FEDERAL COURT OF AUSTRALIA INDUSTRIAL LAW - no question of principle STEVEN DEWEY v PHOENIX LACQUERS AND PAINTS PTY LIMITED NG 614 of 1998 MADGWICK J 15 OCTOBER 1998 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NG 614 OF 1998 BETWEEN: STEPHEN DEWEY Applicant AND: PHOENIX LACQUERS AND PAINTS PTY LIMITED Respondent JUDGE: MADGWICK J DATE OF ORDER: 15 OCTOBER 1998 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The matter be remitted to the Chief Industrial Magistrate for further consideration. 2. The applicant pay the respondent's costs. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NG 614 of 1998 BETWEEN: STEPHEN DEWEY Applicant AND: PHOENIX LACQUERS AND PAINTS PTY LIMITED Respondent JUDGE: MADGWICK J DATE: 15 OCTOBER 1998 PLACE: SYDNEY REASONS FOR JUDGMENT (revised from transcript) HIS HONOUR: This is a case stated by the learned Chief Industrial Magistrate. The question to be determined by this court is: "Does the holding by an employee of one of the qualifications set out in the classification of the Paint Laboratory Worker Grade 5 in the Australian Paint Industry Award 1992 of itself require an employer bound by the Award to pay the employee the rate of pay prescribed by the Award for that grade". The complainant employee contended, before the learned Magistrate, that the bare holding of the qualification would suffice. The respondent employer contended that the employee must also: be capable of fitting the description given in the second part of the definition of the Grade, and further; actually perform duties of the nature contemplated in the third part of the definition of that Grade. The matter proceeded on the agreed basis that the learned Magistrate would be asked in the first instance to determine whether the mere holding of the qualification would, as a matter of the proper interpretation of the clause, suffice. The learned Magistrate decided the matter in favour of the complainant. On appeal, the respondent employer maintains its position. However, the complainant employee, no doubt in the light of legal advice, now believes that the learned Magistrate's decision would not survive appeal and in substance agrees that the answer to the question stated for determination by the court should be "no". Unfortunately, it appears that the learned Magistrate was led into error. From what has been put to me it seems clear that counsel's common approach to the matter is correct and that in order to be paid at the rate prescribed by the Award for a Grade 5 worker, an employee must both possess the relevant qualification and perform work having the attributes further set out in the clause. This finding will not prevent the complainant, or any other worker, from pursuing a claim for payment if qualified. Such a claim would then depend on an analysis of the duties actually performed by the worker. It is the intention of the parties that further evidence will be called before the Magistrate. I answer the question submitted for the determination of the court "no" and remit the matter to the learned Magistrate for further consideration. I certify that this and the preceding page are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick. Associate: Dated: 15 October 1998 Counsel for the Applicant: J Nolan Solicitor for the Applicant: Steve Masselos & Co Counsel for the Respondent: P Newall Solicitor for the Respondent: Employers' Federation of NSW Date of Hearing: 15 October 1998 Date of Judgment: 15 October 1998