Spastic Society of Victoria Ltd v Ardelle [2001] FCA 1457

FEDERAL COURT OF AUSTRALIA

Spastic Society of Victoria Ltd v Ardelle [2001] FCA 1457 INDUSTRIAL LAW – award – rates of pay – construction – ambiguity – new argument on appeal SPASTIC SOCIETY OF VICTORIA LTD v KIMRAY ARDELLE and GERELDINE ARDELLE V 223 of 2001 WILCOX, von DOUSSA AND FINKELSTEIN JJ MELBOURNE 18 OCTOBER 2001

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V 223 of 2001

On appeal from a single judge of the Federal Court of Australia

BETWEEN: SPASTIC SOCIETY OF VICTORIA LTD

Appellant

AND: KIMRAY ARDELLE and GERELDINE ARDELLE

Respondents

JUDGES: WILCOX, von DOUSSA & FINKELSTEIN JJ

DATE OF ORDER: 18 OCTOBER 2001

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT: 1. The appeal be allowed. 2. The orders made below be set aside. 3. The originating application 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

VICTORIA DISTRICT REGISTRY V 223 of 2001

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: SPASTIC SOCIETY OF VICTORIA LTD

APPELLANT

AND: KIMRAY ARDELLE and GERELDINE ARDELLE

RESPONDENTS

JUDGES: WILCOX, von DOUSSA & FINKELSTEIN JJ

DATE: 18 OCTOBER 2001

PLACE: MELBOURNE

REASONS FOR JUDGMENT

WILCOX J: 1 I have had the advantage of reading in draft form the reasons for judgment of von Doussa J and Finkelstein J. 2 It is unfortunate that there should be room for a difference of opinion between my two colleagues (and even between Finkelstein J, who would dismiss the appeal, and the primary judge) in relation to a matter so prosaic as the correct method of calculating employees' wages entitlements under an industrial award. Provisions such as these are intended to be understood and applied in the workplace by non-lawyers. They ought to be drafted in clear terms. I agree with the comments made by Finkelstein J in the opening paragraph of his reasons. 3 I have come to share the view of von Doussa J that the appeal must be allowed, and for the reasons he gives. Analysis of the entirety of cl 2 of the State Award seems to negate the view that the final sentence of sub-para (f)(xiv ) imposes an obligation to increase by two-sevenths the wage rate stipulated in cl 2(a) and 2(b) for seven day 24 hour employees. I agree with von Doussa J that the subject of compensation for the sixth and seventh days is intended to be covered by cl 6(a). 4 It is true, as Finkelstein J points out, that the compensation provided by cl 6 is not at a time and a half rate, as is the case for 8 hour employees. However, as von Doussa J observes, 24 hour employees enjoy higher wage rates than 8 hour employees. The difference may well be ascribable, at least in part, to the difference in compensation for additional hours worked. Moreover, such is the nature of their employment that it seems likely many 24 hour employees will live in the same premises as their charges and have board and lodging supplied by the employer. Having regard to these considerations, there is not such a clear anomaly, as between 24 hour employees and 8 hour employees, as to justify departure from the natural meaning of cl 2. 5 I agree with the orders proposed by von Doussa J. I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox.