R v Metal Trades Employers' Association; Amalgamated Engineering Union, Ex p

Accordingly, an application was made to Mr. Mooney for a variation of the award in the following terms: to insert in the award the following new clause 11a: - "Notwithstanding anything elsewhere contained in this award any employer in the State of New South Wales required to restrict the consumption of electricity in accordance with regulations made under the Gas and Electricity Act, 1935-1948, may, whilst such regulations continue in force, require employees to work the ordinary hours prescribed by this award at any time or on any day on the basis of 40 hours per week or 80 hours per fortnight and the ordinary rates prescribed by clauses 2, 3, 4, 5 and 6 shall be paid for such work."

Clauses 2, 3, 4, 5 and 6 of the award are clauses which specify minimum rates of wages to be paid by any employer to his employees. There are also provisions in the award which provide for ordinary hours of duty and provide that overtime, when overtime is properly worked, shall be paid for at higher rates than the rates mentioned in clauses 2 to 6 of the award. When the award was made, overtime was defined as relating to work done outside the ordinary hours or in excess of the number of hours prescribed as ordinary hours. The award also contains provisions to the effect that an extra payment of seven and one-half per cent is to be made to employees working on afternoon and night shifts.

The object of the application is to enable the employers, if the application is successful, to employ men at hours outside the ordinary hours, but to pay them ordinary rates of wages and not to be compelled to pay overtime simply because the hours of work are outside the ordinary hours or to pay extra rates as at present provided in the award in relation to shift workers.

The Arbitration Court can make awards only for the prevention or settlement of industrial disputes extending beyond the limits of any one State. The possible extent of an award is therefore limited by the ambit of the dispute in respect of which an award is sought. The objection which is taken here to the application is that, if the application were granted, an order would be made by way of variation of the award which cannot properly be made in relation to this dispute because the matters to which it relates were not within the ambit of the dispute.

It is therefore necessary to ascertain the ambit of the dispute by looking at the demands made by the employers with respect to the employees and on behalf of the employees upon the employers. In this case, there was an employers' log, as it is called, and an employees' log. These logs show that demands were made on both sides with respect to the wages to be paid for work at any time during the day or night on any day of the week, including Sundays and Saturdays and also on holidays. Varying demands were made by the employers and the employees with respect to these matters. Clause 9 of the employers' log sets out what the employers desired as to spread of hours. They proposed between 7 a.m. and 5.30 p.m. Clause 11 of this log sets out what the employers proposed as to extra payments for work done outside those hours, and clause 12 sets out the proposals with respect to payment for overtime.

In the log which was delivered to the employers on behalf of various organizations of employees in clause 6 there is a claim that the ordinary hours should be worked between 8 a.m. and 5 p.m. There is a claim as to overtime - that is to say, as to the rates of payment to be made for work done outside those hours - and then there is a claim in clause 8 for extra pay for shift workers in relation to the hours at which they work, and there are claims also in relation to Sunday and holiday work.

Accordingly, the position is that the parties were in dispute making various claims as to the subject matter of the payment to be made for work done at different hours of the day and night. A provision varying the rates of pay in relation to the time of the day or the day of the week during which work is performed is a provision which, in our opinion, is within the ambit of the original dispute. That proposition may be illustrated or supported by considering the fact that, in making its original award, the court could have omitted any provision for extra pay for overtime in respect of work done outside ordinary hours and it could have omitted any provision for extra pay for shift workers. It would have been impossible to challenge the validity of the award on the ground that no provision was made in it for such matters. If, then, the award could have been made without the provision which it is now asked should be struck out of the award, it is apparent that a variation bringing about the same result is an order which can properly be made within the ambit of the original dispute.

Reference has been made to some of the cases decided in this Court with respect to the ambit of industrial disputes. Those cases, it should be observed, were cases in which the Court was dealing only with the quantum of a minimum wage and with a dispute with respect to that quantum. Such a case is quite different from a dispute relating to times of work and to the manner in which, if at all, remuneration should vary with those times of work.

For these reasons, we are of opinion that the conciliation commissioner has jurisdiction to make the variation sought, if he thinks proper so to do, after considering all the circumstances; that the objections which have been relied upon fail, and therefore that the order nisi should be discharged with costs.

In my opinion, the relief sought by the application to the Chief Conciliation Commissioner amounts to no more than the incorporation in the award of an overriding clause which eliminates from the award so much of the provisions for overtime rates as operate to prescribe overtime rates for work done in New South Wales outside the times of the day fixed by the award for the ordinary performance of work.

I do not think that, in settling the original dispute, it was absolutely incumbent upon the Court of Conciliation and Arbitration to award overtime rates for work done outside times so fixed. The omission of such a provision from the award would not have rendered the award void. The elimination, by a variation of the award of so much of the award actually made as so provides, is therefore, in my opinion, not beyond the power of the arbitral tribunal, which is now the conciliation commissioner. I do not see why a provision having the same effect should not be framed in some such way as that proposed in the application. The word "require" in the application conceals some ambiguity, but I think that the meaning is clear.

I have no doubt that this application to vary the award does not travel beyond the ambit of the dispute which is the basis of the award. If the award had been originally made in the form it would take, if this application for a variation of its provisions were fully granted by Mr. Mooney, the award would in that respect have been clearly within the ambit of the dispute; the ambit of the dispute is to be ascertained by referring to the log of the employers and that of the employees.