Australasian Meat Industry Employees' Union v Coles Supermarkets Australia Pty Ltd [1998] FCA 908

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VG 433 of 1997

BETWEEN: AUSTRALASIAN MEAT INDUSTRY EMPLOYEES' UNION

Applicant

AND: COLES SUPERMARKETS AUSTRALIA PTY LTD

(aCn No. 004 189 708)

Respondent

JUDGE: northrop j

DATE: 30 july 1998

PLACE: MELBOURNE

REASONS FOR JUDGMENT On the second of March 1998 the Court made orders that the application herein be dismissed but made no further orders. The application was brought under s 178 of the Workplace Relations Act 1996, seeking the imposition of a penalty against an employer for not paying the appropriate amount of wage to an employee as determined by the relevant agreement between the organisation and the employer. It was apparent at the hearing, and the matter was discussed at some length, that the real issue between the parties was the construction of the agreement, and in particular, the meaning to be given to the appropriate phrases, "ordinary time earnings" and "ordinary time rate" in relation to the calculation of moneys to be paid to a person who worked on a Saturday which happened to be a public holiday. The organisation contended that the rate should be determined by the multiplication of one hour's ordinary rate by 1.75, and the 300 per cent penalty should have been determined on the sum of the first calculation. The Court rejected that argument. In the course of so doing the Court had to construe the relevant provisions of the agreement. It did this and set out its opinion as to the construction to be given to the relevant provisions of the agreement. It is also clear that here, once that issue had been determined, the amounts to be paid to a large number of employees who worked on that Saturday could be calculated pursuant to figures which should have been kept and are in existence. Having regard to the real nature of the issue between the parties, the Court decided not to impose a penalty, but to dismiss the application, and not make an order as to the payment of any amount to the particular person who was used as the employee, for the purposes of determining an amount to be paid. Following the orders being made, apparently, a question arose as to whether the respondent had been deprived of the opportunity of making submissions as to the interpretation which was then accepted by the Court, on the basis that the penalties were cumulative and not disjunctive in the sense that where a person worked on a Saturday and a public holiday the rate should be based on the 300 per cent only, and not on the 1.75 per cent calculation. In my opinion there is no basis for such an argument because the whole question of the construction of the relevant clause or clauses was in issue before the Court. In fact I am informed today that this matter was expressly referred to in the outline of arguments made by the respondent at the time, although I have no recollection of whether in fact submissions were made on it at the hearing. There is no doubt that this is a case where the judgment has not been entered. Under O 35 r 7(1), the Court has power to amend the orders made. The applicant has sought by motion for an amendment or variation to be made, directing the payment of an amount of some $67 to the named employee. This is based upon s 178(6) of the Workplace Relations Act. But in the circumstances the Court should not exercise this discretion to make such an order. It gave an interpretation. It expected the parties to either accept that interpretation or to appeal. No appeal has been filed. In those circumstances the Court sees no reason at all to depart from what it has done. It sees no reason at all to make the orders sought by the motion, but to leave the parties in the position of the interpretation given by the Court in its reasons for judgment. If the proceeding had been, as one would have expected, an application for an interpretation, the interpretation given would have been binding on the organisation and the employer with respect to all the employees who are bound by that agreement. That was not done, so the interpretation is not legally binding in that sense. But it should have been sufficient to resolve the disputes between the parties. Accordingly, the motion is refused. All I can say is, in the circumstances, I hope that the parties now comply with the interpretation so given. The only other alternative would be to commence other proceedings for the imposition of a penalty. In those circumstances the results are not certain. But there could be some fairly strong views expressed by the Court that heard such an application. I certify that this and the preceding two (2) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice R M Northrop