380

BBITISH TUBE MILLS CASE.

1945, No. 7; 1945, No. 33.

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

Persons Employed (Otherwise than as Clerks) by
BRITISH TUBE MILLS (AUSTRALIA) PROPRIETARY
LIMITED.

For Australasian Society of Engineers (South Australian Branch)

(Applicant in Matter 1945 No. 7)—A. B. Thompson (agent).
For The Federated Ironworkers’ Association of Australia (South
Australian Division) (Applicant in Matter 1945 No. 33)—C. J.
McCaffrey (agent).
For British Tube Mills (Australia) Proprietary Limited (Respond­
, ent in Matter 1945 No. 7 and in Matter 1945 No. 33)—F. E. Piper
(of counsel) with R. N. Irwin (of counsel).

Applications for award—Applications heard together—Agreement

as to most matters.
Wage rates and the National Security (Economic Organization)
Regulations—Payment for public holidays not worked on—Shift work
allowance—Payment for mixed functions.
Certain of the existing wage rates ii pegged ” by the National Security
(Economic Organization) Regulations found to be anomalous, and altered.
Employees on weekly contract of hiring awarded payment (at ordinary rates)
for public holidays not worked on.
The existing allowances for work on afternoon shift or night shift, being out
of accord with the Court’s usual allowance of an additional 5 per cent, of the
ordinary wage in the case of employees on alternating shifts and of an
additional 12J per cent, in the case of employees not on alternating shifts, were
found to be anomalous and altered.
A provision that an employee performing mixed functions be paid in respect
of the time occupied in each class of work at the appropriate rate for such
class of work was not anomalous.

The two applications for an award, made by two associations of

employees, were heard together. The claims (in their amended forms)
were identical; and the award sought differed in terms from the
existing award for the industry. Except as to some few matters the
respondent employer did not oppose an award in the terms (including
wage rates) applied for, but the wages claimed involved .claims for
alterations of certain of the existing rates of remuneration and, in
view of the National Security (Economic Organization) Regulations
(dated 1st February, 1945), the Court was unable to effect an
alteration of any of such rates unless authorised to do so by an order
made pursuant to Regulation 18 (4).
On the 27th November, 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
 BRITISH TUBE MILLS CASE. 381
anomalies or (in one instance) to compensate for a change of circum­
stances in the employment within the meaning of the Regulations and
■ (b) delivered reasons for judgment refusing a claim for an alteration
of a rate as to which there was no such prima facie case, as follow:—
The award sought in this matter, on the terms of which the parties
are virtually in agreement, is based upon the award made by this
Court on the 5th April, 1941, as varied by order of the Court made
on the 26th May, 1941, and upon a supplementary award made on
the 16th May, 1941; the wage rates contained in the awards and in
the variation Order have been increased on two occasions on increases
in the living wage.
The parties are in agreement on the wage rates appearing in the
wages clause in the proposed award which covers a large number of
classifications for adults and includes a wage scale for junior male
employees. With the exception of four classifications, where the wage
rates are, as a matter of law, “pegged” by the operation of the
National Security (Economic Organization) Regulations, the wages
sought are the “pegged” rates.
The existing awarded adult rates are those now sought by the two
employee organizations which are the applicants in these matters, and
are consented to by the employer. The juvenile scale, though not that
appearing in the existing award of 5th April, 1941, I am satisfied
was that operating by agreement between the Australasian Society
of Engineers and the Company for some months prior to the 10th
February, 1942, and to include that scale in the award does not, in
my opinion, effect an alteration in a rate of remuneration within the
meaning of the Regulations. The award claimed contains a number
of classifications not appearing in the existing awards. With the
four exceptions which I have previously mentioned the rates so
claimed can properly be put in the Court’s award since they were
either those in fact paid on the crucial date for the purposes of the
Regulations, that is to say, the 10th February, 1942, or are in
respect of employments not in existence on that date. The four
exceptions are the classifications which are numbered 19, 20, 21, and
22 in the claim of the Australasian Society of Engineers—Proof Bend
Tester, Spark Tester, Spectroscope Tester, and Hardness Tester. For
these classifications, in each case on the 10th February, 1942, a
marginal rate of 5s. a week was paid. The two Unions now claim,
and the employer does not oppose, the award of 9s. 6d. a week margin
in respect of each classification, and in fact it appears that that margin
has been paid for some months to the men concerned. I am satisfied
that in respect of those four classifications a prima facie case of
anomaly has been made out in relation to the 5s. margin. An
examination has shewn me that the margin of 5s. a week is in each
case out of accord with the other classified rates appearing in the
award having regard to the responsibility involved in the several
tasks required of the men falling within the classifications, which
anomaly, in my opinion, in each case would be removed by the award
382 BRITISH TUBE MILLS CASE.
of the' margin now suggested—involving an increase of 4s. 6d. a week.
The parties are not in accord on one matter of substantial
importance: that is to say, the question of the pay for employees on
a weekly contract of hiring in respect of public holidays upon which
they do not work. The existing award contains in the Court ’s con­
ventional form a declaration in favour of an hourly hiring, and men
on such hiring who do not work on public holidays do not receive pay
in respect of such days. The employers, I daresay influenced by this
Court’s decisions this year in the Broken Hill Proprietary Company
Employees (Variation of Aivard) Case (No 1) (p. 58 ante) and in
Stewarts and Lloyds Case (p. 353 ante), have agreed to the inclusion in
the award of a declaration that the contract of hiring of men employed
thereunder shall, in the absence of express contract to the contrary,
be a hiring by the week. The two Unions claim that an employee on
such a hiring, that is to say, a weekly hiring, shall receive his full
week’s pay in respect of a week in which a public holiday falls on
which he has not worked. The employer Company, following, in
effect, the claim made by the employer Company in the Stewarts and
Lloyds matter, claims that in such a week the employee should receive
in respect of a public holiday on which he has not worked only his
marginal allowance; in effect, that there should be in such a week a
deduction from his pay of the amount of the living wage for such
public holiday. I have previously decided in other cases that to
make the alteration claimed by the Unions involves an alteration in
a rate of remuneration within the meaning of the National Security
(Economic Organization) Regulations. In view of the fact that the
award will contain a declaration in favour of a weekly hiring I think
I should in this matter follow my previous decisions in the Cement
Manufacturing Industry Case (18 S.A.I.R. 257) and in the Broken
Hill Proprietary Employees Case (supra) that for such an employee
to suffer a reduction in wages in a week in which a public holiday
occurs on which he does not work is anomalous. I find, therefore,
that a prima facie case of anomaly has been made out which would be,
in my opinion, cured by the provision sought by the organizations
representing employees.
A matter on which the parties are not in complete agreement is
the shift work provision. The present provision is as follows—
“For all work performed on any afternoon shift or night shift,
additional payment shall be made at the following rates—
(a) Where the employees alternate week by week between
the shifts in the cycle—ninepence per shift for adults,
and sevenpence per shift for juniors;
(b) Where the employees do not alternate week by week
between the shifts in the cycle—3s. 9d. per shift for
adults, and 2s. lid. per shift for juniors.”
The Court’s usual practice as to shift work allowance is discussed
in the Broken Hill Proprietary Employees Case (supra). The parties
at the time of the making of the existing award preferred the fixation
of flat rates for the shift work allowances rather than percentage rates.
The result is that, as far as the rates in placitum (a) of the clause
 BRITISH TUBE MILLS CASE. 383
which I have read are concerned, the amounts prescribed have, in
consequence of the rises in the living wage, fallen below the five per
centum of the average ordinary wages, but the amounts in placitum
(&), that is to say, the allowances for men and youths wrho do not
alternate on to day shift, are, however, still substantially above the
twelve and a half per centum of the average ordinary wage which
was the total percentage allowance fixed for that class in the Broken
Hill Proprietary Employees Case and in the recent Stewarts and
Lloyds Case (supra). The two Unions, justifiably I think, seek an
increase of the placitum (a) rates to accord with the Court's usual
principles. They are unable to consent to the Company’s suggestion
that if on that ground the rates in placitum (a) are found to be
anomalous it should follow that those in placitum (b) should also be
found to be anomalous since they are out of accord with the twelve
and a half per centum which I have mentioned, but neither Union feels
able to advance any argument against the Company’s claim that the
alteration to the placitum (b) rates should also be made on the
ground of anomaly.
I think that the rates in both placita are out of accord with the
Court’s usual principle on this subject and that a prima facie case for
their alteration has been made out.
The parties again wish that the amounts should be expressed in
flat rates rather than on a percentage basis, and I see no reason why
the Court should not frame its award in accord with their wishes on
the subject. In my opinion, the anomalies existing would be cured
by the increase of the amounts in placitum (a) to Is. and lOd.
respectively and the reduction of the amounts in placitum (b) to
2s. 6d. and 2s. respectively.
I think that there are only two other matters to which I need give
individual attention.
The first is the question of the “Mixed Functions” clause which is
numbered 16 in the existing award and is in these words—
“ Where an employee on any day for at least an hour performs
two or more classes of work for which different rates are pre­
scribed by this award, he shall be paid in respect of the time
actually occupied in each class of work at the appropriate rate
for such class of work. ’ ’
The two Unions ask that the following clause, consisting of three
subclauses, should be inserted in its stead—
“(a) An employee, who is required to do work carrying a
higher rate than his ordinary classification for more than half
of any day or shift, shall be paid at the higher rate for the whole,
of the day of shift.
“(b) Subject to subclause (a) hereof, an employee who on
any day or shift is required to do the work of a higher paid
classification for at least one hour, shall be paid the rate pre­
scribed for such work whilst so engaged.
“(c) An employee, who on any day or shift is required to da
work carrying a lower rate than his ordinary classification for
less than one hour, shall suffer no deduction in consequence
thereof.”
 384 BRITISH TUBE MILLS CASE.
The Company raises no objection to the alteration sought, but, if
it be made, asks that the following further subclause be added—
“ (d) Subject to the foregoing provisions, where any employee
on any day or shift for at least an hour performs two or more
classes of work for which different rates are prescribed by this
award, he shall be paid in respect of the time actually occupied
in each class of work at the appropriate rate for such class of
work”.
I may say that I have some doubt whether the addition of that sub­
clause would, as a matter of law, add anything, since what is expressed
in it appears to me to be implied in the subclauses (6) and (c) claimed
by the Unions.
As to this matter, I am unable to find that the existing provision
is anomalous. It was the subject of adjudication by my predecessor
{Kelly P.) when the award was made in 1941, and he dealt with the
matter at some length in 16 S.A.I.R. at pp. 172 and 173. He said:
“It may be that, in an industry where employees of higher
qualifications are liable to be kept in reserve, meanwhile being
employed on a lower paid type of work, there is some justification for
requiring them to be paid at the higher rate for the whole day, more
than half of which has been devoted to the higher! type of work. But
I am quite unable to see how, within the occupations to which my
award must be limited, one could distinguish—without being rightly
charged with caprice—between the case where the transfer to the
higher paid work is for less than half a day and that where it is for
longer. Further, I have no reason at all for suspecting that the
employer’s practice is to hold men, able to earn higher rates, back on
lower-paid work in order to meet varying conditions in the industry.
“In that portion of the Industrial Code which enacts general pro­
visions relating to the determinations of industrial boards (Part III.
Division viii.), appears section 201 (1) which says:—Where an
employee performs two or more classes of work and the wages,prices
or rate for each of such classes of work has been fixed by a determina­
tion (whether of one or of several boards), his employer shall pay
such employee in respect of the time occupied in each class of work
at the rate fixed by the board and applicable to such class of work’. I
‘ do not say that this provision is to be regarded as a conclusive guide
to the Court on the matter of what payment should be made to
employees performing 'mixed functions’. It is, however, if I may
say so, in accord with my own view, previously expressed, that where
an employee performs two or more classes of work for which different
rates are prescribed, to hold that he should be paid in respect of the
time actually employed in each at the appropriate rate for each
seems prima facie just and reasonable. I am bound to say that I have
not discovered in the evidence, visual or oral, any reason for making
an exception in the case of the occupations to which it is( intended that
this award should be limited. I shall, therefore, award that where an
employee performs two or more classes of work for which different
rates are prescribed, he shall be paid in respect of the time actually
 BRITISH TUBE MILLS CASE. 385

occupied in each class of work at the appropriate rate for such class
of work.”
It is obvious that the decision was a careful adjudication by the
Court on this subject. On this matter I may refer to my observations
in the Public School Teachers Case (18 S.A.I.R. 107 at p. 116):
“ Where an assessment of the wage rate sought to be altered is one
made by this Court in an award which is not obsolete in the sense
previously mentioned, unless that assessment is clearly shown to
include some fallacy of reasoning or to be invalidated by the omission
of some important consideration, or unless circumstances have sub­
stantially altered in the employment or duties of the type of employee
concerned, the Court cannot be satisfied that the wage rate is
anomalous,’’ This award is not obsolete and I have not found any
fallacy of reasoning or any omission in the Court’s consideration nor
have the relevant circumstances changed. The decision of my pre­
decessor on this subject as to this industry is in accord with my own
views as expressed in the Chaff Mill Employees (Variation of Award)
Case (18 S.A.I.R. 243) and in the Broken Hill Proprietary Employees
Case (supra). Mr. Thompson argued that a change had taken place
because the old hourly hiring will now ordinarily be a weekly hiring,
but I do not accept that argument. It seems to me that the weekly
hiring should be in terms of the award: that is to say, that the weekly
contract of hiring should not hamper the right of the employer to
move an employee from one type of work to another as is .contem­
plated by the existing mixed functions clause and as certainly would
be contemplated by the mixed functions clause which is proposed by
the Unions. I think that such is just; indeed, it may be that in an
industry of this type the employer could not give his employees the
continuity of employment which is, I think, so valuable to both the
employer and to the employees, without that right, and it is on that
continuity of employment that in other matters I have decided in
favour of a weekly hiring. In my opinion, therefore, the existing
provision on this subject is not anomalous and the Court is prohibited
by the National Security (Economic Organization) Regulations from
altering it.
The other matter, which touches two clauses—the “Sunday work”
clause and the “Public holidays worked” clause—is not, I think, of
great importance; it is a matter on which the parties are in agree­
ment.
The existing clauses relating to the rates of pay for night shifts
which may run into a public holiday or a Sunday is worded on the
assumption that such shifts finish at 6 a.m. There has been a change
here, and the shifts now finish, I understand, at 6.55 a.m. The slight
alteration of verbiage claimed is necessary in order to amend the
situation which has resulted and technically, I think, involves an
alteration of a rate of remuneration, but the alteration of the shift
hours is, in my opinion, clearly a change of circumstance which
N
386 BRITISH TUBE MILLS CASE.

justifies the Court in finding that a prima facie ease for a com­
pensating alteration in a rate of remuneration has been made out.
There are a few other small .changes in the award which, in my
opinion, involve alterations of rates of remuneration. I think that
it would be a work of supererogation for me to discuss these in detail.
As to all of them, it is sufficient for me to say that, in my opinion, a
prima facie case of anomaly has been made out by reference to other
decisions of this Court with which the matters can fairly and clearly
be compared, and that the anomalies concerned would be cured, in
my opinion, by the alterations sought.
The matter will now stand adjourned sine die so as to enable the
statement required by the Regulations to be sent to the Chief Judge
of the Commonwealth Court of Conciliation and Arbitration.

Being of opinion that the grounds on which the alterations of certain

rates of remuneration were sought on the applications for an award
provided prima facie evidence that alterations of such rates were
necessary to remove anomalies or (in one case) to compensate for a
change of circumstances in the employment, the Court, in accordance
with the requirements of Regulation 18 (3) of the National Security
(Economic Organization) Regulations, submitted to the Chief Judge
of the Commonwealth Court of Conciliation and Arbitration a state­
ment setting out the grounds on which those alterations were sought,
the reasons for the Court's opinion, and the general principles by
which the Court would be guided in removing anomalies or in com­
pensating for any such change of circumstances which might be
proved to its satisfaction to exist. On the 29th November, 1945, the
Chief Judge made an order, under Regulation 18 (4), authorising
the Court to proceed to determine the matter of the alterations of the
rates of remuneration. The proceedings on the application for an
award of wages and other conditions of employment were resumed on
the 12th December, 1945, and on the same day the Court made its
award.
(The award is published in the Government Gazette of the 3rd
January, 1946, at p. 4.)