Dunlop Perdriau Rubber Company Limited v Federated Rubber Workers' Union of Australia [1931] HCA 33

High Court of Australia|1931-07-01

NLOP PERDRIAU RUBBER COMPANY 7 LIMITED th ince. 8 APPR; Derrenvant,

Arbitration - Award - Interpretation - " For the purpose of saving pay- ve ment for any holiday" - '* A full week's wages" - Dismiasal of employees - | Validity of notice - * Week" - Commonwealth Conciliation and Arbitration Act 1904-1930 (No. 13 of 1904 - No. 43 of 1930).

By an award of the Commonwealth Court of Conciliation and Arbitration 'was provided that 'No employer shall - for the purpose of saving payment -any holiday - in any week in which a holiday or holidays fall, give employees ce of an intention to determine their employment. In all weeks in which "holidays occur - including holidays not kept on Mondays - the employees shall

ube entitled to a full week's wages if it is not through " their " own fault that any ' n can properly be made by the employer."

On 8th April 1930 a company informed its employees by a notice posted up

in its factory that, unless otherwise instructed, their engagements would be

terminated on 17th April; that all employees, unless otherwise notified, could _ present themselves for re-engagement when work was resumed at the factory '28th April; and that employees so re-engaged would receive payment for ' holidays occurring during the intervening period. Many employees, __ allof whom had been paid up to and including 17th April, subsequently received

anotice, dated 17th April, that they need not present themselves for re-engage- _ ment and, not being re-engaged, were not paid for 18th April, which was Good day and an "award" holiday, Although there was evidence that a marked off of orders rendered it necessary to restrict the output, the company convicted of failing to pay one of such employees a full week's wages r the period from 14th April to 20th April, both days inclusive.

Ww Duntor Perpriau RUBBER Co, Lrp. t Feperatep RUBBER Workers' Unton or AUSTRALIA.

dissenting), (1) that "saving payment for any holiday" was not "the pi pose" for which a notice of dismissal was given when the real cause of minating the engagement was not the desire to avoid payment for a h though the occurrence of a holiday was the reason for fixing the precise for the expiry of the notice; (2) that the provision in the award as to employees being entitled to a "full week's wages" for weeks in whic} holiday occurred did not mean that a full week's wages must be paid althou, the engagement was finally and completely terminated before the end "week," and that the notice given to the employee in question was effec to determine his employment on and from 17th April 1930 : and, accor that the company had been wrongly convicted.

Apprat from the Chief Industrial Magistrate of New South Wale

An information was laid by Robert Lyndon Day, an officer of t Federated Rubber Workers' Union of Australia, alleging that # Dunlop Perdriau Rubber Co. Ltd. on 17th April 1930, being bound by the provisions of an award of the Commonwealth Co

by failing to pay Charles Clerihew, an employee within the me of the award, in the employ of the defendant Company, a full wet wages due and payable to him for the period extending from 1 April to 20th April, both days inclusive, contrary to the provis

Stipendiary Magistrate for the Metropolitan Police District in State. !

The award in question prescribed (inter alia) minimum wages weekly rates; that "the hours of duty for males shall not (wit payment of overtime) exceed 9} hours on each of the five days

hereinafter mentioned, employees shall be paid for at the rate double time. (b) The holidays referred to are

, Easter Monday, Anzac Day," &e. "(c) All employees shall edtothe . . . holidays above mentioned without any on from the weekly rates, and if worked upon they shall be tled to an extra day's pay equal to double ordinary time.

employer shall - for the purpose of saving payment for any in any week in which a holiday or holidays fall, give yees notice of an intention to determine their employment.

| Mondays - the employees shall be entitled to a full week's wages t is not through his own fault that any deduction can properly by the employer." "15. . . . (c) (1) Employees not for duty will lose their pay for the time of endance unless he produces or forwards within 24 hours of commencement of such absence a medical certificate or other e satisfactory to the management that his non-attendance \s due to personal accident arising out of and in the course of his nployment, or to personal ill-health necessitating such absence. ided that no employee shall be entitled to payment for nee on the ground of personal ill-health for more than ysin any one year of his employment. (d) (1) Employment is to ined only by a week's notice on either side, and such notice iy be given at any time during the week. (2) This shall not affect ie right of any employer or his manager to dismiss any employee notice for malingering, inefficiency, neglect of duty or conduct, and in such cases wages shall be paid up to the time of only, or to deduct payment for any day the employee mot be usefully employed because of any strike by the union or other union, or through any breakdown of machinery or any oppage of work by any such cause which the employer cannot onably prevent." '16. Wages shall be paid not later than y in each week. No employers shall be allowed to keep more two days' pay in hand. If an employee leaves on proper notice is dismissed he shall be paid his wages on leaving or being dis- except in cases where the employee is dismissed outside office hours." The meaning of the words "week " and " was not defined in the award. The evidence showed

Ww Duxtor Prrpriav Rupser Co, Lrp. r. FEDERATED RUBBER Workers' Ustox oF AUSTRALIA.

Duntor PERDRIAU RuBBER Co. Lrp. FEDERATED Russer Workers' Union oF AUSTRALIA.

that on 8th April 1930 the Company's employees numbered appr mately 950. On that day the factory manager caused a notic which was substantially as follows, to be posted up in a promit position in the factory : - " Employees are hereby notified that factory will be closed from Thursday, 17th April, until Mon 28th April next. Employees are further notified that their engi ments will be terminated at ceasing time on the following (unless otherwise instructed), viz., Employees in No. 21 Mill R

tubing and tread machines, Tuesday, 15th April 1930; all oth employees Thursday, 17th April 1930. The factory will res work on Monday, 28th April instant, and all present emplo may present themselves for re-engagement on the underment dates (unless otherwise notified), viz., employees on tyre-n and vulcanizing and in shoe-making departments, Tuesday, April 1930, all other employees, Monday, 28th April 1930. employees who are thus re-engaged will receive three days' payn

stances preclude your further employment there will be no net for you to apply for re-engagement when this factory resi operation." A similar notice was received by about 100 ot employees of the Company. Clerihew accordingly did not pre' himself for re-engagement and received no further payments the Company. Employees, numbering about 730, who did not ree such a notice resumed their work on 28th or 29th April in the ordinar way, and were paid for the holidays which occurred during intervening period. The evidence of the factory manager other responsible officers of the Company was that, owing to a market

off in the demand for the Company's various commodities, : had accumulated at the factory far in excess of requirements, a there were no signs of an improvement in the demand it was tial that the services of some of the employees should be dis- ed with in order to reduce the output. This, according to the ry manager, was the sole reason for terminating the engagement employees on the dates shown in the notice, and, although 'dates were just prior to a statutory holiday, they were not merely with a view to avoiding payment for such holiday. y was again closed for some days in May 1930 owing to then on hand being considerably in excess of the demand

g been convicted by the Magistrate, the Company appealed he High Court by way of case stated. The Magistrate stated alia) that on the evidence before him he found that the of 8th April 1930 was given for the purpose of saving t for the usual Easter holidays during which the works closed; that Clerihew was paid all wages up to and including day, 17th April 1930, but was not paid for Good Friday, April 1930, and held that as Clerihew was not so paid for Friday he was not paid a full week's wages for a week in ch a holiday occurred, and he determined further that the matters defence by the Company afforded no ground of answer or to the information.

ing K.C. (with him Cook), for the appellant. Clerihew was i employee of the Company on Good Friday ; his engagement t the Company terminated on the previous day in pursuance of a ice given nine days earlier: therefore, he was not entitled to ss for the holiday. The evidence shows a very considerable 'off in orders and a consequent necessity to restrict the output. 'Magistrate's finding that the notice of 8th April was given for } purpose of saving payment for the usual Easter holidays does y to this matter. There is no evidence that the factory ed for that purpose. The use of the word "' deduction " in 4 (e) of the award suggests that the case there being provided of a person who is entitled to a full week's wage. It

Destor PEEDRIAU Rvpper Co. Lap. t. FEDERATED RUBBER Workers' Utoy oF AUSTRALIA.

H.C. or A. would not apply to the case where a person has received notice the termination of his engagement during the week. The n Dux.or was not given in a week during which a holiday fell. The

PERDRIAU a ee RUBBER week " is ambiguous and could mean a " calendar " week of

FEDERATED five days, or a "pay" week from Wednesday to Wednesday,

Wonsss The notice of dismissal may commence on any working day ai yee. expire on any working day provided a week or more interven ~~ The prohibition contained in clause 14 (e) of the award is against tl giving of notice and not against the termination of employ

Here notice was not given in a week in which a holiday fell. 0)

to a great falling off of orders the company was entitled to el

down its factory and to reduce the number of its employees, and

should not be penalized because the period of closing down includ

Flannery K.C. (with him H. G. Edwards), for the respon On the evidence before him the Magistrate was entitled to disbel the reasons put forward by the Company, and come to the conelusi that the Company's action was for the purpose of saving pay Y for the holidays. If the intention of the Company was to close u its factory in order to save expense, the week should not begin

holiday in that week. On such a reading of the clause a mea is found that accords with the scheme of the award, which int to prevent employers dismissing employees before holidays for the purpose of saving wages on such holidays. Whether

terminating the engagement. Manning K.C., in reply. Cur. adv.

men? The following written judgments were delivered : - Gavan Durry C.J. I concur in the judgment of my bro

J. No useful purpose will be served by restating the facts

reiterating the reasons expressed in the judgment of my brother jizon, with which I agree. The appeal should be allowed with costs e conviction quashed.

rARKE AND McTiernan JJ. This is an appeal in the form of a ial case from a Stipendiary Magistrate of New South Wales ing Federal jurisdiction. The Dunlop Perdriau Rubber Co. was charged on information that it, in breach of an award of r iwealth Court of Conciliation and Arbitration, failed to ay Charles Clerihew, an employee, a full week's wages due and ayable to him for the period extending from the 14th to 20th April

0, both days inclusive. Under the award, made on 13th May 926, employees in the position of Clerihew were entitled to a weekly which was to be paid not later than Friday in each week, but mployer was allowed to keep more than two days' pay in hand. mployment could be determined by a week's notice on either side, at any time during a week. But clause 14 (e) in the award ded as follows : - ' No employer shall - for the purpose of payment for any holiday - in any week in which a holiday or olidays fall, give employees notice of an intention to determine 'employment. In all weeks in which holidays occur - including days not kept on Mondays - the employees shall be entitled to ull week's wages if it is not through his own fault that any dedue- m can properly be made by the employer." The holidays referred nine, and include Good Friday, Easter Monday and Anzac Jay. Employees are entitled to these nine holidays " without

deduction from the weekly rates" and "if worked upon" are entitled to double time. The question in this appeal upon the proper interpretation of the ill-drawn and badly ted clause 14 (e). The object of the first part of the clause prohibit the termination of employment for the purpose of g payment for any holiday in any week in which a holiday falls, the latter part of the clause reinforces the earlier clause 14 g that employees shall be entitled to the nine holidays it any deduction from weekly rates, except such deductions as e owing to the fault of the employee (cf. clause 15 (c) (1)

Destor PerpRriav Rupeer Co, Lap. FrepeRaTep Repper Workers' Ustox oF AUSTRALIA.

and (2), (d) (2)). A re-arrangement of the clause will better indicat our opinion of both its meaning and its purpose : - No emp shall give employees notice of an intention to determine their emy ment for the purpose of saving payment for any holiday in any in which a holiday or holidays fall. In all weeks in which holi occur - including holidays not kept on Mondays - the employ shall be entitled to a full week's wages if it is not through their oy fault that any deduction can properly be made by the employer, - is not, as it seems to us, the point of time at which the noti given or its expiration in a week in which a holiday falls that important, but whether the notice is given for the purpose of saying payment for any holiday in any week whatever in which a holid or holidays fall. A notice given for that purpose is bad, and employment is not thereby terminated, with the result, exp stated in the award, that the employees are entitled to a full

wages for the week in which the holiday or holidays occur, subj to any allowable deduction. Now, the Stipendiary Magistrate found, upon the evidence before him, that the notice of intentior determining the employment of Clerihew and the other emplo was given for the purpose of saving payment for the Easter holid namely, Good Friday, Easter Monday and Anzac Day. In ow opinion that finding is supported by the evidence and should no' disturbed. In the early part of 1930, there was a serious declit in the sales of the commodities manufactured by the Dunlop Perdri

Rubber Co. Ltd., and a shortening of hands in its Sydney factory seemed advisable. But the Company did not shorten hands:

from Thursday, 17th April, until Monday, 28th April 1930, and they might present themselves for re-engagement (unless othe

classes of work. The factory was accordingly closed down for period mentioned. But it is to be observed that in this period holidays fell, and also two Saturdays and two Sundays, as sho the following table: 18th (Good Friday), 19th Saturday, Sunday, 21st Monday (Easter Monday), 22nd Tuesday, 23rd Wed day ; 24th Thursday, 25th Friday (Anzac Day), 26th Saturday,

Consequently, there were, in the period, only three in g days - the 22nd, 23rd and 24th - unless overtime or double ere paid. The manager of the Company declared that the was closed down and all hands dismissed during the Easter because of the decline in trade. But the Stipendiary Magis- te did not accept this statement - partly, we should think, because not believe that the full extent of the decline in trade was n to the manager until after the posting of the notice of dis- and partly because he did not believe that the decline in warranted the dismissal of all the employees, but only a g of hands. The Magistrate, putting on one side the ted reason for closing down, then concluded that the real of the notice of intention to dismiss, and the dismissal of, e employees was to save payment for holidays in the weeks in Good Friday, Easter Monday and Anzac Day fell. Such a g obviously depends upon the opinion the Magistrate formed ie credibility of the witnesses called for the Company, and this has said over and over again that it must be guided by the on of the tribunal which has seen and heard the witnesses. reliance was placed on the fact that all employees who were gaged were notified that they would receive and did receive days' payment in lien of holidays occurring during the period ge. If, however, the notice terminating the engagement of oyees was a good notice, then the payment was a gratuity ; it was not good, then the employees were not paid the weekly » awarded to them for the weeks in which the holidays fell. ication, therefore, does not seem to us of any real import- though it was suggested that it recognized the obligation to se the employees were dismissed for the purpose of saving ent for holidays in the Easter period. Again, reliance was on the fact that Clerihew received a notice on the 23rd April

he would not be re-engaged, but that is immaterial if the prior of dismissal posted by the Company was bad. It is not very ton the evidence whether Clerihew was employed from Wednes- o Wednesday, Friday to Friday, or Monday to Monday. The

alleges Monday to Monday, but the week of employment 'XLVI. 23

Dustor PeRpRIAav RUBBER Co. Lap. v. FEDERATED Rupper Workers' Us1ox oF AUSTRALIA.

ed Dustor PERDRIAU RUBBER Co. Lr. v FEDERATED RuBBER Workers' Unto oF AUSTRALIA.

is unimportant, for, whichever period is taken, the Good Friday holiday falls within it.

The question stated for the opinion of the Court should, we think, be answered in the negative, and the appeal thus dismissed.

Dixon J. Notwithstanding the caption of some of the process, the parties agree that the conviction from which this appeal is _ brought was in fact made by a Stipendiary Magistrate sitting as a Court of Petty Sessions exercising Federal jurisdiction. Upon this view the appeal is given by sec. 73 (1.) of the Constitution and is governed by sec. 39 (2) (b) of the Judiciary Act 1903-1927 and sec. IV. of the Appeal Rules. In determining such an appeal it is the duty of this Court to give its own judgment according to its own opinion in the same manner as on appeals from a Judge sitting with- out a jury (Bell v. Stewart (1) ).

The information upon which the appellant was convicted was laid under sec. 44 of the Commonwealth Conciliation and Arbitration - Act 1904-1930, and alleged that the appellant on Thursday, 17th April 1930, committed a breach of an award of the Commonwealth Court of Conciliation and Arbitration by failing to pay to an employee named Charles Clerihew a full week's wages due and payable to him for the period extending from Monday, 14th April, to Sunday, 20th April 1930, both days inclusive. The award, by which the relations between the appellant and its employee were regulated, prescribed minimum wages at weekly rates. It prescribed maximum hours of duty (without payment of overtime) for " each of the five days of the week - Monday to Friday inclusive '' as well as maximum hours for "a week," and it determined the overtime rates to be paid " for work done beyond the prescribed hours of duty in the industry on any one day or night or week.' It provided that for all time on duty on Sundays and on nine specified annual holidays, of which Good Friday, Easter Monday and Anzac Day were three, employees should be paid at the rate of double time and that all employees should be entitled to these nine holidays without any deduction from the weekly rates. It further provided that employment might be determined only by a week's notice on either side, but that such

ce might be given at any time during the week. The clause of the award upon which the information was founded is in the follow- 'ing terms : - '' No employer shall - for the purpose of saving pay- nent for any holiday - in any week in which a holiday or holidays fall, give employees notice of an intention to determine their employ- nt. In all weeks in which holidays occur - including holidays kept on Mondays - the employees shall be entitled to a full 's wages if it is not through his own fault that any deduction eeenely be made by the employer." The number of employees April 1930 was somewhat more than 900. On that day the y manager caused a notice to be posted up notifying employees from Thursday, 17th April, until the next Monday, 28th April, the factory would be closed, and further that their engagements would be terminated at closing time, some on the 15th, some on the and the others on the 17th April, according to the nature of heir work. The notice stated that the factory would resume work on Monday, 28th April; that all present employees might present nselves for re-employment unless otherwise notified, and that

ill employees who might be thus re-engaged would receive three ' payment in lieu of the holidays occurring during the period of The holidays so occurring were Good Friday, 18th April, ster Monday, 21st April, and Anzac Day, 25th April. Clerihew

ell within the class of employees for whom the notice fixed 17th as the date of the termination of their engagements. He ceived his wages up to and including that day. The practice was pay wages weekly on Fridays calculated up to the previous esday. This was in accordance with the award, which pro- that wages should be paid not later than Friday in each week : hat no employers should be allowed to keep more than two days' 'in hand ; and that if an employee left on proper notice, or was

is d, he should be paid his wages on leaving or being dismissed. April Clerihew received by post a notice from the appellant, d 17th April, stating that as circumstances precluded his further ment there would be no necessity for him to apply for gement when the factory resumed operations. A large of similar notices was sent out to employees and when the

Duniop Perpriavu RUBBER Co. Lrp.Fepmratep RuBBER Workers' Unton oF AUSTRALIA.

factory resumed the number re-engaged was little more than 740, Upon the next pay-day these hands were all paid a day's wages for each of the three holidays, Good Friday, Easter Monday and Anzac Day. Nevertheless, the Magistrate expressly found that upon the - evidence before him the notice of 8th April "was posted for the purpose of saving payment for the usual Easter holidays during which the works were closed." It is evident that his finding cannot ; apply to payment of the employees who were re-engaged ; because the notice announced that they would be, and they in fact were, paid for the holidays. And in relation to the employees who were - not re-engaged the finding cannot be accepted, at least without explanation and modification. It appears clearly enough from the evidence that the appellant's factory manager was faced with the necessity of reducing, if not suspending, production; although it is true that until the day following the posting of the notice he did not receive from his head office a statement of the amount by which his manufactures for April must be diminished. He decided before _ 8th April that he must reduce the number of employees and he put in hand the work of selecting those who must be dismissed. The proper inference is that he closed the factory in order to effect the - dismissals and to suspend production but that he decided upon the _ period 17th April to 28th April for doing so because it contained three holidays and two Saturdays and Sundays. It appears prob- - able that wages were paid for the three holidays in order to show that the appellant had no intention of avoiding this payment, at least in the case of those whose employment was resumed after the suspension. The purpose therefore of giving notice in the case of those who, like Clerihew, were not to be re-employed was to terminate their services finally, but the reasons for choosing 17th April as the date upon which the notice should expire included the fact that it was followed by holidays for which the appellant must pay persons - who remained in its employment. The question whether such a reason amounts to the purpose of saving payment for a holiday which the award proscribes, depends upon the interpretation of the ill-drawn provision of that instrument which has already been out. Its language should, in my opinion, be construed as if it

that a notice of dismissal expiring in a week in which a holiday f

or the holiday, but notwithstanding any notice given for such a se, an employee shall be entitled to a full week's wages for the in which the holiday occurs, except in so far as any deduction be allowable by reason of some default of the employee. While his re-statement of the provision removes some of the obscurities and answers some of the questions which arise from the disorder of its terms and the peculiarities of its punctuation and syntax, it eserves the ambiguity contained in the word " week."' This word j capable of meaning the calendar week commencing on Sunday, consecutive seven days, the week observed by the particular oyer in the calculation of wages, or the five days from Monday to Friday which the award calls a week ; and other meanings may suggested. As a notice given for the purpose of avoiding pay- for a holiday must not expire in the week in which the holiday it might become important to decide amongst these alternative . But in this case the holiday fell on the day after the y of the notice, and in no view of the word " week " could the lay of expiry of the notice, a Thursday, end the week. It follows that in this case the expiry of the notice and the holiday must occur n the same week whatever meaning is given to the word " week." In saying this, it is, of course, assumed that the notice itself cannot te to constitute the period of seven days terminating with the ce the " week" by reference to which the validity of the notice elf shall be tested. The case is thus reduced to the question whether employer, when he has decided finally to dismiss an employee out any definite expectation of re-engagement, is forbidden in his of a time for the termination of the engagement to select a date is followed by a holiday within the same week. This, in 'opinion, is not what the provision means to inhibit: it is directed

g payment for any holiday" is "the purpose " for which a of dismissal is given when the real cause of terminating the ent is not the desire to avoid payment for a holiday, though

ll not be given for the purpose of avoiding payment of wages H. C. or 4

ws Dostor PERDRIAU Rvpser Co. Lap. FepEeRatep Ruppen Workers' Usioy oF AUSTRALIA,

H.C. or A. the occurrence of a holiday is the reason for fixing the precise date for _

Doxtor PERDRIAU RuBBER Co. Lev. v. FEDERATED RUBBER Workers' Union or AUSTRALIA.

the expiry of the notice. In this case an apparent complication exists because the notice, when given, was addressed indifferently to those who were to be dismissed finally and those who were to be re-engaged and paid for the intervening holidays, and because the identity of the members of those two classes remained to be ascer- tained. But this circumstance does not tend to show that the purpose of the notice was really to save payment for a holiday con- trary to the true meaning of the provision. It shows no more than

that a total suspension of manufacture was decided upon during -

the period in which the holidays occurred in order to effect a number of objects. It remains true that in so far as it resulted in employees receiving no payment for Good Friday, it was because their discharge was final. The purpose of final discharge was not to bring about this result although the dismissal having been decided upon for other reasons the holiday was not left out of account in selecting the date for the expiry of the notice. It may be that the appellant desired to avoid payment of wages for the three working days which occurred between 17th and 28th April, but this is not material. The notice, therefore, was effectual to end the employment on and from Thurs- day, 17th April 1930.

The last paragraph in the provision of the award relating to holidays, in my opinion, does not mean that a full week's wages must be paid, although the engagement is finally and completely terminated before the end of the " week."

The appeal should be allowed and the conviction quashed.

Solicitors for the appellant, Ferguson & Vine Hall. Solicitors for the respondent, Sullivan Bros.

At a glance

Court

Decision date

Source

Judgment (77 paragraphs)