C.F.M.E.U. v Botany Cranes Forklift Services Pty Ltd [1997] IRCA 169

DECISION NO:169/97 IN THE industrial relations COURT OF AUSTRALIA

ACT DISTRICT REGISTRY AI 1121 & 1122 of 1995

BETWEEN: CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION

Applicant

AND: BOTANY CRANES & fORKLIFT SERVICES PTY LTD t/as Canberra Cranes and Forklift Services

Respondent

JUDGE: Moore J

DATE: 3 September 1997

PLACE: sydney

CORRIGENDUM The following amendment is to be made to the judgment of Moore J date 23 May 1997: Page 17, last line - replace the words "do not" with "does not". Associate

Dated

DECISION NO:169/97 CATCHWORDS INDUSTRIAL LAW - AWARD - Breach of award terms - severance payments - Whether employer bound by Award - which of two awards apply to employees - definition of "construction work" - whether employees engaged on construction work Industrial Relations Act 1988 s 178 Seat of Government (Administraton) Act 1910 (Cth) Roundstreet Pty Ltd v Brown (1987) 14 FCR 50 Devane v Gati (1956) 95 CLR 174 Nicol v Parr (1985) 11 IR 141 Clothing and Allied Trades Union of Australia v J & J Saggio Clothing Manufacturers Pty Ltd (1990) 34 IR 26 O'Toole v Charles David Pty Ltd (1991) 171 CLR 232 Australian Builders Labourers' Federation v Anderson (1926) 23 CAR 301 R v Marks; Ex parte Australian Building Construction Employees and Builders Labourers' Federation (1981) 174 CLR 471 WA Timber Workers' Industrial Union of Workers (South West Land Division) v WA Sawmiller's Association (1929) 43 CLR 185 No. AI 1121 & 1122 of 1995 C.F.M.E.U. -v- BOTANY CRANES & FORKLIFT SERVICES PTY LTD t/as CANBERRA CRANES AND FORKLIFT SERVICES MOORE J CANBERRA 23 MAY 1997 IN THE INDUSTRIAL RELATIONS ) ) COURT OF AUSTRALIA )No. AI 1121 & 1122 of 1995 ) ACT DISTRICT REGISTRY ) BETWEEN: CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION Applicant AND: BOTANY CRANES & FORKLIFT SERVICES PTY LTD t/as Canberra Cranes and Forklift Service Respondent JUDGE: Moore J PLACE: Canberra DATE: 23 May 1997 ORDER OF THE COURT THE COURT ORDERS THAT: 1. The applicant is to file and serve short minutes of order giving effect to these reasons for judgment within 14 days of their publication. NOTE: Settlement and entry of orders is dealt with in Order 36 of the Industrial Relations Court Rules. IN THE INDUSTRIAL RELATIONS ) ) COURT OF AUSTRALIA )No. AI 1121 & 1122 of 1995 ) ACT DISTRICT REGISTRY ) BETWEEN: CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION Applicant AND: BOTANY CRANES & FORKLIFT SERVICES PTY LTD t/as Canberra Cranes and Forklift Services Respondent JUDGE: Moore J PLACE: Canberra DATE: 23 May 1997 REASONS FOR JUDGMENT Introduction These are proceedings brought by the Construction, Forestry, Mining and Energy Union ("the Union") under s 178 of the Industrial Relations Act 1988 ("the Act") against Botany Cranes & Forklift Services Pty Ltd ("the Company"). The Union alleges that the Company breached the Mobile Crane Hiring Award 1988 ("the Mobile Crane Award") by failing to pay a number of its former employees severance payments under that award. The proceedings raise an issue of principle and it has been agreed that I should consider and determine that issue as it concerns two former employees, Mr Dennis Casey and Mr Brian Donoghue. That issue is whether the Mobile Crane Award applied to their employment or whether it was regulated by the Building and Construction Industry (ACT) Award 1991 ("the Building Award"). It was part of the agreement that I would proceed to determine this issue and, having done so, the Union and the Company would resolve what amounts, if any, should be paid to both Mr Casey and Mr Donoghue and other employees in respect of whom applications have been made. These proceedings may also resolve an application for a review of a decision of a Judicial Registrar. Having regard to the submissions of the Union and the Company, the issue of which award applies depends on the resolution of three subsidiary issues. The first is whether the Company is bound by the Mobile Crane Award having regard to evidence relating to service of a log of claims on the Company, the rejection of which apparently provided the jurisdictional foundation for the making of an award (by way of a roping in award) binding the company and obliging it to comply with the Mobile Crane Award. The second is whether Mr Casey and Mr Donoghue were engaged on construction work which, for relevant purposes, defined the scope of the Building Award. The third is if both awards might apply to the employment of Mr Casey and Mr Donoghue having regard to their terms, whether one award was intended to apply to their employment to the exclusion of the other. There was evidence given which, having regard to the final submissions of the parties, had no relevance to the matters in issue. A significant portion of the evidence was directed to events in 1990 in which, it was contended, both the Company agreed to be bound by an agreement concerning redundancy reached with the Mobile Crane Hirers Association of New South Wales and employees of the Company later agreed to be paid under the Building Award. None of this evidence is, in my opinion, relevant as an award operates having regard to its terms and relevant provisions of the Act. Its operation in a particular case cannot be dependent upon agreement nor can a party bound by an award reach an agreement with employees entitled to a benefit under an award which nullifies the effect of the award. I will confine my consideration to the evidence which is relevant. The Evidence Evidence was given by both Mr Casey and Mr Donoghue as to the work they did. Mr Casey first worked for the Company in 1984 for a period of eight months and in 1986 recommenced employment which terminated in March 1995. After recommencing employment in March 1986 he operated a cherry picker and a tractor crane for twelve months, and thereafter operated a range of mobile cranes. For the last five years of his employment with the Company he operated a Todano 50 tonne crane. He gave evidence about a range of work he did. It included: righting trucks that had rolled over; installing and removing transformers and large light pole for ACT Electricity and Water; removing air conditioning units from the roofs of buildings; loading and unloading structural steel at building sites; work at the airport including replacing parts of aircraft and, in one instance, lifting a plane that had landed without its wheels down; placing radar equipment; placing pre-formed concrete bridge components in place, unloading large animals at a zoo, placing pre-cast tombs in a cemetery and related work; placing seating in a football stadium; installing night lights at sporting grounds and lifting work at the Molonglo Sewerage Treatment Works. This evidence-in-chief was led to establish the diversity of the work done by Mr Casey. In cross-examination Mr Casey said the accident recovery work might be done once a fortnight and that some of the tasks such as lifting animals and aircraft were one-off. The work at the crematorium occurred on three or four occasions between 1986 and March 1995. In re-examination he said the mix of work done which involved construction work varied and the extent to which that work was done depended on the state of the building industry. He also indicated that he did a lot more work before 1990 than after that time. Mr Donoghue gave evidence that he was employed by the Company from May 1984 until 23 March 1995. He was employed as a dogman and mainly worked on 50 tonne cranes and more recently as a dogman on the 50 tonne Todano crane. Like Mr Casey he gave evidence about a range of work that he undertook. He repeated much of what Mr Casey said about the work. He also referred to installing a crane at a breakwater at Eden, unloading pipes for a natural gas line, unloading gear and hooking up a high wire for a motor cyclist trick ride at the Royal Canberra Show, working at quarries in the repair or upgrading of plant, relocating houses, the installation of mobile communication towers for Telecom and Optus, unloading demountable school rooms, lifting railway carriages and site sheds at the railways, and lifting boats. He estimated that for the entire period he was employed with the company forty percent of the work he did was in the building and construction industry though the work in the building and construction industry was between twenty and thirty percent of the work he performed in the last two years of his employment. He also indicated that approximately twenty-five percent of the work he did was outside the Australian Capital Territory. In his oral testimony Mr Donoghue was asked questions about his understanding of the expression "building and construction". While his answers were not entirely clear, it would seem he had in mind the construction of multi-storey buildings and schools as well as bridge construction. As a result of his cross-examination, what he meant by the expression "building and construction" was less clear. "Building" appeared to include building bridges while placing a beam in a house might be thought to be a construction job. Further questions from counsel for the Union led him to say that replacing a cooling tower on a building was not a construction job though it was work that he had undertaken and had done so possibly ten times. Mr Steven King was called by the Union. His evidence concerned matters that were not in issue and, as I discussed earlier, was not relevant evidence. Evidence was given on behalf of the Company by Mr Frank Gillingham.He is director, industrial relations, of the Master Builders Construction and Housing Association of the Australian Capital Territory ("MBA (ACT)"). During the period 1989 to 1995, when the Company traded within the Territory as Canberra Cranes, Mr Gillingham acted as its industrial representative in a number of industrial matters including industrial disputes. The operations it engaged in were principally, but not exclusively, within the Territory. He gave evidence to the effect that over a ten year period he observed the Company operating on building and construction sites and, as he put it, it was operating "day-to-day". He said they operated cranes of 20 tonnes capacity, 20-40 tonnes capacity and 40-80 tonnes capacity and, at one stage, a mobile hydraulic platform. He said he had not located any document that would indicate "Canberra Cranes" was served with process for the purpose of making it a respondent to the Mobile Crane Award. He said that, to his knowledge, at no time was the Company served with such a document. In cross-examination he appeared to accept that the position was that he was never contacted about such a matter and would not know whether it had been served unless he had been told. Mr Owen Bourke gave evidence. He is a director of the Company. He said that during the period 1989 to 1985, when the Company traded in the Australian Capital Territory under the business name "Canberra Crane(s)", its workers were substantially involved with the "Building Industry" in that the majority of its work was involved with or related to building and/or construction work. He asserted that at no time was the Company "served with proceedings for the purpose of making it a respondent to the Mobile Crane Award." In supplementary oral evidence he said Canberra Cranes work was mainly in the building and construction industry and he instanced the building of Parliament House and the Jolimont Centre. He said there was a small amount of work other than in building or construction and made reference to lifts associated with rollovers of, I infer, trucks, and lifting containers from trucks. In cross-examination he acknowledged that the operational management of Canberra Cranes was in the hands of a local manager and, on one view of an answer he gave, he acknowledged he would only have heard of the big jobs undertaken by the Company unless the job was a complicated one. He also accepted the Company would do any job it was competent to perform. He also accepted a proposition put to him that most of the jobs the employees went to were building and construction jobs. Mrs Mavis Findlayson gave evidence. She was the manager of the Company at its headquarters in Sydney. She gave evidence about a log of claims she was shown by counsel and which was ultimately tendered by the Union. Her evidence as to whether such a document was served on the Company in 1984 was quite equivocal. Having herself identified it as an ambit claim she said: "I don't think you would take much notice of them, really, because they are a separate thing." and: "To be quite honest with you, I, possibly, did see something of an ambit claim and just brushed it aside being an ambit claim." The document in question had a cover sheet with the heading "Log of Claims" underneath a reference to the Federated Engine Drivers and Firemen's Association of Australasia ("the Association"). The remainder of the document took the form of a draft award entitled "the National Crane Etc, Hire Award". It was identified as applying in all States and Territories of Australia and to members of the Association and employers "in or in connection with the crane hire industry". She later said she had seen the document before but indicated she may have got a copy from the Mobile Crane Hire Association. Various documents were also in evidence. One exhibit revealed that the Company carried on business in the Territory using the business name "Canberra Cranes and Forklift Services", had done so since 28 April 1988 and the principal place of business was 36-40 Barrier Street, Fyshwick. Another was a notice to admit facts which had not been traversed. The critical fact admitted, or variants of it, was that between January 1990 and April 1994 the Company, trading as Canberra Cranes and Forklift Services, undertook 5,882 jobs in the building and construction industry and in civil engineering works and, for the same period, 802 other sorts of jobs. Further documents were provided with the written submissions of the Union and no objection was raised by counsel for the Company in treating them as probative material. They reveal that in 1984 a log of claims was served, by certified mail, on Canberra Cranes and Forklift Services at 38 Barrier Street, Fyshwick. That it was a log of claims is apparent from the acknowledgment of receipt from MBA (ACT). From another document I infer that the general service of the log of claims resulted in the notification of an industrial dispute to the Australian Conciliation and Arbitration Commission. A copy of the notification and the time and place for hearing was sent by certified mail to Canberra Cranes and Fork Services, again at 38 Barrier Street. A further notice of listing in what had then become matter No. 4319 of 1984 was sent in May 1985 to 38 Barrier Street. A dispute in that matter was found to exist by Commissioner Bennett on 17 May 1985 with, inter alia, Canberra Cranes and Forklift Services of 38 Barrier Street, Fyshwick. Issue - the applicability of the Mobile Crane Award On its face, the Mobile Crane Award binds the Company. The copy of the Mobile Crane Award I have referred to in considering the issues dealt with in this judgment is a consolidated copy, including variations made to 4 January 1995, published by the Australian Industrial Registry. A print version tendered prior to the final hearing was misplaced. However no issue was raised by the respondent about the use of this consolidated copy and I proceed on the basis that it reflects the terms of the Mobile Crane Award. Not only is the Company named as a respondent in the consolidated form handed up by the Union but, in addition, "Canberra Cranes & Forklifts Services" is also named as a respondent. Proof of an award in which a person is named as a respondent is sufficient to prove that the person is bound by the award: see Roundstreet Pty Ltd v Brown (1987) 14 FCR 50 at 51-52. Thus the fact that the name of the Company appears in the list of persons bound by the Award would be sufficient to render the Mobile Crane Award applicable to all aspects of the Company's operation that were comprehended by the provisions of the award identifying its incidence and area of operation. Clause 4 of the Mobile Crane Award states that it applies in all states and Territories and to all employers listed in Schedule A, one of which is the Company, in respect of all employees whose employment is regulated by that award. Having regard to the classifications in clause 6, the employees whose employment are regulated by the award includes operators of mobile cranes and dogmen. The unambiguous language of the Mobile Crane Award would result in it applying to the employment of employees of the Company in the Territory. The reference to Canberra Cranes & Forklift Services in Schedule A is, in a sense, surplusage. However the identification of the business name is sufficient to identify the employer, the Company: see Devane v Gati (1956) 95 CLR 174, Nicol v Parr (1985) 11 IR 141 and Clothing and Allied Trades Union of Australia v J & J Saggio Clothing Manufacturers Pty Ltd (1990) 34 IR 26, at least in so far as its operations in the Australian Capital Territory were concerned. The Company submitted that it was never served with the log of claims that gave rise to dispute in settlement of which the Mobile Crane Award was made. A collateral attack may be made on the validity of an award in proceedings such as these: see O'Toole v Charles David Pty Ltd (1991) 171 CLR 232. I proceed on the basis that the Company can impeach the validity of the Mobile Crane Award in relation to its application to it by seeking to establish that it was never served with a log of claims and thus never became a party to an industrial dispute founding jurisdiction to make the award. What is the reach of the judgment of the High Court in O'Toole (supra) is a matter I need not consider in detail. That is because the evidentiary foundation on which the Company seeks to impeach the award is gossamer thin. It is true, as counsel points out in his written submissions, that both Mr Bourke and Mrs Findlayson assert in their affidavits that, in effect, the Company was not served with documentation or process for the purpose of making it a respondent to the Mobile Crane Award. However those assertions have to be tested having regard to the cross- examination of Mrs Findlayson who was the office manager. I referred to it earlier in these reasons. Plainly, in my view, she was not able to say she never received a log of claims. Her evidence clearly permits of the conclusion that she may have. Other material produced by the Union from the files of the Australian Industrial Relations Commission indicate that, at least in 1984, a log was served, acknowledged and relied upon by the Commissioner to make a finding of dispute in relation to Canberra Cranes and Forklifts. The Company has not established it was not a party to the dispute in settlement of which the Mobile Crane Award was made and any roping in awards subsequently made obliging employers to comply with it. Subject to the effect, if any, of the Building Award, I am satisfied that the Company was bound by the Mobile Crane Award and was bound to comply with its terms in relation to employees within its scope which included, in my opinion, employees employed in the business of Canberra Cranes and Forklifts conducted by the Company. Issue - the applicability of the Building Award The scope of the Building Award is identified in clause 6 which provides: "This award applies to the employment of persons engaged on the work of the classifications contained in this award." Thus the scope of the award is to be determined, at least in part, by reference to the classifications which are detailed in clause 9, "Rates of Pay and Allowances". Clause 9 is in two parts. The first is Part A which is headed: "EMPLOYEES ON CONSTRUCTION WORK". Part B is headed "MAINTENANCE JOINERY AS/AND/OR WORKSHOP". Part A commences with the following prefatory words: "The provisions of this part shall apply to the employment of any person covered by this award on construction work (as defined) or on shopfitting work on-site." "Construction work" is defined in the following terms: "3.12 "Construction work" shall be defined as all work wherever performed, other than that defined as maintenance work, joinery work or shop work. Without limiting the foregoing such work shall consist of the erection, repair, renovation, maintenance, ornamentation or demolition of buildings or structures and the making, preparing, assembling or fixing of all work and fittings in connection therewith and the making, preparing, assembling and fixing of any material necessitating the use of carpentry tools or machines, the pre-fabricating of a building in an open yard and all shopfitting work on site and all painting work wherever performed other than as defined as maintenance work or shop work." It can be seen that the definition focuses on work done on buildings or structures. What is comprehended by the words "building" or "building work" is a question that has given rise to much litigation. However for present purposes the inclusion in the classifications in Part A of classifications engaged in bridge building indicates that "construction" comprehends bridge building. While there is authority that a bridge is a building, see Australian Builders Labourers' Federation v Anderson (1926) 23 CAR 301 and see more generally R v Marks; Ex parte Australian Building Construction Employees and Builders Labourers' Federation (1981) 147 CLR 471, it is, to determine the scope of the definition for present purposes, unnecessary to do anything more than point to the word "structure". The ordinary meaning of the word "structure" would, in my opinion, comprehend a bridge. The significance of this emerges from diaries maintained by Mr Donoghue which, by a curious path which I need not detail, became evidence in the proceedings. The diaries identify jobs done by Mr Donoghue. An analysis of them by counsel for the Union reveals, it was submitted, that 38.5% of the jobs were construction jobs and 55.6% were non-construction jobs. The diary covers the period 30 January 1992 to 24 April 1995. Of 776 hours of work, the Union contends that 299 hours were on construction work, 423 non construction work and 54 hours where it is unclear. However included in the non-construction work were 204 hours work associated with bridge building. If those hours, as I consider they should, are allocated to construction work then an entirely different picture emerges with 501 hours spent on construction work and 221 hours on non-construction work. The diaries support the generalised evidence led on behalf of the Company and do not support the generalised evidence led on behalf of the Union. In my view the preponderance of the work performed by Mr Donoghue and Mr Casey was on the construction work. They were, in my opinion, engaged on construction work as that expression appears in part A of clause 9 of the Building Award and, apart from what might be the effect of the Mobile Crane Award, working in a classification in para 13(b) of 9.1, which contains several classifications for mobile crane drivers, or as in the classification of rigger/dogman. It is unnecessary to descend into further detail. This raises the question of which, if only one, of the two awards applies to the work of Mr Donoghue and Mr Casey. It may be that both apply and the Company is obliged to meet both by affording the greater benefit in relation to any particular condition of employment when comparing one award with the other. However this approach was not one advanced, in terms, by either party. It is important, in my opinion, to bear in mind the manner in which an award might apply to employment in the Territory. An employer may carry on business in the Territory, or the Territory and elsewhere, and become a party to an interstate industrial dispute which is settled, in whole or in part, by the making of an award applying either in the Territory alone or the Territory or elsewhere. While the Seat of Government (Administration) Act 1910 (Cth) confers a power on the Australian Industrial Relations Commission, and did on the Commission's predecessors, to deal with industrial disputes within the Territory, I see no reason why the conferral of that special power should be treated as derogating from the general power of the Commission to make awards in settlement of interstate industrial disputes. It was by these means that the Company came to be bound by the Mobile Crane Award. There is, of course, the power conferred by s 141 to declare an award to apply an award as common rule in the Territory. However while that power has been exercised in relation to the Building Award, the effect of that award in relation to the Company do not arise in this way. Not only may an employer come to be bound by an award by being a party to an industrial dispute, but it may be a member, or come to become a member, of an organisation of employers which is a party to a dispute and bound by an award made in settlement of it. An award made binding on the organisation is binding on its members: see s 149(1)(f). MBA(ACT), an organisation of employers, is a named respondent to the Building Award and the Company is, and was at relevant times, a member of that organisation. It is by that process that, apart from the effect of the Mobile Crane Award, the Company would be bound by the Building Award and obliged to give effect to it. Counsel for the Company, in submitting that it was the Building Award that was the applicable award, called in aid principles analogous to the principles of statutory construction, namely that a later award (the Building Award) would prevail over an earlier award (the Mobile Crane Award) and a general award (the Mobile Crane Award) is to be read as subject to a special one (the Building Award). This latter characterisation of two the awards is plainly a contentious one. It is instructive to set out the terms of s 149(1) at the time the controversy about the applicability of the awards arose: "(1) Subject to any order of the Commission, an award determining an industrial dispute is binding on: (a) all parties to the industrial dispute who appeared or were represented before the Commission; (b) all parties to the industrial dispute who were summoned or notified (either personally or as prescribed) to appear as parties to the industrial dispute (whether or not they appeared); (c) all parties who, having been notified (either personally or as prescribed) of the industrial dispute and of the fact that they were alleged to be parties to the industrial dispute, did not, within the time prescribed, satisfy the Commission that they were not parties to the industrial dispute; (d) any successor, assignee or transmittee (whether immediate or not) to or of the business r part of the business of an employer who was a party to the industrial dispute, including a corporation that has acquired or taken over the business or part of the business of the employer; (e) all organisations and person on whom the award is binding as a common rule; and (d) all members of organisations bound by the award." The operation of each of the paragraphs is subject "to any order of the Commission". While no order is pointed to in these proceedings qualifying the operation of either award, the opening words of s 149 illustrate that the Commission's intentions, as the maker of the award, are paramount. I find compelling the argument of the Union that if an award is made which, in express terms, is stated to apply to a particular employer as one of a number of identified employers concerning an undertaking or activity common to each of them, then that award is intended to operate to the exclusion of another award. This is even if made later, where the employer is not named as a respondent, is bound only by membership of an organisation of employers, and the award applies not only to the activities or undertakings of the employer but to other and more general activities. That this is so, in my opinion, is reinforced by the limited operation of s 149 on an employer bound by virtue of s 149(1)(f). If a person bound only by that paragraph resigns from the organisation, then they cease to be bound by the award in relation to future liability under it: see WA Timber Workers' Industrial Union of Workers (South West Land Division) v WA Sawmillers' Association (1929) 43 CLR 185. It is thus unlikely that by making the Building Award in 1991 the Commission was intending to displace the more direct and enduring regulation of the wages and conditions of employment of employees of the Company arising from the Mobile Crane Award. In my opinion, the employment of Mr Donoghue and Mr Casey was, at the time their employment was terminated, regulated by the Mobile Crane Award and not the Building Award. Any entitlements they had upon termination derive from the former and not the latter award. The Union is to prepare short minutes to give effect to these reasons. I certify that this and the preceding nineteen (19) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore. Associate: Alexandra George Dated: 23 May 1997 APPEARANCES Counsel for the Applicant: Mr S Rothman SC Solicitor for the Applicant:Gary Robb & Associates Counsel for the Respondent: Mr C Hogg Solicitor for the Respondent: Simon Beverly & Associates Dates of Hearing: 24 & 25 June 1996 Written Submissions Complete: 19 March 1997