Feldman v Ocean Ford Pty Ltd [2003] ICQ 44 (2003) 174 QGIG 372

372 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 3 October, 2003 ########################################################################################################################### INDUSTRIAL COURT OF QUEENSLAND Industrial Relations Act 1999 – s. 282 – case stated for opinion of court Brian Feldman AND Ocean Ford Pty Ltd (No. C64 of 2003) PRESIDENT HALL 19 September 2003 DECISION By an application filed 7 July 2003, Brian Neville Feldman of the Department of Industrial Relations and an inspector duly appointed under the Industrial Relations Act 1999 sought an order against Ocean Ford Pty Ltd about wages said to be owing to an employee, viz. Brendan Paul Phillips. On 14 August 2003 the Commissioner into whose hands the matter had fallen referred the following question to the Court: “Is the Motor Vehicle Salesperson’s Award – Southern Division an industrial instrument which fits within the category of an industrial instrument that ‘provides otherwise’ for the purposes of Subsection 9(7) of the Industrial Relations Act 1999? Agreed facts 1. Ocean Ford Pty Ltd (the respondent) is an employer within the meaning of the Industrial Relations Act 1999 and it employed Brendan Paul Phillips (the employee) at 6 Lionel Donovan Drive, Noosaville as a probationary motor vehicle salesperson who regularly did the work of selling new and used motor vehicles; 2. The employee was employed under the Motor Vehicle Salesperson’s Award – Southern Division (the Award). The Award applicable at the material time did not contain an hours of work or overtime clause; 3. The employee was employed from 25 July 2002 to 18 October 2002 as a full time employee; 4. The employee regularly worked in excess of 40 hours per week. On the occasions when the employee worked in excess of 40 hours per week the employee was not paid overtime; 5. The employee claims that he is owed a gross amount of $2,219.78 as unpaid overtime. The employer disputes that the employee is entitled to payment of overtime; 6. At the hearing of this matter the parties intend to refer to the history of the relevant legislation and to the history of the Award (first made by the Board of Trade and Arbitration on 7 October 1927).”. As paragraph 6 of the “Agreed facts” suggests, the question has its origin in the early industrial history of Queensland. A convenient starting point is s. 10(1) of the Industrial Arbitration Act 1916 which provided: “10. (1.) The following directions shall be observed by the Court and the Boards in making awards, and by the parties in making industrial agreements, in all callings to which this Act applies, save in the callings mentioned in the first proviso to paragraph (a) hereof:– (a) Employees shall not be worked on more than six out of seven consecutive days, and the time worked by them within any period of six consecutive days shall not exceed forty-eight hours; the time worked by employees on each day shall not exceed eight hours, except in those callings where a short day in each week is mutually adopted by the employers and employees, in which latter cases the time worked on five days of the week may be proportionately greater than eight hours per day in order to allow forty-eight hours to be worked during six consecutive days: Provided that in the callings following, namely, carting trade, the removal of house refuse and night soil, parcels deliveries, employees on coastal, river, and bay vessels, and musterers and drovers of stock, the Court in its discretion may determine the maximum daily or weekly hours: Provided further that – (b) The working time of employees in underground occupations, or occupations in which the conditions as to temperature, ventilation, lighting, and limitation of approaches are similar to those obtaining in underground occupations, shall include permitted intermissions -- 1 of 5 -- 3 October, 2003 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 373 for rest and meals, shall be reckoned from bank to bank, and shall not exceed six hours per day unless a temperature of less than eighty- five degrees Fahrenheit thermometer, using a wet bulb, is maintained for at least a seven-eighths proportion of the working shift in the working place where the employee is occupied; (c) Intermissions for rest (other than ‘smoke-oh’s’ and for meals), in any day on which eight and three-quarters hours or less are worked, shall not exceed a total of one hour; (d) Overtime, that is time worked in excess of the times or hours above limited, or before or after the fixed or recognised times of starting or leaving off work on any day in any calling, may be permitted by the terms of any award or industrial agreement at a rate of payment therefor of not less than double time in any calling in or in connection with which more than one shift per day is worked, or not less than time and a-half in any other calling; (e) Notwithstanding the terms of any current award or industrial agreement, the Court may by award from time to time, for the purpose of distributing the work available in a calling so as to relieve unemployment, or for any other purpose which appears to the Court to be good and sufficient, prohibit or restrict to any extent the working of overtime in any calling; (f) The Court shall, upon the application of an industrial union, make an award prohibiting the working of overtime in any calling in which the working of overtime is not permitted as aforesaid, but nothing herein shall prevent the amendment or making of any award so as to permit the working of overtime; (g) Notwithstanding the terms of any industrial agreement a greater number of hours than above limited may be fixed by award if the Court certifies that for reasons of paramount public interest such greater number of hours should be worked in the calling; (h) Subject to the last preceeding paragraph, where in any calling the ordinary time of work is at the commencement of this Act fixed by award of industrial agreement or by well-established practice in the calling, such time shall not be exceeded in any award or industrial agreement made after such commencement in respect of such calling.”. It is not, I think, helpful to reproduce the remaining subsections of s. 10, save for ss. (5). That subsection made provision for the case in which the directions at ss. (1) were not observed. Subsection (5) provided: “(5.) Any award or industrial agreement made after the commencement of this Act in which the direction or provisions of this section have not been observed shall not be enforceable. The Court shall amend such award or agreement so that the same shall be in accordance with such directions and provisions.”. Significant amendments to s. 10 were made by the Industrial Arbitration Amendment Act 1923. Importantly, s. 10(1)(a) was converted from a directive to a deeming provision. Sections 7(a) and (b) of the 1923 Act provided: “(a) In subsection one the words ‘The following directions shall be observed by the Court and Boards in making awards, and by the parties in making industrial agreements, in all callings to which this Act applies’ are repealed and the following words are inserted in lieu thereof:– ‘Save as hereinafter provided, every award shall be deemed to contain provisions to the following effect, or provisions not less favourable to employees.’ (b) The first proviso to paragraph (a) of subsection one is repealed, and the following proviso is inserted in lieu thereof:– ‘Provided that (notwithstanding the foregoing provisions in paragraph (a) hereof) for employees in the callings following, namely, employees on coastal, river, and bay vessels, musterers and drovers of stock, employees on farms engaged in feeding or attending to stock or such other necessary services as the Court in its discretion may determine, and employees engaged in domestic service, the Court in its discretion may determine the maximum number of working days and hours in any week’.”. Additionally, by s. 7(d) the discretion to depart from the statutory standard was repealed. I do not rehearse the other changes to s. 10 wrought by the 1923 Act. They are not presently material. The same may be said of changes to s. 10 made by the Schedule to the Industrial Arbitration Act Amendment Act 1924, though it is probably helpful to record that the word “Court” was repealed and that the words “Board of Trade and Arbitration” were inserted in lieu thereof. It was in those circumstances that the award referred to in paragraph (6) of the “Agreed facts” was made. The award was in the following terms: “THE BOARD OF TRADE AND ARBITRATION (JUDICIAL JURISDICTION). No. 180 of 1927. In the Matter of the Shop Assistants’ Award – Southern Division – published in the Government Gazette of 9th November, 1925, and variations thereof; and In the Matter of an Application by the Motor Traders’ Association of Queensland and its members, including Universal Motors Limited and Leader Motors Limited, for a variation thereof. MOTOR VEHICLE SALESMEN’S AWARD – SOUTH-EASTERN DIVISION. This matter coming on for hearing before the Court, at Brisbane, on 28th July and 25th August, 1927: This Court, after hearing Mr. A.J. Leaver for the Motor Traders’ Association of Queensland, Mr. E. Rusling for the Queensland Shop Assistants’ Union of Employees, and Mr. W.J. Donohue for the Motor Vehicle Salesmen’s Association, doth order that the Shop Assistants’ Award – Southern Division – shall cease to apply to Motor Vehicle Salesmen from the first day of September, 1927, and doth award as follows:– AREA COVERED BY AWARD. 1. This Award shall apply throughout the following area:–All that part of the State of Queensland commencing at Point Danger and bounded thence by the southern boundary of the State westerly to 151 degrees of east longitude; thence by that degree of longitude bearing true north to 24 degrees 30 minutes of south latitude; thence by that parallel of latitude bearing true east to the sea-coast; and thence by the sea-coast to the point of commencement. APPLICATION OF AWARD. 2. This Award shall apply to Motor Vehicle Salesmen employed in the area covered by this Award, and to the exclusion of any other Award in force and operative in the same locality. DEFINITIONS. 3. ‘Motor vehicle salesman’ shall mean any employee engaged in selling motor vehicles (including cars, trucks, tractors, and motor cycles), either wholesale or retail, and shall include executive officers and organisers of the sales staff only. ‘Probationer motor vehicle salesman’ shall mean a person who has not had six months’ experience as a motor vehicle salesman in any one firm. -- 2 of 5 -- 374 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 3 October, 2003 ‘Salesman’ – Wherever the word ‘salesman’ is used in this Award it shall mean a ‘motor vehicle salesman’ or ‘probationer motor vehicle salesman’ where applicable. ‘City area’ shall mean the cities of Brisbane and Ipswich. WAGES. 4. The minimum remuneration for salesmen in the city area shall be at the rate of £6 per week. The minimum remuneration for salesmen outside the city area shall be at the rate of £7 per week. The minimum remuneration for a probationary salesman in the city area shall be at the rate of £5 per week, and outside the city area shall be at the rate of £6 per week. The remuneration payable to salesmen or probationary salesmen working in the city area shall apply only to salesmen permanently residing in that area. Any salesman or probationary salesman working outside the area in which he permanently resides shall be and be deemed to be a country salesman and entitled to the appropriate remuneration accordingly. The above remuneration shall be exclusive of any expenses incurred in the discharge of the employer’s duties. All such expenses shall be arranged between the employer and the employee. The minimum remuneration shall be paid weekly and commissions adjusted monthly. HOLIDAYS. 5. The following provisions are inserted as being not less favourable than the provisions of section 10(2) of ‘The Industrial Arbitration Acts, 1916 to 1926’:– All work done at the request of the employer by any employee covered by this Award on Good Friday, Labour Day (the first Monday in May or other day appointed under ‘The Holidays Act of 1912’ to be kept in place of that holiday), and Christmas Day shall be deemed overtime work, and shall be paid for at the rate of double time. All work done at the request of the employer by any employee covered by this Award on New Year’s Day, Easter Monday, and Boxing Day shall be deemed to be overtime work and shall be paid for at the rate of time and a-half. In addition to the above, twelve working days’ holiday on full pay shall be allowed to each employee covered by this Award after twelve months’ service, or a monetary equivalent for a lesser period. The date for the holiday to be mutually arranged between the employer and employee. SUBSTITUTE SALESMEN. 6. In cases of accident, sickness, or holidays of a salesman, a substitute salesman may be employed. Such substitute salesman, whilst on such temporary work, shall be exempt from the provisions of this Award: Provided such substitute salesman is at the time an employee of the firm. TRAVELLING. 7. When a salesman has to travel on business and at the request of the employer by public conveyances, the employer shall pay all fares. Such fares shall be saloon when travelling by boat and first class when travelling by rail, together with first class sleeping berths when necessary. GENERAL. 8. Each employer shall cause to be kept a record of the names and wages paid weekly to every employee in his or her employ to whom this Award applies, such record to be open to the secretary of the Motor Vehicle Salesmen’s Association at least once in every month. Should any question or dispute arise as to the construction or meaning of this Award, it shall be referred to two representatives of the Motor Vehicle Salesmen’s Association and two representatives of the employers, and if they do not agree it shall be referred to the Board. The operation of this Award shall not prejudice the remuneration of any salesman at present employed. PRESENT CONDITIONS. 9. All conditions of employment not set out in this Award shall continue as at present. OPERATION OF AWARD. 10. This Award shall take effect and have the force of law as from the first day of September, 1927, and shall remain in force for a period of twelve months from the date hereof. And this Court doth further order that any of the parties are to be at liberty to apply to this Court as they may be advised. Dated this seventh day of October, 1927. By the Court, [L.S.] P.J. WALLACE, Industrial Registrar.”. As a matter of first impression one would have thought that the award contained the provisions at the amended s. 10. The contention of the employer is that the Board of Trade and Arbitration did not intend the Award to deal with the matter of hours. To begin with I do not think that that is so. The decision of the Board was brief and I reproduce it. (emphasis added) “THE BOARD OF TRADE AND ARBITRATION (JUDICIAL JURISDICTION). No. 180 of 1927. In the Matter of the Shop Assistants’ Award – Southern Division – published in the Government Gazette of 9th November, 1925, and variations thereof; and In the Matter of an Application by the Motor Traders’ Association of Queensland and its members, including Universal Motors Limited and Leader Motors Limited, for a variation thereof. MOTOR VEHICLE SALESMEN. JUDGMENT. THIS is an application by the Motor Traders’ Association of Queensland to exempt motor vehicle salesmen from the Shop Assistants’ Award. -- 3 of 5 -- 3 October, 2003 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 375 In the Shop Assistants’ Award there is a definition of ‘traveller,’ and it is not disputed that it is wide enough to include motor vehicle salesmen, though it is obvious that at the time such definition was inserted it was never intended to cover this class of employee, as it was admitted by the Shop Assistants’ Union that the hours and conditions of the Shop Assistants’ Award were not suitable for men occupied in selling motor vehicles. It was stated during the hearing that the earnings of these employees were greater than the wages prescribed by the Shop Assistants’ Award, and that the question of their being covered by that Award was only sharply raised when the Shop Assistants’ Union required them to become members after the insertion of a preference clause in the Award. The Board expressed the opinion during the hearing that these employees were not shop assistants in the generally accepted meaning of the term, and ordered the parties to confer with a view to arriving at an agreement. The parties reported that they were unable to agree, the stumbling block appearing to be the disinclination of the motor vehicle salesmen to join the Shop Assistants’ Union, and the Board heard further argument. After giving the matter careful consideration, the Board has decided to exempt motor vehicle salesmen from the Shop Assistants’ Award and make a special Award for them in the terms of an agreement arrived at between them and their employers. The Board will make no order as to preference. W.N. GILLIES. 7th October, 1927.”. Reliance is placed upon the passages emphasised. With respect I am unable to read the passages as demonstrating an intent to make a no-hours award. To my mind they demonstrate an intention to set aside the hours regime in the Shop Assistants’ Award – Southern Division. That hours regime, though as favourable to employees as the scheme at s. 10, differed from the s. 10 scheme. (The Shop Assistants’ Award – Southern Division in its relevant form appears at (1925) 10 QGIG 1024. It is not necessary to reproduce it.) The inevitable effect of setting aside the regime under the Shop Assistants’ Award – Southern Division was that s. 10 would operate to include the hours scheme contained therein. Indeed, Mr Leaver, who appeared for the Motor Traders Association of Queensland, appears to have understood that to be the case. At p. 2 to 3 of the transcript of 25 August 1927 he said: (emphasis added) “It is impossible to confine the work of motor vehicle salesmen to any set hours and it is understood that any award made by the Board is deemed to contain restrictions as to daily and weekly working hours. In order to get over this difficulty the employers and the motor vehicle salesmen have come to an agreement on all points and the motor vehicle salesmen have, we understand formed a separate Association.”. In any event no intention of the parties or of the Board could have prevailed against the terms of s. 10. “Deemed” at s. 10 was plainly used in the sense of “put beyond doubt”, compare St Aubyn v. Attorney-General [1952] AC 15 at 53 per Lord Radcliffe. In due course the Industrial Arbitration Act 1916 was repealed and replaced by the Conciliation and Arbitration Act 1932. The Motor Vehicle Salesmen’s Award – South Eastern Division was carried forward by the transitional provisions. So also was the effect of s. 10(1) which became s. 10(1) of the new Act. (The maximum weekly hours being reduced to 44 there was a limited power to depart from the standard to avoid unemployment or prejudice to the community.) It was not until 1947 that employee and employer organisations were permitted to depart from the statutory standard by agreement. By s. 2 of the Industrial Conciliation and Arbitration Acts Amendment Act 1947 standard weekly hours were reduced to 40 and an exception was added to the “deeming” paragraph, paragraph (a) in the following terms: “. . .except in those callings where an industrial union of employees and an employer or association or union of employers otherwise agree.”. There is room for argument about the nature of the “agreement” envisaged by the exception. On a literal interpretation the exception might be satisfied by exchange of letters. Indeed, it might be satisfied by an oral agreement. Read beneficially, the exception might have been taken to breathe life into ancient and ineffective agreements. But the provision might have been interpreted to require manifestation of the agreement in an award or industrial agreement. To begin with, an efficacious agreement outside the relevant award or industrial agreement would make misleading the instrument recognised by the Act itself. Additionally, at common law unions had struggled to establish authority to make collective agreements conferring rights on existing, let alone future, members. The Industrial Conciliation and Arbitration Act 1932 swept those difficulties away for registered unions provided that use was made of awards and industrial agreements; each of which instruments were, at that time, subject to a public interest test. Registered unions having been brought into existence and incorporated “for the purpose of [the] Act” (s. 41), it might have been thought passing strange that they should have authority to set at nought conditions of employment established by the Act by an agreement which by-passed the processes of the Act. None of that, of course, matters here. The function of the Court in these proceedings is to answer the question posed by the case stated on the basis of “Agreed facts”. The “Agreed facts” do not assert an agreement about working hours before, contemporaneously with or after, the 1947 Act. The Industrial Conciliation and Arbitration Act 1932 was repealed and replaced by the Industrial Conciliation and Arbitration Act 1961. Relevantly, the provisions about working hours appeared at s. 14. It is sufficient to reproduce subsection (1)(a) as it appeared in the 1983 reprint: “Directions to be observed by the Commission. Qd. s. 10 (1). Save as hereinafter provided, every award shall be deemed to contain provisions to the following effect, or provisions not less favourable to employees, save in the callings mentioned in the proviso to paragraph (a) of this subsection:– (a) employees shall not be worked on more than six out of seven consecutive days, and the time worked by them within any period of six consecutive days shall not exceed forty hours; the time worked by employees on each day shall not exceed eight hours, except in those callings where an industrial union of employees and an employer or association or union of employers otherwise agree: Provided that (notwithstanding the foregoing provisions of this paragraph (a)) – (i) for employees in the calling of gatekeepers in the employ of the Department of Main Roads or a Local Authority, employees on coastal, river and bay vessels, employees in rural industries, employees engaged in domestic service and employees engaged in any other services whatever as the Commission in its discretion may, on reasonable grounds, determine, the Commission in its discretion may determine the maximum number of working hours in any day and the maximum number of working days in any week; (ii) the Commission shall not be required to observe the direction contained in this paragraph (a) if it is of opinion that in respect of any industry or calling (whether the industry or calling immediately concerned or some other industry or calling) substantial unemployment will result or that the community in general will be prejudicially affected by the observance by the Commission of such direction, but in no case where such direction is not observed shall the time worked by any employee within any period of six consecutive days exceed forty-eight hours;”. When the Industrial Conciliation and Arbitration Act 1961 was repealed and replaced by the Industrial Relations Act 1990 the scheme of deeming inclusion of a statutory standard hours clause subject to departure by agreement (or Commission decision), in all awards, industrial agreements, certified agreements and enterprise flexibility agreements, was retained. It is sufficient to reproduce s. 222(1): -- 4 of 5 -- 376 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 3 October, 2003 “222.(1) Except if an industrial organisation, or association, of employers, or an employer, and an industrial organisation of employees otherwise agree in respect of a particular award, industrial agreement, certified agreement or enterprise flexibility agreement, or the Industrial Commission otherwise determines, every award, industrial agreement, certified agreement or enterprise flexibility agreement is taken to make provision to the effect of each of the subsections of this section.”. On the repeal of the Industrial Relations Act 1990, s. 222(1) was given an extended life by a transitional provision of the Workplace Relations Act 1997, viz., s. 496 which provided: “Preservation of certain general conditions in existing instruments 496.(1). The repealed Act, sections 221, 222, 230, 233, 235, 236 and 237, continues to apply to an existing award or agreement for 18 months after the commencement of this section. (2) In this section – “existing award or agreement” means an award, industrial agreement, certified agreement or EFA in force immediately before the commencement of this section and continued in force under this Act.”. The section of the Industrial Relations Act 1999 which provides minimum general employment conditions for employees whose engagement is regulated by an industrial agreement is subject to an exception cast in quite different language. Pursuant to s. 9(7), s. 9 does not apply “if an industrial agreement provides otherwise”. In Federated Sawmill, Timberyard and General Wood-Workers’ Employes’ Association Adelaide Branch v. Alexander (1912) 15 CLR 308 at 313 Griffith CJ held that a statute “otherwise provided when it “otherwise expressly declared”. In Faithorn v. Territory of Papua (1938) 60 CLR 772 at 794 Dixon J took the wider view that a regulation might otherwise provide by “implication or inference”. Whichever view be correct, in order to answer the question posed in the affirmative, one would have to find the “contrary provision” within the Motor Vehicle Salesperson’s Award – Southern Division in the form which it took prior to the completion of the Award Review process on 4 December 2002. Such a construction of s. 9(7) is supported by the Explanatory Notes to which, of course, one may go to confirm an interpretation, Acts Interpretation Act 1954, s. 14B(1)(c) and (3)(e). The Note to clause 9 of the Bill is unhelpful. It reproduces the language of s. 9(7). However, in describing how the Bill achieved its objectives, the Explanatory Note records: “sets the maximum number of hours of work at 8 hours per day, unless otherwise agreed in an award or agreement”. (emphasis added) The employer seeks to derive support from the Second Reading Speech of the Hon P.J. Braddy, Minister for Employment, Training and Industrial Relations. Relevantly, it is recorded that the Minister said (emphasis added): “On consideration of the taskforce recommendation, the Government has decided not to introduce regulation of working time into the non-award area of employment. The existing provisions which apply in the current legislation will be continued for employees covered by an award or agreement. However, in light of the changes which have occurred in the labour market, the Government believes that working time arrangements need to be reviewed. This is consistent with the task force recommendation that the Government commences, as soon as possible, research into the changes in working time arrangements and standards I the workforce and examines the impact on work, employment, health and safety and the balance between work and life.”. The simple explanation may be that the Hon. Minister had it in mind that under the “exception by agreement” scheme which had operated since the 1947 Act, agreement manifested in the relevant industrial agreement was necessary. As noted, such a construction was entirely arguable. In any event, if the passage emphasised be given the literal meaning for which the employer is forced to contend, the argument fails on the proposition that a clear statute will prevail over an inconsistent Second Reading Speech, compare Clarke v. Bailey (1993) 30 NSWLR 556 at 567 per Kirby P with whom Sheller JA agreed. The circumstance that s. 13 of the Award requires an employer to keep a record of wages paid but not time worked is of no consequence. Section 366(3) of the Act fills the void. The Award is not silent because s. 9 of the Act operates with and upon the Award. I have great sympathy for the employer. It is apparent from the Award file that a belief that the Motor Vehicle Salesperson’s Award – Southern Division did not deal with hours or overtime has been about for some time. When the Award was cloned in producing the Motor Vehicle Salesmen’s Award – Mackay and Northern Divisions, Commissioner Harvey was told as much. In 1989, Commissioner Ashwood was persuaded to flow on a State Wage increase with less than adequate offsets because, being a no hours provision award, the normal offsets were not available (1989) 131 QGIG 842. However, on the “Agreed facts” and on the substantial historical argument which I have heard, I can only conclude that the belief arose out of a transaction lost in history, mistake or pure urban myth. The answer to the question referred to the Court is “no”. Dated 19 September 2003. D.R. HALL, President. Released: 19 September 2003 Appearances: Mr C. Murdoch, instructed by Crown Law, for Brian Feldman. Mr J. Murdoch, SC, instructed by Motor Trades Association of Queensland, Industrial Organisation of Employers, for Ocean Ford Pty Ltd. -- 5 of 5 --