Poulos, Peter Anthony v Waltons Stores (Interstate) Ltd [1986] FCA 159

Federal Court of Australia|1926-04-22|Before: Gray JJ, Smithers J

Industrial Law - operation of common rule in the Australian

Capital Territory - employee not a member of any union -

Conciliation and Arbitration Act 1904 - ss.49(1) and 123.

The Constitution (63 and 64 Vic, Chap.12) s.51 (xxxv), 3.122

PETER ANTHONY POULOS v. WALTONS STORES (INTERSTATE) LIMITED

Judgment be entered for the appellant in the sum of

$6,208.30. 3. Costs be reserved. NOTE: Settlement and entry of orders 18 dealt with by

Smithers J.: The appellant has been employed by the respondent as a store representative since 20 November 1978, y proceedings in this court he sought to recover trom the ceespondent the difrerence between the remuneration actually paid to Alm and that wnich would have been paid to him at the tate applicable to work in the classification of fFhat

percormed by him under the Fetail and wholesale Shep Smplovees

'Austcalian Vapital Territory: Award 1odé 'the Award).

There was an issue as to the proper classirication for

the surposes or the Award of the work performed ov tha appellant, Thak 1asue was determined at farst instance in FRis Court on iv Pabruarcy L984 in tavour of the tespondent.

The Vourt decided that the claztsirication was not that

designated in category 4¢ in clause 5 ot the Award with the result that the apnpellant s claim under that clause was not sustainable. However, Upon appeal Oo this Court ut was

t decided that the work perrormed by the appellant was work within that classification or the ecelevant award, namely

"order person and outdoor order person, namely employees

cotlecting orders and/or soliciting business and/or selling away trom the employer 5 place or business",

Accordingly, 1£ the applicant was a person entitled to the

But 1t was a critical u3sue between the parties, whether, even it the appellant were covered by clause 5 oat the

Award he was a person entitled to the benerit thereor. ([t was

Q fe) tended by the respondent that the apreliant was not so entitled because he was not perscnally a party to the Award and was not a member ot any organization or employees which was a party to the relevant Award or of any organization ofr employees. The respondent was a party to and bound by the Award. The appellant s reply to this contention was that at ail material times there was in torce a declaration ct the Conciliation & Arbitration Commission "that the whole of the terms ot the Crelevant] Award shall, in the Australian Capital

Territocy, subject to the specitied exclusions, be a common

vulc or the industry in respect of which the dispute arose

which Lea tc othe working of tuca Award", or & declaration to

"The Vommissicn may, 1f 1t appears to be necessary or expedient for the purpose ot preventing or settling an industrial dispute with which it 1s dealing oc or preventing further industrial disputes, declare that any term of an award shall, in a Territory, be a common rule or any industry LM cannection with which the dispute arose.

The Award was made in and only ror the ACT. Under the Award the wage payable to an empioyee tor the relevant period was in excess or that pald to the appellant. lt the appellant 1s entitled to the crenefit of the Award within the meaning aor

s.123 of the Act he 1s entitled to recover the amount ort that

xcess. The respondent contends that, notwithstanding the declarations that the terms or the Award should be a common rule in the industry, the appellant 15 not so entitled. The contention made 1s, in substance, that just as in relation to an award not extended by a common rule declaration, an employee who 1s not himself a party to the award or a member or an organization ot employees which is a party to it, 1s not antitled to the benefit of the award, so, 1m relation to an award in respect otf which a common rule declaration has been

It 28 said that 1t 1:3 established by the decision in

Leontiades v. F.T. Manfield Fry. Gtd. (1980) 43 PLR 193 that

where an employee works in an industry to which an award 15

applicable, nab ne is not a party to the award or a member ct an Seganization which 15, then, although that award binas Als amployer to pay £2 nim the awari rate, then that emplcyee 12 mot legauly entitied co the senetitc eonrerred cupen an employee by the award. I[f 13 ao established. The decision

had its yoobts in The Australian Boot Trade employe? 3

Federation v. Whybrcow « Uo. w urs. (1910) Ll CLR 311 in which

those provisions of the Act purporting to authorise 'he Commonwealth Court of Conciliation and Arbitration to declace

a common rule in a particular industry and direct that a

common rule so declared should be binding upon the persons engaged in that undustry, were ultra vires the Commonwealth and invalid. I[t as pointed out by O'Conner J. at p.329 that the making of the common rule 13 not an exercise of the power to settle industrial disputes py arbitration and 1s in no way

a settlement or an industrial disputes. He added that:

"Qne can have no mental conception of arbitration without parties in ditference over some matter capable of judicial adjustment by an arbitrator. The exercise or an authority to impose conditions or employment upon employers and employes between whom ther2® exist no such differences, even though 1t may be exercised by a standing arbitral tribunal, 18 not and cannot be an application of arbitral power. No fair reading of sub-sec. xxxv. of sec.S51 of The Constitution can justify the Parliament ot the Commonwealth in conferring such an authority on the Federal arbitration Court."

cope or the award under examination in Geontiades' Case was of course not extended by any common rule declaration. I[t was clear therefore, that, as concluded by Keely J., in respect or an award to which the employee 1S inno sense a

party, he could not be said to ke entitled to any benefit

thereunder. Under Tne Canstitution o3 and é4 Vie, Chan. 12,

the conc1liation and arbitration power contained in 35.51ixxev) provides the only legislative power under which the Commonwealth coula provide ror the rights and cbliyations cf employers and employees in relation fo the terms of employment. It 15 of Fhe essence of arbitration that ut proceeded between parties. Accordingly, an award being the eroduct ot arbitration imposes obligations and conrers rights only Upon parties. An employee neither a party himselr nor a member of an organisation which was, 1s not a party and has no

entitlements under the award. Under Flacitum (x=xv? or 2,1

of the Constitution no rights against an employer can arise

But, un a Territory, the Commonwealth Parliament, in relation to ths mutual rights and obligations between employers and employees, finds 1ts legislative power not only under s.Sl(xzxv) but also under s.122. ft is not suggested that the constitutional limits ot the powers conferred upon farlirament by $.51(xxxv) operate with respect to the legislative powers of the Parliament under 3.122 when 1t legislates for a Territory. Under 5.122 the Parliament may make laws tor the government or any Territory, and that power

Accordingly, the reasons which wnduced the High Court to hold that the intent of Parliament to authorise the Arbitration Court to declare a common rule was invalid do not

apply to laws made tor a Territory. And the substance ot the

Law made roc trae AVT under s.d2'62) of the Act 1s that the TomMlsslan may deciare that the terms of an award shail in a arcitory fe a commen Yue of any industry in connection with whith the digpute in which che awacd was made, arose. "6 to legislate was obvicusly within the law making power or the

It 15 necessary then to ascertain the legal effect of a declaration that the terms or an award are to be a common rule un an industry. To my mind there 1s only one answer to the question. fMathout a common rule the award creates rights and liabilities between the sarties ro tne award. In the absence or a common rule members or organizations which are parties to the award ace themselves considered by law to be farties. As parties they are entitled tc the benetits conrerred by the

terms or the award cn parties, in the capacity in which th

v are parties. Thus they may sus tos payments due to them under the award (section 123 ot the Act). Similarly, they are bound fo observe the obligations imposed on parties by the terms ofr the award, in the capacity in which they are parties. Accordingly, an employee who 1s a party has the benerit or the rights conrerred by the terms or the award upon employees and an employer who 1s a party 1s bound to perform the obligations imposed upon him in his capacity as an employer. And where there 1s a relationship otf employer ana employee between individual employees and individual employers the rights and obligations created by the terms or the award where that relationship exists, are enlorceable as between those two

parties. ln the absence or a common rule none of these

tne cancept cr a common cule 13s that the rights and duties

created by an award in respect or the relationship of emelover

and employes between barties theret> shall apply in respect of

that relationsnip wherever 1t oax1sts in the relevant industry whether or nct the persons in that relationship are parties to the award or members of an organization, The "rule" which ex1sts under the award, and cinds persons who are part1les t¢ 1t by reason af membership of an organization, extendc to persons in the relevant employervemployee relationshis who are not parties. It 1s that rule which the common rule brings into

operation between persons in the relevant relationship of

employer and employee who are not parties to the award.

Tf it were the situation that a common rule meant no more than that the "rule" in an award which obliges an employer to pay to an employee, whether a party or not, the rate prescribed in the award, a provision declaring a common cule would not have contravened the Constitution in the way it was held to do in Whybrow's Case. Such @ provision does not offend the Constitution. That 28 clear from, inter alia,

Leontiades Vase. [t 15 only when a common rule 15 treated as

having 1t5 natural meaning, namely, that the rule for those who are parties to the award 15 extended to those who are not parties that the constitutional restrictions apply. They do

not apply to a law made for the Australian Capital Territory.

Membershir cf an organization may be the avenue through

whith the status cr belng a party to an award 15 reached. but, once that thatus has been acquired the rights and liabilities created by the award, where the relationship of employer and employes 15 present, exist as between the parties to that relationship, tundividually. When the common rule 1s introduced it 1s the terms of the award, applicable hetween persons in the ralevant relationship, that become the common

rule. Those terms apply "commonly" throughout the industry to

ens in the relationship. The concept of a common rule

t the terms of the award are to apply in respect of a relationship ovetween parties who, might, by reason of mempership oF an crganicsation, have been parties toa an award depending on the constitutional power under $s.5lixzxv) of the Constitution, The concept is that persons in the relationship of employer and employee on whom the award would have imposed obligations and conrerred rights 1f they were parties, but who are not parties. shall have the obligations and the rights as between each other wnich they would have, if they were

parties, Thus, as was said by Latham CJ, Dixon, McTiernan,

Williams, Webb and Fullagar JJ. in Rv. Kelly & Ors; ex Parte

"The award does not atfect any non-disputant. tt does not create, (as the common rule would create)

actual rights and duties as between persons who are non-disputants."

If 16 183 said that this was obiter, 1t 1s certainly obiter of

It 1s clear that when the Commonwealth Legislates to

Ww c cr oe a) bey H ua m a re) rs wy FE 1b ry 5s a er a re

appropriately may be adopted by the Commission ror all other

persons in the Territory who, in the relevant industry, are in

the relationship of employer and employee, {f ait 1

convenient ta adopt those terms and conditions and a

declaration 15 made then those terms and conditions apply

i persons relevant celationship in the undustry. [t

rule the exastence ar non-existence organization ofr

employees registered under the Act to which, uf it had

existed, an employee might have been a member had he chosen to

Join 15 an irrelevant matter. Where a common rule has been declared the only relevant question 1s whether there 1s as between him and his employer a relationship ot employer ana

{It 15 not to be doubted that a common rule does etfecta

result which 1s foreign to arbitration. As Isaacs J. (as he

then was) speaking ot the breadth of the power conrerred by

s.Sltxxxv) said un Burwood Cinema Limited x» Urs oo. The

cr te] A Ko)

fe) ks iD iB (Oy io] (a (a) m a pe) TT my D 41925) 25 VLR 528 at p.Sd41: "That 1s to sav, while the 7zommon cule AS One extreme 1s excluded, ¢o ai limitation to individual contract as the other extreme 15s also excluded". But in and tor the Territory, that which 1s foreign to arbitration or otherwise excluded from the scone ot $.51(xxexv} may be validly enacted. And that 1s what has happened in s.49(1) ane the declarations making tne terms ot the Award a common cule in tne Territory throughout the relevant industry

Tt vas argued that before the declarations could te

treated as validly made, there should be evidence that when made sv the Commissioner making the same it appeared to him to be necessary or expedient to do so for the purvose of settling an industrial dispute with which he was dealing or or preventing turther industrial disputes. £ would regard the

avidence of ths making or the declarations as sufficient

proot. It appears to me to be a case of omnia praesumuntur

During the pericd or the appellant': employment the Award was varied trom time to time and rates were increased From time to time. [t 18 an attractive view that a declaration that the terme or an award shall be a common rule cefers to the terms of the award as they may be from time to time. But [ think that it 1s unlikely that Parliament would

intend to impose obligations on persons without providing tor

ons to have an opportunity tc bre heara. It appears to me theretore that the petter view 13 that tne terms of an award as the date ot a relevant declaration are those which apply to persons to whom they apply by virtua of a common rule declaration until that declaration is superseded by a subsequent declaration, notwithstanding that in the meantime

In the statement of claim herein, there 13 a claim for judgment ror remuneration alleged to be recoverable in respect of work perrormed between the date of commencement of the proceedings, nameiy ¢1 January i983, and the date of hearing thereot. Doubtless the principles discussed above would apply to remuneration claimed in respect of work performed at any time arter 21 January 1983 during the course of the appellant's employment with the respondent. But that work 1s not the subject of this judgment. No doubt on the ground that the cause of action which would support such a claim had not arisen at the date or action brought, argument was not submitted to this Court that remuneration in respect of work pertormed after the commencement of these proceedings was recoverable in sucn proceedings even up to the date of hearing. Reflecting this situation the judgment entered pursuant to this judgment 1s tor remuneration accrued due at the date ot commencement of these proceedings and does not

relate to remuneration in respect of any later period.

Having regard to the toregoing the appellant is entitled

to recover the total of the difterence as at 21 January 1983,

the date of the application herein, between the amount actually paid to him as remuneration and the amount which he would have been paid under the Award operating under the common rule declarations which were made from time to time.

That sum according to material supplied by the parties by

The respondent sought to set off against this amount certain sums paid to the appellant as commission 1n addition to wages actually paid. There was no evidence before the

Court as to the actual terms in which the commission was paid.

I would order that the appeal be allowed, that the decision of the trial judge be set aside and that judgment be

entered for the appellant for $6,208.30. Costs be reserved.

I ecutily that this and the 4 prewiag pages are a true copy of the Rew « for Judgment heicm of the

KEELY J.: In this matter I have had the benefit of reading, in draft form, the reasons for judgment prepared by Smithers J. and Gray J.. Those reasons set out the curial history of the appeal, including the terms of the unanimous opinion of this Court, published on 28 March, 1985 which afforded the parties an opportunity to consider their position in the light of that opinion. It 15 unnecessary to repeat the

statutory provisions, the award clauses or the terms of the

declarations that all of the terms of the award should operate as a common rule; nor to repeat the various matters

During the hearing I had some doubts as to whether the applicant, as a person who had not been shown by the evidence to have been a member of a registered organization of employees bound by the award, was "an employee entitled to the benefit of (the) award" within the meaning of s. 123 of

the Conciliation and Arbitration Act 1904 (the Act),

notwithstanding that the Conciliation and Arbitration Commission (the Commission) had declared under s. 49 of the Act that the whole of the terms of the award should "be a common rule of the retail industry in the Australian Capital Territory". In the absence of such a declaration the applicant would not be "an employee entitled to the henefit of an award" - see the reasons given in Leontiades v F.T. Manfieid Pty. Ltd. (1980) 43 F.L.R. 193 at 195-197. It appeared to me to he arguable that a declaration of the award as a common rule might not result in a non-member becoming "entitled to the benefit of (the) award" immediately upon,

and by reason of, the making of the declaration under s. 49.

Since the decision was reserved, I have given the question considerable thought and researched the decisions of both Federal and State courts and arbitral tribunals but,

with one exception (referred to later), I have been unable to

find any authority which decides the question i.e. decides whether a non-member of a union bound by an award is "an employee entitled to the benefit of (the) award" in

circumstances where the terms of the award have been declared by the Commission to be a common rule. That research has not revealed judgments dealing in any detail with the meaning of the words a "common rule" or with the legal effect of a common rule e.g. whether it confers rights upon the employers and employees as well as imposing duties. The decisions of State courts and tribunals which have been examined by me have related to State legislation in terms different from

those of the Act and have not been of direct assistance in

of Ellicott J. in Willis v Chew (unreported - delivered 9 October, 1981 in Canberra). In that decision his Honour said (p. 10) ¢:-~

"Iam satisfied that as a result of the common rule, if not otherwise, the award became binding on the defendant as an employer in the Chemist industry in the A.C.T. and onall employees as described in the common rule. Those employees included the informant. The award conferred benefits on those employees and I am therefore satisfied beyond reasonable doubt that she was, whilst employed by the defendant, entitled to the benefit of an award."

His Honour did not express any reasons for that conclusion.

Despite the absence of any authoritative decision on the question, there are several passages in the reasons for judgment of justices of the High Court which suggest that an award which has been declared to be a common rule confers rights upon all the persons employed by employers upon whom the award is binding as a common rule. In particular there is a statement of the Full High Court in R. v Kelly; ex parte State of Victoria (1950) 81 C.L.R. 64 at 82 which reads as

"The award does not affect any non-disputant. It does not create (as the common rule would create) actual rights and duties as between persons who are non-disputants."

The words which I have emphasised in that passage are an express acknowledgment by Latham C.J., Dixon, McTiernan, Williams, Webb and Fullagar JJ. that the common rule would create rights as well as impose duties. Although that statement does not constitute an extensive examination of the mature of the rights and duties created by a common rule declaration, it 1s a clear, unambiguous and unanimous expression of opinion by six justices of the High Court and, in my respectful opinion, it should be accepted and applied by this Court in the absence of compelling reasons to the contrary. In my opinion there are no considerations to the

In my opinion the general scheme of the Act does not support the view that a common rule only imposes duties and does not confer rights upon non-members; nor is that scheme dependent upon the extent of the membership of organizations registered under its provisions. Although organizations of employees (irrespective of the extent of their membership) play an important part in the functioning of the arbitration system, the existence of such organizations is not essential to the creation or to the

settlement of industrial disputes ~ see R. v Portus and

Further, in my opinion the Act does not aim at encouraging employees to become members of organizations although it does encourage the registration of organizations which are representative bodies of employees (and of employers). The chief objects of the Act, set out in s. 2, include "(e) to encourage the organization of representative bodies of employers and employees and their registration under this Act". In my opinion that object should not be construed as positively encouraging any increase in the membership of organizations of employers or of employees. Section 144 of the Act deals with the entitlement of employees to be admitted as members of the appropriate organization but plainly that entitlement does not conflict in any way with the right of the employees to refuse to

become members. Further, as Latham C.J. said in The King v

Findlay; ex parte Victorian Chamber of Manufactures (1950) 81

C.L.R. 537 at 542,:- ""...no valid award could be made prescribing compulsory unionism". I should perhaps add that in my opinion the common rule provisions apply to the employer respondents named in the original award (as well as to employers and employees not previously bound) in such a way as to confer, upon their non-member employees, the same rights as those conferred upon the employees of employers not

There are other statements which, in my opinion, are to the same effect as the passage in R. v Kelly, quoted earlier, as to the meaning and legal effect of a common rule. In Whybrow's case (1910) 11 C.L.R. 311, the High Court, in holding invalid the general power to make a common rule, placed some reliance upon the fact that persons who would be affected by the common rule "may be working in perfect harmony, and even desirous that their existing relations should not be disturbed. Yet the common rule may come in and disturb them" (per Griffith C.d. at 318 and see O'Connor J. at 326). Barton J. (at 323) referred to "a common rule binding the whole industry and all engaged in it, is plainly to extend the authority of the Court beyond the ambit of the dispute and to bind persons other than the disputants ...". O'Connor J. (at 325) referred to "a common rule of the

industry, binding upon all persons engaged in it, whether as

employers or employees, and whether members of an organization or not". A similar opinion was expressed by

"They were plainly intended to confer, and if validly enacted would confer, jurisdiction to establish by official pronouncement a binding rule

of conduct extending over the whole industry, not merely over the whole area of the dispute in that industry, and applying to every person engaged in it, although he was in no way involved in any dispute either by personal activity, or as a member of an organization, or as a working unit of one of two opposing classes in actual contest though not

In my opinion in Whybrow's case their Honours, in speaking of a common rule binding upon all persons, whether employers or employees and whether members or not, were expressing the same opinion as that expressed (40 years later) in the passage in R. v Kelly; the members of the High Court in Whybrow's case considered that the common rule would create "actual rights and duties as between persons who are non-disputants" (R. v Kelly, supra, at 82) although they did not use those words. In my opinion those passages from the judgments in Whybrow's case show that the nature of a common rule - in contrast to an award arbitrated in a dispute between parties - is that it is binding on all persons engaged in a specified industry, whether as employers or employees and whether they are members of a registered

organization or not. If employees who are non-members are

bound by the terms of the award declared to be a common rule,

in the sense of having duties imposed on them, then it is very difficult to imagine any reason why they would not also have rights conferred upon them. For example, if an award, the subject of a common rule declaration, imposed upon an employee, who was not a member of the organization, a duty to work overtime in certain circumstances, it is difficult to imagine any reason why that employee would not be ""entitled" to be paid at the overtime rate prescribed by the award for performing that duty and have an enforceable right to such Payment. Such a non-member employee would commit a breach of the award if he refused to work such overtime and would be liable to the imposition of a penalty under s. 119 of the

The situation is different where there is no common rule; there the employer's duty to pay wages prescribed by an award to a non-member is a duty owed to the union and 1s not a duty owed to the non-member. Such a duty, with no right in the non-member to enforce it, is itself at first sight surprising. There is nothing, however, to suggest that that result stems from any policy under the Act. It stems from the constitutional limits upon the Federal industrial power in relation to the settlement of interstate industrial disputes. No such constitutional limits apply in relation to the declaration under s. 49 that the "terms of an award

shall, in a Territory, be a common rule of" an industry.

In addition to the foregoing matters, there are some indications in the Act itself which, although not individually significant, when taken together tend to give some support to the opinion that the words "an employee entitled to the benefit of an award" within the meaning of s. 123 are intended to include a non-member where a term of an award has been declared to be a common rule. First, it will be noted that s. 123 does use the word "employee" and not the word "member" although, if the conclusion which I have expressed is wrong, only a member is "entitled". It may be that the word "employee" was deliberately chosen so as to permit a non-member employee to sue where a common rule declaration has been made. Second, where an employer is unable to pay an amount to which an employee is entitled under an award because the whereabouts of the employee are unknown to him, s. 124 permits the employer to pay the amount to the Commonwealth. The provision applies only where "the whereabouts of the employee are unknown" and there does not appear to be any reason why such a provision should be limited to employees who, as members, are "entitled" to an amount under an award. Section 124(2) requires the Commonwealth to hold the amount paid "in trust for the employee" and appears to assume that an employee may be "entitled" to the amount, whether he is a member or not. Third, paragraphs (a), (b) and (c) of s. 61 all use the words "all parties" and paragraph (f) reads "all members of

organizations bound by the award". It will be noted, by way

of contrast, that paragraph (e) refers to "all organizations and persons on whom the award is binding as a common rule"; the word "persons" does not appear in any of the paragraphs of s. 61 other than (e), which is the paragraph dealing with

Those provisions in the Act are in my opinion at least consistent with an intention that, where a common rule applies to the employment of a non-member employee, that person is "an employee entitled to the benefit of the award". In my opinion, having regard to the passages quoted from the judgments of the High Court, the Court should hold that the applicant is "an employee entitled to the benefit of an

I agree with the opinions expressed by Gray J. as to the following matters, in rejecting submissions made by the respondent, and with the reasons given by him for those

There is nothing in the form of the declarations made by Mr. Commissioner Brack that in any way suggests that the Commissioner was not performing these functions under s. 49 or that he misconstrued his power to make a

The common rule did not have to be made as part of a process of arbitration and accordingly the respondent's submission that

Upon the coming into operation of each of the common rule declarations, the respondent became obliged to pay to the appellant the amounts specified in each preceding variation to the wage rate for the relevant classification in cl. 5 of the Award. In the period between each such variation, and the next common rule declaration, the wage rate which the respondent was obliged to pay to the

Lastly, in my opinion there is mo substance in the respondent's contention that it is entitled to set off commission payments to the appellant against any entitlement

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAI, COURT OF AUSTRALIA

Appellant AND: WALTONS STORES (INTERSTATE) LIMITED Respondent CORAM: Smithers, Keely and Gray Ju. DATE: 22nd April 1986

REASONS FOR JUDGMENT Gray J.: This appeal is brought from the judgment of a_ single judge of the Federal Court of Australia, given on 10th February

The appellant claims, pursuant to s. 123 of the

Conciliation and Arbitration Act 1904 ("the Act"), wages alleged

to be due to him pursuant to the Retail and Wholesale Shop Employees (Australian Capital Territory) Award 1968 ("the

Award"). The claim is based on an allegation that the appellant fell within the classification "orderperson and outdoor orderperson, namely employees engaged in collecting orders and/or

soliciting business and/or selling away from the employer's place

of business", in ci. S cf che Awasd, which deais with wages.

Tne learned trial judge neld that the appellant did not fall within that classification. Aithougn he recognized that 1t was unnecessary to do so, his Honcur went on to consider other questions which had been argued. He expressed the view that the appellant had, in any event, no right of action in respect of the

The appeal first came before this Court on 28th March 1985. On the following day, the Court expressed 1ts conclusion that the learned trial judge had erred on the first issue, im the

"This is an appeal against an order by tne trial judge dismissing a claim by the appeliant undér s. 123 of the Conciliation & Arbitration Act 19504 for a sum said to be due to him as wages pursuant to the provisions of the Retail & Wholesale Shop Employees (Australian Capital Territory) Award 1968. Subject to questions of law the critical question is whether the work proved to have been performed by the appellant for the respondent was work which falls within classification number 4 1n clause 5 of the Award. The terms of that classification are

""orderperson and outdoor orderperson, namely employees engaged in collecting orders and/or

soliciting business and/or selling away from the employer's place of business"

The finding of the learned Judge was that the work performed by the appellant was not work within this classification. He said: "What he is employed to do is to go to houses and measure and quote for floor covering. Although he may in some instances be the first point of contact with a potential customer (as, for example, when he attends to a person who comes to the respondent's retail store enquiring about floor coverings at a time when the applicant 15 acting asa salesman behind the counter), that is the exceptional rather than the normal course of events."

required to establish that the dominant feature of his duties answer the description in the classification. [t 1s cur view that the question is noc to be resolved by reference to what features of the work performed were the dominant ones out rather whether the work performed was work of the nature ana quality Fulfilling the terms of the classification. The avidence of the appellant was uncontradicted and no reason was suggested py the learned Judge nor submitted to us by counsel why that evidence should not be accepted. From that avidence 1t is in our view established that the work of the appellant included the following operations, namely:

(a) attending the homes of potential carpet purchasers to measure the amount of carpet required for the customers' purposes;

(Bb) offering advice as to the types of floor coverings available from the respondent and most suitable for the customer;

(d) advising the customer as to the credit and terms of credit available;

Ce) obtaining the signature of the customer to an order if the transaction was concluded.

The evidence does not disclose the proportion of visits of the appellant to customers' homes on which an order was actually signed. But it 1s clear that this was always an object which it was the appellant's duty to pursue and that ne was successful in this on occasions. The evidence was that in some cases an order rasulted straight away and in others an order never resulted in further cases 1t resulted after some delay. It was not suggested that the number of cases in which the appellant obtained an actual order on the spot was insignificant. But the important factor 15 that it was his duty to obtain one if he could but, in any event to promote an ultimate sale. The argument put to us on this appeal by the respondent was that accepted by the learned judge, namely, that in the great majority of cases, the initial approach on behalf of the respondent to a potential customer was by what is called a "traveller caller" or some other member of the respondent's staff. The conclusion from this was that the work performed by the appellant was not in the nature of collecting orders or soliciting business or selling. In truth, however, the fact that the first contact was by another member of staff has no bearing on the question of whether what was done by the appellant fitted the classification. Clearly in most cases after the initiating action of the traveller caller the real process of inducing a sale had yet to be performed. But for the follow up by the appellant with all the advice and information which he gave to the customer, with a view to causing her or him to purchase carpet, it may be that a sale would not have eventuated. The work of the

4 - appellant was inevitably that of collecting orders, soliciting business or selling. It 1s also clear of

course that 1t was carried on away from the employer's place of business.

Having regard to the above it 1s our view that the work performed by the appellant falls within the relevant classification.

Accordingly, questions of law remain to be decided. The principal of such questions concerned the effect of the making of a declaration that the terms of the award be a common rule in the Australian Capital Territory. For reasons which were valid, counsel for the respondent is unable at this stage to deal with this 1ssue satisfactorily. In the circumstances we publish the foregoing conclusion and adjourn the appeal to a day

to be fixed on the application of either party on notice to the other."

The remaining questions were argued on 10th and (jith

September 1985. Mr. She1ls 9.C. appeared with Mr. Dodson for the

Appellant and Mr. McKeand appeared with Mr. Hatcher for the

The appeal is dealt with on the footing that the Appellant was not at any relevant time a member of the Shop, Distributive and Allied Employees' Association, the only organization of employees on which the Award is expressed to be binding. Counsel for the Appellant made a formal application for leave to call fresh evidence on this point on the appeal, but did not support the application, which was refused. The Court also acts on the footing that the Respondent was not at any relevant time a member of The Australian Capital Territory Employers Federation, or The Retail Traders Association of N.S.W. Those Organizations were the only respondents which the evidence discloses as having been expressed to be bound by the Award. It

was conceded at the trial that the respondent was then a member

t un of the iatter organization, but no admission was made as ta

The appellant was employed by the respondent from 20th

November 1978. On 31st October 1378, the Award had been issued by the Australian Conciliation and Arbitration Commission in a consolidated form, as applicable from that date (print number D8725). Clause 4(a) of the Award provided as follows:

"(a) This award shall be binding upon the employers

named in the Schedule of Respondents attached hereto,

who are engaged in or in connection with the retail

and/or wholesale shop industry in the Australian Capital

members of the Shop, Distributive and Allied Employees'

Association and upon the said Association and the members thereof."

"Employees of the classifications mentioned herein (other than an employee in respect of whom a certificate

under section 48 of the Act is in force) shall be paid

the wages set out opposite each such classification." There is then set out a table of classifications, each of which is numbered. The classification numbered 4 1s that which has already been quoted, into which the appellant fell. Beside each

classification, a weekly wage rate 1s specified. The first

"All wages shall be paid weekly in addition to any commission, bonus or premium to which the employee is entitled."

From time to time, the wage rates specified in the table

6 - Conciliation and Arbitration Commission. In most cases, the variation was by way of an order deleting the whole of cl. 5 and inserting a clause in the same form, save for changes to the wage rates. In some cases, only the figures in the table were deleted, and other figures substituted. In one case, the order is expressed ain the form of additions to the amounts of wage yates. It 25 unnecessary for present purposes to set out the

At a glance

Court

Decision date

Before

Source

Judgment (371 paragraphs)

cr te] A Ko)

Cases Cited (1)

Cited By (3)