1
Fair Work Act 2009
s.604 - Appeal of decisions
Construction, Forestry, Maritime, Mining and Energy Union
v
Ta Ann Tasmania Pty Ltd
(C2019/2603)
VICE PRESIDENT HATCHER
DEPUTY PRESIDENT COLMAN
COMMISSIONER LEE
SYDNEY, 13 SEPTEMBER 2019
Appeal against decision [2019] FWC 2189 of Deputy President Barclay at Hobart on 2 April
2019 in matter number C2019/1497.
[1] The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) has
lodged an appeal against a decision issued by Deputy President Barclay on 2 April 20191
(Decision). The Decision was made in resolution of a dispute between the CFMMEU and Ta
Ann Tasmania Pty Ltd (Ta Ann) pursuant to arbitral powers conferred upon the Commission
by the dispute settlement procedure in clause 48 of the Ta Ann Tasmania and CFMEU
Enterprise Agreement 20172 (Agreement). The dispute concerned whether Ta Ann was
entitled under the Agreement to stand down without pay employees at its timber mill in the
Huon Valley in Tasmania following a bushfire which caused extensive damage to the mill.
There was also a related issue concerning whether, in the circumstances, Ta Ann was required
to make the employees redundant and pay them redundancy entitlements under the
Agreement, but for reasons which will be explained that issue is now moot. The Deputy
President determined that clause 42 of the Agreement authorised the stand down without pay.
The CFMMEU contends in its appeal that the Deputy President erred in so deciding in that he
proceeded upon an incorrect construction of clause 42.
[2] There was a dispute between the parties as to whether the CFMMEU required
permission to appeal. Section 604(1) of the Fair Work Act 2009 (FW Act) provides that a
person may appeal a decision made by the Commission only with the permission of the
Commission. However because s 739(4) of the FW Act authorises the Commission to
arbitrate a dispute in accordance with a dispute resolution term in (relevantly) an enterprise
agreement, such an agreement may confer an independent right of appeal to a Full Bench of
the Commission, in which case the requirement for permission to appeal in s 604(1) will not
1 [2019] FWC 2189
2 AE426042
[2019] FWCFB 5300
DECISION
E AUSTRALIA FairWork Commission
[2019] FWCFB 5300
2
be applicable.3 The CFMMEU submitted that it did not require permission to appeal in this
matter because clause 48.11 of the Agreement, which provides “The decision of Fair Work
Commission in an arbitration under this procedure may be appealed to a Full Bench of Fair
Work Commission”, conferred upon it a right to appeal the Decision. This was disputed by Ta
Ann, which submitted that the provision only contemplated that the appeal mechanism in s
604 of the FW Act may be utilised. We do not consider it necessary to determine to finality
this issue because, if permission to appeal is necessary, we would grant it. The Decision
concerns the pay entitlements of employees covered by the Agreement and deals with a
contestable issue of interpretation, and that is sufficient in our view to justify the grant of
permission to appeal.
[3] The relevant and non-contested facts underlying the dispute were set out in the
Decision as follows:
“A. On 22 January 2019, employees were stood down because of a bushfire threat to Ta
Ann’s Huon Site (Site).
B. During this time, a bushfire passed through the Site which resulted in damage to the
mill and essential machinery, including:
i. damage to the log and billet processing line, waste line and waste fuelshed
and all boiler facilities; and
ii. potential structural and lathe impacts.
C. On 19 February 2019, Ta Ann was notified by Tasmania Fire Service that the threat
of bushfire to the Site had ceased.
D. Although the threat of bushfire had passed, the damage to Ta Ann’s machinery at
the Site as described in paragraph B above was such that the employees could not be
usefully employed.
E. Ta Ann has attempted to mitigate the employment situation by ceasing to use
labour-hire, relocating some employees to its Smithton Mill on a temporary fly in-fly
out basis and is continuing to explore similar options. A few employees are utilised at
the Site to assist with clean-up operations and patrolling.
F. Ta Ann continued to pay its employees initially stood down because of the bushfire
up until 24 February 2019.
G. Ta Ann made an additional ex-gratia payment until 3 March 2019 to mitigate the
effect of the stand down on its employees (it seems the ex gratia payment was made by
way of an additional weeks pay after the union became involved).
H. Ta Ann employees are currently stood down without pay until, at this stage, 9 April
2019, when a Board meeting will be held to determine the future of the Mill at Huon.
3 See e.g. Australian Manufacturing Workers’ Union v Silcar Pty Ltd [2011] FWAFB 2555, 208 IR 33 at [26]- [28]; Shop,
Distributive and Allied Employees Association (Queensland Branch) Union of Employees v Woolworths Limited [2013]
FWCFB 2814, 232 IR 255 at [22]; McWhirter v Endeavour Energy [2017] FWCFB 5955 at [22]- [23]
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I. Ta Ann is reliant on expert reports relating to the damage to its specialised
machinery, considering log supply options, potential government assistance, insurance
considerations and a range of other matters in order to determine the future of the
Mill.”
[4] In the appeal the CFMMEU contended, without contradiction from Ta Ann, that
employees at the Huon Valley mill were stood down without pay from 8 March 2019. That
remained the position at the time the Decision was issued on 2 April 2019. However, as we
were informed at the appeal hearing, the employees were made redundant by Ta Ann effective
from 15 April 2019, so that part of the Decision concerning the CFMMEU’s contention that
Ta Ann was obliged to make the employees redundant, and the CFMMEU’s challenge in the
appeal to that part of the Decision, has been overtaken by events. The CFMMEU’s sole
remaining ground of appeal is that “the Deputy President erred in his construction of clause
42 of the Agreement”. At stake is whether the former employees at the Huon Valley Mill were
entitled under the Agreement to be paid for the period from 8 March to 15 April 2019.
[5] Clause 42 of the Agreement provides:
42. Stand Down of Employees
42.1 The Employer may deduct payment for any full day the employee cannot be
usefully employed because of any strike or because of any breakdown of machinery or
because of any other stoppage of work for any reasonable cause subject to the
following provisions:
42.2 The onus of proving reasonableness of the causes shall be on the Employer
42.3 Where a stand down continues beyond one week, the employee may terminate
the employment without notice or forfeiture of a week’s wages.
42.4 The employer advises the union office of the commencement time and possible
duration of the stand down.
42.5 Subject to any employee being ready, willing and available to work, nothing in
this clause shall authorize deduction of payment for any time lost because the
employee is prevented from working on account of rain, hail, snow, flood or bushfire
or on account of a shortage of logs when such shortage is due to rain, hail, snow, flood
or bushfire.
[6] In the Decision, the Deputy President gave the following general characterisation of
the effect of clause 42 and the question to be determined:
“[9] Clause 42 provides that, in effect, an employee may be stood down without pay
where they cannot usefully be employed because of any strike or because of any
breakdown of machinery or because of any other stoppage of work for any reasonable
cause. However this prima facie position is subject to clause 42.5 whereby clause 42.1
does not authorise a stand down without pay if the employee is prevented from
working on account of rain, hail, snow, flood or bushfire or on account of a shortage
of logs when such shortage is due to rain, hail, snow, flood or bushfire.
[2019] FWCFB 5300
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[10] I am required to determine whether, in this case subclause 42.5 applies such that
the stood down employees are entitled to be paid while the mill is closed. That is, are
the employees stood down on account of bushfire or are they stood down because of
breakdown of machinery.”
[7] The Deputy President rejected the proposition that the determination of the dispute
required the exercise of a discretion based on considerations of fairness, but said rather that it
involved the question of construction which he had identified. He then answered that question
in the following way:
“[26] Whilst I do not necessarily agree that the very old Latin maxim upon which the
Respondent relies applies, I agree with the Respondent that the words “rain, hail,
snow, flood or bushfire” are a class of events of a transient nature. In my view the
parties objectively agreed that there would be an exception to the rule that stand
downs were unpaid where the stand down was caused by a weather or similar event of
short duration. That is, where there were circumstances which prevented the
employees from working because of more extreme weather events they would
nevertheless be paid until the event had dissipated.
[27] It is not without significance that shortage of logs caused by these events is
included in the exclusion to clause 42.1. A shortage of logs may result in the mill not
operating after the initial event (fire flood etc.) has passed. The fact that that
circumstance was accounted for suggests the events described (rain, hail, snow etc.)
were regarded by the parties to be of a transient nature applying only while water, hail
snow and the like lay on the ground and prevented work. If the knock on effect of the
event (difficulty in obtaining logs) had not been provided for then the workers would
not, under clause 42.5 have been paid while they waited for logs. The parties directed
their minds to at least one situation where the employees were prevented from
working once the described events had ceased. This supports the construction placed
on the clause by the respondent: that the exclusion applies while the weather event is
affecting the workplace and not afterwards.
[28] In my opinion therefore as a matter of construction the exclusion provided in
clause 42.5 applies while the immediate effects of the bushfire are present. That is,
while the fire prevents access to the work place and until it is safe to return. This
conclusion is consistent with the meaning of bushfire identified by the Respondent,
and is consistent with the type of events described in clause 42.5. It is also consistent
with the fact an event which occurs after the fire or flood ceases was provided for in
the exclusion: the delay in obtaining logs.
[29] Accordingly I find that the current stand down is not because of the bushfire.
Rather it is because machinery has broken down. While it is correct to say the
machinery was damaged by the fire, the fire is no longer the operative reason for the
closure of the mill. It is that the machinery has broken down. The situation has
evolved since the fire was extinguished. Had the machinery not been damaged then the
workers would have been back at work. I find that the cause of the current inability to
work is no longer the bushfire but the damaged machinery.
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[30] I conclude therefore that clause 42.5 of the Agreement is no longer operative and
that clause 42.1 is applicable. Accordingly the employees who are stood down are not
entitled to be paid during the stand down.”
[8] The CFMMEU submitted that:
clause 42 was derived from provisions in the Ta Ann Union Collective Agreement
(Construction, Forestry, Mining and Energy Union (Forestry and Furnishing
Products Division)) 2007 (2007 Agreement), with the 2007 Agreement incorporating
equivalent terms from the Timber and Allied Industries Award 1999;
the award clause applied only to bush employees and rural sawmills who were as a
matter of common sense more directly affected by weather events and natural
disasters, and its purpose was to mitigate the higher than usual risk that employees
faced of being prevented from performing work for reasons outside their employer’s
control;
the Deputy President erred by postulating the question of construction as one
involving a choice of causation between a breakdown of machinery on the one hand
and bushfire on the other;
rather, clause 42.5 operates to require employees to be paid in circumstances where
clause 42.1 would otherwise permit Ta Ann to stand them down without pay;
because clause 42.5 involves an exception to the ordinary right and entitlement of
employees to be paid if they are ready to work, it should be read down in the event of
any ambiguity;
the purpose of clause 42.5 is to mitigate the risk faced by Ta Ann’s employees, who
work in the fire-prone Huon Valley, of being prevented from working by weather
events and natural disasters by preserving their right to be paid;
there was no textual support for the conclusion that the expression “on account of” in
clause 42.5 required a direct causal connection to the weather event and excluded its
consequences;
clause 42.5 was not limited to prevention of attendance at work, and an employee
might be prevented from working because they were unable to access the site, the
machinery they used was inoperative or the employer refused to provide them with
work;
the test for causation under clause 42.5 should be the “but for” test;
the named weather events are inseparable from their effects, so that for example rain
itself does not prevent an employee from attending for work, but its effects do;
“on account of” imports an element of causation, and it was inherently insensible to
say that employees who had been stood down because bushfire had destroyed the
machinery they worked on had not been stood down because of bushfire;
[2019] FWCFB 5300
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the reference in clause 42.5 to the supply of logs being disrupted has regard to
circumstances where the employee’s site was not affected by the weather event, but
the supply chain has been;
clause 42.5 requires employees to be paid where, firstly, they are ready, able and
available to work, but are prevented from doing so, secondly, the employer would
otherwise be entitled under clause 42.1 not to pay them and, thirdly, that the reason for
the obstruction arises from the named weather events; and
the above three conditions were satisfied in this case and therefore the exception in
clause 42.5 was enlivened.
[9] Ta Ann submitted that the interpretation preferred by the Deputy President was correct
for the reasons stated in the Decision.
Consideration
[10] Clause 42.5 must be interpreted in the context of clause 42 as a whole. Broadly
speaking, the clause is structured such that clause 42.1 permits the deduction of an
employee’s wages by Ta Ann in certain prescribed circumstances, but clause 42.5 prohibits
any deduction of payment in other prescribed circumstances. The words “…subject to the
following provisions” in clause 42.1 and “Subject to…” and “…nothing in this clause shall
authorise deduction…” in clause 42.5 indicate an intention that clause 42.5 override the effect
of clause 42.1, so that a deduction of payment is prohibited in respect of circumstances which
fall within clause 42.5 even if such circumstances also fall within clause 42.1.
[11] Although clause 42.1 in express terms operates simply by reference to the employer’s
right to “deduct payment”, read in the context of the clause as a whole it is apparent that it is
concerned with the standing down of employees. The clause is entitled “Stand Down of
Employees”, clause 42.3 refers to the position applicable where the stand down continues for
more than a week, and clause 42.4 requires Ta Ann to notify the “union office” of the
commencement time and possible duration of the stand down. Clauses 42.3 and 42.4 must be
understood as operating in conjunction with clause 42.1, since clause 42.1 is also “subject to”
those provisions, and confirm that the deduction of payment authorised by clause 42.1 is one
that occurs in the context of a stand down.
[12] “Stand down” is a term with a well-understood industrial meaning. In Amalgamated
Engineering Union v Metal Trades Employers Association,4 O’Mara J of the Commonwealth
Court of Conciliation and Arbitration said:
“The expression ‘stand down’ is ordinarily understood as placing an employee in a
position in which for the time being his rights and duties as an employee and the rights
and duties of the employer in relation to him are suspended.”5
[13] However a critical component of a suspension of employment in the form of a stand
down is that work cannot usefully be performed by the employee for reasons beyond the
4 (1945) 55 CAR 307
5 Ibid at 310
[2019] FWCFB 5300
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control of the employer. In the Federal Court Full Court decision in Coal & Allied Mining
Services Pty Ltd v MacPherson,6 Buchanan J characterised a stand down in the following
way:
“…it is an essential ingredient of a stand down, as commonly understood and as
permitted by s 691A [of the Workplace Relations Act 1996] (or a provision in a
contract of employment or industrial instrument to similar effect) that it is a unilateral
decision taken by an employer to withhold work and payment even when an employee
is prepared to perform all normal duties as directed. The unavailability of work to
offer, for reasons beyond the control of an employer, is also important and
distinguishes a stand down from a suspension but it is not, without the additional
element I have identified, sufficient to distinguish a stand down (which is not
available at common law) from ‘no work as directed, no pay’ (which is permitted at
common law).”
[14] At common law, the employer has no right to suspend the employee without pay in
circumstances where the employee cannot usefully be employed unless the contract of
employment specifically provides otherwise. Stand down clauses were inserted in awards
from the earliest days of industrial arbitration in Australia to provide employers with a lawful
basis to suspend without pay or “stand down” employees in circumstances where there was no
useful work for them to perform for reasons beyond the control of the employer.
[15] Clause 42.1, in summary, authorises stand downs which meet the following criteria:
the stand down must be for a full day during which the employee cannot usefully be
employed;
it must be “because of” (1) any strike, (2) any breakdown of machinery or (3) any
other stoppage of work for any reasonable cause;
in relation to the third category above, the employer must if necessary prove the
reasonableness of the cause(s); and
the employer must have advised the “union office” of the commencement time and
possible duration of the stand down.
[16] As we will shortly explain, the historical context indicates that a “reasonable cause”
for the purposes of the second criterion above is one for which the employer cannot
reasonably be held responsible. In Vehicle Builders Employees’ Federation of Australia v
Ford Motor Co. of Australia Pty Ltd,7 it was held that, under a similarly worded stand down
provision in a federal award, an employer was only reasonably responsible for a stoppage of
work if it were “the natural and probable consequence of his acts”.8 Thus the “other”
stoppages of work referred to may be regarded as eiusdem generis with strikes and
breakdowns of machinery, all constituting stoppages of work for which the employer cannot
reasonably be held responsible. The causal connection connoted by the words “because of”
must therefore be between a stoppage of work which falls within the requisite description and
6 [2010] FCAFC 83, 185 FCR 383, 270 ALR 414
7 (1962) 3 FLR 198
8 Ibid at 200
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the fact that the employees in question cannot usefully be employed. In this case, it was not in
contest that the relevant employees could not usefully be employed from 8 March 2019 until
as it turned out, 15 May 2019, because of a breakdown in machinery for which Ta Ann was
not reasonably responsible. It may be queried whether “breakdown in machinery” is an apt
phrase to describe machinery that is damaged and rendered inoperable by fire, but this is of no
moment since there could be no doubt that alternatively there was a stoppage of work for
which the employer could not reasonably be held responsible. The question to be determined
is whether clause 42.5 in the circumstances of this case prohibited any deduction of payment
from the employees notwithstanding the operation of clause 42.1.
[17] The prohibition in clause 42.5 against deduction of payment operates where the
following criteria are satisfied:
(1) there is time lost because the employee is “prevented from working”; and
(2) this is “on account of” either rain, hail, snow, flood or bushfire OR a shortage
of logs due to rain, hail, snow, flood or bushfire.
[18] In respect of the first criterion, there is a noticeable difference in terminology as
compared to clause 42.1. Clause 42.1 is concerned with where the employee “cannot usefully
be employed”, which is a matter assessed from the perspective of the employer.9 By contrast,
the reference in clause 42.5 refers to where the employee is “prevented from working”, which
we consider bespeaks of circumstances operating directly upon the employee’s capacity to
perform their work rather than necessarily the capacity of the employer to supply work.
[19] The second criterion requires that the prevention from working be “on account of” the
matters identified. The ordinary meaning of “on account of” is “because of” or “by reason
of”.10 These are expressions connoting causation. Expressions of this nature when used in
commercial contracts, particularly insurance contracts, are ordinarily read as referring to the
proximate cause or the direct cause, and not to more remote consequential effects. For
example, in Australian Casualty Co. Ltd. v Frederico,11 Gibbs CJ said: “…the words ‘caused
by an accident’ naturally refer to the proximate or direct cause of the injury, and not to a cause
of the cause, or to the mere occasion of the injury”.12 Such expressions have been
distinguished from wider expressions concerned with consequential effects such as “arising
out of”. For example, the High Court said in Dickinson v Motor Vehicle Insurance Trust:13
“The test posited by the words ‘arising out of’ is wider than that posited by the words
‘caused by’ and the former, although it involves some causal or consequential
relationship between the use of the vehicle and the injuries, does not require the direct
or proximate relationship which would be necessary to conclude that the injuries were
caused by the use of the vehicle.”14
9 Townsend v General Motors-Holden’s Ltd [1983] FCA 204, 4 IR 358 at 367-370
10 Macquarie Online Dictionary
11 [1986] HCA 32, 160 CLR 513
12 Ibid at 521
13 [1987] HCA 49, 163 CLR 500
14 Ibid at 521
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[20] The proximate or direct cause of an event excludes what is indirect, and refers to the
cause which is dominant, proximate in efficiency, and the real effective cause.15
[21] A different approach to causation is taken in the law of negligence, but that is not
concerned with the interpretation of expressions of causation found in legal instruments and is
therefore of lesser relevance to our interpretational task here. In any event, in that context the
“but for” test of causation urged by the CFMMEU has been rejected, at least as a definitive
test, in favour of an approach whereby causation is treated as a question of facts to be
answered by reference to common sense and experience.16
[22] That the expression “on account of” in clause 42.5 is concerned with the proximate
and direct cause of the relevant employees being prevented from working is, as the Deputy
President reasoned, supported by the fact that the identified causes in the provision separately
include “a shortage of logs due to rain, hail, snow, flood or bushfire”. These words would be
superfluous if “on account of rain, hail, snow, flood or bushfire” was to be read as
encompassing the consequential effects of rain, hail, snow flood and bushfire as well any
incapacity to work on the part of employees which they directly caused. Conversely, if “on
account of” is read as referring to the direct cause, the inclusion of these additional words has
work to do because they concern a situation whereby employees are prevented from working
at a timber mill because of a lack of logs to work with which would not be encompassed by
the words “on account of rain, hail, snow, flood or bushfire”.
[23] For these reasons, we consider that the textually correct interpretation of clause 42.5
is that the prohibition upon deduction of payment applies where employees are prevented
from working and the proximate and direct cause of this is either “rain, hail, snow, flood or
bushfire” or “a shortage of logs due to rain, hail, snow, flood or bushfire”.
[24] The CFMMEU is correct in submitting that the relevant elements of clause 42 of the
Agreement may be traced back to stand down provisions in federal awards applying to the
timber industry. We accept that the history and purpose of those provisions assist in
ascertaining the meaning of clause 42, since they constitute objective background facts
relevant to the making of the Agreement. However in this case the history goes back much
further than adverted to in the CFMMEU’s submissions, and is demonstrative of a historical
purpose in the instrumental ancestry of the Agreement that is contrary to the position
contended for by the CFMMEU. Rather, it confirms the textual interpretation which we
prefer.
[25] Clause 42.1 of the Agreement finds its progenitor in clause 41(d) of the award for
timber workers made by the Court of Conciliation and Arbitration (Deputy President Webb)
in 1923.17 The context in which Webb DP introduced this provision requires some
explanation. In 1920 the Court (Higgins J, President) made the first federal award to cover
timber workers.18 As part of this award, weekly employment was introduced to the timber
industry for the first time; previously, all timber workers were engaged on a purely hourly
basis. Higgins J’s reasoning for the introduction of weekly employment included the
following (emphasis added):
15 Lasermax Engineering Pty Limited v QBE Insurance (Australia) Limited [2005] NSWCA 66 at [43]-[44]
16 March v Stramare (E & MH) Pty Ltd [1991] HCA 12, 171 CLR 506
17 (1923) 18 CAR 325
18 (1920) 14 CAR 811
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“The claim for weekly engagement is a claim to which the union attaches great
importance on many grounds. The claim is for a weekly rate, instead of an hourly, for
about 127 varieties of occupation in this industry. It does not apply to the case of
pieceworkers, or to the case of men loading or unloading timber which is carried on
vessels or railway trucks—men whose work is casual, analogous to that of wharf
labourers. Hitherto the practice has been in all the States (I think), to pay hourly nates
to nearly all the timber employees—to pay the men nothing for hours when for any
cause, they do not actually work—even when their work is stopped for causes out of
their control. For the hours when his work is stopped by shortage of logs, or by
breakdown of machinery, or by bad weather, or by a recognised holiday, the man gets
no pay. This is a most unsatisfactory position, especially in the case of men who are
employed in the same undertaking month after month, often year after year. Wherever
it is possible, a weekly engagement is far better than a daily or an hourly. It secures
steadier employees; and it gives to them some certainty as to their income for at least a
week. It relieves the employer of the necessity of paying higher rates per hour, based
on unforeseen and incalculable contingencies.”19
[26] The award made by Higgins J therefore required, as an incident of the introduction of
weekly employment, that the employer now pay employees for time not worked during
ordinary hours as a result of, among other things, a “shortage of logs, or by breakdown of
machinery, or by bad weather, or by a recognised holiday.” The context in which Higgins J
discussed these matters suggests that the problem he identified and intended to rectify was
one where employees were not paid where work stopped as a direct result of the occurrence of
these matters.
[27] In his 1923 decision, Webb DP reviewed what Higgins J had described as the
“experiment” of weekly employment in the timber industry, and identified two adjustments
which were required. The first was explained in the following terms (emphasis added):
“It is now some years since the Court first decided to grant weekly employment in
industry; this policy is now generally adhered to in its decisions. But in each case the
incidents of weekly employment have been modified, and in the evolution of its work
it has been generally recognised that in industry it has been necessary to make certain
safeguards in awards of the Court. The ordinary safeguards will be provided for in this
award in respect of work done in towns and cities. With regard to these safeguards,
they will make little difference in the present terms of employment. It is, I think, just
that an employer should be protected from loss consequent on strikes and matters
over which he has no control.”20
[28] The provision included in the new award made by the Deputy President to effect this
was (emphasis added):
(d) The employment to be terminated only by a week’s notice on either side, and such
notice may be given at any time during any week. This shall not affect the right of the
employer to dismiss any employee without notice for malingering, inefficiency,
neglect of duty or misconduct and in such cases wages will be paid up to the time of
19 Ibid at 836
20 (1923) 18 CAR 325 at 343
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dismissal only or to deduct payment for any day the employee cannot usefully be
employed because of any strike of the said union or any other union or through any
breakdown of machinery or any stoppage of work for any cause the employer cannot
be held responsible for.21
[29] Secondly, Webb DP also dealt with the issue of whether, under the weekly
employment model, employers should be required to pay employees who were declined to
work because of rain. In this respect his Honour said (emphasis added):
“The conditions in the bush and at bush mills, however, present a very difficult
problem. Mr. Justice Higgins stated that when he awarded a weekly rate for bush
conditions he did it only as an experiment. The evidence called by the employers and
the knowledge which I have gained of the industry convince me that the weekly wage
could only be continued in the bush under further restrictions… If a shower of rain
comes and employees decide to stay in their huts, work for the day is suspended,
however unjust and perverse such decision may be, and the employer has to foot the
bill. I do not see how industry can be carried on under such conditions. It is not
surprising to find that a large number of applications to vary the award with regard to
this provision have been made on behalf of employers who own bush saw-mills. I
have decided to alter the conditions of employment to provide that employees in the
bush and at bush saw-mills are to be paid for those days when they are ready and
willing to work and perform such duties as the employer requires them to perform.
This will result in loss of time in the bush, and such loss of time must be considered
when fixing the basic wage.”22
[30] In other words, employees were not to be paid when rain (and presumably like
phenomena) caused them not to attend for work, and this was to be taken into account in the
setting of their weekly wages. The above passage is evidently referring to a failure to attend
for work directly due to the occurrence of rain. The provision awarded to effect the change
which was identified as necessary was as follows (and immediately preceded the provision
concerning deduction from wages):
(c) Any employee not attending for duty will lose his pay for the actual time lost
unless he produces or forwards within 24 hours of the commencement of such absence
evidence satisfactory to the employer or to the Board of Reference that his non-
attendance was due to a personal accident arising out of and in the course of his
employment or to personal ill-health necessitating such absence.
[31] The clause concerning deductions from wages placed into the award for timber
workers in 1923 was in fact one that, in the same or similar terms, was common amongst
awards of the time. A provision in virtually identical terms in the award which subsequently
became known as the Metal Industry Award was considered by the Court of Conciliation and
Arbitration (Powers J, President) in 1922 in Federated Engine Drivers and Firemen’s
Association of Australasia v Albany Bell Limited23 in the circumstances of a dispute arising
from the employer’s stoppage of a day’s pay to employees who could not usefully be
21 Ibid at 408
22 Ibid at 343-344
23 (1922) 16 CAR 1248
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employed at a dockyard because of the occurrence of wet weather. Powers J determined the
dispute as follows (emphasis added):
“Both parties have agreed to abide by any decision I come to as to whether the member
as a weekly employee should be paid the day’s pay in the circumstances.
If the submission means that they agree that the amount will be paid if I hold that the
members are legally entitled to the day’s pay on a legal interpretation of the award as
it stands at present, I would have to say that as the employer cannot reasonably be held
responsible for a stoppage of work caused by rain that the members are not legally
entitled to recover the amount. At the same time I have to so interpret it because of the
omission of the word ‘such’ or ‘similar’ before the word ‘stoppage’ which words have
been inserted in other awards containing the same clause.
I intended by the award to secure to the workers a weekly wage to cover wet days or
parts of days when no work was available for want of orders, &c., or for any cause
except through stoppages by strikes or breakdowns or similar causes, and I am
prepared at the earliest opportunity to vary the award to carry out that intention.
In the Mining Companies’ award one respondent took advantage of the defect in the
clause and I amended it in their case, on an application to vary, by inserting the word
‘such’ before the word ‘stoppage’, and I added ‘not including stoppages for want of
orders’.
I hold therefore—
1. Legally the member is not entitled to the day;
2. The intention of the Court in granting a weekly wage was to include
stoppages through rain; and
3. The Court will, if applied for, vary the award to secure the members full
weekly pay in cases similar to the one referred to and in cases where the
stoppage is through want of orders.
Employers complain of employees taking advantage of the weekly clause, and 1 have
tried to protect employers from frauds; but if employers take advantage of the clause I
will have to consider whether I will not limit the exceptions to strikes and complete
breakdowns of machinery.”
[32] Thus, in the days prior to the era of purposive interpretation, the outcome in the above
decision which prevailed was contrary to the known intention of the maker of the relevant
award. However the contemplated variation to the award to give effect to the original
intention was later made, as explained in a decision of Powers J issued in 1923 (footnote
omitted):
“The material words in the sub-clause are: —
to deduct payment for any day the employee cannot be usefully employed
because of any breakdown of machinery or any stoppage of work by any such
cause which the employer cannot reasonably prevent.
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13
The claimant organization claims that weekly employees are entitled to days the
employers do not provide work for them even if the days on which no work is
provided for them are State Public Holidays in any State.
The respondents in question contend that the employers are excused from payment for
such days on the ground that the members cannot be usefully employed because of a
cause ‘which the employer cannot reasonably prevent’ - that is the declaration of a day
as a State holiday.
In a previous case before the Court under another award, namely in the Engine
Drivers’ case No. 14 of 1921 on the 20th December, 1922, the employer refused to
pay for a day on which the rain was so heavy that the members could not be usefully
employed. In that case he succeeded because the clause omitted the word ‘such,’ and I
held that it meant for ‘any cause’ the employer could not prevent.
The clause in question was later on varied by inserting the word ‘such’ so as to secure
to the employee on weekly wages a full week’s wage whether work was available or
not.
In this case I am in reality asked by the respondents to interpret the clause as if the
word ‘such’ was not in it.
I hold that the word ‘such’ was intended to and does refer to similar causes to that
mentioned in the preceding words of the clause, and the clause cannot fairly be read as
if the word ‘such’ had not been inserted.
For the reasons stated I hold that if any employer does not employ a member who is
willing and ready to work at ordinary rates on a State holiday not an award holiday it
is not a cause included in the special causes mentioned in the clause or in the words
‘by any such cause.’
The members on a weekly wage are therefore entitled to payment for days not award
holidays on which they are not employed and are willing and ready to work.”
[33] The meaning of the altered provision in the relevant award was in 1924 considered by
the High Court in Pickard v John Heine & Sons Pty Ltd.24 In that case, the employer declined
to pay an employee covered by the award his pay on Anzac Day on the basis that he could not
usefully be employed without the assistance of other workmen on the site who were covered
by a State award, had an entitlement for double time on the day, and who were accordingly
not engaged because it was uneconomic to do so. The Court determined that the employer
was obliged to pay the employee in the circumstances described. Isaacs ACJ interpreted the
provision in the following way:
“Then, construing sub-clause (h) as it stands, I do not agree with the Magistrate's view
that the word ‘such’ must be judicially eliminated. Nor can I agree with the argument
addressed to us that the word ‘which’ should be read as ‘as’ so as to leave the ‘cause’
absolutely indeterminate in nature, and applicable as a valid reason for deducting a
day's pay if only the employer can show it is one he could not ‘reasonably prevent.’
24 [1924] HCA 38; 35 CLR 1
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The latitude that would be attributable to ‘reasonably prevent’ would not be
measurable. No weekly employee would know where he stood in such a case. If
outside circumstances, utterly unconnected with the immediate working operations,
such as economic reasons, trade competition, quarrels with customers, and so on, can
be introduced to test the reasonableness of prevention or non-prevention, there is little
or nothing of security or definiteness left to the employee. Indeed, if the interpretation
suggested be correct, the reference to "breakdown of machinery" is quite superfluous.
Of course a breakdown of machinery is properly regarded in itself as a valid cause, for
primarily it denotes that the working apparatus itself is incapable, by reason of its own
inherent inefficiency, of enabling operations to be carried on. But, if the words ‘any
such cause’ are read as ‘any cause’ and if the word ‘which’ is read as ‘as,’ besides the
cardinal sin of altering the language of a document there would be no necessity of
inserting strikes or breakdown of machinery.
When the number and variety of respondents are regarded, including Government
enterprises, shipping companies, engineering establishments, newspaper undertakings,
and so on, the scope of the suggested clause would be so unmeasurably wide as to
mean little but difficult litigation to employees if they wished to contest a deduction.
First, I rely on the words themselves in their collocation. For clarity sake I segregate
the provision thus:—‘This shall not affect the right of the management ... to deduct
payment for any day the employee cannot be usefully employed—(1) because of any
strike by the union or any other union or (2) through (a) any breakdown of machinery
or (b) any stoppage of work by any such cause which the employer cannot reasonably
prevent.’ It is the composite expression ‘stoppage-of-work-by-any-such-cause’ that is
the antecedent of ‘which.’ The word ‘such’ relates to breakdown of machinery. Any
‘such cause’ means, in my opinion, any cause similar to or of the same nature as the
breakdown of machinery. A cause is of that nature, in my opinion, if it is so connected
with the working of the machinery as to prevent it operating in a manner that makes
the employment of the men useful. One might imagine as ‘such’ causes the
deprivation of electric current or coal or water, or the desirability of replacing old
machinery by new, or putting on protection guards, or overhauling a machine to
prevent danger, where signs of possible danger were observed. If these, and others of a
like nature which might be mentioned, caused a stoppage of work, because the
machinery could not be properly operated, then the range of consideration as to
whether the employer could ‘reasonably prevent’ the stoppage would be reduced to
understandable limits.”25
[34] Gavan Duffy J took a similar approach.26 Starke J however read the award provision,
which he described as “obscure and ungrammatical”, as if the word “such” had not been
added so that it encompassed “any stoppage of work by any cause such as the employer
cannot reasonably prevent.”27 Nonetheless his Honour reached the same outcome on the basis
that the stoppage of work was brought about by the employer’s own action in declining to
engage the assistant workmen and pay them on holiday rates.
[35] The timber workers award provision made in 1923 by Webb DP did not include the
addition of the word “such” as had occurred in the metal industry award following the 1922
25 Ibid at 8-9
26 Ibid at 10-11
27 Ibid at 12
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decision of Powers J in 1922 in FEDFA v Albany Bell Limited. Accordingly it must be
understood to have the meaning assigned to the original metal industry clause by Powers J in
that decision, namely that it authorised deduction of payment not only in the case of strikes
and breakdowns of machinery and the like, but also for any other stoppage for any other cause
for which the employer could not be reasonably responsible, including where work could not
be usefully performed because of the occurrence of wet weather. This is consistent with the
modification of the award by Webb DP to not require payment of wages when employees
decided not to work because of rain, as earlier set out.
[36] In the new award for timber workers made by the Court of Conciliation and
Arbitration (Lukin J) in 1929,28 the stand down provision was reformulated (by consent29)
into a stand-alone subclause of the provision of the award concerned with weekly
employment, but its effect did not change as compared to the previous award. The new
provision was as follows:
(6) The employer may deduct payment for any day the employee cannot be usefully
employed because of any strike by or participation in any strike by the union, by any
branch of the union, or by any members or member of the union employed by the
employer or because of any strike by or participation in any strike by any other union,
branch of any other union or members or member of any other union employed by the
employer, or because of any breakdown of machinery, or because of any other
stoppage of work for any other cause for which the employer cannot be held
responsible.30
[37] In the next timber workers award made by the Court (Dethbridge CJ) in 193731, the
following sentence was added to the stand down clause, which was otherwise in the same
terms: “The onus of proving reasonableness of the cause shall be on the employers.”32
Dethbridge CJ simply said about this:
“As to stoppage of work the suggestion of the union as to onus of proof is accepted and
included in sub-clause (6).”33
[38] It may be noted that this clause is equivalent in effect to clause 42.2 of the Agreement.
[39] The clause was simplified in the award made by the Court (O’Mara J) in 194134 as
follows:
(6) The employer may deduct payment for any day the employee cannot be usefully
employed because of any strike or because of any breakdown of machinery, or
because of any other stoppage of work for any reasonable cause. The onus of proving
reasonableness of the cause shall be on the employer.35
28 (1929) 27 CAR 577
29 Ibid at 628
30 Ibid at 645
31 (1937) 37 CAR 273
32 Ibid at 294
33 Ibid at 279
34 (1941) 46 CAR 20
35 Ibid at 42
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[40] It may be noted that at this point in the above clause the words “any reasonable cause”
have replaced the previous words “any other cause for which the employer cannot be held
responsible”. However there is no indication that the new formulation was intended to change
the meaning of the clause in this respect, and we will proceed on the basis that the meaning
was the same, or at least encompassed the meaning of the previous provision.
[41] The clause was the subject of reconsideration by the Court (O’Mara J) in 194536 in
response to a claim by the Timber Workers Union that it be modified to add: “Provided that
no deduction from pay shall he made by any employer because an employee is prevented by
rain, hail or snow from working.” O’Mara J determined to grant the claim, saying (footnotes
omitted):
“Under the award which was made by Higgins J on 21st May, 1920 deductions from
the wages of employees working under a weekly engagement were not allowed in
respect of time lost on account of rain, hail or snow. On 7th May, 1923 in making a
new award Webb DP, discontinued this provision but loaded the wage to meet the
contingency of time lost on account of wet weather. This loading was removed by
Lukin J on 23rd January, 1929 for reasons which if they were sound then are no
longer applicable.
Rain, hail or snow may result in employees in this industry losing time for which they
are not at present entitled to payment. In the case of the bush workers the weather
prevents work from being carried out and this in turn may result in a mill becoming
short of logs and being unable to carry on. The Court ordinarily includes in its awards
provisions to safeguard an employee in respect of the loss of opportunity of earning on
account of wet weather and in my opinion it is anomalous that the rates prescribed by
this award have not been assessed having regard to that principle. I also consider that
since the reasons which actuated the Court in discontinuing the loading no longer
operate it is anomalous that the present rates should not be altered.
. . .
I have considered prescribing casual rates in lieu of regulating the matter on the lines
of the Union’s claim but I am not satisfied that such a scheme is proper in the case of
employees who must be left to work without supervision. Upon the evidence it appears
that with proper management it should be practicable to keep logs up to a mill so that
little if any time would be lost on account of rain, hail or snow in the case of mill
employees. As to bush workers they appear on the whole not to have been subject to
deduction from wages for time lost and the variation which I am about to make is not
likely to make any difference in fact in their case. If the variation is followed by
imposition the case of workers who do not work under supervision the employers have
the right to apply to the Court. Upon the evidence the variation should if anything
reduce absenteeism as in the past the absence of any guarantee as to payment has
resulted in employees remaining away from work on days on which after a threatening
morning the weather has cleared and work has been possible.”37
[42] The variation which was made by O’Mara J added the following to the deduction of
payment clause:
36 (1945) 54 CAR 654
37 Ibid at 655
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Subject to the employee being ready, willing and available to work nothing in this
clause shall authorize deduction of payment for any time lost because the employee is
prevented from working on account of rain, hail or snow or on account of a shortage
of logs when such shortage is due to rain, hail or snow.38
[43] The above award clause was clearly the ultimate progenitor of clause 42.5 of the 2018
Agreement. Its purpose, as explained by O’Mara J and understood in the earlier historical
context we have set out, is clear. It was intended to prevent any deduction from payment for
bush workers - that is, timber harvesters working in the bush who were responsible for the
supply of logs to mills - where they were prevented from working because of the occurrence
of rain, hail or snow, and it also prevented any deduction from payment for mill workers
where the downstream effect of the bush workers not being able to work was that work could
not be performed by them as well because of an inadequate supply of logs. The clause was not
intended to have any wider application to mill workers or to deal more broadly with all the
possible indirect consequential effects of rain, hail or snow, and was certainly not intended to
narrow the capacity of the employer to deduct payment for a breakdown of machinery or like
event.
[44] The consolidated award made by the Court (Conciliation Commissioner Stewart) in
1947, by consent, included a modified version of the clause (clause 16(e)) which allowed for
an employer and employees (by majority vote) to opt out of the new provision awarded by
O’Mara J in 1945 by the payment of a loading in lieu thereof. The full provision was as
follows:
(e) The employer may deduct payment for any day the employee cannot be usefully
employed because of any strike or because of any breakdown of machinery, or
because of any other stoppage of work for any reasonable cause. The onus of proving
reasonableness of the cause shall be on the employer.
Subject to any employee in the bush and in bush saw-mills and in log sawmills outside
the towns and cities named in Table “A” of clause 1a of this award being ready,
willing and available to work, nothing in this clause shall authorize deduction of
payment for any time lost because the employee is prevented from working on account
of rain, hail or snow or on account of a shortage of logs when such shortage is due to
rain, hail or snow.
Notwithstanding anything in this sub-clause, an employer may elect and, with the
mutual consent of the majority of employees concerned, pay a general loading of 7s.
6d. per week to the rates of pay prescribed in this award as an alternative to the
conditions set out herein in respect of pay for time lost through hail, rain or snow or on
account of shortage of logs where such shortage is due to hail, rain or snow. An
employer adopting such alternative at any one mill must obtain the consent of the
Union in writing and must agree to continue such loading for at least twelve months
from the date of obtaining the consent of the Union. In the event of the employees
and/or the Union not consenting the employer may have the matter settled by a Board
of Reference.39
38 Ibid at 659
39 (1947) 59 CAR 1309 at 1330
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[45] This provision then remained substantially unchanged (apart from alterations to the
amount of the loading) for a long period of time. It appeared as clause 16(f) in the Timber
Industry Consolidated Award 1974.40
[46] In 1987 the Timber Industry Consolidated Award 1987 was made by the Australia
Conciliation and Arbitration Commission (Commissioner Merriman) by consent.41 This
contained a reformulated clause (clause 20(f)) in the following terms:
(f) The employer may deduct payment for any full day the employee cannot be
usefully employed because of any strike or because of any breakdown of machinery or
because of any other stoppage of work for any reasonable cause subject to the
following provisions:
(i) The onus of proving reasonableness of the causes shall be on the
employer.
(ii) Where a stand down continues beyond one week, the employee may
terminate the employment without notice or forfeiture of a week's wages.
(iii) The employer advises the union office of the commencement time and
possible duration of the stand down.
(iv) Subject to any employee in the bush and in bush sawmills and in log
sawmills outside cities and towns being ready, willing and available to work,
nothing in this clause shall authorise deduction of payment for any time lost
because the employee is prevented from working on account of rain, hail,
snow, flood or bushfire or on account of a shortage of logs when such shortage
is due to rain, hail, snow, flood or bushfire.
[47] This provision closely resembles clause 42 of the Agreement. Subclauses (ii) and (iii)
represent new provisions compared to the 1947 clause. Subclause (iv) was modified to
include references to flood and bushfire, but apart from this the language and structure of the
provision remained fundamentally the same, and there is nothing to indicate an intention to
alter the meaning which may be ascribed to it arising from the 1945 decision of O’Mara J.
The references to flood and bushfire have simply been “slotted in” to the existing linguistic
formulation. It may also be noted that the capacity of the employer to adopt the alternative of
deducting payment and paying a loading instead was removed.
[48] The provision was subsequently reproduced as clause 18 of the Timber and Allied
Industries Award 199942 (1999 Award) under the heading “Stand Down of Employees”.
[49] In 2007, the Ta Ann Union Collective Agreement (Construction, Forestry, Mining and
Energy Union (Forestry and Furnishing Products Division)) 2007 was made. This appears to
have been the first enterprise-specific agreement entered into by Ta Ann. It had the same
coverage as the Agreement. Clause 20 of this agreement provided:
40 (1974) 163 CAR 115 at 133
41 Print H0320, 18 December 1987
42 Print R4683, 13 May 1999
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20. Stand Down
This clause applies to the exclusion of clause 18 and (but not 18.1, 18.2. or
18.3) of Appendix 1 to this Agreement.
20.1 Notwithstanding anything elsewhere contained in this Agreement the
employer shall have the right to deduct payment for any time an employee
cannot usefully be employed because of any strike or breakdown in machinery
or any stoppage of work by any cause for which the employer cannot
reasonably be held responsible. Employees may request to have such a period
of stand down paid as annual leave if they have an annual leave entitlement.
[50] Appendix 1 of the 2007 agreement contained the entire text of the 1999 Award, with
some minor modifications. Clause 4.2 of the agreement provided that terms of the 1999
Award were incorporated at Appendix 1. Appendix 1 included the text of clause 18 of the
1999 Award. It is not entirely clear whether it was intended to incorporate clause 18.4 of the
1999 Award having regard to the (defectively drafted) underlined words at the
commencement of clause 20, but if it was incorporated, it was incorporated with the same text
and presumably therefore the same meaning.
[51] The following agreement was the Ta Ann Tasmania and CFMEU Collective
Agreement 2011. At clause 46, it contained a provision in identical terms to the current clause
42 of the Agreement. Clause 42.5 in the 2011 agreement and in the current Agreement
reproduce clause 18.4 of the 1999 Award, except that the words “in the bush and in bush
sawmills” have been removed. This is explained by the fact that the agreements only covers
employees at two mills operated by Ta Ann - the mill in the Huon Valley the subject of the
dispute (referred to as the Geeveston site in the coverage provision in clause 3 of the
Agreement) and another mill at Smithton in Tasmania – and does not apply to workers “in the
bush” harvesting timber. The historical context we have described causes us to conclude that
clause 42.5 was objectively intended to have the same meaning as the award provision from
which it was derived. As explained above, the award provision was concerned with the
proximate or direct causes of employees being prevented from working, and not with indirect
consequential effects.
[52] For the period 8 March to 15 April 2019, the proximate or direct cause of employees
being prevented from working at the Huon Valley mill was the fact that the machinery at the
mill had been rendered inoperative. That was a circumstance which fell squarely within the
terms of clause 42.1. The bushfire, which had ceased well before this time, was not the direct
causes, but rather only the cause of the cause or the indirect cause. The employees were not
prevented during this period from working “on account of” bushfire, and clause 42.5 was not
applicable.
[53] For these reasons, we consider that the Decision of the Deputy President was correct.
The appeal is dismissed.
[2019] FWCFB 5300
20
VICE PRESIDENT
Appearances:
Y Bakri of Counsel with D Malbasa for the Construction, Forestry, Maritime, Mining and
Energy Union
N Dobson and S Masters on behalf of Ta Ann Tasmania Pty Ltd
Hearing details:
2019.
Melbourne:
24 July.
Printed by authority of the Commonwealth Government Printer
PR710851
OF THE FAIR WORK MISSION THE
