Spalding v Can't Tear 'Em Pty Ltd [1999] FCA 438

FEDERAL COURT OF AUSTRALIA

Spalding v Can't Tear 'Em Pty Ltd [1999] FCA 438 INDUSTRIAL LAW - construction of awards - meaning of employment within a nominated industry - required connexion between that industry, and the activities of employer and employee - classification of employment activities. Workplace Relations Act 1996 (Cth) ss 179, 422 Workplace Relations Act 1997 (Qld) The Queen v Coldham; ex parte Australian Social Welfare Union (1983) 153 CLR 297 considered Michael Hennessy v Coral Princess Cruises (unreported, Williams J Industrial Court of Queensland, 25 August 1998) applied

ANGELITA SPALDING v CAN'T TEAR 'EM PTY LTD

QG 96 OF 1998

KIEFEL J

BRISBANE

14 APRIL 1999

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY QG 96 OF 1998

ON APPEAL FROM A DECISION OF AN INDUSTRIAL MAGISTRATE

BETWEEN: ANGELITA SPALDING

Appellant

AND: CAN'T TEAR 'EM PTY LTD

Respondent

JUDGE: KIEFEL J

DATE OF ORDER: 14 APRIL 1999

WHERE MADE: BRISBANE

THE COURT ORDERS THAT: 1. The appeal be dismissed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY QG 96 OF 1998

ON APPEAL FROM A DECISION OF AN INDUSTRIAL MAGISTRATE

BETWEEN: ANGELITA SPALDING

Appellant

AND: CAN'T TEAR 'EM PTY LTD

Respondent

JUDGE: KIEFEL J

DATE: 14 APRIL 1999

PLACE: BRISBANE

REASONS FOR JUDGMENT 1 This is an appeal from the decision of the Industrial Magistrates' Court of Queensland in proceedings brought by Ms Spalding for recovery of monies representing unpaid sick leave and monies due by way of severance payment against her former employer Can't Tear 'Em Pty Ltd. Those proceedings were brought pursuant to s 179 Workplace Relations Act 1996 (Cth). 2 The Industrial Magistrate also heard proceedings brought pursuant to the Workplace Relations Act 1997(Qld) for monies due by way of long service leave, but s 422 Workplace Relations Act 1996 (Cth), which provides for the appeal to this Court, does not extend to such a proceeding and that part of the appeal which concerned that application was abandoned during the course of the hearing. 3 The question which arises on this appeal is whether the Clothing Trades Award 1982 ("the Award") applied to the appellant. If it did, the provisions relating to leave and redundancy pay in the Yakka Pty Ltd Redundancy Agreement of December 1994, upon which the claims are based, would come into effect. The Industrial Magistrate concluded that it did not, when regard was had to the nature of the work undertaken by the appellant in her employment. 4 Of critical importance in this matter is clause 5 of the Award, which establishes the scope of award coverage in terms: "(a) This award shall be binding upon the employees named in Schedules "A" and "B" hereto, and upon members of the organisations of employers named in Schedule "C" hereto in respect of each and every person employed by them in the clothing industry whether members of The Clothing & Allied Trades Union of Australia or not and upon the said union and members thereof." (Emphasis is added). 5 Can't Tear 'Em Pty Ltd is subject to the Award as an employer specified in Schedule "A". So far as the appellant is concerned, the award is intended to apply to employees in the clothing industry. Here, employment by Can't Tear 'Em Pty Ltd was not disputed. It was submitted that that sufficed for the award to apply to her. 6 Counsel for the appellant submitted that it could be gleaned from the phrase emphasised above that employment conditions were to depend upon the general business or undertaking of an employer. They were not to be dependant upon the character of the work in which individual workers may be engaged. This was so regardless of the degree to which an employees' duties related to the predominant concerns of the clothing industry, which I consider would generally be understood as including activities such as that performed by machinists and cutters and the like in the production of garments. 7 Reliance was placed, in support of this contention, upon The Queen v Coldham; ex parte Australian Social Welfare Union (1983) 153 CLR 297, 315-6 where the High Court was concerned with industrial disputes which arose in relation to employment in an industry. "Industry" was defined by the statute to include either that of the employer, by reference to its business or undertaking; or that of the employee by reference to his/her occupation or vocation. The Court was concerned with the connexion between the employer and employee "in any industry" and held that that would be satisfied where the employer is in an industry in the nature of an undertaking and employed the employee in it; or, in connexion with the employees' vocation or occupation, that it was employed as such by the employer. 8 The Court was there concerned with questions of construction of definitions in the context of disputes between employer and employee. That was the connexion under consideration. It is difficult to see what principle the appellant seeks to derive from it. It does not stand for some general principle of construction of awards such as that here in question. The approach seemingly undertaken by the appellant was to identify the "clothing industry" referred to in clause 5 as being an employer-related activity and from there to deduce from The Queen v Coldham that any employment by that employer qualified as that in the identified industry. The case does not furnish such a guide and the approach outlined is erroneous. The question to be addressed is what is meant by the general reference to employment within the nominated industry, given the terms of an award which deals with conditions of employees undertaking particular tasks. 9 The proper approach to the construction of awards, like contracts or statutes, is to construe an expression in the context of the whole document. It is by that process that the general incidence clause here, and its reference to the clothing industry, is to be understood. 10 The award itself is concerned with wage levels for particular classes of employees. Rates of pay are made specific to the skill classification of employees. The workers listed in clause 7 are those who must be engaged in the day to day manufacture of clothing on the factory floor. The first four levels of skill relate to operations undertaken by machinists in the production of clothing; with rewards being proportionate to the employees' competency. Some supervisory duties are mentioned, where however practical expertise is to be shared amongst fellow employees. It is not possible by reference to these provisions to discern what was thought to be the appropriate wage to be paid to a person, such as the appellant, who was regarded variously as a "factory manager" or a "product development manager". 11 It was submitted that wage band 5 might accommodate someone in the position of the applicant, absent specification in it of the skills to which it referred. The wage band could in my view only be said to apply if the award was otherwise seen to have a connexion to her work, which is the question under consideration. There is nothing to suggest a correlation with what she might be paid and what those in bands 1-4 might receive nor, as I have said, to the skills otherwise referred to in the award. There is no warrant for the view that wage band 5 was to refer to any other employee who had a connexion with the clothing industry quite different from those whose skills are otherwise referred to in the award. 12 It is obvious that employees working within a single industry do not necessarily share the same connexion with that industry, a connexion which would necessitate the same benchmark for pay and other employment conditions. Employees such as personnel managers, clerical staff and transport operators may be critical to the business operating within the clothing industry, but it does not necessarily follow that their work is to be regulated by the same award terms as production staff. 13 The approach I have taken I consider accords with the decision of Williams J in the Industrial Court of Queensland in Michael Hennessy v Coral Princess Cruises (25 August 1998) which dealt with the Recreational Divers' Industry Award 1989. His Honour was not prepared to read a general incidence clause in its literal sense, so as to extend coverage to persons whose occupations had no proper connexion with the activities referred to in the award. Where the award was silent as to the wages due to a particular class of employee, his Honour read the award restrictively as not covering the working conditions of those individuals. 14 The Industrial Magistrates' decision had regard to the nature of the tasks undertaken by the appellant and the description of her occupation which encompassed them. The calling of a particular employee is a question of fact and is appropriately ascertained by asking what is the substantial or predominate purpose for which that individual is engaged, particularly where diverse duties are involved: see Michael Hennessy v Coral Princess Cruises and the case therein cited. Here, the findings of the Magistrate accorded with such an approach. It was not suggested that he was in error as to the particular tasks to which they referred. It was sought, at one point in submissions, to refer to the facts relating to particular duties in an endeavour to show that the appellant, at least in that connexion, was closer to the factory floor. As the Stipendiary Magistrate found, however she occupied a fundamentally different position from factory personnel engaged in the production of clothing since she was engaged principally in the management and supervision of the productive labour force. 15 The appeal will be dismissed. I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kiefel.