Australasian Meat Industry Union of Employees (Queensland Branch) v McClymonts Holdings Pty Ltd [2001] QIRC 95 (2001) 167 QGIG 253

6 July, 2001 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 253 ########################################################################################################################### QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – s. 278 – unpaid wages Australasian Meat Industry Union of Employees (Queensland Branch) AND McClymonts Holdings Pty Ltd (No. W90 of 2001) COMMISSIONER BLOOMFIELD 26 June 2001 Unpaid wages – Stand-down – Casual employee – Mechanical breakdown – Employee presented for work – Employee directed to hold himself in readiness to commence work – Employee stood-down for whole day – Claim for minimum payment of 4 hours wages – Reference to Poultry Processing Award – State – S. 98 of Industrial Relations Act 1999 – Arbitrated Matter – Award silent on question of stand-down – Employee entitled to payment for 45 minutes during which he was in readiness before stand-down. DECISION This decision relates to an application by the Australasian Meat Industry Union of Employees (Queensland Branch) on behalf of Mr Janendra Singh which seeks payment of unpaid wages in the amount of $56.30 from McClymonts Holdings Pty Ltd. It is common ground that the application is in the nature of a test case. The parties to the proceedings submitted a Statement of Admitted Facts in the following terms:– “1. McClymonts Holdings Pty Ltd was the employer of Janendra Singh at Toowoomba as a process employee. 2. That the Respondent was an employer within the meaning of the Industrial Relations Act 1999. 3. That the employee was employed as a casual employee under the terms of the Poultry Processing Award – State, being engaged as a boner. The applicable classification under the award as Level 1. 4. On Monday 19th June 2000 Mr Singh presented for work at 7.30 a.m. at which time he was informed that there had been a mechanical breakdown in the factory of the employer whereby the meat in cold storage would not be boned out due to a refrigeration breakdown. 5. Mr Singh was directed by a representative of the company to hold himself in readiness to commence work. -- 1 of 3 -- 254 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 6 July, 2001 6. At approximately 8.15 a.m. Mr Singh was informed that due to the breakdown there would be no work for him that day. 7. Mr Singh was stood down over an incident for which the employer was not responsible or had no control. 8. Mr Singh could not be usefully employed for any other work that day.”. Mr L. Norris, who represented the applicant, argued that s. 98(2) of the Industrial Relations Act 1999 did not, on the admitted facts, permit the employer to stand Mr Singh down without any pay on the day in question. He said that because Mr Singh had been “engaged” on the day he was entitled to four hours’ pay for the engagement in accordance with clause 10(6) of the Poultry Processing Award – State. Mr Norris also argued that because clause 10(6) of the Poultry Processing Award – State required that casuals be paid a minimum of four hours per engagement, the industrial instrument, i.e. the Award, provided something which was “otherwise” within the meaning of s. 98(2) of the Act. It may have been a different question if the Award provided that four hours’ work had to be provided. Section 98 – “Permissible stand-down of employee” of the Act provides as follows:– “98.(1) An employer may stand-down an employee on a day, or for part of a day, when the employee can not be usefully employed because of something that happened – (a) for which the employer is not responsible; or (b) over which the employer has no control. (2) The employer may stand-down the employee without pay, unless an industrial instrument provides otherwise. (3) This section does not apply to an apprentice or trainee.”. In order to appreciate Mr Norris’s argument, it is also necessary to set out the terms of clause 10(6) of the Award, which provide:– “(6) Casuals – Casual employees shall be paid an additional 19% per hour, with a minimum of 4 hours’ pay on any day on which they are engaged. . . .”. Mr Norris argued that s. 98 of the current Act was in stark contrast to earlier stand-down provisions appearing in the Industrial Conciliation and Arbitration Act 1961–1976, the Industrial Relations Act 1990 and the Workplace Relations Act 1997. Relevantly, the earlier legislation allowed an employer to stand-down an employee despite another provision of the Act or an industrial instrument. It was submitted that the provisions in the earlier legislation were expressed to be superior to any other provision of an industrial instrument. Now, by contrast, the legislation deferred to the provisions of an industrial instrument on the matter of whether or not payment should be made in circumstances where a stand-down might have previously permitted the employer to withhold payment. Ms B. Callaghan, of Counsel, who represented the respondent, submitted that Mr Singh had not been engaged on the day in question. This was because he had not been directed to perform any work. Accordingly, the award clause had no relevance. Ms Callaghan also said that the Award was silent on the issue of stand-down. Therefore, the industrial instrument did not provide “otherwise” as was required before it could override the provisions of s. 98 of the Act. She said that if Mr Norris’s argument about the minimum payment to casuals was correct it would have equal application to any full-time employee who may have been similarly affected because, on his argument, such full-time employee would have been entitled to full payment for the week. In reply, Mr Norris said that the industrial instrument only needed to deal with payment in order to override s. 98 because that was what the section dealt with. The Award did not need to specifically deal with the issue of stand-down for it to override the section. Findings It is clear that s. 98(2) of the Industrial Relations Act 1999 is in different terms to the predecessor legislation. Why this is so is not explained in the Explanatory Notes to the Bill nor in the Minister’s Second Reading Speech. However, given the emphasis which is now accorded to certified agreements and the like it is not surprising that the legislature has altered the Act to allow provisions freely negotiated between the parties at an enterprise or award level to operate such that their freely entered into arrangements are not automatically overridden by the legislation. In any event, whatever the reasons for the alteration to the legislation, it must be interpreted on its face. In that regard, it is clear that s. 98 does permit an employer to stand an employee down in given circumstances on a day, or for part of a day, when the employee cannot be usefully employed. The Statement of Admitted Facts records that:– • There was an incident on 19 June 2000 for which the employer was not responsible or over which it had control; • Mr Singh was directed, at 7.30 a.m., to hold himself in readiness to commence work; • Mr Singh was informed at 8.15 a.m. that there would be no work for him that day; • Mr Singh could not be usefully employed for any other work on that day; • Mr Singh was given no pay for the whole of the day. The questions which fall for determination are whether Mr Singh was engaged on 19 June 2000 and, if so, what entitlements did he have to any payment. -- 2 of 3 -- 6 July, 2001 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 255 Having regard to the Statement of Admitted Facts there are two events which need to be considered. The first event is that which occurred at 7.30 a.m. The second event is that which occurred at 8.15 a.m. On the admitted facts Mr Singh accepted a direction of a representative of the company to hold himself in readiness to commence work at 7.30 a.m. On that basis he had, in my considered view, been engaged by the employer on that day. He was, from 7.30 a.m. until 8.15 a.m., ready, willing and able to work and available to be further directed by the representative of the company. On the agreed facts he was told to hold himself in readiness to commence work and he did so. It was not the case of the employer’s representative saying to him that work might or might not be available and that he could make up his own mind as to what he did. Having been engaged, he was – other events intervening – entitled to the benefits afforded to him by the provisions of clause 10(6) of the Poultry Processing Award – State. However, other events did intervene. At 8.15 a.m. the company established that because of the breakdown (for which it was not responsible and over which it had no control) Mr Singh could not be usefully employed. As a consequence, it advised him that he was stood-down for the day. In my view Mr Singh’s entitlement to be paid in accordance with clause 10(6) of the Award ceased at that time. This is because the provisions of the Award do not provide “otherwise”. The entitlement to the minimum payment per engagement of four hours must be, and is, subject to a number of other conditions. For example, Mr Singh would not have been entitled to the four hours minimum payment if he had become indisposed and had to leave work after working for only two hours. Similarly, he would not have been entitled to the four hours if he had gone on strike at some point during the day. He would have only been entitled to be paid for the time worked. Clause 10(6) of the Award does not state that casual employees are entitled to a minimum for four hours per engagement irrespective of the events of the day. In that regard it should be compared to the terms of clause 16(d) of the Glass Workers Award 1971 (139 CAR 23 at 37) or clause 14(15) of the Mount Isa Mines Limited Award (which was considered by Matthews P at (1983) 114 QGIG 41). Those provisions provide that an employee is entitled to a minimum payment for a day unless certain events or circumstances arise. Absent those events or circumstances the employee is entitled to payment. Section 98 of the Act deals with an employer’s right to withhold payment to an employee – who is otherwise ready, willing and able to work – if certain conditions are met. It thus overrides an employee’s common law right to be paid whilst s/he is ready, willing and able to work (see “The Law of Employment”, Macken, O’Grady and Sappideen, 4th Edition, p. 159-160). By virtue of s. 98(2) an employer’s statutory right under s. 98(1) to withhold payment is defeated if an industrial instrument provides otherwise. For that to occur, the industrial instrument, in my view, would need to specifically and intentionally deal with the matter of payment in circumstances which would otherwise permit the employer to stand employees down. It could not do so by some non-specific and general provision such as that appearing at clause 10(6) of the Poultry Processing Award – State. The Poultry Processing Award – State is silent on the whole question of stand-down and payment in the event of circumstances arising which would otherwise permit the employer to withhold payment in accordance with s. 98(1). Accordingly, it does not provide “otherwise” within the meaning of s. 98(2). If this interpretation not be correct, no full-time employee could be stood-down without pay because their entitlement to be paid a week’s wages would also be “otherwise” within the meaning of s. 98(2). This is clearly not what was intended by s. 98 read as a whole. If it was, s. 98 would have little or no work to perform. Consequently, in my view, there is no obligation on McClymonts Holdings Pty Ltd to pay Mr Singh beyond 8.15 a.m. on Monday 19 June 2000. It is the order of the Commission that McClymonts Holdings Pty Ltd is to pay Mr Janendra Singh at his usual rate of pay between 7.30 a.m. and 8.15 a.m. on Monday 19 June 2000, i.e. $10.56. A.L. BLOOMFIELD, Commissioner. Appearances:– Mr L. Norris for Australasian Meat Industry Union of Employees (Queensland Branch). Released: 26 June 2001 Ms B. Callaghan, of Counsel, instructed by Connellys Lawyers, for McClymonts Holdings Pty Ltd. -- 3 of 3 --