Niceski, D. v Dowell Australia Ltd [1981] FCA 13

Niceski, D. v Dowell Australia Ltd [1981] FCA 13

The respondent failed to observe the award entitlement to wages, as threats of strike did not constitute an actual strike or stoppage affecting the applicant's ability to be usefully employed; thus, standing him down was not justified under clause 6(e)(i), and the applicant is entitled to wages for the days stood down.

Parties
Applicant: Dimitri Niceski; Respondent: Dowell Australia Limited
Jurisdiction
Australia
Judgment Date
23 February 1981
Procedural Posture
Industrial Law Enforcement Proceedings / Judgment and Order
Outcome
Respondent found in breach of award; penalty and wage compensation ordered.
Legal Topics
Breach of Award, Stand Down Clause, Demarcation Dispute, Penalty for Non Observance of Award, Employee Remuneration
Industrial Law Breach of Award Stand Down Clause Demarcation Dispute Penalty for Non Observance of Award Employee Remuneration

Case Brief

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Parties

Dimitri Niceski

Applicant

Dowell Australia Limited

Respondent

Procedural Posture

Industrial Law Enforcement Proceedings / Judgment and Order

Legal Issues

  1. 1 Whether the respondent was entitled under the award to stand down the applicant and withhold wages due to threats or decisions of union members.
  2. 2 Whether a threatened strike constitutes 'a strike' for purposes of the stand down clause.
  3. 3 Significance of participation in union picketing as a defence to award breach.

Ratio Decidendi

The respondent failed to observe the award entitlement to wages, as threats of strike did not constitute an actual strike or stoppage affecting the applicant's ability to be usefully employed; thus, standing him down was not justified under clause 6(e)(i), and the applicant is entitled to wages for the days stood down.

Court Disposition

Respondent found in breach of award; penalty and wage compensation ordered.

Orders

  • The respondent pay a penalty of one dollar ($1.00) into consolidated revenue.
  • The respondent pay to the applicant wages in respect of each of the nine days stood down in proportion to award entitlement for one week's work; any dispute as to calculation allows liberty to apply.