It is expected that, under this contract system, maintenance performance will show continually improving trends in all categories of work."
This table was preceded by the following provisions which explain what some of these terms meant:
"2.2.3 Unplanned/Breakdown Maintenance
This category consists of maintenance work which is unplanned and/or is the result of equipment failure.
2.2.4 Minor Project Work
This category consists of work carried out in the areas to improve the performance and/or safety standard of the plant."
However I am not satisfied that the maintenance contract was a contract of the type on which clause 2(b)(ii) was intended to operate. In my opinion, clause 2 was intended to identify metal trades work where the employees of the employer worked on a construction site for the purpose of constructing plant of the type referred to in 2(b)(i)(1) to (5) while they are engaged in construction. Its operation is extended by clause 2(b)(ii) so as to apply to the workforce of that employer if they remain on site or return to the site to maintain or service that which had earlier been constructed.
The construction contemplated and done under the maintenance contract, or other contracts secured by Monadelphous for construction, fabrication or repair to which some of the work of Jackson and Wilson related, was, in substance, maintenance repair or servicing of existing plant constructed by the employees of other employers. This can be illustrated by some of the work relied on by Jackson and Wilson in support of the contention that their work was work to which the 1989 on-site construction award applied. The first example (in point of time) given by Jackson (which he described as involving fabrication and repair) was work on the Lasta Filter press and the repulper. I have already described the Lasta. The repulper is a piece of plant beneath the Lasta. It is about 40 feet long and has a series of rotors and shafts and a drive mechanism to agitate and mix with water the concentrate falling from the Lasta press. It was plant that had been installed and extended and was operating plant when Jackson was working for Monadelphous. It was existing plant not installed by the employees of Monadelphous. The first example (in point of time) given by Wilson (which he described as fabrication and repair) involved welding a burner tip and repairing the shaft furnace in the smelter. This involved removing a section of the shaft furnace, modifying it by cutting out a section or putting in a section, welding or fabricating it and putting it back together again. Again, however, this was work on plant that had not been installed by the employees of Monadelphous.
I accept, as submitted by counsel for Jackson and Wilson, that a significant portion of the work done by Wilson, though less so by Jackson, involved work modifying plant that had already been installed. This work was necessary because the plant was not functioning as efficiently as it might either because of some inadequacy in the original design or the materials used to construct the plant, or because of some perceived benefit in altering the plant having regard to the use that was then being made of it. If this work was being done by an employee of a contractor or sub-contractor who installed the plant initially, then the 1989 on-site award would apply because of clause 2(b)(ii). It would not otherwise apply because, as earlier discussed, the work was not being done on a construction site.
It is unlikely, in my opinion, that paragraph (ii) of the definition was intended to render as "on-site construction work" any maintenance repair or servicing. The express means adopted in the award of limiting the type of maintenance repair or servicing to which it would apply was the linkage between the employer and the contact. It did not comprehend the work done by Wilson and Jackson. The 1989 on-site award did not govern their employment.
EXTENT OF UNDERPAYMENT UNDER THE 1984 AWARD
At various points in the proceedings, tables were prepared by the parties indicating what each viewed as the days and hours worked by Wilson and Jackson, the amounts actually earned by Wilson and Jackson (both for the entire period of time of their employment and for identifiable periods within that entire period), the hours worked by them which should be treated as ordinary hours and hours worked on overtime rates, the classification that each was working in, and the rate each should have paid under the various awards that might have applied, and special rates that were said to be payable. What it means is not entirely clear though it appears there is little common ground on a range of matters dealt with by the tables.
Counsel for Monadelphous submitted that, on one approach, both Jackson and Wilson were paid more than they were entitled to under the provisions of the 1984 award. This involves the resolution of one (or possibly two related) central legal issue(s) in Monadelphous' favour. I am not satisfied I am presently in a position to address the ultimate contention of Monadelphous that, in fact, there was overpayment. It appears not to be a contention accepted by Jackson and Wilson. I do, however, consider that the central legal issues are to be resolved in the manner contended for by Monadelphous. The following are my reasons for reaching this conclusion.
It is to be recalled that Jackson and Wilson were paid a flat hourly rate of pay for all hours worked. Prior to 16 November 1992 when both Jackson and Wilson commenced to work under the 1992 maintenance agreement, the applicable hourly rate was $17.15 gross. Wilson was paid at this rate. From 15 or 16 November 1992 it was $18.00 gross. Both Wilson and Jackson were paid at these rates. The rate increased to $19.05 gross from 13 December 1993. When Jackson moved to Charlton Road he was paid at the rate of $19.67 gross which was a greater rate than that paid at the mine site and plant complex because workers at the yard did not have access to a bonus payment scheme. Depending on the classification and the period, the base rate in the 1984 award ranged between approximately $11.00 and approximately $13.00. Thus it can be seen that both Jackson and Wilson were, in relation to ordinary hours worked, paid considerably in excess of any relevant rate prescribed by the 1984 award.
It is to be recalled that what the contract rate comprehended, at least from 15 or 16 November 1992 onwards, was identified in the written contract. While the relevant provision is set out earlier in these reasons, it bears repeating. Clause 6.1 provided:
"6.1 The Contract Price is an agreed all inclusive amount payable by the Contractor to the Sub-contractor. The Sub-contractor acknowledges that under the contract the Sub-contractor has no additional entitlement of any kind for any benefit such as paid sick leave, annual leave, holiday loading, maternity or paternity leave, long service leave, bereavement leave, superannuation (unless required by the provisions of the Superannuation Guarantee Levy Act), severance pay, redundancy pay, site allowance, living away from home allowance, area allowance, industry allowance, tool allowance, clothing allowance, meal allowance, travelling allowance, relocation allowance, disability allowance, penalty rates for overtime or shift work or for working on a Saturday, Sunday or Public Holiday, or payment in lieu of any such benefit on termination. The only entitlement of the Sub-contractor is to receive payment of the contact price in accordance with this clause."
In my opinion, this clause was intended to identify what the payment of the hourly rate was to compensate for, though it is not expressed in precisely those terms.
The oral evidence about the make-up of the hourly rates is not very illuminating. McKinnon said that Monadelphous calculated rates to be paid to its workers after being awarded the 1992 maintenance contract and then discussed them with WMC. In the result some adjustments were made. He was also asked questions about the relationship between the rate paid to the workers and the payment made by WMC to Monadelphous. However Jackson gave evidence that there were discussions about the contract rates by reference to what might be elements of it. The negotiations leading to the agreement to increase the rate in April 1994. There is a handwritten document in evidence which are calculations done by the AWU-FIME organiser, Kane, at a meeting on 30 November 1993. It read:
" Award wages based on eg Trade Classifications
Metal Industry Award
Average Hours worked at Olympic Dam site
6 Days x 9 hours = 54 hours
Award Rate 438.10
Tool allow 9.00
Roxby area allow 1.53 per hr x 38 hrs = 58.14
505.24
Hr rate = $13.20
Overtime
5 days x 1.4 hrs x 1 1/2 = 7 hours = 93.10
Overtime Saturday
3 hrs x 1 1/2 = 4.5 hrs 59.85
6 hrs x 2 = 12 hrs 159.60
Shower allow $2.5 x 6 days 15.00
Disability allow 50 cents per hr x 54 hrs 27.00
Total $859.79"
" Yearly Wages
Annual Leave 2020.96
Loading 353.67
Public Hols 1212.96
L.S.L 438.90
Sick Leave 808.64
4835.13
Wages 48 wks = 41269.92
TOTAL yearly income $46105.05
Contract Rates
All of fixed rate
$19 per hour average 54 hours = 1026
x 48 wks = 49248.00
$18 per hour average 54 hours = 972
x 48 wks = 46656.00
$18.50 per hour average 54 hrs = 999
x 48 weeks = 47,952.00"
These figures were discussed at the meeting on 30 November 1993, as were similar comparisons made by Monadelphous. Jackson said he was at that meeting and it is probable Wilson was as well. Neither Jackson nor Wilson said that, either in November 1992 or subsequently, they were not aware that the rate they were paid was intended to comprehend the range of matters referred to in the written contract. Wilson's evidence was that he read the document and thus he would have read clause 6.1. Jackson said he looked at the documents briefly though it is probable he would, even looking at it briefly, have gleaned that the hourly rate was intended to be a composite rate. In any event it is relatively clear from the comparison done at the meeting of 30 November 1993 that it would have at least then been understood by Jackson and Wilson that the hourly rate comprehended the matters referred to in clause 6.1.
While I earlier indicated that Jackson and Wilson had no effective choice but to sign the written contract, I am nonetheless satisfied that they accepted, at least in a general sense, the basis upon which they were to be paid. That is, an hourly figure compensating them for a range of benefits they might otherwise enjoy under an award, including overtime penalty payments, paid annual leave, an annual leave loading, and a meal allowance.
When payment is made in this way and subsequent proceedings are brought to enforce the award, the relevant legal principle is that discussed by Sheldon J in Ray v Radano (1967) 67 AR(NSW) 471 at 478 - 479, which was approved by a Full Court of the Federal Court in Poletti v Ecob (No 2) (1989) 31 IR 321. Sheldon J said, in part:
"The position, as I see it, is that where a complainant has been employed by a defendant on work covered by an award, he is entitled under s 92(2) to claim any balance due to him between his award entitlement for his work and any payment made to him by the employer which is properly attributable to that award entitlement. If no more appears than that (a) work was done; (b) the work was covered by an award; (c) a wage was paid; then the whole of that wage can be set off against the award entitlement for the work whether it arises as ordinary time, overtime, week-end penalty rates or any other monetary right under the award. Prima facie a weekly sum paid by an employer to his employee is an appropriation by the employer (the debtor) to the payment due for the week (Sarris v Nicholson [1925] AR(NSW) 109); and, in my opinion, there is no legal significance in the mere verbiage by which the payment is described whether it be 'wages', 'remuneration' or the like."
It is when an extra award payment is made for some other purpose, as was the case in Poletti, that the amount actually paid should not be treated as payment for amounts due under the award. In my opinion the amounts actually paid to Jackson and Wilson can be treated as payments of amounts due to Jackson and Wilson under the 1984 award for the matters identified in clause 6.1
One issue that materially influences the amount Monadelphous might be liable to pay under the 1984 award is the rate at which overtime payments should be calculated. Clause 21(a) of the 1984 award provided:
"(a) For all work done outside ordinary hours the rates of pay shall be time and a half for the first three hours and double time thereafter, such double time to continue until the completion of the overtime work.
Except as provided in this subclause or subclause (c) hereof in computing overtime each day's work shall stand alone.
For the purposes of this clause ordinary hours shall mean the hours worked fixed in an establishment in accordance with clauses 18, 18A or 19 or this award.
The hourly rate, when computing overtime, shall be determined by dividing the appropriate weekly rate by 38, even in cases when an employee works more than 38 ordinary hours in a week." (emphasis added)
It can be seen that of overtime is calculated by dividing the "appropriate weekly rate" by 38. Counsel for Jackson and Wilson contended that the appropriate weekly rate is to be ascertained by multiplying the hourly rate paid under the contract by 38. Counsel for Monadelphous contended that it is the rate prescribed by the 1984 award for the relevant classification. This issue is discussed in CCH Labour Law Reporter, though the discussion is of limited assistance in the present case:
"Another problem relevant to this "ordinary rates" question is the phenomenon of over-award payments. That is, most overtime clauses in awards relate to the ordinary rate of pay fixed by the award itself as the basis for calculating overtime and other penalty rates. Assuming therefore that an employee's rate of pay was $4 per hour but his actual rate (through his over-award payment) was $5 per hour, a strict construction of the terms of the award would mean the application of the overtime formula (of either time and a half or double time) to the award rate of pay of $4 per hour. However, industrial reality would appear to prompt the acceptance of an employee's actual rate of pay as the basis for the calculation of overtime and other penalty payments. Nevertheless it is suggested that care should be taken in the formulation of overtime and other special payment clauses to ensure that those clauses reflect precisely the intentions of the parties."
It appears that as a matter of arbitral practice, earlier this century overtime provisions were formulated so that overtime was to be paid on actual rates of pay and not award rates: see Re Shipping Officers Award (1945) 54 CAR 502 at 508 and In re Bakers (Cumberland) Conciliation Committee (1938) 37 AR(NSW) 70 at 76. However there are also early authorities indicating that, in calculating other penalty rates, ordinary rates and not shift rates are to be used: see Re Amalgamated Engineering Union (1942) 47 CAR 489 and Federated Engine- Drivers and Firemens Association of Australasia (1930) 29 CAR 229.
Ultimately, however, the issue involves the construction of the 1984 award. Clause 8 prescribed wages rates for a range of classifications. That clause was headed "weekly wages rates". Clause 8(c) dealt with supplementary payments, which is a rate arising from the application of what were then the wage fixing principles of the Commission. It defined "over-award payment" and "actual rate of pay" for the purposes of identifying how adjustments to wages should be made. The definition of "over-award payment" was:
"'Over-award payment' is defined as the amount (whether it be termed "over-award payment", "attendance bonus", "service increment", or any term whatsoever) which an employee would receive in excess of the "Award Wage" which applied immediately prior to the order of the Australian Conciliation and Arbitration Commission dated 18 December 1981 for the classification in which such employee is engaged. Provided that such payment shall exclude overtime, shift allowances, penalty rates, disability allowances, fares and travelling time allowances and any other ancillary payments of a like nature prescribed by this award."
Clause 9 prescribed a minimum wage, and in para (a) there is a juxtaposition of the expression "weekly award wage" and "over-award payments". It is to be noted that para (d) provided:
"(d) Calculations for overtime, penalty rates, shift work and other payments under the award shall be made at the rate prescribed by clause 8 of this award for the classification in which the employee is employed."
However this provision, in my opinion, is intended to make clear that, in circumstances where the minimum wage is paid, namely when the award wage, or the award wage and an over-award payment, is less than the minimum wage, overtime is to be calculated by reference to the award wage and not the minimum wage.
The language used in the 1984 award is not uniform and is somewhat confusing. However, and notwithstanding the arbitral practice I earlier referred to, the use of the word "appropriate" to qualify the expression "weekly rate" in clause 21(a) rather suggests that recourse has to be had to clause 8 which prescribes weekly wage rates and then the relevant or appropriate classification ascertained. By these means the appropriate weekly rate is determined. If this is the meaning of clause 21(a) then it is intended to prescribe, as an award entitlement, payment of overtime at the award rate. That is not to say, however, that in circumstances where over-award payments are made in the sense of a base rate for ordinary hours which exceeds the minimum prescribed by the award, a term might not readily be implied into the employment contract that overtime payments would be made by reference to the actual rate of pay.
I accept that this construction of the award is a somewhat narrow one and there is no compelling reason to treat the expression "appropriate weekly rate" as not comprehending the weekly wage actually paid. It is, however, an issue I need not resolve as I am entirely satisfied that the expression "appropriate weekly rate" is not a reference to a rate of pay which itself is intended to compensate for hours worked which would attract the operation of clause 21(a). It is one thing to view clause 21(a) as operating on the wage of an employee who receives, in addition to the prescribed minimum award rate, an additional amount for ordinary hours, and another to view it as operating on the amount paid to an employee to satisfy, either nominally or actually, a plethora of benefits (including overtime penalty rates) that might be payable. Indeed the definition of over-award payment in clause 8(c)(i) appears to me to identify the type of additional payment on which clause 21(a) would operate if the wider view was taken of the meaning of "appropriate weekly rate". I reject the submission made on behalf of Jackson and Wilson that payment for overtime is to be calculated by reference to the hourly rate paid under the contract. Even if the expression in clause 21(a) is taken to be a reference to the base rate actually paid, that is, the award rate and any over-award payment of the type I have just discussed, it is probable that the base rate component in the hourly rate paid under the contract is either the award rate or a rate approximating it having regard to the calculations done by Kane in November 1993.
I should, at this point, deal with a submission made by counsel for Monadelphous raising the issue of estoppel. The submission was that Jackson and Wilson are "estopped from claiming remuneration based on award employment and Jackson is estopped from claiming the benefit of the employment termination provisions of the Act". Broadly stated, the factual background upon which this submission proceeded was that Monadelphous organised its affairs on the basis that Jackson and Wilson, after signing the contracts in November 1992, continued to provide their services on the basis set out in the contracts despite their misgivings. They did not give notice of any intention to terminate the contract after signing it, nor was it ever claimed that the payments made to them were below amounts prescribed by an award. Moreover, the claims made both by Jackson and Wilson and other employees during their engagement concerned the operation of the bonus system and the base hourly rate. Counsel for Monadelphous submitted it was unconscionable for Jackson and Wilson to retrospectively insist on a determination of their legal rights on a basis which is inconsistent with the way in which they and Monadelphous organised their affairs.
The gravaman of Monadelphous' submission was that a person may be estopped from asserting a right to a benefit derived from an award and/or from exercising a statutory right to enforce an award or obtain a remedy under Division 3 of Part VIA of the Act by their conduct. That this is so is, in my opinion, open to doubt. The benefits conferred by an award and the ancillary right to enforce them, together with the right to seek a remedy under Division 3, are not matters that can be forfeited by agreement. That is, a person upon whom those rights are conferred cannot agree to forego them, at least in a way that is legally enforceable.
So much is apparent, in my opinion, from the following passage in the judgment of Isaacs J in Josephison v Walker (1914) 18 CLR 691 at 700:
"And the unpaid balance is claimed as due by virtue, not of a common law contract, but of the statutory obligation which subsists notwithstanding any agreement to the contrary - no man being capable under the Statute of contracting himself out of his rights or obligations in this respect. The right claimed is a new right. It is a right which was unknown before to the law: a right to receive from an employer more than was bargained for."
This passage was described by Brennan CJ, Dawson and Toohey JJ in Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 421 as reflecting "the correct view" in a contemporary context. As to authorities concerning awards made under state law see Lonnergan v Molloy (1914) 13 AR(NSW) 189; Huskisson RSL Sub-Branch Club Ltd v Sullivan (1990) 20 NSWLR 332; Walkley v Dairyvale Co-operative Ltd (1972) 39 SAIR 327; HG Collett Pty Ltd v Alsop & Alsop (1982) 49 SAIR 309. I consider that Division 3 should be approached on the same footing having regard to the stated purpose of it. It is beneficial legislation: see for example Grout v Gunnedah Shire Council (1994) 1 IRCR 143 at 160, and intended to confer rights on employees of the type recognised in the Convention Concerning Termination of Employment at the Initiative of the Employer (Schedule 10 of the Act) and the related Recommendation (Schedule 10). Indeed Division 3 is in Part VIA which is entitled "Minimum Entitlements of Employees".
If an employee cannot agree to forego rights conferred by an award or Division 3, then it is unlikely an estoppel precluding their enforcement can arise from the conduct of an employee. The relevant principle was discussed by Pincus J in Beckford Nominees Pty Ltd v Shell Company of Australia Ltd (1986) 73 ALR 373 at 378:
"There is nothing explicit in the Act about exclusion of its provisions by estoppel. There is, however, authority in the English Court of Appeal for the proposition that, if on the proper construction of a statute, protective provisions cannot be ousted by agreement, the same result cannot be achieved by estoppel: Keen v Holland [1984] 1 WLR 251 at 261. It had been held by the House of Lords some years earlier, in Johnson v Moreton [1980] AC 37, that provisions of the English Agricultural Holdings Act 1948, designed to protect certain tenants, could not be excluded by agreement, although the Act did not say so in so many words. Partly, it seems, on the basis of the theory that the more food English land produced the better (see at 68), the House of Lords read the statute as not permitting contracting out on the relevant point. In the Court of Appeal case, Keen v Holland, there was argued to be an estoppel against the same provisions by convention, but the court said the provisions in question could not be got around by the means either.
Questions of this sort, are as Johnson v Moreton illustrates, often approached fairly broadly by looking at the policy underlying the statute in question and whether the provision is one intended for the protection of the public, or a section of it; another example is Barilla v James (1964) 81 WN(Pt 1) (NSW) 457.
It may be accepted that this principle arises in the context of legislative provision that are protective. Plainly Division 3 of Part VIA is such a provision. Less clear is the character of those provisions of the Act dealing with the making and enforcement of awards. Their character was considered by the High Court in Byrne in the context of considering whether the Industrial Relations Act 1988, in substantially the form it was in when it came into effect in March 1989, should be construed as conferring on an employee a right of action at common law for breach of an award obligation. Brennan CJ, Dawson J and Toohey J at 425 described it as an Act with "public aims" and not "disclos(ing) any intention to benefit or protect employees or any other class of persons by conferring on them a right of action at common law for breach of award obligation": see also McHugh and Gummow JJ at 461-432.
However it is important to bear in mind the terms of the legislation existing at the time the conduct that was said to found the estoppel took place (1992 to 1995), at the time that Jackson and Wilson sought to assert their rights under the award (September 1995) and Jackson his rights under Division 3 (January 1995). As just noted, the character of the Industrial Relations Act 1988 in substantially the form it was in when it came into force on 1 March 1989 was considered by the High Court in Byrne. Effective from 30 March 1994, the Industrial Relations Act 1988 was amended by the Industrial Relations Reform Act 1993. Section 3, which identifies the principal object of the Act, was amended. Included in it was the following:
"3 The principal object of this Act is to provide a framework for the prevention and settlement of industrial disputes which promotes the economic prosperity and welfare of the people of Australia by:
(a) ...
(b) providing the means for:
(i) establishing and maintaining an effective framework for protecting wages and conditions of employment through awards; and
(ii) ensuring that labour standards meet Australia's international obligations; and
(c) providing a framework of rights and responsibilities for the parties involved in industrial relations which encourages fair and effective bargaining and ensures that those parties abide by agreements between them; and
(d) ..."
While the principal object of the Act remained the prevention and settlement of industrial disputes, the above paragraphs disclosed maintaining wages and working conditions by the protective mechanism of awards and fair bargaining as an aspect of the purpose. In that statutory context it is probable that the principle discussed by Pincus J would operate. Different considerations might arise in relation to the Workplace Relations Act 1996 with its greater emphasis on workplace based and individual agreements.
The question of whether estoppel might arise in relation to the enforcement of an award made under the Conciliation and Arbitration Act 1904 was directly considered by Gray J in Kidd v Savage River Mines (1984) 6 FCR 398. An application had been made by the secretary of an organisation of employees to enforce an award. It was alleged that employees were entitled to wages under the award for a period in which they had been wrongfully stood down. In relation to one period in which the employees were stood down, one of them took annual leave for which he was paid. The employer submitted that the applicant was estopped from alleging any breach or non-observance of the award by reason of the employee's election to receive payment for the period taken as leave. His Honour concluded that, for reasons arising from the facts of the case, no estoppel arose. However he addressed the matter more generally and said at 409:
"It is a sound principle that statutory rights should not be defeated by estoppel, especially statutory rights created for the benefit of the public or a section of the public. The rights given by the Award in the present case are of such a nature. They have statutory force by virtue of the terms of the Act. The obligations laid down by the Award are absolute, and prevail against any contract to the contrary, as did the provisions of the statute considered by the Full Court in Walsh's case. In my view, a claim under an award cannot be defeated by estoppel."
However if I am wrong and an estoppel may arise it would be necessary to consider whether the facts found one. The submission of Monadelphous proceeded on the basis that representations were made that led Monadelphous to make assumptions of the type referred to by Mason CJ in The Commonwealth v Verwayen (1990) 170 CLR 394 at 413. In oral submissions the assumptions were identified as, first, that the contractual hourly rate would be accepted as an all encompassing rate and there would not be a claim under an award for specific provisions on top of that and, second, that by reason of the relationship between Jackson and Monadelphous being a sub-contractor relationship, there would be no recourse to the "unfair dismissal provisions". To found an estoppel it is necessary for the representation relied upon to be clear: see Legione v Hateley (1983) 152 CLR 406 at 435-6 per Mason and Deane JJ and Foran v Wight (1989) 168 CLR 385 at 410-11 per Mason CJ and 435-6 per Deane J.
As to the second matter, I do not accept that any representation was made by Jackson which could have led to the assumption relied on. It is true he worked under the contract but the evidence does not establish that he accepted the status attributed to him under it. I have already found that, when signing it, Jackson said he was doing it under protest. Indeed during his cross-examination McKinnon conceded that Jackson complained in the latter part of 1993 about having been required to sign a contract. I am not satisfied that the assumption referred to arose from the conduct of Jackson. As to the first matter, the evidence at its highest is that the contractual hourly rate would be accepted because it represented a sum equivalent to or exceeding entitlements otherwise flowing from the application of the 1984 award. No estoppel would arise in relation to any claim involving amounts payable under that award if, as a matter of fact and on the basis I have just discussed, moneys are due to Jackson and Wilson because the composite amount paid was less than award entitlements.
It may be that these conclusions resolve all issues about underpayment though perhaps they do not. If the latter, the matter can be listed for further argument to permit submissions to be put as to the matters of detail that I referred to in the first paragraph of this section of these reasons . The order I will make will be that the applicants file short minutes within 14 days. I have in mind that if the applicants accept that these conclusions mean no amounts are owing then the order would be one dismissing both applications. If amounts are owing and there is agreement that they are owing and agreement about the amounts, that can be reflected in agreed orders subject to the rights of either party to contest, by way of appeal, findings I have made in these reasons that led to that result. If there is no agreement then the order would simply be that the two applications would be listed for further hearing for the purpose of submissions being made about residual matters.
WAS JACKSON'S EMPLOYMENT TERMINATED AT THE INITIATIVE OF THE EMPLOYER
In January 1995, when the application was filed on behalf of Jackson, the Act provided that an employee could apply to the Court for a remedy in respect of the termination of his or her employment: see s 170EA. The combined effect of s 170CB and Schedules 10 and 11 of the Act was that termination of employment meant termination of employment at the initiative of the employer. It is for the applicant to demonstrate that there has been a termination at the initiative of the employer: see Melide v Rethmann Australia Environmental Services Pty Ltd (unreported, Full Court, Federal Court of Australia, 13 August 1997).
What constitutes termination at the initiative of the employer was considered by a Full Court of this Court in Mohazab v Dick Smith Electronics Pty Ltd (No. 2) (1995) 62 IR 200 at 205. The Full Court said:
"It is necessary to consider the ordinary meaning of the expression "termination at the initiative of the employer" in context in the Convention having regard to its object and purpose. The word "initiative" is relevantly defined in the New Shorter Oxford Dictionary in the following way:
"initiative 1. The action of initiating something or of taking the first step or the lead; an act setting a process or chain of events in motion; an independent or enterprising act."
And in the Concise Macquarie Dictionary in the following way:
"initiative 1. an introductory act or step; leading action; to take the initiative. 2. Readiness and ability in initiating action; enterprise: to lack initiative."
These definitions reflect the ordinary meaning of the word "initiative". Viewed as a whole, the Convention is plainly intended to protect workers from termination by the employer unless there is a valid reason for termination. It addresses the termination of the employment relationship by the employer. It accords with the purpose of the Convention to treat the expression "termination at the initiative of the employer" as a reference to a termination that is brought about by an employer and which is not agreed to by the employee. Consistent with the ordinary meaning of the expression in the Convention, a termination of employment at the initiative of the employer may be treated as a termination in which the action of the employer is the principal contributing factor which leads to the termination of the employment relationship. We proceed on the basis that the termination of the employment relationship is what is comprehended by the expression "termination of employment": Siagian v Sanel (1994) 1 IRCR 1 at 19; 54 IR 185 at 201. In many, if not most, situations the act of the employer that terminates the employment relationship is not only the act that puts in train the process leading to its termination but is, in substance, the entire process. An example would be a situation where the employer decided to dismiss an employee and did so orally or in writing with immediate effect. Other situations may be more complex..."
And later at 205-6:
"In these proceedings it is unnecessary and undesirable to endeavour to formulate an exhaustive description of what is termination at the initiative of the employer but plainly an important feature is that the act of the employer results directly or consequentially in the termination of the employment and the employment relationship is not voluntarily left by the employee. That is, had the employer not taken the action it did, the employee would have remained in the employment relationship."
In Rheinberger v Huxley Marketing Pty Ltd (1996) 67 IR 154 I considered the observations of the Full Court in Mohazab. I said at 160 - 161:
"...it is not sufficient to demonstrate that the employee did not voluntarily leave his or her employment to establish that there had been a termination of the employment at the initiative of the employer. Such a termination must result from some action on the part of the employer intended to bring the employment to an end and perhaps action which would, on any reasonable view, probably have that effect. I leave open the question of whether a termination of employment at the initiative of the employer requires the employer to intend by it action that the employment will conclude. I am prepared to assume, for present purposes, that there can be a termination at the initiative of the employer if the cessation of the employment relationship is the probable result of the employer's conduct."
I was then unaware of a line of authority in the federal courts of the United States of America that concern actionable constructive discharge. Constructive discharge can be established by demonstrating that the employer deliberately made an employee's working conditions so intolerable that the employee was forced into an involuntary resignation and the employee acted reasonably. However it would not be necessary to demonstrate that the intolerable working conditions were imposed for the purpose of forcing the employee to resign: see Young v Southwestern Savings and Loan Association 509 F 2d 140 (5th Cir, 1975); Bourque v Powell Electrical Manufacturing Co 617 F 2d 61 (5th Cir, 1980); Shawgo v Spradlen 701 F 2d 470 (5th Cir, 1983); and see also Greg McCarry, "Constructive Dismissal of Employees in Australia" (1994) 68 ALJ 494.
It is first desirable to ascertain when the termination of Jackson's employment occurred though, for the purposes of Division 3 of Part VIA, when employment was terminated is sometimes not an easy issue to resolve: see Rheinberger at 161. However, as I noted in Rheinberger, the expression "termination of employment" relates to the cessation of the employment relationship which is not dependent upon the status of the contractual relationship between the employer and the employee: see Siagian v Sanel Pty Ltd (1994) IRCR 1; Strachan v Liquorland (Aust) Pty Ltd (unreported, Industrial Relations Court of Australia, Moore J, 6 February 1996); and Brackenridge v Toyota Motor Corporation Australia Ltd (1996) 142 ALR 99. In the present case I consider the better view is that the employment relationship concluded when Jackson picked up his tools on Friday 6 January 1995. I accept it might be viewed as having concluded on 3 January 1995 when Jackson was given the separation certificate. However the certificate was produced for a particular purpose. The point at which it was apparent that Jackson would not work for Monadelphous again was 6 January 1995.
The conduct of Monadelphous that might be viewed as initiating the termination was the transfer of Jackson to Charlton Road, the failure to honour its guarantee to maintain his hours at the level that had been worked on the mine site and plant complex, the provision of work that was, in part, menial, the failure to provide work on 3 January 1995 and the failure to guarantee the provision of work after 3 January 1995.
In other circumstances the combination of these factors may, at least arguably, more clearly sustain a conclusion that the termination was at the initiative of the employer. It may have been, for example, that Jackson had the opportunity of taking up more certain employment with another employer in the week commencing Tuesday 3 January 1995 and the opportunity would have been lost if not taken up in that week. Alternatively, the evidence might clearly establish that Jackson had no funds and was unable to sustain himself and his family without either immediate work or recourse to social security or unemployment benefits. In either case the termination of the employment would have been a direct result of the conduct of the employer that, effectively, left the employee with no choice but to leave the employment.
However, the facts in the present case do not obviously point to a particular conclusion. The evidence establishes that on 3 January 1995, Jackson told Pattenden that he had a wife and child to support. I accept that he was concerned by the longer term effect of not receiving work on his capacity to support his family. However the evidence does not establish, even by implication, that had Jackson not worked on any day that week, he would have reached a point where he did not have the funds to support himself and his family in the absence of the benefits he was proposing to secure by obtaining the separation certificate. Nor does the evidence establish he was likely shortly to have reached that point. Jackson said, as I earlier noted, that he was then feeling the pinch as a result of the reduced hours he was working at Charlton Road, that he was desperate to have some sort of income for his family and that the financial position for his family was tight. However no evidence was led to show with any particularity what Jackson's financial position then was. By obtaining a separation certificate Jackson was able to obtain benefits totalling $314.80 per fortnight. His basic income from working at Charlton Road would have been, even at an average of 30 hours per week, a fortnightly amount of $1180.02 gross. The implication of Jackson's evidence is that he preferred the certainty of approximately $300 per fortnight to what he believed to be the uncertainty, if not unlikelihood, of income from Monadelphous. The critical issues, in my opinion, are whether Jackson's evidence about his belief is to be accepted, and whether his belief was reasonably based. The case put on behalf of Jackson is that the reduction in hours and the refusal to provide him with work was, in fact, part of a plan to force him to leave.
The evidence concerning the reason for what, viewed in the broad, was an overall reduction in Jackson's hours from 5 October 1994 is not entirely clear. However whether the reduction of his hours was done deliberately for an ulterior purpose or not is, in my opinion, immaterial. I say that because the decision that precipitated Jackson's request for a separation certificate was Pattenden's decision not to offer Jackson work for the period the yard was open immediately following 30 December 1994. That decision taken by Pattenden was, in my opinion, taken bona fide having regard to the work that was then available and anticipated.
Counsel for Monadelphous submitted that Jackson had decided to treat the reduction of hours as an opportunity to initiate proceedings. He characterised Jackson's conduct as opportunistic. During submissions, counsel for Monadelphous referred to "a certain political motivation". I accept that some aspects of Jackson's conduct are difficult to understand. If he was "feeling the pinch" as a result of the drop in income from the lesser hours he was working at Charlton Road, it is difficult to discern what was to be gained by ensuring an appreciably further drop in income by moving to unemployment benefits. It seems to me that there are one of two answers. The first is that he acted in the way described by counsel for Monadelphous. If so, he may have been motivated by some perceived benefit accruing to the CFMEU and advancing its cause by leaving so as to provide the basis for proceedings against Monadelphous and creating a forum for scrutinising its labour practices. However this was not put to Jackson and was not, in these terms, put by way of submission though counsel for Monadelphous did use the word "political" in the context of explaining Jackson's behaviour and motivation. Monadelphous' submission was that Jackson's conduct was opportunistic but it did not go on to answer directly the question: "to what end?" The evidence does not, in my opinion, support an inference that the decision of Jackson to leave his employment was for some political reason or a reason related to the interests of CFMEU rather than for reasons personal to him in the circumstances he was in.
It is more likely, in my opinion, that Jackson believed on 3 January 1995 that the final step in what he perceived to be the plan of Monadelphous was being given effect to by Pattenden. While I have indicated that I consider Pattenden was acting bona fide, Jackson nonetheless has a reasonable basis for his belief. He knew he was viewed as a trouble maker. He had grounds for believing Monadelphous would prefer that he not work at Roxby Downs at all. He knew the earlier guarantee had not been and was not being honoured. It is true that Jackson rang on 4 January 1995 to inquire whether there was work available. His explanation given in cross-examination for doing so was that Shaw had asked him to do so. In one sense it is an curious explanation, though it was not explored further in cross-examination. It is odd because it is not consistent with his evidence that he then believed he would not get any work. However it is not inconceivable that common courtesy would have prompted Jackson to ring when he had been asked notwithstanding that he then believed it would lead to nothing. In my opinion, Jackson believed on 3 January 1995, and it was a reasonable belief, that it was unlikely he would receive any more work from Monadelphous.
Drawing on another area of the law, whether the conduct of Monadelphous caused the termination of Jackson's employment involves a practical common sense concept: see Wardley Australia Ltd v Western Australia (1992) 175 CLR 514 at 525 and March v Stramare (E & MH) Pty Ltd (1991) 171 CLR 506. In my opinion there is a direct casual link between the conduct of Monadelphous and the termination of Jackson's employment. Its conduct commenced the process that led to and caused the termination of the employment. Jackson's employment was terminated at the initiative of Monadelphous.
REMEDY
This leads to the question of what remedy, if any, should be ordered. The primary remedy when contravention of Division 3 is established is reinstatement. Section 170EE confers a power to order reinstatement to the position occupied immediately before the termination: see s 170EE(1)(a)(i) which is the position he held at Charlton Road; or to another position: see s 170EE(1)(a)(ii). The exercise of the power to order reinstatement to another position was discussed by a Full Court in Anthony Smith & Associates Pty Ltd v Sinclair (1996) 67 IR 240 at 244:
"We have already set out the terms of s 170EE(1)(a)(ii) of the Act. The subparagraph empowers the Court to require the employer to reinstate the employee by appointing him or her "to another position on terms and conditions no less favourable than those on which the employee was employed immediately before the termination". This might be a specific position, the availability and suitability of which is revealed by the evidence. On other occasions, the Court will not specify a particular position. Provided that the court is satisfied that reinstatement is practicable and appropriate, it is open to the court to make an order in terms of par (a)(ii), leaving it to the employer to choose the position and to comply with the Court's order to provide terms and conditions that are no less favourable than those on which the employee was employed immediately before the termination. If this course is taken, the employer may select an existing position, or he or she may create a new position for the purpose. If the latter, contrary to the submission of counsel for the employer, it will not be to the point that, in the absence of the order, the employer might not have created the position. We appreciate that creation of a new position may occasion a cost, or other disadvantage, to the employer. Where there is evidence that this will be so, that evidence may be relevant on the issues of practicability and appropriateness. But it would be contrary to principle to treat such evidence as necessarily determinative. The occasion for the order arises because the employer has acted unlawfully in terminating the employee's employment. A reinstatement order is akin to an injunction compelling a wrongdoer to restore the position of the innocent party. In considering whether to grant an injunction, a court will always take into account the consequences of an order to the wrongdoer but the existence of adverse consequences has never been regarded as excluding the possibility of an order being made."
Thus power exists to order that Jackson be reinstated to a position of maintenance fitter on the mine site in the plant complex if I was satisfied on the evidence that such a position was now available.
The primary remedy of reinstatement should not be ordered if the Court thinks it would be impracticable. I note that the amendments to s 170EE introducing the notion of "appropriate(ness) in all the circumstances" operated in relation to termination occurring after 15 January 1996 or in relation to a prior termination for which no application had been filed by that date: see cl 14 of schedule 2 of the Industrial Relations and Other Legislation Amendment Act 1995. Thus the amendments have no application to the present proceedings.
The question of what constitutes impracticability has recently been canvassed by a Full Court in Perkins v Grace Worldwide (Aust) Pty Ltd (unreported, Industrial Relations Court of Australia, 7 February 1997). The Full Court endorsed, indirectly, observations of Wilcox CJ in Patterson v Newcrest Mining Limited (unreported, Industrial Relations Court of Australia, 6 June 1996) that:
"The requirement to consider the impracticability of reinstatement necessarily requires the Court to have regard to all the relevant circumstances of the case relating to the employer and the employee; as I said in Nicolson, to evaluate the practicability of a reinstatement order in a common sense way."
and observations of Wilcox CJ in Nicolson v Heaven and Earth Gallery Pty Ltd (1994) 1 IRCR 199 at 210 that:
"It is important to note that Parliament stopped short of requiring that, for general compensation to be available, reinstatement be impossible. The word "impracticable" requires and permits the Court to take into account all the circumstances of the case, relating to both the employer and employee, and to evaluate the practicability in a commonsense way. If a reinstatement order is likely to impose unacceptable problems or embarrassments, or seriously affect productivity, or harmony within the employer's business, it may be "impracticable" to order reinstatement, notwithstanding that the job remains available."
In the present case the matters identified by Monadelphous as giving rise to impracticability are first the allegations by, inter alia, Jackson of dishonesty. I understand this to be a reference principally to Jackson's belief that certain of Monadelphous management conspired to force him to leave. The second matter was "the overall context of the inter-union dispute which appears to underlie this action". The third matter was the long delay between the commencement of the application and the final hearing.
The first matter is relevant but not decisive. In Perkins the Full Court said:
"In most cases, the employment relationship is capable of withstanding some friction and doubts. Trust and confidence are concepts of degree. It is rare for any human being to have total trust in another. What is important in the employment relationship is that there be sufficient trust to make the relationship viable and productive. Whether that standard is reached in any particular case must depend upon the circumstances of the particular case. And in assessing that question, it is appropriate to consider the rationality of any attitude taken by a party.
I may be difficult or embarrassing for an employer to be required to re-employ a person the employer believed to have been guilty of wrongdoing. The requirement may cause inconvenience to the employer. But if there is such a requirement, it will be because the employee's employment was earlier terminated without a valid reason or without extending procedural fairness to the employee. The problems will be of the employer's own making. If the employer is of even average fair-mindedness, they are likely to prove short-lived. Problems such as this do not necessarily indicate such a loss of confidence as to make the restoration of the employment relationship impracticable."
By prosecuting this application under s 170EA, and seeking reinstatement, Jackson can be taken to have accepted that he can maintain a relationship with those he has accused such as to enable him to discharge the duties in the position to which he might be reinstated. He was not cross-examined to establish he could not. It is unlikely, in my opinion, that those he accused would be unable to work with Jackson and evidence was not led to establish they could not.
The second matter relied upon by Monadelphous concerned the involvement of the CFMEU and its promotion by Jackson in circumstances where relevant parts of the workforce at Roxby Downs were, and had been, represented by AWU-FIME. Whether reinstatement is impracticable will depend on the evidence and the nature of the order. In my opinion it is likely that Jackson would, if reinstated, continue his promotion of CFMEU and the prospect of him doing so might be viewed as creating problems for Monadelphous of the type referred to by Wilcox CJ in the passage just quoted from Nicholson. I have said, in another capacity and in another context, in Australian Workers' Union v Federated Engine Drivers and Firemens Association of Australasia (1992) 44 IR 453 at 460:
"I cannot ignore what I earlier described as the aspirations of the CFMEU (to represent miners in Australia whether coal miners or metalliferous miners) While demarcation issues may have been resolved between the organisations concerned (including AWU and CFMEU) at this point in time in relation to Tasmania and most areas of contention is South Australia, I do not accept that there is necessarily and certainty about this continuing. Mining is an industry of national significance and, in my view, any question of the rationalisation of union coverage in that industry cannot be left to be determined by contests between registered organisations, seeking to recruit disaffected members of another organisation on the one hand and seeking to retain them on the other, at the workplace at either the mines the subject of these orders or more generally at mines in the various States of the Commonwealth. Such a contest could lead to significant disputes that potentially could disrupt production or at least destabilise industrial relations at the workplace."
These remarks were made in the context of a legislative framework that had three features. First, a registered organisation could only enrol and represent members in areas of employment identified in its eligibility rules. Second, the capacity of a registered organisation to amend its eligibility rules was curtailed by a procedure requiring the approval of a member of the Commission. Third, the rights and obligations of employees and employers in the areas of employment in which an organisation could recruit and represent were, generally though not universally, governed by awards or collective agreements arising from the process of conciliation and/or arbitration. This third matter is no longer as dominant a feature of the legislative framework though the first two remain features of it.
Nonetheless, and apart from the changes to the legislative framework, I accept that concerns of Monadelphous about Jackson's further promotion of the CFMEU are reasonable in the sense that it would tend to destabilise existing patterns of industrial relations and probably attract critical attention from WMC which has an interest in industrial relations at Roxby Downs more generally. However if an order is made that reinstates Jackson to his position at Charlton Road, it will place Jackson in a position which Monadelphous viewed as minimising the practical effect of his commitment to CFMEU. Such an order would not preclude Jackson later resuming employment at the plant complex by agreement with Monadelphous.
I should make it plain that in approaching the matter this way, I am addressing, as I am required to, the statutory test of practicability in the way discussed in the judgment of the Full Court in Perkins. Articles 2 and 3 of the Freedom of Association and Protection of the Right to Organise Convention 1948 (No 87), ratified by Australia on 28 February 1973, recognise a right of employees to join a union of their choosing. An order under s 170EE(1)(a)(i) will not preclude Jackson's right, if eligible for membership, to remain a member of CFMEU. However Jackson may be limited by an order reinstating him to his position at Charlton Road in his ability to engage in union activity on behalf of CFMEU in a way arguably inconsistent with the Right to Organise and Collective Bargain Convention 1949 ratified by Australia on 28 February 1973.
Section s 170EE(2) states of "if the Court thinks ... that reinstatement is impracticable". It may be that the exercise of the power upon which the formation of this opinion depends, viewed in isolation, would permit or even require the consideration of impracticability in a way that was consistent with Australia's international obligations: see Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 287-288 per Mason CJ and Dean J (Gaudron J agreeing at 304), Toohey J at 302; even though it involves the exercise of judicial power: see In the marriage of Murray and Tam (1993) 16 FamLR 982 at 988. However the power to order reinstatement is a power conferred by an Act which, as earlier discussed, elsewhere limits the capacity of organisations to represent classes of employees and which effectively limits the rights of employees to join them. There is no persuasive evidence (beyond any inference that may be drawn from the fact that Jackson joined CFMEU) establishing an existing right in CFMEU to represent an employee engaged in work of the type done by Jackson or other employees generally engaged in mining and the processing of ore at Roxby Downs, nor is there persuasive evidence establishing a corresponding right of Jackson to join and remain a member of CFMEU and thus act on its behalf in recruiting other employees at the mine site or processing plant. In particular, the eligibility rules of CFMEU are not in evidence. Accordingly I do not view the approach I have taken as an inappropriate one when considering the question of impracticability.
The third matter covers the time the proceedings have taken. That there has been delay must be accepted. It is attributable, in a material respect, to the conduct of CFMEU which, in prosecuting the various claims, prevaricated as to the nature of the application it would make and pursue. As I noted at the outset of these reasons, the application under s 170EA was filed on behalf of Jackson on 16 January 1995. Jackson was then represented by a firm of solicitors, Palios Meegan and Nichols. In February and March 1995 various interlocutory steps were undertaken and hearings took place. On 30 March 1995 a notice of change of representation was filed indicating that the CFMEU was to represent Jackson. There were further interlocutory steps and an interlocutory hearing on 3 April 1995. At that hearing dates for trial of the application under s 170EA were fixed for 5, 6 and 7 June 1995.
On 5 April 1995 a summons was filed commencing a prosecution against Monadelphous alleging it had committed an offence under s 334(1) of the Act. The prosecutor was a Mr Mark Harrison, an industrial officer of CFMEU. Further interlocutory steps were taken in the application under s 170EA in April and May 1995 including an application filed on 20 April 1995 on behalf of Monadelphous that the application under s 170EA be stayed indefinitely. On 10 May 1995 von Doussa J made an order staying the application under s 170EA until the prosecution was resolved. The prosecution was listed for hearing on 28 - 31 August 1995 inclusive. There was no appearance for the prosecutor at a directions hearing conducted by me on 23 June 1995. At a further directions hearing conducted by me on 28 June 1995 I confirmed that the prosecution was listed for hearing for five days commencing on 28 August 1995. On 21 August 1995 the informant filed a notice of discontinuance.
As I noted at the outset of these reasons, applications were filed under s 127A and s 179 on behalf of Jackson on 29 September 1995. Thus almost nine months had elapsed before the proceedings (in a general sense) had any final direction. There were further directions hearings in November and December 1995 and January 1996 but the proceedings did not, in substance, progress very far. On 3 April 1996, over a year after Jackson's termination, a further telephone directions hearing was conducted by me in which counsel appeared. Thereafter steps were taken to prepare the matter for trial, though the process proved to be a lengthy one. Much of what occurred by way of interlocutory steps in 1996 related to the proceedings under s 127A and s 179 and not the application under s 170EA. The trial of the various applications took place in December 1996 and March 1997. Following the filing of written submissions, submissions were made orally in June 1997. It was not until the second day of the trial in December 1996 that it was made clear on behalf of Jackson that the application under s 170EA would be pursued with the applications under s 127A and s 179. The application under s 170EA has taken far longer to be heard and determined than would ordinarily be the case. Judgment is being given well over two and a half years after the termination occurred.
However it has not been suggested that as a result of the time this matter has taken to be finalised, Monadelphous has no work for Jackson to perform or that he no longer possess the skills to do it. The delay does not, in my opinion, justify not making an order for reinstatement and I propose to make an order under s 170EE(1)(a)(ii). It does, however, have a bearing on the exercise of the power conferred by s 170EE(1)(b)(ii) to order Monadelphous, in substance, to pay Jackson wages that would otherwise have been earned but for the termination. Counsel for Monadelphous submitted that the amount should reflect what was described as Jackson's failure to mitigate his loss by staying at Roxby Downs. Ultimately the question of mitigation requires consideration of the reasonableness of the conduct of the applicant: see Gerard Westen v Union des Assurances de Paris (unreported, Madgwick J, 28 August 1996). Moreover, the power conferred by s 170EE(1)(b)(ii) is to order remuneration lost because of the termination. That is, lost remuneration caused by the unlawful termination. In my opinion it cannot be assumed that in all cases, though it probably can in most, the remuneration lost is the remuneration foregone between the time of termination and the time of judgment ordering reinstatement. In the present case I am satisfied Jackson made reasonable attempts to get work at Roxby Downs and that he was not obliged to mitigate his loss by leaving.
The effect of the dilatory prosecution of his claim under s 170EA, is that judgment is being given probably of the order of two years after the time at which judgment would have been given had the CFMEU, acting on Mr Jackson's behalf, not commenced the prosecution which it later discontinued and not commenced the proceedings under s 127A and s 179. It is to be recalled that hearing dates for the application under s 170EA were fixed for 5, 6 and 7 June 1995. Judgment would most probably have been given within a few months of the trial. In my opinion the order to be made under s 170EE(1)(b)(ii) should broadly represent the remuneration lost for the period of eight months after the termination on the assumption that Jackson would have worked 54 hours per week at $19.67 per hour. I propose to order compensation in the sum of $35,200.00.
I certify that this and the preceding seventy-four (74) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore.
Associate:
Dated: 17 October 1997
Counsel for the Applicant: Mr S Howells
Solicitor for the Applicant: Lieschke & Weatherill
Counsel for the Respondent: Mr C Kourakis
Solicitor for the Respondent: R J Manuel & Sons
Dates of Hearing: 16, 17, 18, 19 December 1996
17, 18, 19, 24, 25 March 1997
13 June 1977