Re Building Workers Industrial Union of Australia Application for Interpretation of The Carpenters, Joiners and Bricklayers (Australian Capital Territory) Award, 1963 [1979] FCA 108

CATCHWORDS

Industrial law - Interpretation of award - clause providing for payment of wages - stand down provisions - whether clause confers right on employer to deduct payment

Conciliation and Arbitration Act, 1904, s.110

N.S.W. 22 of 1979

re BUILDING WORKERS INDUSTRIAL UNION OF AUSTRALIA

Application for interpretation of THE CARPENTERS, JOINERS AND BRICKLAYERS (AUSTRALIAN CAPITAL TERRITORY) AWARD, 1963

Coram: J.B. Sweeney J. Sydney 29 October, 1979

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IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY No. 22 of 1979

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INDUSTRIAL DIVISION

IN THE MATTER of the Conciliation and Arbitration Act, 1904

AND IN THE MATTER of an application by the Building Workers Industrial Union

of Australia for an interpretation of the CARPENTERS, JOINERS AND BRICKLAYERS (AUSTRALIAN CAPITAL TERRITORY) AWARD, 1963

ORDER

JUDGE MAKING ORDER: J.B. Sweeney J. DATE OF ORDER: 29 October, 1979

WHERE MADE: Sydney

THE COURT ORDERS THAT:

The application be dismissed.

IN THE FEDERAL COURT OF AUSTRALIA

) ) NEW SOUTH WALES DISTRICT REGISTRY ) No. 22 of 1979 ) )

INDUSTRIAL DIVISION

IN THE MATTER of the Conciliation and Arbitration Act, 1904

AND IN THE MATTER of an application by the Building Workers Industrial Union ef Australia for an interpretation of the CARPENTERS, JOINERS AND BRICKLAYERS i (AUSTRALIAN CAPTTAL TERRITORY) AWARD, 1963

J.B. SWEENEY J. 29 October, 1979

REASONS FOR JUDGMENT

This is an application by the Building Workers Industrial Union of Australia ("the Union") for interpretation of the

Carpenters, Joiners and Bricklayers (Australian Capital

Territory) Award, 1963 ("the award"). The clause to be

considered 1s paragraph (e) of Clause 36 - Payment of Wages

which provides:

"provided that no provision contained in this award shall affect the right of a private employer to deduct payment for any day an employee cannot be usefully employed because of any strike or stoppage

of work by any persons whatsoever in connection with that employment or otherwise."

The clause follows the form adopted in a number of clauses

in awards dealing with stand downs. It does not expressly confer a right on a private employer but uses curious language which on first consideration appears to preserve from the operation of the award a right which the employer may have or

may obtain apart from the award. It should be noted that the

award applies both to employees of the Commonwealth or a State or an instrumentality and to other employers. The award provides generally for weekly employment with a right to employ casual employees on a daily basis for a period not exceeding one weeks employment. So far as the stand down by other than private employers is concerned the award provides in Clause 12 - Terms of Engagement as follows: "Stand down (d) Provided that:

{i) For any day upon which a Commonwealth employee cannot be usefully employed because of any strike or lock-out by any persons whatsoever which curtails electric power and/or coal and/or any other fuel that employee may be stood down by the employer without the required notice and without pay. Provided that weekly employees who are required to attend for work and do so attend on any day shall be paid a minimum of two hours pay at ordinary rates.

(ii) Any employee stood down in terms of this order shall be re-employed by his employer if he is willing to resume work when sufficient electric power and/or coal and/or fuel is available, and that employee shall not forfeit any sick leave or other rights accrued to him or her at the time of stand down."

The award also contains in Clause 14(b) the following provision:

"without limiting the right of any employer or employee to agree on rates and/or conditions in excess of those prescribed in this award, the minimum provision of this award or any amendment thereof shall apply to all particulars of employment notwithstanding any agreement to the contrary."

The question may be shortly stated whether the award operates to preserve a right of the employer to deduct payment

or whether it does in fact confer upon an employer a right to

deduct payment 1n the circumstances set out in Clause 36(e). The award history shows that in an award made in 1946

(64 C.A.R. 622) provision was made for weekly and casual employment but no provision made for stand downs. In July, the award was amended by inserting in a clause having the heading "Terms of Engagement" provisions relating to stand down which gave both the Commonwealth and private employers the right to stand down in certain limited circumstances. By an amendment to the award in 1963 (103 C.A.R. 262) the

stand down provisions relating to the Commonwealth were

unaltered but there was inserted in the then Clause 31 hearing

the heading "Payment of Wages" a clause in the same terms as

the clause now under consideration except that the word "clause"

was used instead of the word "award" as at present. A provision

which had existed giving a private employer the same rights

ag to stand down as the Commonwealth was deleted.

In 1968 (23 C.A.R. 871) a clause in the present form was inserted in a clause headed "Terms of Engagement". In 1969 the award was varied deleting the sub-clause from the Terms of Engagement clause and inserting the same sub-clause in the Payment of Wages clause and that was continued in the

current award in 1973.

In the light of this history, it is clear that the parties attached importance to the clause and intended it to have operation. If the interpretation sought by the Union is

correct, I am unable to see what operation the clause could

have. 'There was no existing right in the employer to deduct

payment in the circumstances set out at common law.

Halsbury's Laws of England, 3rd Edition, Volume 25 at p.468 says: "Where, however, a written agreement, which appears on the face of it to include all the terms agreed to by the parties, provides only for the payment of wages or salary at certain times, no implied obligation to find work for the servant will be added, and he is not entitled to damages for not being given employment, although, if he remains

ready to perform his services during the period covered by his contract, he is entitled to the

agreed wages."

See also Hanley v. Pease and Partners (1915) 1 K.B. 698.

There has not then at any relevant time been any right at common law to be preserved from the operation of the award nor was it suggested that there had at any time been any

usage or custom which was relevant.

Mr. Rothman, who argued the case for the Union, then sought

to rely on a possibility of an agreement being come to between

an employer and an employee or the union which in consideration for some overaward provision would give the employer a right

to stand down which the clause could then preserve, but in the

light of the award and having particular regard to clause 14(b)

I am unable to conceive of any such agreement.

If then the sub-clause bears the interpretation sought by

the Union, it is quite redundant.

Unless driven to such an interpretation by the intractabilaty

of the language I think the Court should not so hold.

Mr. Peterson for the employers submitted that the award did

confer a right on the employer to deduct wages in the particular

circumstances set out in the clause and as he submitted, I think such a meaning has been given to clauses framed in this manner over a considerable period. There are cases in which an award has been so interpreted and there are a number of others where there has been an assumption by the parties and the court that that was the interpretation of the award.

I think it relevant for me to consider both types of cases because as the history shows, this clause has been dealt with by the parties by consent and inserted in different parts of the award and indeed varied in a manner quite inconsistent

with the parties intending that it be redundant.

There is authority of the Australian Industrial Court in

dealing with such clauses. In Vehicle Builders v. Ford Motor

Company of Australia 3 F.L.R. 198 at 201 the Court said:

"We are disposed to agree that the only relevant right given to the employer by the clause is to deduct wages, but we are unable to find any implication in cl.7 that such a deduction cannot be made for more than one week. It is to be observed that although employment is stated to be "by the week" there is no requirement that a week, once commenced, shall be completed since a week's notice of termination may be given on any day. Moreover, the right to deduct is given, inter alia, in a case where the employee cannot be usefully employed 'because of any strike' ... "

(my emphasis)

6.

Again in Vehicle Builders Federation of Australia v. British

Motor Corporation 8 F.L.R. 70 at 74 the Commonwealth Industrial

Court again dealing with a clause using like language said:

"The award provides for engagement by the week, and in the absence of any express provision an employee is entitled to a week's wages for each week of his employment even if there is no work for him to do. Clause 7(b) of the award provides, however, that the employer's right 'to deduct payment for any day the employee cannot be usefully employed because of any strike or through any breakdown in machinery or any stoppage of work by any cause for which the employer cannot be held responsible' is not affected by the provision for weekly employment.

We start, therefore, from the position that an employee who is on a weekly engagement is prima facie entitled to a week's wages. If, being ready and willing to

work, he is told by his employer that he need not

report for work the next day as there is no work for him to do, he is nevertheless entitled to be paid for that day, unless the employer can show that the employee cannot be usefully employed on that day for a reason falling within the clause above quoted."

The Industrial Commission of New South Wales has also considered

similar clauses. In Re Iron and Steel Works Employees 1956 N.S.W.A.R. 615 at 617-8 and Re Dispute Australian Iron

and Steel Pty. Ltd. 1972 N.S.W.A.R. 285 at 286. In the latter case, speaking of a clause similarly drafted, Shepherd J. said:

"This clause has been held, in relation to earlier awards, to confer a right upon the company to deduct payment even though 1t is couched in language which might not at first sight suggest that the right

arises pursuant to the clause. I refer to In re Iron and Steel Works Employees (Australian Iron and Steel Limited -—- Port Kembla) Award(1956_A.R.615) and In re Steel Works Employees (Broken Hill Proprietary Company Limited) Award and Another (No. 1) {1962 A.R. 334). 'The conduct of the parties in replacing this part of the contract of employment clause in succeeding awards by the use of similar words means that the right that the company claims to arise by reason of the clause is beyond question if the circumstances mentioned therein are found to have existed."

The earlier judgment of Richards J. to which I have referred was considered by a full bench of the Industrial Commission of New South Wales in 1962: 1962 N.S.W.A.R. 335, when the commission said:

"The existing provision in this regard is expressed in a somewhat curious way:

'This clause shall not affect the right of the Company to deduct payment for any day or portion thereof during which the employee is stood down by the Company as the result of refusal of duty, malingering, inefficiency, neglect of duty, or misconduct on the part of the employee ...'

Such wording might suggest that, independently of the award provision, the company had a right to deduct payment in respect of time during which an employee

was stood down by the company for the specified reasons. But no such right would have existed at common law.

In In re Dispute at Metal Manufactures Ltd. (re Hutchinson) (1948 A.R. 818) a Full Bench of the Commission had referred to and acted upon an English decision to

that effect. It would seem that the provision as to standing down made by the steel industry awards was intended not to preserve an existing right of the employers but to confer a new right. Richards J. so

heid in In re Iron and Steel Works Employees (Australian Iron and Steel Limited - Port Kembla) Award (1956 A.R.615)."

In numerous cases there has been an assumption that such a

clause did confer a right. One such case is Pickard v. Heine

and Son Ltd. 35 C.L.R. 1. It will be noted that the clause

dealt with there provided for weekly employment and then went

on to say that this should not affect the right of the management to deduct payment because of any strike etc. and the case was dealt with on the basis that such a clause conferred a right. There are many other cases in the arbitrat1on tribunals where such an assumption has been made and the question litigated

has been only whether the particular circumstances shown in

the case allowed a deduction having regard to the language

used in the particular clause.

In these circumstances I feel impelled to interpret the award as itself conferring a right on the employer to deduct payment in the circumstances set out in the clause. Whilst I refuse the interpretation sought by the Union, it must be noted that no question has been raised before me whether the circumstances were such that any employee could not be usefully employed and whether that inability to usefully employ him arose because of any strike or stoppage of work or otherwise. I would also comment that it seems to me highly desirable that when an award confers a right it should do so in language which is quite clear to the layman. The clause as at present framed particularly in the reference to any strike and in the use of the word "otherwise" seems somewhat wide and I think considera- tion should be given to a variation of the clause to a form more readily understood and specifying the circumstances under

whach deductions may be made with more particularity.

For these reasons I refuse to make the interpretation as

sought by the Union.

I certify that this and the Sovexn

preceding pares are a true copy of the Reasons for Judgment herein of iis honour Mr. Justice TQ Guceney

Associate

Dated: QO Octdlux 1474 H

CATCHWORDS

Bankruptcy - Creditor's petition - Application for adjournment refused and sequestration order made - Evidence admitted on appeal of subsequent proceedings resulting in setting aside of judgment on which petition based - Sufficiency of affidavit verifying petition

discussed -— Sequestration order set aside.

Bankruptcy Act 1966 (Cth) ss.47, 52 and 306.

TONY BASIL#, also known as ORLANDO BASILE v. ERIC JOHN ANCICH

trading as JOHN ANCICH & CO.

Qld. No. G17 of 1978

Coram: Bowen C.J., Franki and Deane JJ. - oo

Sydney

IN THE FEDERAL COURT OF AUSTRALIA)

. QUEENSLAND DISTRICT REGISTRY Qld No. G17 of 1978

} ) ) GENERAL DIVISION )

ON APPEAL from the Supreme Court of Queensland exercising Federal Jurisdiction in Bankruptcy

RE: TONY BASILE, also known as ORLANDO BASILE

Appellant EX PARTE:

ERIC JOHN ANCICH trading as JOHN ANCICH & CO.

Respondent

ORDER

JUDGES MAKING ORDER: Bowen C.J., Franki and Deane JJ.

DATE OF ORDER: BW OCTOBER 197F

WHERE MADE: Sydney

THIS COURT ORDERS THAT:

1. The sequestration order of the Supreme Court of Queensland exercising federal jurisdiction in bankruptcy made on 5 September 1978 against Tony Basile also known

as Orlando Basile and its order for costs be set aside.

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2.

The matter stand out of the list of the Supreme Court of Queensland with liberty reserved to either party or to the Official Receiver or to any person claiming to be a creditor of Tony Basile also known as Orlando Basile to have the matter restored to the list on seven (7) days notice to the other party or parties.

The appeilant to pay to the respondent the respondents' costs of the appeal to this Court.

The appellant to pay to the respondents, the respondents' costs of the motion to dismiss the appeal for want of prosecution.

The costs of the proceedings before the Supreme Court of Queensland be reserved for determination by that Court

when the petition finally comes to be disposed of.

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| QUEENSLAND DISTRICT REGISTRY

IN THE FEDERAL COURT OF AUS'TRAITA) )

) ) )

Old No. G17 of 1978

GENERAL DIVISTON

ON APPEAL from the Supreme Court of

Queensland exercising Federal Jurisdiction in Bankruptcy

RE:

TONY BASILE, also known as ORLANDO / BASILE

Appellant

EX PARTE:

ERIC JOHN ANCICH trading as JOHN ANCICH & CO. -

Respondent Coram: Bowen C.J., Franki and Deane JJ. 31 October 1979. . REASONS FOR JUDGMENT BOWEN C.J.: This is an appeal from a judgment cf the

Supreme Court of Queensland given on 5 September 1978 whereby on the petition of Eric John Ancich a sequestration order was made against Tony Basile. On the hearing of the

appeal the making of the order was contested upon two

grounds: .

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1. That the learned trial Judge erred in hearing the petition before an application of the appellant to set aside the judgment upon which the relevant bankruptcy notice was based, was heard and determined.

2. That the learned trial Judge erred in treating the failure of the petitioner to yerify the petition properly as a mere irregularity or formal defect and in holdang that he had a discretion to remedy the failure and in purporting to do so.

The circumstances appearing in the evidence before the learned trial Judge were that Eric John Ancich, the respondent, had obtained a judgment by default in the District Court in Sydney on 12 August 1977 egainst Tony Basile, the appellant, in the sum of $4,010; that the bankruptcy notice based upon this judgment had been issued and was served upon the appellant on 29 December 1977 requiring compliance within 28 days; that there was no compliance and that an act of bankruptcy was committed upon the expiry of the period specified on 26 January 1978; that a bankruptcy petition was issued also based upon the amount of the judgment and served upon the appellant on 14 July 1978. This petition was, in the first instance returnable on 8 August 1978 but was not heard on that day, being stood ever to 5 September 1978. On 5S September 1978 the petition was heard and a sequestration order made. On that day before the learned trial Judge an adjournment was sought. Evidence was submitted to him that instructions had been

given for the institution of proceedings to set aside the

District Court default judgment and a copy of the affidavit

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-~ 3 - in support of that application in the District Court sworn on 4 September 1978 was placed before him. In this affidavit Hr. Basile admitted that he owed to the respondent the sum of $1,925.85 and he offered to pay it. It was also argued that verification of the petition was defective.

The learned trial Judge considered these matters and also the delay in the making of the application to set aside the judgment and refused the adjournment. He came to the conclusion that a sequestration order should be made.

Dealing with the first ground om which the appeal was argued, it appears to me that if there was before this Court no more than was before his Honour, I would not be disposed to interfere with the exercise of his discretion in refusing the adjournment. It has not been shown to me that there was any error which would justify an appeal court in interfering with the exercise of discretion by the trial Judge. However, this Court has power to accept evidence on appeal

(Federal Court of Australia Act s.27). In the exercise of

this power at the request of the appellant the Court permitted evidence to be given which showed that on 5 September 1978 the appellant's application to set aside the District Court judgment was filed in the District Court. There was some suggestion that this was prior to the hearing of the petition but this suggestion was not made good. It was also shown that a notice of appeal was lodged on 6 September; that on 7 September $100 was paid into Court for

security of costs securing a stay of proceedings under the

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-4- Rules which then applied to appeals in this Court, namely High Court Rules 0.70, r.12; that on 6 October 1678 the District Court set aside the default judgment on terms requiring the filing of notice of grounds of the defence and cross claim (if any) and the payment of $2,500 into Court. It further appeared that the sum of $2,500 had in fact been paid into Court in compliance with this order on 20 October 1978 and that the appellant had filed a defence and cross claim in the District Court action. So far no pleading in reply to the defence or cross claim had been filed or delivered by the respondent who at appeared was seeking certain particulars.

In, the light of these additional facts which were not before the learned trial Judge, it appears to me that this Court on appeal should approach the matter witn hindsight. When 'this 1s done, I think that the balance tips in favour of the appellant. The present position is that the judgment upon which the bankruptcy notice was based has been set aside. No judgment debt against the appellant remains on Foot. The appellant has paid unto the District Court the sum of $2,500 which exceeds the amount which is admittedly .owing to the respondent. There is plainly a dispute as to the residue of the amount claimed. That dispute awaits hearing in the New South Wales District Court. No other person claiming to be a creditor of the debtor appeared to support the making of a sequestration order. No person has

appeared before us to sustain the order which was made. it

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- 5 - is my opinion that this Court should now set aside the sequestration order.

It 'appears to me that the affidavits filed in support of

the petition do in fact comply with the Bankruptcy Act 1966

and the Bankruptcy Rules. The affidavits follow the prescribed ferms. It is true that the affidavit of the truth of the statements in paragraphs 1, 2 and 3 of the petition (Form 5) contains an additional paragraph not specified in the prescribed form. This is as follows:- "3. There has been no compounding or securing of the debt referred to in the said Bankruptcy

Petition to my satisfaction within the time specified in the said Bankruptcy Notice."

This covers some only of the possibilities. It was argued that it left uncovered the two possibilities which I have mentioned, namely, denial of payment and denial the appellant had secured the sum owing to the satisfaction of the Supreme Court of Queensland. But 1t was apparent from the case put before the learned trial Judge that while the appellant admitted he owed $1,925.85 he had not paid it and had given instructions to set aside the District Court judgment and contest the matter in that Court. The learned trial Judge was, in my view, correct in drawing the inference that payment had not been made and not been secured to the satisfaction of the Supreme Court of Queensland. I£, contrary to my view, it was necessary to include in the affidavit proof of those two matters, it

would be my opinion that the learned trial Judge was not in

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I propose that the Court order that the sequestration order made by the Supreme Court of Queensland and its order for costs be set aside and, in lieu thereof, order that the matter stand out of the list of the Supreme Court, with liberty being reserved to either party, to the Official Receiver, or to any person claiming to be a creditor of the appellant to have the matter restored to the list on seven (7) days notice to the other party or parties. This will enable either party to have the matter restored to the list when the outcome of the proceedings in the New South Wales District Court is known.

the present position has been brought about as the result of delay and omissions on the part of the appellant. In the circumstances I propose that the appellant be ordered to pay to the respondent, his costs of the appeal to this Court. As to the respondent's motion to dismiss the appeal for want of prosecution or, alternatively, to have the hearing of the appeal expedited which was stood over to the hearing of the appeal, the need for that proceeding was also brought about by delay and omissions on the part of the appellant. It resulted in a prompt hearing of the appeal. I propose that the appellant pay the respondent's costs of that motion. I would make no other or@er in that

proceeding.

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So far as the Proceedings before the Supreme Court of Queensland are concerned I am of opinion the costs of those proceedings should be reserved for the determination of that

Court when the petition Finally comes to be disposed of,

i t Ieertify that thisandthe IX preceding pages are a ttc copy of the

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