Opinion Number. 1034

Subject

FEDERAL SHIPBUILDING SCHEME WHETHER SHIPBUILDING AGREEMENT OBLIGES COMMONWEALTH TO COMPLY WITH STATE AWARD: EMPLOYEES' ENTITLEMENT TO TAKE ADVANTAGE OF MORE FAVOURABLE AWARD

Date
Client
The Secretary, Prime Minister's Department

The Secretary to the Prime Minister's Department has forwarded, for advice, the question of the application, to the clerks employed at the Commonwealth Dockyards and at Cockatoo Island, New South Wales, of the award, dated 3 October 1919, of the Commonwealth Court of Conciliation and Arbitration in the matter of the Commonwealth Temporary Clerks' Association and Public Service Commissioner and Others 13 C.A.R. 547 at p. 557, and of the award, dated 25 June 1920, of the New South Wales Court of Industrial Arbitration (Clerks' (Metropolitan) Award).

The Commonwealth award provides that the rate of wages for adult clerks shall be lis 6d a day for the first six months after appointment, and thereafter 12s a day. In addition, a bonus of 6d or 9d a day has, I understand, been granted since the making of the award.

As regards the hours of duty, clause 5 of the award provides as follows:

The ordinary hours of duty shall be those prescribed for officers on the permanent staff, under the Commonwealth Public Service Act 1903, and amendments thereto, or by regulation made thereunder or under the Naval Defence Act, or the Defence Act, and in force at the date of this award, but subject to the provisions of clauses 6, 7, 8 and 8A of this award, temporary clerks may be required to work longer hours than those prescribed.

Payment for overtime duty is prescribed by clause 6 of the award which provides as follows:

For time on duty beyond 7 1/2 hours on ordinary days, or beyond 3 3/4 hours on Saturday, payment shall be made for the overtime at the rate of time and a half, based on a week of 41 1/4 hours.

The State award provides that the rates of wages for adult clerks shall be as follows:

At 21 years of age . . .77s per week; At 22 years of age . . . 80s 6d per week; At 23 years of age . . . 84s 6d per week.

As regards hours of labour clause 3 of the award provides as follows: 'In the case of a weekly clerk, not more than 48 hours, exclusive of meal times, shall constitute a week's work'. (I presume all the clerks engaged at the Dockyard are weekly clerks.)

Clause 7 of the award provides that in the case of weekly clerks, all time worked in excess of 10 hours in any one day, or in excess of 48 hours in any one week, shall be paid for at the rate of time and a half and that overtime shall be computed daily.

It appears from the statement of the Chairman of the Federal Shipbuilding Tribunal that the Clerks' Union claims that the rates of pay prescribed by the State award should apply to clerks employed at the Dockyard, but that the hours and other conditions of employment prescribed by the Commonwealth award should continue to apply to those clerks.

The Chairman supports these claims, and expresses the opinion that by the provisions of clause 5 of the Shipbuilding Agreement the Commonwealth Government have put themselves in the same position as an ordinary employer who is liable to be covered by both a Federal and State award.

Clause 5 of the Shipbuilding Agreement provides as follows:

That the rates and hours of labour and conditions already prescribed or hereafter prescribed by any Court of Arbitration or Wages Board under any Commonwealth or State law shall be paid to or any existing agreements shall be observed in respect of all persons working day work in any yard or shop which is engaged on shipbuilding under the Commonwealth Scheme.

The Clerks' (Metropolitan) Award applies to clerks in the Metropolitan Area of Sydney except clerks employed by certain employers (see N.S.W. Industrial Gazette, Vol. XV, p. 486).

In the absence of agreement that award would not, in my opinion, bind the Commonwealth. The question arises, however, whether, in view of clause 5 of the Shipbuilding Agreement, and notwithstanding the existence of the Federal award, the State award applies to clerks employed by the Commonwealth at the Dockyard at Cockatoo Island.

I think that under the Shipbuilding Agreement an employee is entitled to be paid, for the hours worked by him, the wages which would be paid for those hours of work under either the Federal or the State award, whichever is most favourable to him.

But he is not entitled to pick the rate of wages out of one award and the hours of work out of another. The rate of wages cannot be separated from the hours of work for which they are paid.

[Vol.17,p.151]