387

SOUTH EAST DISTRICT COUNCILS CASE.

1945, No. 7.

In the Matter of the Wages, Hours and Conditions of Employment

of Persons Employed within the Boundaries of
the Corporation of the Town of Naracoorte, the District Council
of Beachport, the District Council of Lucindale, the District
Council of Lacepede, the District Council of Mount Gambier,
the District Council of Millicent, the District Council of
Naracoorte, the District Council of Penola, the District Council
of Port MacDonnell, the District Council of Robe, the District
Council of Tantanoola and the District Council of Tatiara.

For Australian Workers’ Union (Adelaide Branch) (Applicant)—

C. R. Cameron (agent).
For Corporation of the Town of Naracoorte and Others (Respond­
ents)—F. C. Lloyd (agent).

Application for award—Agreement of parties.

National Security (Economic Organization) Regulations: Wages—
Rate for (£casual employees”—Payment for public holidays—
Travelling time—Wet places—Camp allowance.
Wage rates for employees on hourly contracts (“casual” employees) which
were not ten per cent, higher than the rates for employees on weekly contracts
were (‘ anomalous 77 within the meaning of the Regulations.
Found that it was anomalous for an employee on a weekly contract to suffer
a deduction of wages in a. week in which occurred a public holiday not worked on.
A provision to the effect that the extra rate payable to an employee obliged
to stand in wrater was payable only if the water was (1 over two inches deep7 7
was anomalous.
Existing camp allowance found to be not anomalous.
Held, that Reg. 18 (7) (d) of the National Security (Economic Organization)
Regulations (dated 1st February 1945) did not permit the Court to alter a rate
of remuneration prescribed by an award.

The application for an award differing in some respects from the

existing award for the industry was not opposed, but as some of the
matters before the Court involved claims for alterations of certain
rates of remuneration the Court was unable, in view of the National
Security (Economic Organization) Regulations (dated 1st February
1945), to effect alterations of any rates unless authorised to do so
by an order made pursuant to Regulation 18 (4).
On the 10th December, 1945, His Honour Mr. President Morgan
(a) stated reasons for the Court’s opinion that the grounds on which
alterations of certain rates of remuneration were sought provided
prima facie evidence that alterations were necessary to remove
anomalies and (b) delivered reasons for judgment refusing claims
for alterations of other rates to which there was no such prima facie
case, as follow:—

This is an application made by the Australian Workers’ Union

(Adelaide Branch) for an award covering the wages and conditions
388 SOUTH EAST DISTRICT COUNCILS CASE.
of certain manual employees of one municipality and eleven district
councils in the South East of this State; the employers, in so far
as the National Security (Economic Organization) Regulations permit
them to do so, consent to the making of an award in the terms claimed.
The wage rates of the majority of the employees concerned are at
present covered by an award of this Court made on the 26th March,
1942 (17 S.A.I.R. 38), which wage rates were increased by the
operation of the Industrial Code, 1920-1937, on an increase in the
living wage which became effective on the 15th October, 1942, and
which were varied in a few instances by an order of the Court made
on the 4th January of this year (18 S.A.I.R. 253).
Wage Rates.
In the existing award, the wage rates are expressed for the day of
eight hours. In the award claimed, it is suggested that against most
classifications a weekly rate should be prescribed, with an hourly rate
as an alternative, the hourly rate being in each instance one forty-
fourth of the weekly rate (the ordinary working week in the industry
is forty-four hours). The existing award contains no declaration as
to a contract of hiring, but I am informed that the usual contract
is one by the week, which would accord with Section 44 (2) of the
Industrial Code. The award claimed contains a declaration that the
contract of hiring of employees covered by it shall, in the absence of
express contract to the contrary, be a hiring by the week.
The weekly rates claimed, which do not include any instance of a
fraction of a penny, are those in fact paid by the respondents. The
hourly rates claimed, which, as I have said, correspond to the weekly
rates, do not precisely agree with the present daily rates divided by
eight; the differences are, however, of minute fractions of a penny
only. In these circumstances, I think that the Court should apply
the maxim de minimis lex non curat, and to award the rates claimed
does not, in my opinion, involve any alteration of rates of remunera­
tion within the meaning of the Regulations.
I have so far been dealing with classifications which appear in the
existing award. As to one group of employees, drivers of motor
trucks or horse drays who provide their trucks, horses or horses and
drays, there is no provision in the existing award. I am, however,
satisfied that, on the facts of this case, to include the rates claimed
does not offend against the provisions of the Regulations.
Casual Employees.
The existing award contains no provision as to casual employees.
The Union claims that employees whose contract of hiring is by the
hour should receive an additional ten per centum of the appropriate
ordinary rate.
This Court’s ordinary principle in an industry in which the con­
tract of hiring is ordinarily by the week is to grant to employees whose
hiring is less than by the week, who may be regarded in such an
industry as falling within the class of casual employees, an additional
 SOUTH EAST DISTRICT COUNCILS CASE. 389
ten per centuih of the ordinary wage rates (See Country Boarding
House, Cafe, Etc. Employees Case, 17 S.A.I.R. 155 at p. 162, and
cases there referred to), and I see no reason why “casual” employees
in this industry should be an exception to that ordinary rule. In my
opinion, the lack of a provision of a higher rate for a casual worker
establishes as to him a prima facie ease of anomaly, which would be
cured by the provision claimed.
Public Holidays not Worked on.
The existing award contains the following provision relating to
pay for public holidays not worked on—
“New Year’s Day, Foundation Day, Good Friday, Easter
Monday, Labor Day, Christmas Day, Anzac Day and King’s
Birthday to be paid for without working.”
The Union claims that this clause should be repeated in the new
award, with the addition of two further days, Proclamation Day and
Easter Saturday.
In my opinion, it is anomalous, in accordance with the principles of
this Court expressed in numerous cases, for an employee on a weekly
contract of hiring to suffer a deduction from his week’s pay in respect
of a week in which any of the ten public holidays mentioned above
has fallen, on which day the employee has not worked. I think that
such anomaly would be removed by the insertion of a clause to this
effect in the award—
“An employee on a weekly contract of hiring who is not required
to work on any of the following holidays—New Year’s Day, Australia
Day, Good Friday, Easter Saturday, Easter Monday, Anzac Day,
King's Birthday, Labour Day, Christmas Day and Proclamation Day,
shall be paid at ordinary rates of pay for any such day provided that
the day, if not a holiday, would have formed part of the ordinary
working week of the employee concerned”.
Travelling Time.
As the award originally read, the travelling time provision read
thus—
“Walking Time.
“When an employee is required to walk beyond a radius of a
mile and a half from the depot or camp, time so occupied beyond
such radius, calculated at the rate of 20 minutes for each mile
or part thereof, shall be paid for as working time.”
In the order of the Court of the 4th January, 1945, this clause was
varied by striking out the words “and a half”. The order was made
on the ground that the earlier provision was anomalous by comparison
with provisions relating to employees, with whom the men could fairly
be compared (see my observations reported in 18 S.A.I.R. at pp. 255
and 256). The applicant Union now claims that the existing provision
should be struck out of the award, and the following substituted for
it—
“Travelling Time.
“Time spent in travelling to work and returning from work
shall be in the Corporation’s or District Council’s time.”
o
390 SOUTH EAST DISTRICT COUNCILS CASE.
Mr. Cameron did not ask that this alteration be made upon the
ground of anomaly—indeed, it would appear hopeless to do so—but
he claimed that the Court could make the alteration without infringing
the provisions of the National Security (Economic Organization)
Regulations because, on his instructions, the provision now claimed
would merely incorporate into the award what has been the practice
of the respondent employers for a number of years, a practice going
back at least earlier than the 10th February, 1942. Mr. Cameron did
not claim that this practice was the result of any agreement between
his Union and the employers; he stated that it was unknown to him
at the time when the variation order of the 4th January, 1945, was
made.
I am, however, unable to find any provision in the Regulations which
enables the Court to make the alteration sought. The point is the
same as that considered by me in the Salt and Gypsum Industries Case
as to Sunday work at Stenhouse Bay (17 S.A.I.R. 425 at pp. 428
and 429), and it is unnecessary for me to repeat what I said there.
It would appear that Regulation 18 (7) (d) permits the employers
to continue a practice in existence on the 10th February, 1942, but
does not permit the Court to incorporate that practice into its award.
The existing provision must therefore be repeated in the award.
Working in Wet Places.
The existing award contains a provision, divided into five sub­
clauses, relating to an extra rate for working in “wet places”, though
the extra rate is not payable if the employee “is supplied with gum
boots and/or overalls and is protected from getting his clothing and/or
feet wet”. The Union claims the reinsertion of the provision, with
one alteration, which is in the definition of a “wet place”. The
present definition is as follows—
“A ‘wet place’ means a place where water other than rain is
dripping from overhead so that the clothing of an employee
becomes saturated, or a place where the employee has to stand
in water over 2in. deep so that his feet become wet.”
It is asked that from this definition should be omitted the words
“over 2in. deep”.
In his claim of anomaly, Mr. Cameron relies on the determination
made on the 12th June, 1945, of the Engineering and Water Supply
Department Board which contains a “wet work” provision akin to
that now sought except that in it the definition of a “wet place” is
in these words: “A ‘wet place’ means a place where the clothing of
the employee becomes wet, or a place where the employee has to stand
in water or slush so that his feet would become wet if not protected.”
I have examined the “wet work” provisions appearing in a
number of awards of this Court and of determinations of industrial
boards, and there are not a few variations in the definitions of a
“wet place”, no doubt some of them due to the particular conditions
of the industry covered. I am, however, faced in this matter by my
own decision in the Salt and Gypsum Industries Case {supra), at pp.