Seymour, I. v. Stawell Timber Industries Pty Ltd [1985] FCA 368

Federal Court of Australia|1985-07-01|Before: Gray J, Gray JJ, Northrop J

The substantial question raised in these proceedings is whether Part III of Clause E35 of the Carpenters and Joiners Award 1967 ("the award") imposes an obligation upon the respondent to pay to its apprentices the yates of pay prescribed by the award. That Fart is as

"Except where inconsistent with this Division, the Regulations of the Apprenticeship Commission of Victoria shall apply to apprentices in that State." The question is whether those Regulations apply to the respondent as part of the law of the State of Victoria or

respondent as part of the law of the Commonwealth. On this question, I agree with the conclusions reached by Gray J. and, 1n general, agree with his reasons for coming to those conclusions but desire to make a few general observations on

"52 In determining an industrial dispute in which the rates of pay or conditions of employment applying to apprentices in an industry are in question, the Commission shall take into consideration any scheme of apprenticeship provided by or under the law of any State or Territory." This section gives a clear direction to the Commission. It does not prevent the Commission from making an award binding upon employers with respect to apprentices employed by them but it does give recognition to the special nature of

It is clear that if the award contained a provision to the effect that the award was not to apply to the employment of apprentices, within Victoria, the Regulations of the State authority, or rather the successors of those Regulations, would apply to the respondent as part of the law of the State of Victoria. In fact, the draftsman of the award has adopted clear words to that effect where the award is not to apply to the employment of apprentices. Thus the

introductory paragraph of Part II of Clause E35 of the award

which applies to apprentices in the State of South Australia

"This Division shall not apply to the employment of apprenticed carpenters or joiners in South Australia except to the extent prescribed in the sub-clauses of this Part."

Sub-clause (e) of that Part further supports that exclusion by making it clear that the award 1s subject to the law of

"(Ce) Except where inconsistent with the South Australian Apprentices Act 1950-1971, the general provisions of this Division shall apply to apprentices employed on work within the scope of this Division."

These provisions of Part II must be contrasted with the provisions of the award contained in Part III relating to

used the verb "apply" in the sense of bringing a law into contact with facts, to put into practical operation; compare Shorter Oxford Dictionary. The draftsman has used the verb "apply" to make the award binding upon employers; see the illustrations contained in the reasons of Gray J. The draftsman, in his use of the verb "apply" in Part III has been consistent with this general use of the word. Under Part III, the Regulations of the State authority are made to apply to apprentices in the State of Victoria. Pramacy is given to the award, see the opening phrase, and the award gives legal efficacy to the Regulations of the State authority as Commonwealth law insofar as those Regulations are not inconsistent with the particular provisions contained

in that Division. The draftsman has used the verb "apply" in

the sense of bringing the Regulations of the State authority to bear as part of the award. On this construction, it is clear that the Commission has had regard to the direction

contained in s.52 of the Conciliation and Arbitration Act.

I have received no assistance in determining the substantive question by reference to what was said at the request of the parties to the dispute by Mr. Commissioner Mathews when making the award. The relevant passages are set out in the reasons of Keely J. and I quote part of what is there set out:

"The parties desire, and the Commission agrees that at is desirable, that the new award should he prefaced by the following statements:-

(5) As to apprentices in Victoria, it will be noted from Part III of clause 836, for instance, that regulation of their conditions has been left to the State authority for the present. The rights of the parties on this matter are reserved, however."

In that statement, the reference to Clause B36 is noted. At

that time, what is now Clause B35 was numbered B36.

Statement numbered (5) contains its own ambiguities and in particular it does not appear to be directed to the question of whether the Regulations of the State authority should apply as part of the law of the State of Victoria or

whether the award makes those Regulations apply as part of

This matter illustrates the wisdom of the principle of law which prevents reference to negotiations between parties leading to the making of an agreement as an aid to

the construction of the agreement. This principle was

Firefighters' Union v. Minister of State for the Capital

"In support of his contentions, counsel for the union tendered and sought to rely upon material from which the award is derived as well as the logs of claim on which the award is based. He contended that that material formed a matrix of facts by which the award should be construed. He relied upon the opinion expressed by Lord Wilberforce in Prenn v. Simmonds (19711 1 W.L.R. 1381. The material was of interest but not of assistance in considering cl.23 of the award. The material itself used words and expressions which were unclear and confused. In reality the material was

unhelpful. In this respect, it is important to note that Lord Wilberforce said, at pp.1384-1385: 'There were prolonged negotiations between

solicitors, with exchanges of draft clauses ultimately emerging in clause 2 of the agreement. The reason for not admitting evidence of these exchanges is not a technical one or even mainly one of convenience, (although the attempt to admit it did greatly prolong the case and add toa its expense). It is simply that such evidence is unhelpful. By the nature of things, where negotiations are difficult, the parties' positions, with each passing letter, are changing and until the final agreement, though converging, still divergent. It is only the final document which records a consensus. If the previous documents use different expressions, how does construction of those expressions, itself a doubtful process, help on the construction of the contractual words? Tf the same expressions are used, nothing is gained by looking back; indeed, something may be lost since

the relevant surrounding circumstances may be different. And at this stage there is no consensus of the parties to appeal to.' "

I agree with the reasons and conclusion of Gray J. that the conduct of the respondent in fazrling to pay to its two apprentices, Mr. Miller and Mr. Hughes, wages in accordance with the terms of the award, constituted a number of breaches of the award but that those breaches arose out of a course of conduct and thus, under sub-section 119(1A) of the Conciliation and Arbitration Act, must be treated as constituting a single breach of those terms. Likewise, I agree with the reasons and conclusion of Gray J. that it is appropriate that a penalty of $800 should be imposed upon the

that under sub-section 119(3) of the Conciliation and

Arbitration Act, the Court should order that the respondent

pay to Mr. Miller the sum of $1,152.12, but that since Mr. Hughes was not a member of any relevant organization, the Court has no power to make a similar order with respect to

Counsel for the applicant submitted that the Court,

pursuant to the powers conferred by s.120 of the Conciliation

and Arbitration Act, should order that the penalty of $800 be

paid to Mr. Hughes in part satisfaction of the amount of

wages that are owed to him by the respondent. That section provides:

"120 Where any Court imposes a penalty in pursuance of section 119, or in pursuance of section 122, it may order that the penalty, or any part thereof, be paid into the Consolidated Revenue Fund, or to such organization or person as is specified in the order,"

The power conferred by that section arises where the Court imposes a penalty in proceedings under s.1193 or s.122. The nature of a penalty imposed in pursuance of s.119 is different in nature from a penalty imposed in pursuance of 5.122. A proceeding in pursuance of s.119 1s based on the concept of an action brought by a common informer; see

Vehicle Builders' Employees' Federation of Australia v.

General Motors-Holidens Pty. Ltd. (1977) 32 F.L.R. 100 per

Nimmo, St. John and Northrop JJ. at pp.111-114. A proceeding under s.119 is not a proceeding for a criminal offence; see Gapes v. Commercial Bank of Australia Ltd. (1979) 27 A.L.R. 87. Normally in proceedings for a penalty brought by a common informer, any penalty imposed is ordered to be paid to the person who brought the proceedings. Sub-section 119(2) specifies classes of persons who may bring proceedings for the imposition of a penalty under 5.119. That sub-section is set out:

"119(2) Any such penalty may be sued for and recovered by -

(b) any organization which is affected, or whose members or any of them are affected, by the breach; or

{c) any member of any organization who is affected by the breach; or

(e) any officer of any organization which is affected, or any of whose members are affected, by the breach, who is authorized under the rules of the organization to sue on behalf of the organization."

A proceeding brought in pursuance of 5.122 is a proceeding for a criminal offence. Under s.13 of the Crimes Act 1914, unless the contrary intention appears in the Act or regulation creating the offence, any person may institute proceedings for the summary conviction of any person in respect of any offence against the law of the Commonwealth punishable on summary conviction. It is noted that Mr. Hughes would have been able to bring proceedings for the imposition of a penalty under 5.122. It is noted further that any penalty imposed upon conviction for a criminal offence, normally, is paid into Consolidated Revenue, see the

In the present case, the proceedings are brought by the applicant in his capacity as an Inspector. Consistently with the nature of the proceedings and the position of the applicant, the penalty imposed should be ordered to be paid into the Consolidated Revenue Fund, the applicant not having

brought these proceedings for his own financial benefit.

Mr. Hughes does not come within any of the classes specified in sub-section 119(2) of the Conciliation and

Arbitration Act. It follows therefore that he is not

authorised to sue for a penalty under s.119. Under s.120 where a penalty is imposed, the Court is empowered to order that the penalty be paid into the Consolidated Revenue Fund or to such organization or person as is specified in the

order. Section 120 must be read in conjunction with

sub-section 119(2) and, in this respect, to the classes of persons who are authorised to bring proceedings which are in the nature of proceedings brought by a common informer. In my opinion, insofar as proceedings are brought pursuant to s.119 and a penalty is imposed, s.120 should be construed as limiting the words "such organization or person" ta Organizations or persons who have brought or who are capable of bringing proceedings under s.119 and thus of necessity,

come within one of the classes of organizations ocr persons

Accordingly, I am of the opinion that the Court has mo power to make the order under 5.120 of the Conciliation

and Arbitration Act sought by counsel for the applicant,

namely, that the penalty of $800.00 be paid to Mr. Hughes.

If my opinion 1s wrong, im the exercise of the discretion conferred by 5.120, I would refuse to make the order sought. By sub-section 119(3) the Legislature has made clear the classes of persons who may benefit from an order for payment of moneys due under an award. Mr. Hughes does not come within any of those classes. I consider that it would be wrong for a Court to exercise a general power to nullify a particular privilege conferred upon classes of persons by the exercise of a particular power. To do 56 would be to negative the limited power conferred by sub-section 119(3) by relying upon the general power contained in s.120. It is interesting to note that if the

respondent had been convicted of an offence under 5.122,

apart from the power conferred by s.120, it is probable that the Court would have had power to order that the respondent pay to Mr. Hughes the amount of the wages unpaid; see 5.21B

eS =a wy, 4 3 1 2 cevtuzy thet this and the MWWE (4) j t

p.ceeding pages ale a tue copy of the feacons for Sudgment heem of the

) ) VICTORIA DISTRICT REGISTRY ) Nos. V. 20 and 21 of 1983 ) )

PROPRIETARY LIMITED (RECEIVER AND MANAGER APPOINTED)

Two applications under s. 119 of the Conciliation and Arbitration Act 1904 (the Act) have been brought by Ian Seymour (the applicant), an inspector appointed under the Act. Pursuant to an order under s. 118C of the Act the proceedings have been heard and are to be determined by a Full Court. Each application seeks the imposition of a penalty upon Stawell Timber Industries Proprietary Limited (Receiver and Manager Appointed) (the respondent) for allegedly breaching the Carpenters and Joiners Award 1967 (the award) on 11 occasions in successive weeks commencing on

29 June, 1978 and concluding on 7 September, 1978. Each of

the breaches is alleged to consist of a failure to pay to an apprentice (Mr. Hughes in matter V. 20 of 1983 and Mr. Miller in matter V. 21 of 1983) "all wages, allowances and other monies ... due to the said employee pursuant to Clause E35 Part 111 and the Industrial Training (Carpentry and Joinery Trades Apprenticeship) (Amendment) Regulations 1977 not later than the time of cessation of work on that day contrary to

On 7 November, 1983 the respondent's solicitors filed points of defence in which the respondent made no admissions, save for the incorporation of the respondent. It denied that it was bound by the award and contended further that "it was not bound by the Award by operation of law", giving as particulars that a receiver and manager of the respondent was duly appointed on 12 June, 1978. Relying upon the same particulars, it also contended that each of the two apprenticeships "was determined by operation of law" on or about 12 June, 1978, "alternatively suspended by operation of law" between 29 June, 1978 and 7 September, 1978. In my opinion the appointment of a receiver and manager, referred to in the particulars, did not operate to determine or suspend the two apprenticeships in question, nor did it result in the respondent being "not bound by the Award by operation of law" - as contended in the respondent's defence

(see Griffith v Secretary of State for Social Services (1974)

Mr. T. Ginnane, of counsel, appeared for the applicant in both matters which were heard together. The respondent was not represented before the Full Court but at an earlier hearing, before the order that the proceedings be heard and determined by a Full Court, Mr. WN. Fryde, solicitor, who appeared for the respondent, stated that "it no longer wished to appear in these proceedings, as the

company is insolvent and legal costs can no longer be met".

The award consisted of five divisions. Division E, which was headed "Joinery Shops", included clauses El, E30

and E35 which contained the following provisions :-

(a) Subject to the exceptions and modifications contained in this Division, Divisions A and E shall apply to the employment of all persons employed in the classifications of joinery work defined in this Division.

(a) All wages, allowances and other moneys due shall be paid not later than the time of cessation of work on Thursday of each working week or otherwise by mutual arrangement ..."

Clause E35, which was headed "Junior Labour", was divided into three parts. Part I, which was headed "Unapprenticed, South Australia", included the following

"(b) Unapprenticed junior employees shall be paid the same rate prescribed in sub-clause (b) of Part II hereof provided that at the completion of four years employment or on attaining 21 years of age, whichever is the sooner, such employee shall he paid the appropriate adult rate prescribed by this Division".

Part II of clause E35, which was headed "Apprentices South

Australia", provided, amongst other things, that :-

"This Division shall not apply to the employment of apprenticed carpenters or joiners in South Australia except to the extent prescribed in the sub-clauses of this Part.

(b) The minimum ordinary rate of pay to be paid to apprentices shall be in accordance with the percentages as set out in the table herein of the vate of pay prescribed by clause E4 for a Carpenter or Joiner in the locality in which they are employed".

Sub-clause (b) then set out a Table which prescribed various percentages per week for first, second, third and fourth year

Part III of clause E35 was in terms quite different from the award prescription of rates of pay for apprentices in South Australia set out in sub-clause (b) above. It read

Except where inconsistent with this Division, the Regulations of the Apprenticeship Commission of

Victoria shall apply to apprentices in that State."

The applicant submitted that Part III of clause E35 of the award imposed upon the respondent an obligation to comply with "the regulations of the Apprenticeship Commission of Victoria". A question has arisen as to whether clause E35 Part III was intended to incorporate into the award "the Regulations of the Apprenticeship Commission of Victoria" or was intended to simply preserve the operation of those

A similar question of construction arose in McManus v General Electric Co. of Australia Ltd. (1971) 18 F.L.R. 374 where the Commonwealth Industrial Court considered the

meaning of clause 7(q) of the Metal Trades Award, which

"In any State in which any statute relating to apprentices is now or hereafter in force or in which any authority with statutory power has issued or may issue any regulations relating to apprentices such statute and such regulations shall operate in such State provided that the provisions thereof are not inconsistent with this award."

"It seems to me that there are two views which can be taken as to the meaning and intent of cl. 7(q).

One is that it operates to indicate the field in which the Federal award applies and avoids the operation of that award in such a way as to override the State laws to the extent indicated in the clause. On this view the award is not to be taken as covering the whole field but preserves the operation of State law as State law save to the extent that State law directly collides with the provisions of the award.

The other view is that cl. 7(q) in effect incorporates the State law in the Federal award to the extent indicated in the clause."

Mr. Ginnane submitted that, as a matter of construction, Part III of Clause E35 did not merely preserve the operation of the regulations as regulations made under State law but that it incorporated the regulations into the award. He acknowledged that in clause El(b) where it was sought to "incorporate" into the award the provisions of another document, the award had expressly used the words "specifically incorporated herein". That sub~clause

"Otherwise such respondents shall observe the provisions of the Timber Workers Award with respect to such employees and that award shall be read and construed as if it had been specifically incorporated herein ..."

In McManus' Case (supra at p. 376) Spicer C.J. made it clear that the absence of words "that expressly incorporate State law" weighed against the submission advanced in that case (the same submission as that of the

"It is to be noted that there are provisions in the award that expressly incorporate State law, for example, cl. 6(@). The absence of such a provision incl. 7{q) weighs against the view now being considered."

His Honour then explained why the absence of such a provision would nonetheless be outweighed by other matters which were

"However there are other features of cl. 7(q) which point in the other direction. It appears to give to the State law an operation it would not otherwise have. It is to operate in relation to the scheme of apprenticeship established by the award and to apprentices under that scheme ...

conclusion that this second view is the one which should be adopted ..."

The reference by Spicer C.J. to "other features of cl. 7(q) (of the Metal Trades Award) which point in the other direction" (namely, giving "to the State law an operation it would not otherwise have") does not assist the present applicant, however, because those "other features" are absent

It should be added that Smithers J., who with Spicer C.J. constituted the majority of the Court in that case, was of the same opinion as Spicer C.J., namely, that the award clause gave to the State law an operation it would not otherwise have. Smithers J. pointed out (p. 377) that the apprenticeship there under consideration "was the creature of the award ... entered into pursuant to the elaborate provisions of cl. 7 of the award" whereas (p. 381) the State law provisions "relate only to apprentices who have

In the present case it has not been contended, and, in my opinion, could not have been contended, that clause E35 Part III gave "to the State law an operation it would not otherwise have" - the matter mentioned by Spicer C.J. as pointing "in the other direction" and also referred to by Smithers J.. The present matter is distinguishable from McManus' Case because the award did not contain "the elaborate provisions" as to apprenticeships referred to by the Court in McManus' Case; further, the apprenticeships to which the present proceedings relate were not inay sense "the creature of the award" and had been entered into under

In my opinion, clause E35 Part III, construed in its context, does not (in the words of Spicer C.d.) incorporate "the State law in the Federal award"; instead it "preserves the operation of State law as State law save to the extent that State law directly collides with the

There are three matters which support that conclusion as a matter of construction. The first matter is the absence from clause E35 Part 111 of any words expressly incorporating State law; the absence of such words is significant, particularly as the award in clause El(b), (to which reference was made earlier) expressly uses the words "as if it had been specifically incorporated herein". - The second matter is that, where it was intended that rates of

pay for apprentices should operate by force of the award

itself but by reference to other rates, the award said s0 explicitly. For example, in clause E35 Part I(b), it used the words "shall be paid the same rate prescribed in sub-clause (b) of Part 11..."; again, in clause E35 Part II(b) it used the words "rate of pay ... shall be in accordance with the percentages as set out in the table herein of the rate of pay prescribed by clause F4 ...". The third matter is that (as Joske J. said in his dissenting judgment in McManus' case, supra at p. 376), it is "hard to believe that the conciliation commissioner intended to incorporate into his award, in addition to existing provisions of the State law, possible future provisions of an

Mr. Ginnane put several submissions in support of the applicant's proposition that the award incorporated State law. First, it was contended that "the award governs many of the apprentices' conditions of employment" in Victoria. Relying upon clause E2(7) of the award, which defined "employee" as including "an apprentice or (in South Australia) an unapprenticed junior", he contended that clauses E8, E15, E16, E20, E21, E23, E28, E29 and E39 of the award governed the conditions of apprentices although they did not specifically refer to apprentices. However, the submission fails in my opinion because those clauses, with the possible exception of one clause and of part of another, did not govern the conditions of employment of Victorian apprentices unless it is first accepted that clause E35 Part

111 has the meaning for which the applicant contends.

It is necessary to deal briefly with each of those clauses. Clause E8 ("Special rates"), in providing that "extra rates shall be paid", specified that they were to he "in addition to the rates otherwise prescribed in this Division"; however, the support sought to be obtained from that clause depends upon the very question whether those rates were "rates otherwise prescribed in his Division". Similarly, the prescription in clause EFl6 ("overtime and special time") only applied in respect of "time worked beyond the ordinary time of work as prescribed in clause £13 of this Division"; again, the argument depends upon whether the "ordinary time of work" of Victorian apprentices was so prescribed by the award. For the same reason, the applicant's submission is not assisted by clause EZ0 ("meal allowance") which only applied to employees working overtime "after working ordinary hours". Similarly, sub-clause (ii) of clause E21 (payment for "travelling time") is dependent

Clause E28 ("annual leave") similarly referred to "ordinary rate of payment" and was therefore dependent upon that rate being prescribed by the award. Clause E29 ("sick leave") did not expressly refer to the "ordinary rate of pay" but in my opinion the words "without deduction of pay" must, in context, have referred to the "pay" due under the award. Similarly, sub-clauses (b), (c) and (d) of clause E15 ("rest periods and crib times") used the words "without deduction of

pay". Clause E38 ("accident pay") which referred to "the

employee's appropriate 40 hour award rate", plainly applied only to those employees in respect of whom an award rate had

Of all the clauses cited, the only clauses which May have governed a condition of employment of the Victorian apprentices, irrespective of the construction placed upon clause E35 Part 111, were sub-clause E21(i) ("fares") and Clause E23 ("compensation for clothes and tools"). In my opinion the existence of those clauses does not support the applicant's submission that "the award governs many of the apprentices' conditions of employment", and that, accordingly, it "might be thought to be unlikely that the

central matter of wages would be left for enforcement under

Mr. Ginnane's second contention was that the verb "apply", used in clause E35 Part III, was an apt word to create an enforceable right. However, the words "shall apply" in clause E35 Part III are no stronger than the words "shall operate", which appeared in clause 7(q) of the Metal Trades award (set out earlier in these reasons) as to which

Spicer C.J. in McManus' Case said that two views were open.

The words "shall apply", taken on their own, are capable of conveying either of those two meanings but, in my opinion, when read in the context of the award, they do not

For similar reasons I am unable to uphold Mr. Ginnane's third contention, namely, that "a presumption exists that an award stating that particular regulations are to apply conveys the intention that they will apply to confer

rights and impose duties upon the parties to the award" - - -

seeking to rely upon a statement by Smithers J. in McManus'

Case (supra at p. 380) that such a presumption existed. However, it must be recalled that the apprenticeships

concerned in that case had been entered into under the provisions of the award itself - not under any State apprenticeship provisions. If the view had been adopted that the clause merely preserved the operation of the State regulations as State law and did not incorporate them into the Federal award, then there would have been no prescription as to the rights or obligations of the apprentices by either the State regulations or by the Federal award; in other words their conditions of employment would not have been prescribed by any industrial authority, State or Federal. In the circumstances of that case it is not surprising that Smithers d. spoke in terms of a presumption but no such presumption applies to the construction of the award in the present

Mr. Ginnane's fourth contention was based upon the existence in the Act of 5. 52. That section was in the

"In determining an industrial dispute in which the rates of pay or conditions of employment applying to apprentices in an industry are in question, the

Commission shall take into consideration any scheme of apprenticeship provided by or under the law of any State or Territory."

He submitted that "the incorporation of such schemes in Federal Awards is particularly likely in the area of

In my opinion the terms of that section do not assist the applicant; plainly an award may "take into account" an apprenticeship scheme either by preserving the operation of State law or by incorporating the State law into the Federal award (cf. the "two views" referred to by Spicer C.J. in McManus Case - at p. 375). It may be noted that the Predecessor of that section (the terms of which did not differ in any material respect from 5. 52) was referred to by

Dr. Foenander in "Industrial Regulation in Australia" (1947)

"The Commonwealth itself has, under the Constitution, no direct legislative power in this field, and the Court, in making provision in its awards, has been compelled to lean heavily on the State apprenticeship institutions. Indeed, Section 25C of the Act specifically directs the Court, 2... to take into consideration any scheme of apprenticeship provided by or under any State law, see. the Court usually prescribes that State regulation governing apprenticeship shall apply as if incorporated in the award, to the extent that it is not inconsistent with the provisions of the award itself."

The award under consideration in the present proceedings did

not contain that usual prescription that State reguiation

governing apprenticeship shall apply "as if incorporated in

The regulations placed in evidence included (A) the Apprenticeship (General Regulations 1970, as amended by the Apprenticeship (General) (Amendment No. 2) Regulations 1978,

made under the Apprenticeship Act 1958 (Vic.) (B) the

Apprenticeship (Carpentry and Joinery Trades) Regulations 1968, made under that Act and (C) the Industrial Training {Carpentry and Joinery Trades Apprenticeship) (Amendment)

Regulations 1977, made under the Industrial Training Act 1975

(Vic.), which amended the Apprenticeship (Carpentry and Joinery Trades) Regulations 1968 as amended. Having regard to the conclusion already expressed as to the construction of clause E35 Part III, it is not necessary for me to consider whether the 1967 Federal award (assuming, contrary to the opinion already expressed, that it incorporated the "Regulations of the Apprenticeship Commission of Victoria"), also incorporated the regulations made by the Governor~in-Council in 1970 and in later years after the

Apprenticeship Commission of Victorza had ceased to exist.

Nor is it necesary to consider whether all of those regulations - and, if not, then precisely what parts of them

were to "apply to apprentices" in Victoria as if incorporated into the award. In this connexion interesting questions might arise as to whether an apprentice would be committing a breach of the award if he failed to observe the

requirements of the Regulations that he "shall enrol and

attend ... classes for instruction", "shall attend punctually at the time appointed .." and " shall be diligent and behave

in a decorous manner while in the school or class".

Another difficulty facing the applicant was that the regulations referred to in (B) and (C) in the preceding Paragraph (even if they were incorporated into the award) did not prescribe minimum weekly rates of pay to be paid to apprentices in the joinery trade in the State of Victoria; the regulations provided for rates of wages as a percentage of "the wage rate and the tool allowance prescribed from time to time for the classification "Joiner (as defined) in Part II" of the Determination of the Carpenters Board made under

the Labour and Industry Act 1958 (Wic.). Accordingly, the

applicant's contention is necessarily that the Federal award in 1967 imposed a legally enforceable duty on each employer to pay to his apprentices rates of pay which would be fixed from time to time by a State Wages Board in meetings in which

In the light of the conclusion already expressed as to the construction of clause E35 Part ITI, it is not necesary for me to express any concluded opinion as to whether the Commissioner, in making an award in settlement of a dispute under the Act, had power to require employers to pay to their apprentices in Victor2za (a) rates of pay which -had been determined not by him but by an authority under State law and (b) whatever rates of pay that authority might

fix in the future. Apparently in McManus' Case it was not

argued that the Commissioner had no power to insert such a

In the present proceedings the applicant, in his written summary of submissions, contended that a "provision of a Federal Award may incorporate or render enforceable under the Award, State Regulations as they are from time to time. John Heine & Son Ltd. v Pickard (1921) 29 C.L.R. 592;

McManus v General Electric Co. of Australia Ltd. (1972) 18

F.L.R. 374; Australian Tramway Employees' Association v

Commissioner for Road Transport and Tramways (N.S.W.) (1935) 53 C.L.R. 90, i111.". The applicant's submission, in my

opinion, is not established by those authorities; they

included an obiter dictum of Evatt and McTiernan JJ. in the

Australian Tramways Employeees' case (supra at p. 111) that

"We do not accept the argument that clause 35 is bad because it works a delegation of the arbitral power to the State Legislature. This is not a case of delegation at all."

The dictum may well be explicable on the basis of the meaning of the particular clause in the context of the award and its resultant legal effect. On any view the clause did not operate to allow the State Legislature to fix or determine wage rates or other conditions of employment for the employees concerned and, accordingly, it is not suprising that it was described as "not a case of delegation at ail". In the other cases cited, the courts did not have to consider

the validity of the award provisions because no question was

Yaised as to whether a federal arbitrator had power to incorporate in an award State regulations to be made at some unspecified future date, including a date after the expiration of the period of operation of the award, i.e. ata time when it is no longer "the will of the arbitrator which

now gives force to his settlement of the dispute" - per Full

High Court in T.A. Robinson & Sons Pty. Ltd. v Haylor (1957) 97 C.L.R. 177 at 184.

It does not appear to me to be clear beyond argument that the Commissioner's power to hear and determine an industrial dispute by arbitration includes the power to Make an award incorporating rates fixed not by the Commissioner, nor by any State regulations "incorporated" into the award but fixed by a State Wages Board, which rates have themselves been notionally "adopted" by the State regulation before they have been fixed by the Wages Board. However, it may be that the Carpenters and Joiners Award 1967 was within the conciliation powers of the Conciliation and Arbitration Commission because the award was made "in terms agreed" upon by the parties, following upon "a long series of conferences in the final stages of which the Commission participated at the parties' request" (see 117 C.A.R. 14 at

p. 14-15 - set out more fully later in these reasons).

if the opinion already expressed, that clause E35 Part III, construed in its context, merely preserved the operation of the regulations as State law, is not correct,

then in my opinion the sub-clause is not free from ambiguity.

In those circumstances, although extrinsic evidence cannot be admitted to add to or to subtract from its terms nor to vary those terms, evidence is admissible of a statement made jointly by both parties at the time of the agreement, explaining the meaning of the language used by both parties; such evidence is admissible in order to ensure that the language used is construed in such a way as to reveal "the

real mind" of the parties. Chitty on Contracts (24th ed.,

Generally. Although extrinsic evidence cannot be admitted to vary or contradict the written agreement, it is admissible in some circumstances to explain it. The rule on this subject was stated by Tindal C.J. in Shore v Wilson (1842) 9Cl. & Fin. 355, 565.

',... The true interpetation, however, of every instrument being manifestly that which will make the instrument speak the intention of the party at the time it was made, it has always been considered an exception, or perhaps, to speak more precisely, not so much an exception fron, as a corollary to, the general rule above stated, that where any doubt arises upon the true sense and meaning of the words themselves, or any difficulty as to their application under the surrounding circumstances, the sense and meaning of the language may be investigated and ascertained by evidence dehors the instrument itself; for both reason and common sense agree that by no other means can the language of the instrument he made to speak the real mind of the

party.' Extrinsic evidence of this sort does not usurp the authority of a written instrument. It is the instrument which operates. The extrinsic evidence does no more than assist its operation, by

assigning a definite meaning to terms capable of such explanation or by pointing out and connecting them with the proper subject-matter. Thorpe v

Brumfitt (1873) L.R. 8 Ch.App. 650; Johnstone v Holdway £19631 1 90.5. 601; The Shannon Ltd. v Venner Ltd. £19651] Ch. 682."

At the hearing before these proceedings were referred to a Full Court, Mr. Ginnane very properly placed before the Court certain material as to the circumstances in which the award was made, notwithstanding that in his submission it was not permissible for the Court to have recourse to that material in construing the award. Before the Full Court that submission was renewed, reliance being

Placed upon T.A. Robinson & Sons Pty. Ltd. v Haylor (supra at pp. 183-184; Life Insurance Co,. of Aust. Ltd. v Phillips

(1925) 36 C.L.R. 60 and Re Tugboat Industry Award (1976) 46

F.L.R. 444. In my opinion the applicant's submission is not supported by those authorities and is is inconsistent with

the dictum of Tindal C.J. in Shore v Wilson cited by Chitty

The material tendered showed, amongst other things, that on 5 January, 1967, Mr. Commissioner Matthews, when making the award the subject of the present proceedings,

issued a decision which included the following passage

"After a long series of conferences in the final stages of which the Commission participated at the parties' request, the two organizations of employees representing carpenters and joiners have now sought that the Commission make a new award for such employees in the States of Victoria, South Australia and Tasmania in terms agreed on with employers concerned.

The parties desire, and the Commission agrees that it is desirable, that the new award should he prefaced by the following statements :-

(5) As to apprentices in Victoria, it will be noted from Part III of Clause 836, for instance, that regulation of their conditions has been left to the State authority for

the present. The rights of the parties on this matter are reserved, however."

It should be explained that Part III of clause E35 is in identical terms with "Part III of clause B36" which is referred to in paragraph (5) above. As to the meaning of the word "prefaced", the Shorter Oxford English Dictionary gives

one of the meanings of the word "preface" as: "II.1. The introduction to a literary work, usu. explaining its subject,

In my Opinion the passage quoted from the decision of the Commissioner, {reported in the Commonwealth Arbitration Report on the page immediately preceding the award) removes any ambiguity and makes it clear that Part III of clause £35 merely preserved the operation of the

regulations as State law. In this connexion the following

terms of the award, and the Commissioner, who was making the award, all considered "that it is

me to be quite inconsistent with any intention that the award was intended to "incorporate" the State regulations into the award - particularly having regard to the terms of paragraph (5).

It explicitly stated that the "regulation" of the conditions of Victorian apprentices "has been left to the State authority ..". In other words the Commonwealth Commission would not determine those matters; instead the "regulation" of them would be performed by "the State authority" to whom such matters had been deliberately "left" by agreement of the parties. The leaving of the "regulation" of the apprentices' conditions to the State authority Was expressly stated as being "for the present". At some future date there might be "regulation" by the Commonwealth Commission because the "yights of the parties on this matter are reserved". However, it is clear that "for the present" the parties jointly intended that there should be "regulation" by the State authority. The express reservation of the "rights of the parties on this matter" supports the view that there was no intention to incorporate the State regulations into the award. If the regulations had been incorporated into the award, then any

unnecessary because all parties would have had the right to apply at any time for a variation

In my opinion, even if the clause be ambiguous, the statements by which the award is "prefaced" are unequivocal and make it clear that Part 111 of clause E35 in this award, unlike the sub-clause in the Metal Trades award, was intended to preserve the operation of State law as State law and was not intended to incorporate the State law in the award. It was suggested that little or no assistance could be obtained from the preface in 1967 because clause E35 Part 111 was in the same terms as that inthe previous award; however, reference to the transcript of the proceedings leading to that previous award, which is contained in the applicant's reference book, supports the opinion that the intention was to merely preserve the operation of the regulations as State

Accordingly, in my opinion no breaches of the award

occurred and both applications should be dismissed.

VICTORIA DISTRICT REGISTRY Nos. V 20 and 21 of 1983

STAWELL TIMBER INDUSTRIES PROPRIETARY LIMITED (RECEIVER AND MANAGER APPOINTED)

Each of these matters involves a series of claims for alleged breaches or non-observances of an award, pursuant to s.

119 of the Conciliation and Arbitration Act 1904 ("the Act").

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (421 paragraphs)