The members on a weekly wage are therefore entitled to payment for days not award holidays on which they are not employed and are willing and ready to work."

[33] The meaning of the altered provision in the relevant award was in 1924 considered by the High Court in Pickard v John Heine & Sons Pty Ltd.[24] In that case, the employer declined to pay an employee covered by the award his pay on Anzac Day on the basis that he could not usefully be employed without the assistance of other workmen on the site who were covered by a State award, had an entitlement for double time on the day, and who were accordingly not engaged because it was uneconomic to do so. The Court determined that the employer was obliged to pay the employee in the circumstances described. Isaacs ACJ interpreted the provision in the following way:

"Then, construing sub-clause (h) as it stands, I do not agree with the Magistrate's view that the word 'such' must be judicially eliminated. Nor can I agree with the argument addressed to us that the word 'which' should be read as 'as' so as to leave the 'cause' absolutely indeterminate in nature, and applicable as a valid reason for deducting a day's pay if only the employer can show it is one he could not 'reasonably prevent.' The latitude that would be attributable to 'reasonably prevent' would not be measurable. No weekly employee would know where he stood in such a case. If outside circumstances, utterly unconnected with the immediate working operations, such as economic reasons, trade competition, quarrels with customers, and so on, can be introduced to test the reasonableness of prevention or non-prevention, there is little or nothing of security or definiteness left to the employee. Indeed, if the interpretation suggested be correct, the reference to "breakdown of machinery" is quite superfluous. Of course a breakdown of machinery is properly regarded in itself as a valid cause, for primarily it denotes that the working apparatus itself is incapable, by reason of its own inherent inefficiency, of enabling operations to be carried on. But, if the words 'any such cause' are read as 'any cause' and if the word 'which' is read as 'as,' besides the cardinal sin of altering the language of a document there would be no necessity of inserting strikes or breakdown of machinery.

When the number and variety of respondents are regarded, including Government enterprises, shipping companies, engineering establishments, newspaper undertakings, and so on, the scope of the suggested clause would be so unmeasurably wide as to mean little but difficult litigation to employees if they wished to contest a deduction. First, I rely on the words themselves in their collocation. For clarity sake I segregate the provision thus: - 'This shall not affect the right of the management ... to deduct payment for any day the employee cannot be usefully employed - (1) because of any strike by the union or any other union or (2) through (a) any breakdown of machinery or (b) any stoppage of work by any such cause which the employer cannot reasonably prevent.' It is the composite expression 'stoppage-of-work-by-any-such-cause' that is the antecedent of 'which.' The word 'such' relates to breakdown of machinery. Any 'such cause' means, in my opinion, any cause similar to or of the same nature as the breakdown of machinery. A cause is of that nature, in my opinion, if it is so connected with the working of the machinery as to prevent it operating in a manner that makes the employment of the men useful. One might imagine as 'such' causes the deprivation of electric current or coal or water, or the desirability of replacing old machinery by new, or putting on protection guards, or overhauling a machine to prevent danger, where signs of possible danger were observed. If these, and others of a like nature which might be mentioned, caused a stoppage of work, because the machinery could not be properly operated, then the range of consideration as to whether the employer could 'reasonably prevent' the stoppage would be reduced to understandable limits."[25]

[34] Gavan Duffy J took a similar approach.[26] Starke J however read the award provision, which he described as "obscure and ungrammatical", as if the word "such" had not been added so that it encompassed "any stoppage of work by any cause such as the employer cannot reasonably prevent."[27] Nonetheless his Honour reached the same outcome on the basis that the stoppage of work was brought about by the employer's own action in declining to engage the assistant workmen and pay them on holiday rates.

[35] The timber workers award provision made in 1923 by Webb DP did not include the addition of the word "such" as had occurred in the metal industry award following the 1922 decision of Powers J in 1922 in FEDFA v Albany Bell Limited. Accordingly it must be understood to have the meaning assigned to the original metal industry clause by Powers J in that decision, namely that it authorised deduction of payment not only in the case of strikes and breakdowns of machinery and the like, but also for any other stoppage for any other cause for which the employer could not be reasonably responsible, including where work could not be usefully performed because of the occurrence of wet weather. This is consistent with the modification of the award by Webb DP to not require payment of wages when employees decided not to work because of rain, as earlier set out.

[36] In the new award for timber workers made by the Court of Conciliation and Arbitration (Lukin J) in 1929,[28] the stand down provision was reformulated (by consent[29]) into a stand-alone subclause of the provision of the award concerned with weekly employment, but its effect did not change as compared to the previous award. The new provision was as follows:

(6) The employer may deduct payment for any day the employee cannot be usefully employed because of any strike by or participation in any strike by the union, by any branch of the union, or by any members or member of the union employed by the employer or because of any strike by or participation in any strike by any other union, branch of any other union or members or member of any other union employed by the employer, or because of any breakdown of machinery, or because of any other stoppage of work for any other cause for which the employer cannot be held responsible.[30]

[37] In the next timber workers award made by the Court (Dethbridge CJ) in 1937[31], the following sentence was added to the stand down clause, which was otherwise in the same terms: "The onus of proving reasonableness of the cause shall be on the employers."[32] Dethbridge CJ simply said about this:

"As to stoppage of work the suggestion of the union as to onus of proof is accepted and included in sub-clause (6)."[33]

[38] It may be noted that this clause is equivalent in effect to clause 42.2 of the Agreement.

[39] The clause was simplified in the award made by the Court (O'Mara J) in 1941[34] as follows:

(6) The employer may deduct payment for any day the employee cannot be usefully employed because of any strike or because of any breakdown of machinery, or because of any other stoppage of work for any reasonable cause. The onus of proving reasonableness of the cause shall be on the employer.[35]

[40] It may be noted that at this point in the above clause the words "any reasonable cause" have replaced the previous words "any other cause for which the employer cannot be held responsible". However there is no indication that the new formulation was intended to change the meaning of the clause in this respect, and we will proceed on the basis that the meaning was the same, or at least encompassed the meaning of the previous provision.

[41] The clause was the subject of reconsideration by the Court (O'Mara J) in 1945[36] in response to a claim by the Timber Workers Union that it be modified to add: "Provided that no deduction from pay shall he made by any employer because an employee is prevented by rain, hail or snow from working." O'Mara J determined to grant the claim, saying (footnotes omitted):

"Under the award which was made by Higgins J on 21st May, 1920 deductions from the wages of employees working under a weekly engagement were not allowed in respect of time lost on account of rain, hail or snow. On 7th May, 1923 in making a new award Webb DP, discontinued this provision but loaded the wage to meet the contingency of time lost on account of wet weather. This loading was removed by Lukin J on 23rd January, 1929 for reasons which if they were sound then are no longer applicable.

Rain, hail or snow may result in employees in this industry losing time for which they are not at present entitled to payment. In the case of the bush workers the weather prevents work from being carried out and this in turn may result in a mill becoming short of logs and being unable to carry on. The Court ordinarily includes in its awards provisions to safeguard an employee in respect of the loss of opportunity of earning on account of wet weather and in my opinion it is anomalous that the rates prescribed by this award have not been assessed having regard to that principle. I also consider that since the reasons which actuated the Court in discontinuing the loading no longer operate it is anomalous that the present rates should not be altered.

I have considered prescribing casual rates in lieu of regulating the matter on the lines of the Union's claim but I am not satisfied that such a scheme is proper in the case of employees who must be left to work without supervision. Upon the evidence it appears that with proper management it should be practicable to keep logs up to a mill so that little if any time would be lost on account of rain, hail or snow in the case of mill employees. As to bush workers they appear on the whole not to have been subject to deduction from wages for time lost and the variation which I am about to make is not likely to make any difference in fact in their case. If the variation is followed by imposition the case of workers who do not work under supervision the employers have the right to apply to the Court. Upon the evidence the variation should if anything reduce absenteeism as in the past the absence of any guarantee as to payment has resulted in employees remaining away from work on days on which after a threatening morning the weather has cleared and work has been possible."[37]

[42] The variation which was made by O'Mara J added the following to the deduction of payment clause:

Subject to the employee being ready, willing and available to work nothing in this clause shall authorize deduction of payment for any time lost because the employee is prevented from working on account of rain, hail or snow or on account of a shortage of logs when such shortage is due to rain, hail or snow.[38]

[43] The above award clause was clearly the ultimate progenitor of clause 42.5 of the 2018 Agreement. Its purpose, as explained by O'Mara J and understood in the earlier historical context we have set out, is clear. It was intended to prevent any deduction from payment for bush workers - that is, timber harvesters working in the bush who were responsible for the supply of logs to mills - where they were prevented from working because of the occurrence of rain, hail or snow, and it also prevented any deduction from payment for mill workers where the downstream effect of the bush workers not being able to work was that work could not be performed by them as well because of an inadequate supply of logs. The clause was not intended to have any wider application to mill workers or to deal more broadly with all the possible indirect consequential effects of rain, hail or snow, and was certainly not intended to narrow the capacity of the employer to deduct payment for a breakdown of machinery or like event.

[44] The consolidated award made by the Court (Conciliation Commissioner Stewart) in 1947, by consent, included a modified version of the clause (clause 16(e)) which allowed for an employer and employees (by majority vote) to opt out of the new provision awarded by O'Mara J in 1945 by the payment of a loading in lieu thereof. The full provision was as follows:

(e) The employer may deduct payment for any day the employee cannot be usefully employed because of any strike or because of any breakdown of machinery, or because of any other stoppage of work for any reasonable cause. The onus of proving reasonableness of the cause shall be on the employer.

Subject to any employee in the bush and in bush saw-mills and in log sawmills outside the towns and cities named in Table "A" of clause 1a of this award being ready, willing and available to work, nothing in this clause shall authorize deduction of payment for any time lost because the employee is prevented from working on account of rain, hail or snow or on account of a shortage of logs when such shortage is due to rain, hail or snow.

Notwithstanding anything in this sub-clause, an employer may elect and, with the mutual consent of the majority of employees concerned, pay a general loading of 7s. 6d. per week to the rates of pay prescribed in this award as an alternative to the conditions set out herein in respect of pay for time lost through hail, rain or snow or on account of shortage of logs where such shortage is due to hail, rain or snow. An employer adopting such alternative at any one mill must obtain the consent of the Union in writing and must agree to continue such loading for at least twelve months from the date of obtaining the consent of the Union. In the event of the employees and/or the Union not consenting the employer may have the matter settled by a Board of Reference.[39]

[45] This provision then remained substantially unchanged (apart from alterations to the amount of the loading) for a long period of time. It appeared as clause 16(f) in the Timber Industry Consolidated Award 1974.[40]

[46] In 1987 the Timber Industry Consolidated Award 1987 was made by the Australia Conciliation and Arbitration Commission (Commissioner Merriman) by consent.[41] This contained a reformulated clause (clause 20(f)) in the following terms:

(f) The employer may deduct payment for any full day the employee cannot be usefully employed because of any strike or because of any breakdown of machinery or because of any other stoppage of work for any reasonable cause subject to the following provisions:

(i) The onus of proving reasonableness of the causes shall be on the employer.

(ii) Where a stand down continues beyond one week, the employee may terminate the employment without notice or forfeiture of a week's wages.

(iii) The employer advises the union office of the commencement time and possible duration of the stand down.

(iv) Subject to any employee in the bush and in bush sawmills and in log sawmills outside cities and towns being ready, willing and available to work, nothing in this clause shall authorise deduction of payment for any time lost because the employee is prevented from working on account of rain, hail, snow, flood or bushfire or on account of a shortage of logs when such shortage is due to rain, hail, snow, flood or bushfire.

[47] This provision closely resembles clause 42 of the Agreement. Subclauses (ii) and (iii) represent new provisions compared to the 1947 clause. Subclause (iv) was modified to include references to flood and bushfire, but apart from this the language and structure of the provision remained fundamentally the same, and there is nothing to indicate an intention to alter the meaning which may be ascribed to it arising from the 1945 decision of O'Mara J. The references to flood and bushfire have simply been "slotted in" to the existing linguistic formulation. It may also be noted that the capacity of the employer to adopt the alternative of deducting payment and paying a loading instead was removed.

[48] The provision was subsequently reproduced as clause 18 of the Timber and Allied Industries Award 1999[42] (1999 Award) under the heading "Stand Down of Employees".

[49] In 2007, the Ta Ann Union Collective Agreement (Construction, Forestry, Mining and Energy Union (Forestry and Furnishing Products Division)) 2007 was made. This appears to have been the first enterprise-specific agreement entered into by Ta Ann. It had the same coverage as the Agreement. Clause 20 of this agreement provided:

This clause applies to the exclusion of clause 18 and (but not 18.1, 18.2. or 18.3) of Appendix 1 to this Agreement.

20.1 Notwithstanding anything elsewhere contained in this Agreement the employer shall have the right to deduct payment for any time an employee cannot usefully be employed because of any strike or breakdown in machinery or any stoppage of work by any cause for which the employer cannot reasonably be held responsible. Employees may request to have such a period of stand down paid as annual leave if they have an annual leave entitlement.

[50] Appendix 1 of the 2007 agreement contained the entire text of the 1999 Award, with some minor modifications. Clause 4.2 of the agreement provided that terms of the 1999 Award were incorporated at Appendix 1. Appendix 1 included the text of clause 18 of the 1999 Award. It is not entirely clear whether it was intended to incorporate clause 18.4 of the 1999 Award having regard to the (defectively drafted) underlined words at the commencement of clause 20, but if it was incorporated, it was incorporated with the same text and presumably therefore the same meaning.

[51] The following agreement was the Ta Ann Tasmania and CFMEU Collective Agreement 2011. At clause 46, it contained a provision in identical terms to the current clause 42 of the Agreement. Clause 42.5 in the 2011 agreement and in the current Agreement reproduce clause 18.4 of the 1999 Award, except that the words "in the bush and in bush sawmills" have been removed. This is explained by the fact that the agreements only covers employees at two mills operated by Ta Ann - the mill in the Huon Valley the subject of the dispute (referred to as the Geeveston site in the coverage provision in clause 3 of the Agreement) and another mill at Smithton in Tasmania - and does not apply to workers "in the bush" harvesting timber. The historical context we have described causes us to conclude that clause 42.5 was objectively intended to have the same meaning as the award provision from which it was derived. As explained above, the award provision was concerned with the proximate or direct causes of employees being prevented from working, and not with indirect consequential effects.

[52] For the period 8 March to 15 April 2019, the proximate or direct cause of employees being prevented from working at the Huon Valley mill was the fact that the machinery at the mill had been rendered inoperative. That was a circumstance which fell squarely within the terms of clause 42.1. The bushfire, which had ceased well before this time, was not the direct causes, but rather only the cause of the cause or the indirect cause. The employees were not prevented during this period from working "on account of" bushfire, and clause 42.5 was not applicable.

[53] For these reasons, we consider that the Decision of the Deputy President was correct. The appeal is dismissed.

Y Bakri of Counsel with D Malbasa for the Construction, Forestry, Maritime, Mining and Energy Union

N Dobson and S Masters on behalf of Ta Ann Tasmania Pty Ltd

[1] [2019] FWC 2189

[3] See e.g. Australian Manufacturing Workers' Union v Silcar Pty Ltd [2011] FWAFB 2555, 208 IR 33 at [26]- [28]; Shop, Distributive and Allied Employees Association (Queensland Branch) Union of Employees v Woolworths Limited [2013] FWCFB 2814, 232 IR 255 at [22]; McWhirter v Endeavour Energy [2017] FWCFB 5955 at [22]- [23]

[4] [1945] CthArbRp 426; (1945) 55 CAR 307

[6] [2010] FCAFC 83, 185 FCR 383, 270 ALR 414

[7] (1962) 3 FLR 198

[9] Townsend v General Motors-Holden's Ltd [1983] FCA 204, 4 IR 358 at 367-370

[11] [1986] HCA 32, 160 CLR 513

[13] [1987] HCA 49, 163 CLR 500

[15] Lasermax Engineering Pty Limited v QBE Insurance (Australia) Limited [2005] NSWCA 66 at [43]- [44]

[16] March v Stramare (E & MH) Pty Ltd [1991] HCA 12, 171 CLR 506

[18] [1920] CthArbRp 137; (1920) 14 CAR 811

[23] [1922] CthArbRp 167; (1922) 16 CAR 1248

[24] [1924] HCA 38; 35 CLR 1

[28] [1929] CthArbRp 5; (1929) 27 CAR 577

[31] [1937] CthArbRp 32; (1937) 37 CAR 273

[34] [1941] CthArbRp 450; (1941) 46 CAR 20

[36] [1945] CthArbRp 208; (1945) 54 CAR 654

[39] [1947] CthArbRp 660; (1947) 59 CAR 1309 at 1330

[40] [1974] CthArbRp 1989; (1974) 163 CAR 115 at 133

Printed by authority of the Commonwealth Government Printer