he or she is employed for time-work performed in the ordinary hours of work prescribed by this agreement—award, and in the case of piece-workers all tally completed up to and including maximum tally and shall not include any payment in respect of overtime, any additional payment in respect of shift work or any allowance (other than leading hand allowance and the allowance for knives and tools of trade) or any penalty or any other additional payments. For the purpose of calculating the payment which a piece-worker or member of a piecework team is entitled to receive for sick leave or Award holidays: (i) any amount paid for all tally completed on any working day during ordinary hours of work, up to maximum tally, and a (ii) any amount paid in respect of Waiting Time payments in lieu of tally up to maximum tally on an ordinary working day during ordinary hours of work, shall be deemed to be ordinary pay. "Ordinary pay" or "ordinary rate" (for the purpose of annual leave) in relation to any employee shall mean the employee's pay or rate of pay prescribed by this agreement-award for the classification in which he or she is employed for work performed in the ordinary hours of work prescribed by this agreement-award, and shall include any additional payment in respect of shift work, and any other rate to which the employee is entitled in leave, accordance with his or her contract of employment for ordinary hours of work; provided that this provision shall not operate so as to include any payment which is of a similar nature to or is paid for the same reasons as or is paid in lieu of those payments prescribed by clause 11 - MEAL INTERVALS, clause 12 - OVERTIME, clause 17 - TRAVELLING EXPENSES of this agreement-award, nor any payment which might become payable to the employee as reimbursement for expenses incurred. For the purpose of calculating the payment which a piece-worker or member of a piecework team is entitled to receive for annual leave, there shall be included in addition to other payments prescribed by this clause - (i) any amount paid for tally up to and including maximum tally, and in the case of slaughtermen forming part of the piecework dressing—and- killing team any amount paid for penalties (i.e. overweight cattle, calves or bulls) incurred during the achievement of maximum tally based on the number of cattle or calves (i.e., head tally); and (ii) any amount paid in respect of Waiting Time payments made in lieu of tally up to maximum tally on an ordinary working day'during ordinary hours of work. They shall be deemed to be part of his ordinary pay." Turning from annual leave to public holidays and sick the general subject of payment is dealt with in sub-clauses 13(d) and 16(f£) respectively, which follows:- "13 - Public Holidays (a) Payment for Award holidays shall be on the basis of an average of the ordinary read as rate as defined in this agreement-award received for the days actually worked during the previous pay period immediately preceding the holiday. A Regular Daily Employee shall be paid the average of the ordinary pay or ordinary rate, as defined, earned by him or her during the preceding five working days on which he or she was required to attend and offer himself or herself for employment and did not fail to accept work if offered, or the ordinary rate per day for the classification in which he or she was employed, whichever is the greater ... 16 - Sick Leave (£)} Payment for sick leave shall be on the basis of an average of the ordinary pay received for the ordinary days actually worked during the pay period immediately preceding the absence on sick leave for each day or shift, being an ordinary working day or shift, on which he or she would have been required by or in accordance with this agreement-award to attend or offer for employment, on which he or she is absent on sick leave ..." Under paragraphs 1 and 5 of its application, the applicant contended that the Award provisions, on their proper construction, only require it to pay to its mutton slaughtermen in respect of public holidays, and when they are absent on sick leave, the amounts prescribed in clause 13 and clause 16 of the Award, respectively, read in the light of the definitions of "ordinary rate" and "ordinary pay" in clause 41. In each case the interpretation order proposed was stated to be "notwithstanding the provisions of sub-clause (g)} of Clause 34 Division B of the Award".It contended that the "ordinary rate" and "ordinary pay", referred to in sub-clauses 13(d) and 16(f), is that defined by the first part of sub-clause 41(a) of the Award which refers to "'ordinary pay' or 'ordinary rate' (for the purpose of other than annual leave)". Clause 34 of the Award included the following provision: "Division B —- Sheep Slaughtering on Rail Payment to Members of a Piece-work Team (vil) .... (g) For the purpose of calculating the payment which a member of a piecework team is entitled to receive in respect of Award holidays, annual leave and sick leave, any amount paid for tally up to and including maximum tally, and Waiting Time payments made in lieu of tally up to maximum tally, and in the case of slaughtermen forming part of the piecework dressing~and-killing team any amount paid for penalties (i.e., overweights) incurred during the achievement of maximum tally based on the number of stock (i.e., head tally) shall be deemed to be part of his or her ordinary pay." Mr. Wright, on behalf of the Union, relied on that sub-clause and contended that payment for public holidays, annual leave and sick leave is to be calculated on the basis of payments up to and including maximum tally, waiting time payments and penalty payments - including those for ever-weights and those prescribed by clause 34 Division B (ix)(a) of the Award. It may be observed that the word "overweights", appearing in sub-clause (g) above, was inserted in the Award on 11 September 1985 by Mr. Commissioner Sheather in place of the words "overweight cattle and bulls", which had appeared in sub-clause (g) when the Award was first made by consent. The principles applicable to this application for interpretation are clear. As Isaacs and Rich JJ. said in The Metropolitan Gas Company v The Federated Gas Employees' Industrial Union & Anor. (1925) 35 CLR 449 at 455:- "It is a received canon of interpretation that every passage in a document must be read, not as if it were entirely divorced from its context, but as part of the whole instrument: Ex antecedentibus et consequentibus Eit optima 1 interpretatio. In construing an instrument "every part of it should be a yrought into action, in order to collect from the whole one uniform and consistent sense, if that may be done; or, in other words, the construction must be made upon the entire instrument, and not merely upon disjointed parts of it; the whole context must be considered, in endeavouring to collect the intention of the parties, although the immediate object of inquiry be the meaning of an isolated clause" (Broom's Legal Maxims, 9th ed., pp. 367-368, and cases there cited; and per Lord Haldane L.C. in Toronto Suburban Railway v Toronto Corporation (1915) A.C. 590, at >. 597." Applying that principle to the Award, it will be seen that clause 34, "Division B - Sheep slaughtering on rail" is a provision dealing with a particular subject matter, namely, the members of a piecework team, including payments to them (sub-clause (vii)). The clauses preceding clause 34 are general provisions, which deal with matters affecting employees generally. Illustrations of the general provisions are preference of employment (clause 5), wage rates (clause 6), hours of work (clause 10), and overtime (clause 12). Similarly, in my opinion, clauses 13, 14, 16 and 41, which are the clauses particularly relied upon by the applicant, are general provisions affecting employees generally, as will be seen from an examination of the terms of those clauses. Clause 13 is a provision dealing with the conditions of employees generally, in that sub-clause (a) confers, upon employees generally, an entitlement to certain public holidays; sub-clause (d) contains a general provision as to the basis of payment for public holidays. Clause 14 is a provision deqgling with the conditions of employees generally, in that sub-clause (b) confers an entitlement to annual leave with pay upon "an employee employed under this agreement-award, other than a casual employee ..." i.e. it confers upon employees generally (with the exception of casual employees) an entitlement to annual leave; sub-clause (j)(i) contains a general provision as to the basis of payment to employees for annual leave. Similarly, clause 16 deals with the conditions of employees generally, in that sub-clause (a) confers upon an 10. "employee other than a casual employee" an entitlement "to leave of absence without deduction of pay, subject to [certain] conditions and limitations ..."; sub-clause (f) contains a general provision as to the basis of payment for sick leave. As Deane J. said in Refrigerated Express Lines (A/asia) Pty. Ltd. v Australian Meat and Live-Stock Corporation & Others (No. 2) (1980) 44 FLR 455 at 468-469:- "As a matter of general construction, where there is repugnancy between the general provision of a statute and provisions dealing with a particular subject matter, the latter must prevail and, to the extent of any such repugnancy, the general provisions will be inapplicable to the subject matter of the special provisions. "The rule is, that wherever there is a particular enactment and a general enactment in the same statute, and the latter, taken in its most comprehensive sense, would overrule the former, the Particular enactment must be taken to be operative ..." (per Romilly M.R. in Prett v Solly (1859) 26 Beav. 606, at p. 610; 54 3 E.R. 1032, at p. 1034). Repugnancy can be present in cases where there is no direct contradiction between the relevant legislative provisions. It 1s present where it appears, as a matter of construction, that special provisions were intended exhaustively to govern their particular subject matter and where general provisions, if held to be applicable to the particular subject matter, would constitute a departure from that intention by encroaching on that subject matter." In my opinion, after considering the Award as a whole, the provisions of clause 34 Division B, sub-clause (vii) are 11. intended to be given full force and effect on the subject of "Payment to Members of a Piece-work Team" -— which 1s the heading to that sub-clause. Sub-clause (vii)(g) in my opinion must prevail over the general provisions contained in clauses 13, 14 and 16 of the Award, notwithstanding the specific words, relied upon by Mr. Bleby, in the definition of "ordinary pay" and of "ordinary rate" appearing in sub-clause 41(a) of the Award. Applying the words of Deane J. in the Refrigerated Express case (supra, at 469), in my opinion it would constitute a departure from the intention shown by clause 34 Division B (vii)(g) if the general provisions in clauses 13, 14 and 16 of the Award, read in the light of clause 41, were held to be applicable to the employees who are members of a pilece-work team within the meaning of clause 34 Division B. I am unable to uphold Mr. Bleby's submission that clause 41, read in conjunction with clauses 13, 14 and 16, represents a "code" in the sense used by Deane J. in that case. Nor his suggestiqn, in final address in speaking of modifying words so as to avoid repugnancy, that repugnancy should be avoided by ignoring - rather than modifying - clause 34 Division B (vii)(g). I am also not prepared to uphold his submission that clause 41 should prevail over clause 34 Division B (vii)(g) by reason of the fact that clause 41 appears in the Award after that clause - although inserted at the same time. 12. In reaching my conclusions I have not overlooked the applicant's reliance upon the principle that a penal provision should receive a strict construction, nor its citation of the reasons for judgment of Drake-Brockman CJ. and Kelly J. in the Ship Painters and Dockers case (1947) 59 CAR 1211 at 1212. However, as Isaacs J. said, in Scott v Cawsey (1907) 5 CLR 132 at 154: "When it is said that penal Acts or fiscal Acts should receive a strict construction I apprehend it amounts to nothing more than this. Where Parliament has in the public interest thought fit in the one case to restrain private action to a limited extent and to penalise a contravention of its directions, and in the other to extract from individuals certain contributions to the general revenue, a Court should be specially careful, in view of the consequences on both sides, to ascertain and enforce the actual commands of the legislature, not weakening them in favour of private persons to the detriment of the public welfare, nor enlarging them as against the individuals towards whom they are directed." In Beckwith v The Queen (1976) 135 CLR 569 at 576, Gibbs J. stated that the principle that statutes creating offences are to be strictly construed "has lost much of its importance in modern times". On the other hand, the courts "will not extend a statute to cover a particular situation merely because it appears that the legislature has acted inadvertently" (Pearce's Statutory Interpretation in Australia (second edition) at paragraph 191). 13. For the above reasons, I refuse to make the orders of interpretation sought in paragraphs 1, 3 and 5 of the application. At the conclusion of the hearing the parties both asked that the court should not make any order at the time of delivering reasons for judgment. They were agreed that the successful party should prepare short minutes of a proposed order and furnish them to the other party in the hope that the parties might be able to reach agreement as to the terms of the order to be submitted to the court. If that hope is not realized either party may apply for the matter to be re-listed; an alternative, which the parties should consider with a view to avoiding the expense of a further hearing, is that the form of the order be dealt with by written submissions, exchanged between the parties and then forwarded to the Registrar for consideration by the court before any order is made. It is scarcely necessary to add that nothing in these reasons for judgment is .intended to affect in any way the right of any party to apply to the Australian Conciliation and Arbitration Commission for a variation of the Award, for any purpose, including that of clarifying its terms. I certify that this and the preceding twelve pages are a true copy of the Reasons for Judgment herein of his Honour Mr. Justice Keely delivered on 21 July, 1988. Associate: PS COinn anh 14. Dates of Hearing 15, 16 & 17 February, 1988 Baker McEwin Solicitors for applicant Mr. D. Bleby, Q.C. and Miss Counsel for applicant A. Harrison Maurice May & Co. Solicitors for respondent Mr. F. L. Wright Counsel for respondent Judgment Delivered 21 July, 1988