PARTIES:	JAMES LAFERLA

		v

		BIRDON SANDS PTY LTD

TITLE OF COURT:	SUPREME COURT OF THE 
		NORTHERN TERRITORY

JURISDICTION:	CIVIL

FILE NO:	LA22 of 1997 (9612639)

DELIVERED:	21 August 1998

HEARING DATES:	7 & 8 July 1998

JUDGMENT OF:	MILDREN J

CATCHWORDS:

Appeal – Local Court – contract of employment – classification of worker under building and construction award – claim for wages at higher rate of pay.

Appeal – contract of employment – procedure under Local Court Rules to produce expert evidence – failure to follow procedure – inadmissible evidence – error of law – failure of magistrate to advise appellant of his right to challenge the admissibility of evidence.

Appeal – contract of employment – duties of “work boat driver” – technical meaning inadmissible – ordinary meaning applied – failure of magistrate to make any finding as to category of worker.

Appeal – litigant in person – independent duty of counsel to court – obligations of counsel to litigant in person – counsel’s duty to court paramount even where client instructs to contrary – counsel alone makes decisions relating to way in which the case will be run before the court – no duty lies with counsel to unrepresented litigant to assist putting his case to the court.

Appeal – contract of employment – entitlement of worker to waiting time for collection of wages after termination – waiting time defined as waiting at the workplace.

Legislation

Building and Construction Industry (Northern Territory) Awards 1989
Local Court Rules – r19.01(1); r19.01(3)
Workplace Relations Act 1996 – s179A(1)

Cases

1)	Meek v Fleming [1961] 2 Q.B. 366 referred
2)	Pilato v Metropolitan Water Sewerage and Drainage Board (1956) 76 WN (NSW) 364 applied
3)	Dare v Pulham (1982) 148 CLR 658 applied
4)	R v Wilson and Grimwade [1995] 1 VLR 163 referre
5)	Giannarelli v Wraith (1988) 165 CLR 543 discussed
6)	Cachia v Haynes (1994) 179 CLR 403 discussed
7)	McInnes v The Queen (1979) 143 CLR 575 referred
8)	MacPherson v The Queen (1980-1981) 147 CLR 512 referred
9)	Dawson(t/a Goodvibes Yachts) v Deputy Commissioner of Taxation (1984) 56 ALR 367 followed
10)	Port of Melbourne Authority v Anshun Proprietary Limited (1980-1981) 147 CLR 589 discussed
11)	Wahlgren v Transfield Power Systems Manufacturing (unreported, Industrial Relations Court of Australia, 17 June 1996, Madgwick J) discussed

REPRESENTATION:

Counsel:

	Appellant:	In person
	Respondent:	Mr M Spargo

Solicitors:

	Appellant:	In person
	Respondent:	Messrs Cridlands

Judgment category classification:	B
Judgment ID Number:	MIL98013
Number of pages:	34

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

No. LA22/97 (9612939)

		BETWEEN:

		JAMES LAFERLA
			Appellant

		AND:

		BIRDON SANDS PTY LTD
			Respondent

CORAM:	MILDREN J

REASONS FOR JUDGMENT

(Delivered 21 August 1998)

MILDREN J:
	This is an appeal from a decision of Mr Hannan SM sitting as the Local Court.

	On 25 September 1995 the appellant entered into a contract of employment with the respondent.  His employment is described on his pay sheets as that of a “casual labourer”.  He was employed by the respondent between 25 September and 29 December 1995, at which time his services were terminated due to a shortage of work.  He was paid at a flat rate of $15 per hour.  He worked twelve hour shifts, which included alternating day and night shifts, seven days a week.  Although the actual hours he worked on a particular day varied, he commonly worked from between eleven to thirteen hours per day.  At the time of his engagement, he was not employed for any fixed period of time.  No rates of overtime were discussed.

	During the period of his engagement he was paid a total $13,923.75.  It was not contended that this was less than he was entitled to under the terms of his contract of employment.

	The appellant claimed that the conditions of his employment were covered by the Building and Construction Industry (Northern Territory) Award 1989, which had been made a common rule on 19 June 1990.  He claimed that, under the award, he was entitled to be paid at the rates of pay and penalty rates fixed by the award for the classification of a work boat driver.  The appellant claimed that under the terms of the award he should have received during the period of the engagement $36,964.00, and accordingly he claimed the difference between this sum and the amount he received, viz $23,040.25.

	The respondent company was involved in dredging the sea floor of a portion of Darwin harbour as part of the works needed for the new East Arm harbour development.  The appellant had answered an advertisement in the Northern Territory News placed by the respondent for experienced dredge operators and dredge operators’ assistants.  The appellant was not experienced in this work.  He is a chef, but he has extensive yachting experience, with skill and experience in operating outboard motor driven vessels.

	The learned Magistrate, in his written reasons, identified the issues as follows.  The first question was whether the appellant was correct in his claim that the award applied to the respondent’s employees of which he was one.  The respondent contended in its defence to the claim that the terms of the engagement were covered by the Birdon Sands Pty. Ltd. Enterprise Agreement 1993, made under the Industrial Relations Act, 1991 (NSW).  This contention, the learned Magistrate held, was abandoned during the hearing.  Next, the respondent contended that the common rule was confined to wages and conditions in the industry of building and construction, or to the industrial pursuits of that industry, and dredging was not such a pursuit.  The learned Magistrate found for the appellant on this issue.  The respondent does not seek to reargue this finding on this appeal.  Finally the respondent contended that in any event the appellant was not entitled to be paid as a work boat driver.  The respondent called expert evidence from a Mr Rutledge, (one of its employees), to the effect that “work boat” was a technical term for a boat capable of doing heavy work, which, in the dredging industry, involved a boat which was used to lift the anchors that kept the dredges stationary above the sea bed, was equipped with a lifting device such as a winch to lift pipelines through which debris from the sea floor was transported elsewhere, and which was used to locate and relocate dredges which have no motive power of their own.  The appellant operated a punt, for which no qualifications were required (such as a Master’s certificate).  The learned Magistrate found that he operated dinghies and punts during his shifts working on the dredging operation for the respondent, and much of his work involved shifting personnel and bunkering fuel.  His Worship also found that he performed labouring tasks on dredges and as required on dinghies and punts.  His Worship accepted Mr Rutledge’s expert evidence as to what is a work boat.  He found that punts and dinghies were not work boats and that the appellant was not a work boat driver.  The Magistrate dismissed the appellant’s claim entirely because he was not a work boat driver and the appellant had not sought to make an alternative claim under the award as a labourer or casual labourer.

	On appeal to this Court, the appellant submitted that the learned Magistrate erred in accepting the evidence of Mr Rutledge as to the meaning to be given to the expression “work boat driver” as found in the award.  He put his argument in a number of ways, but during the course of argument, it was conceded by counsel for the respondent that the evidence of Mr Rutledge was inadmissible.  That concession was properly made, and for this reason.  The appellant represented himself both at the hearing in the Local Court and on appeal to this Court.  At no time did the respondent’s legal advisers serve upon him a copy of Mr Rutledge’s statement of evidence covering the matters of expert evidence he was called to give.  Rule 19.01(1) of the Local Court Rules in force at the time of the hearing required such a statement to be served upon the appellant at least twenty-eight days before the hearing.  The failure to comply with this rule, has the result that the evidence is inadmissible except by leave or unless the parties consent:  see r19.01(3).  The respondent did not seek leave, or the consent of the appellant, and its counsel did not draw to the learned Magistrate’s attention that r19.01(1) had not been complied with.  It was submitted by counsel for the respondent that no objection was taken by the appellant at the time, but the appellant was unrepresented and would not be expected to know that this evidence was inadmissible.  It was the duty of counsel for the respondent to draw to the learned Magistrate’s attention that r19.01(3) had not been complied with and to seek the leave of the Court pursuant to r19.01(3).  Counsel said nothing about that.  He merely called Mr Rutledge in the usual way, as if the rule had been complied with, in circumstances where the appellant was not represented.  The learned Magistrate was not alerted to the fact that part of this witness’s evidence was to be of an expert nature; the witness was led on this part of his evidence towards the end of his examination in chief after having given evidence on other topics of a non-expert nature.  If the learned Magistrate had been alert, he should have enquired about the admissibility of the expert evidence once the topic was raised.  His Worship should have been aware of r19.01.  It was his Worship’s duty to have made that enquiry, as the appellant was not represented.  But that did not happen.  

	Counsel’s conduct, in not raising the matter, implied that no leave was necessary as the rule had been complied with, when it had not.  Counsel has an independent duty to the Court which transcends his duties and obligations to his client not to deliberately mislead the Court.  It is not always the case that, in order to deceive a court, there must be positive conduct.  Whilst it is generally the case that the failure by counsel to proffer material adverse to his client’s case is permissible, there are well recognised exceptions, one of which is to present material to a court in a manner which is known to be based on a false premise:  see for example, Meek v Fleming [1961] 2 Q.B. 366.  Here the evidence sought to be led was critical to the outcome of the case, and was presented to the Court on the basis that it was admissible, and no leave was necessary, the inference being that r19.01(1) had been complied with.  The unstated assumption inherent in this conduct was plainly false.  It is not proven that counsel’s conduct was deliberate, in the sense that he knew at the time he led the evidence that it was inadmissible; but he should have known this.  Be that as it may, the evidence was inadmissible, and should not have been led.

	In the light of counsel’s concession, there is therefore an error of law and it is not strictly necessary to consider the further questions of whether expert evidence might otherwise have been admissible, whether Mr Rutledge was an expert, and whether, in any event, Mr Rutledge’s evidence supported the conclusion reached by the learned Magistrate.  Suffice it to say, that each of these propositions is, to say the least, somewhat doubtful.  The learned Magistrate did not advise the appellant of his right to challenge the admissibility of the evidence.  He plainly should have done so.  In the absence of admissible evidence that the expression has a technical meaning, which differs from its ordinary meaning, the expression is to be interpreted according to the latter, subject to a consideration of the scope and objects of the award.

	Clause 2 of the Award provides:

2 – SCOPE

This award or agreement shall govern the wages and conditions of all persons engaged in the performance of all work in or in connection with, or incidental to, the industries and/or industrial pursuits of:

(a)	building industry;
(b)	civil and/or mechanical engineering;
(c)	the construction industry, including the building, construction, erection, maintenance, repair and/or demolition of:
(i)	any building, plant, complex or structure; or
(ii)	any civil or mechanical engineering project
	or work;
(d)	construction and maintenance of rivers and harbours;
(e)	construction and maintenance of roads and aerodromes;
(f)	water and sewerage works;
(g)	public works and services;
(h)	construction and maintenance of fuel oil and petrol tanks, and pipelines;
(i)	construction and maintenance of railways;
(j)	surveying; and
(k)	all work in joinery establishments or establishments concerned with the prefabrication of items (including structures) for use in or in connection with building or construction.

This award shall apply in the Northern Territory.

	The learned Magistrate did not state in his reasons why the employment fell within the scope of the award.  Clearly the work of dredging the harbour as part of a new wharf facility falls within items (c)(ii) and (d) of Clause 2.  The learned Magistrate did consider the common rule, and reached a similar conclusion.

	Clause 6 of the award provides hourly and weekly wage rates to be paid to adult employees covered by the award.  The clause provides for a number of classifications of employees.  The first classification comes under the heading "Division A – building and construction workers”.  Then follows ten items, the first nine of which are descriptive of trades commonly found in the building and construction industries, such as carpenters, bricklayers, glaziers, painters, and the like.  The tenth item is described as “Building and construction employee” and that item is divided into four sub-items, group 1 to group 4, with reference to a schedule to the award.  The schedule is set out in clause 51.  The appellant claimed that, but for clause 35, he would be covered as a labourer assistant to a tradesman, one of the occupations listed in group 3.  I observe that group 4 is a catch-all, and covers “Building and construction employees on site not elsewhere provided”.

	Clause 35 is the mixed functions clause, and provides:

35 – MIXED FUNCTION – CHANGE IN CLASSIFICATION

(a)	An employee required to perform on any one day two or more classes of work to which differential rates are applicable shall be paid at the highest rate for the whole day.
(b)	An employee who is temporarily employed on work for which a lower rate is applicable shall not have his or her rate of wage reduced.  Provided that where owing to an insufficiency of work, or other cause it is necessary for an employee to be placed on work for which a lower rate is paid, the foreman shall notify the employee accordingly and in such case the employee shall except as is provided in subclause (a) hereof, be paid at that lower rate whilst so engaged.  Provided further that in such circumstances the employee shall be given at least one week’s notice of his or her reduction in status.

	The award provided rates of pay as follows:

-  work boat drivers (on site)	$429.30 per week
-  labourer assistant to tradesman (on site)	$422.40 per week
-  group 4 employees (on site)	$390.80 per week

	The appellant’s case was that, because the rate for work boat drivers was higher than the rate for labourer assistant to a tradesman, he was entitled, if he performed the duties of a work boat driver on any day, to be paid as a work boat driver; and that, in fact on each day of his employment, he did perform those duties.  Inherent in this submission is that his main classification was that of labourer assistant to tradesman, but it seems to me to be obvious that if he did not fall within that classification for some reason, it was open to him to rely upon his being classified as a group 4 employee.

	The approach of the learned Magistrate seems to have been that because the appellant was not in any event a work boat driver, and he had not submitted an alternative claim for any lesser classification, he could not find what lesser classification covered the appellant, and make an award accordingly.

	The appellant complains that the learned Magistrate was wrong in this respect, and pointed to calculations tendered as part of Ext 7 which are headed “Calculation for Shift Worker Casual Labourer $422.40 per 38 hrs week”.  Counsel for the respondent submitted that it was not clear that this was a reference to “labourer assistant to tradesman” as that rate applied also to laboratory testers, assistant gardeners and first aid attendants.  That argument is absurd.  It must have been obvious that the calculations in Ext 7 were based on the rate for labourer assistant to a tradesman.

	Counsel for the respondent submitted that the learned Magistrate was correct in finding that there was no alternative claim on the pleadings or in the particulars given.  The statement of claim is not professionally drafted, and was amended twice before the hearing.  In its final form it reads:

The plaintiff claims under payment of wages and associated benefits of employment at East Arm Port Development Project during 25/09/1995 to 20/12/98 particulars of which are set out below, and seeks out of pocket expenses.

The statement of claim is a printed form which the appellant obviously filled out himself.  It goes on to indicate that the amount claimed is $12,392.57, and that the particulars have already been supplied to the respondent.  The copy of the second amended statement of claim on the Local Court file does not have any particulars attached to it.  Counsel for the respondent maintained that the copy of the second amended statement of claim served on the respondent did have particulars attached to it.  Whatever these particulars may have been, on the morning of hearing the appellant increased his claim to $23,040.25 as set out in Ext 8.  

	Counsel for the respondent submitted that he did not understand that the appellant was claiming in the alternative.  He said that the case he had come to meet was a claim as a work boat driver, and not some other alternative claim.  But it was clear that the appellant was relying on the award and in particular on his being a labourer assistant to a tradesman and on clause 35 to make out his claim:  (see tr pps 22-23).  So, inherent in his claim was that he was employed in a capacity at a lower rate than work boat driver, but, because he also performed some duties as a work boat driver, he was entitled to be paid at the higher rate.  The wording of the second amended statement of claim was very general.  It did not identify what his claim was for with any precision.  It was so vague that it might have been struck out for failing to disclose a cause of action.  Consequently the particulars were, or should have been, of considerable importance.  The function of particulars is to define the issues with more precision.  In Pilato v Metropolitan Water Sewerage and Drainage Board (1956) 76 WN (NSW) 364 at 365, McClemems J said:

Pleadings define the issues in general terms.  Particulars control the generality of pleadings and restrict the evidence to be led by the parties at the trial and give the other party such information as may enable him to know what case he will be met with at the trial and prevent surprise.

	In Dare v Pulham (1982) 148 CLR 658 at 664, Murphy, Wilson, Brennan, Deane and Dawson JJ said:

Pleadings and particulars have a number of functions:  they furnish a statement of the case sufficiently clear to allow the other party a fair opportunity to meet it (Gould and Birbeck and Bacon v. Mount Oxide Mines Ltd. (In liq.); they define the issues for decision in the litigation and thereby enable the relevance and admissibility of evidence to be determined at the trial (Miller v. Cameron); and they give a defendant an understanding of a plaintiff’s claim in aid of the defendant’s right to make a payment into court.  Apart from cases where the parties choose to disregard the pleadings and to fight the case on issues chosen at the trial, the relief which may be granted to a party must be founded on the pleadings (Gould and Birbeck and Bacon; Sri Mahant Govind Rao v. Sita Ram Kesho).  But where there is no departure during the trial from the pleaded cause of action, a disconformity between the evidence and particulars earlier furnished will not disentitle a party to a verdict based upon the evidence.  Particulars may be amended after the evidence in a trial has closed (Mummery v. Irvings Pty. Ltd.), though a failure to amend particulars to accord precisely with the facts which have emerged in the course of evidence does not necessarily preclude a plaintiff from seeking a verdict on the cause of action alleged in reliance upon the facts actually established by the evidence (Leotta v. Public Transport Commission (N.S.W.)).

	It was clear at the beginning of the trial how the appellant was presenting his case.  He said his employer gave him the classification of casual labourer.  He pointed to the rate of a labourer assistant to a tradesman, the provisions of clause 35, and the rate for work boat drivers, and asserted that “it was an intrinsic part of my job where I had to drive work punts every day and throughout my whole day at work”.  In those circumstances, if the evidence did not support a finding that he was a work boat driver, but supported a finding that he was covered as a labourer assistant to a tradesman or by some other lesser category, the learned Magistrate should have so found, as this was inherent in his claim.

	I have considered whether there would be any injustice to the respondent in my now undertaking the task of seeing whether the evidence did warrant a finding that he was engaged in one of those other categories, or whether I should order a new trial.  Counsel for the respondent informed me that it was not clear to him at the time of trial that there was an alternative claim.  I think it should have been perfectly obvious.  I enquired if he had had any pre-trial discussions with the appellant to see how the appellant intended to present his case, with a view to narrowing the issues, and assisting the Court.  I was told there were none, and I got the impression that this was because there was hostility between the parties, and counsel did not feel that he should approach the appellant.  In R v Wilson and Grimwade [1995] 1 VLR 163 at 180; (1994) 73 A Crim R 190 at 209, the Court of Criminal Appeal (Victoria) said:

Let it be understood henceforth, without qualification, that part of the responsibility of all counsel in any trial, criminal or civil, is to co-operate with the court and each other so far as is necessary to ensure that the system of justice is not betrayed:  if the present adversary system of litigation is to survive, it demands no less.

	Where a party is not represented, in my view the obligation of counsel to co-operate with the unrepresented party is all the more acute.  It is no answer that the parties are hostile towards each other, or even that his client insists on every point being taken.  It is the duty of counsel to form his own independent judgment about what issues are to be fought, and what admissions and concessions should properly be made.  In Giannarelli v Wraith (1988) 165 CLR 543 at 556 Mason CJ said:

The performance by counsel of his paramount duty to the court will require him to act in a variety of ways to the possible disadvantage of his client.  Counsel must not mislead the court, cast unjustifiable aspersions on any party or witness or withhold documents and authorities which detract from his client’s case.  And, if he notes an irregularity in the conduct of a criminal trial, he must take the point so that it can be remedied, instead of keeping the point up his sleeve and using it as a ground for appeal.

It is not that a barrister’s duty to the court creates such a conflict with his duty to his client that the dividing line between the two is unclear.  The duty to the court is paramount and must be performed, even if the client gives instructions to the contrary.  Rather it is that a barrister’s duty to the court epitomizes the fact that the course of litigation depends on the exercise by counsel of an independent discretion or judgment in the conduct and management of a case in which he has an eye, not only to his client’s success, but also to the speedy and efficient administration of justice.  In selecting and limiting the number of witnesses to be called, in deciding what questions will be asked in cross-examination, what topics will be covered in address and what points of law will be raised, counsel exercises an independent judgment so that the time of the court is not taken up unnecessarily, notwithstanding that the client may wish to chase every rabbit down its burrow.  The administration of justice in our adversarial system depends in very large measure on the faithful exercise by barristers of this independent judgment in the conduct and management of the case.  In such an adversarial system the mode of presentation of each party’s case rests with counsel.  The judge is in no position to rule in advance on what witnesses will be called, what evidence should be led, what questions should be asked in cross-examination.  Decisions on matters such as these, which necessarily influence the course of a trial and its duration, are made by counsel, not by the judge.  This is why our system of justice as administered by the courts has proceeded on the footing that, in general, the litigant will be represented by a lawyer who, not being a mere agent for the litigant, exercises an independent judgement in the interests of the court.

(emphasis added)

	Anyone who has practised as a counsel will be aware of the difficulties which often arise when appearing against the self-represented litigant.  As was said in Cachia v Haynes (1994) 179 CLR 403 at 415,

All too frequently, the burden of ensuring that the necessary work of a litigant in person is done falls on the court administration or the court itself.  Even so, litigation involving a litigant in person is usually less efficiently conducted and tends to be prolonged.

In this case, the appellant had, as the learned Magistrate acknowledged, prepared and presented his case meticulously, as he did on the hearing of the appeal.  Even so, the evidence led before the learned Magistrate was not presented in a logical fashion and much of it was plainly irrelevant and objectionable.  The need for counsel for the respondent to constantly object made the proceedings difficult for all concerned, particularly as, at times, the appellant either did not understand the rulings of the Court, or deliberately chose to ignore them.  The appellant’s case was far from simple or straightforward.  There were a number of contentious issues, and counsel’s duty to the respondent required his constant vigilance during the trial.

	It is sometimes thought that counsel owes a duty to the unrepresented litigant to ensure that he is assisted to properly put his case to the court.  In my opinion counsel owes no duty to the unrepresented litigant.  There is surprisingly little written about this topic, as it applies to this type of situation, but the practice of the bar has always been to draw to the court’s attention any matter which will assist the court to decide the case in accordance with law and to ensure a fair trial.  Thus, counsel is required to put before the court any relevant decision of which he is aware and which he believes to be immediately in point, regardless of whether it be for or against his contention.  This is so in all cases, regardless of whether a party is represented, but it is interesting that Sir William Boulton, in his work Conduct and Etiquette at the Bar, 6th Edn., at p 75 observes that the rule “must be observed with particular care in ex parte proceedings or where an opposite party is appearing in person”.  Similarly, if a litigant in person fails to call evidence about some matter which is essential to his case, this would be a matter that counsel should bring to the court’s attention so that the court can explain that to the litigant, and the options then open to him.  The court does not act as the unrepresented litigant’s legal adviser:  see McInnes v The Queen (1979) 143 CLR 575 at 592 per Murphy J; MacPherson v The Queen (1980-1981) 147 CLR 512, at 524, 546.  Nevertheless, “…it is the duty of the court to ensure that unrepresented [litigants] are given every opportunity to explore the rights which they may appear to have”:  Dawson (t/a Goodvibes Yachts) v Deputy Commissioner of Taxation (1984) 56 ALR 367 at 378, per Legoe J.  A trial judge is not required to offer advice to an unrepresented litigant, but he must inform that litigant as to his or her rights in order that he or she may determine how to conduct the case and in order to ensure a fair trial:  MacPherson, supra, at 524-5; 534-5; 537; 546-7.  Inherent in the position of the appellant – if he were to be confined to his claim based on the rates for work boat drivers and no alternative claim – is that the appellant not only stood to have his claim dismissed, but that in subsequent proceedings he very probably could not have made any alternative claim:  see Port of Melbourne Authority v Anshun Proprietary Limited (1980-1981) 147 CLR 589 at 598-604, and the authorities therein discussed.  In those circumstances, the learned Magistrate should not have entered judgment against the appellant without drawing his attention to the consequences of his limiting his claim in the way the Magistrate thought he had done, and counsel for the respondent, if he had been alert, should have drawn this to the attention of the Court.  If, as counsel says, he understood that the case was so limited, that misunderstanding might have been avoided had he tried to confer with the appellant before the case began.

	The learned Magistrate found that the appellant

…operated dinghies and punts during his shifts working on the dredging operation for Birdon Sands and much of his work was involved with the shifting of personnel and bunkering of fuel.  He also performed labouring tasks on dredges and as required on dinghies and punts.

The evidence of Mr Rutledge, who was called by the respondent, and who was the respondent’s supervisor of dredging operations, was that the appellant was employed as a general hand or deckhand.  He said that the appellant operated a punt to ferry people to and from the dredge and between work boats a few times each shift, perhaps for two hours per shift.  There was a lot of other evidence concerning the appellant’s duties from the various witnesses, to the general effect that much of the appellant’s work was as a deckhand.  The appellant did not assert otherwise.

	The appellant’s contention is that the learned Magistrate should have found that his basic employment was that of labourer assistant to a tradesman.  The appellant did not work alone.  Usually he worked with other personnel who held Master’s certificates qualifying them to operate the larger vessels on which he also worked.  These personnel were clearly work boat drivers.  Indeed, in Welfare v Birdon Sands Pty Ltd, an unreported judgment of Mr Trigg SM, it was found that Mr Welfare, who held such a certificate, was a work boat driver.  The appellant contended that these persons fell within the meaning of the word “tradesman”.

	Counsel for the respondent submitted that the word “tradesman” should take its meaning from the other trades mentioned in the award, eg. carpenter, joiner, cabinetmaker, etc. Masters of vessels, or dredge operators, are not mentioned specifically, and neither they, nor work boat drivers, are tradesmen in the ordinary meaning of the word.  I accept counsel’s submission that the word “tradesman” is to be given a meaning having regard to the provisions of the award.  I agree also, that apart from work boat drivers, the award does not specifically refer to people who are dredge operators or who hold a master’s certificate.  The Shorter Oxford English Dictionary defines a tradesman as “one who is skilled in and follows one of the industrial arts; an artisan, a craftsman”.  The Macquarie Dictionary definition is that of “a craftsman”.  I am of the opinion that the evidence does not support the contention that the appellant’s supervisors were artisans or craftsmen.  No doubt they possessed skills, and had technical qualifications, but that does not necessarily mean they are tradesmen.  Not every skilled person with technical qualifications could be so described.  I am unable to find that the appellant was a labourer assistant to a tradesman.

	The alternative classification is that of a group 4 employee, “Building and construction workers on site not elsewhere provided”.  Counsel for the respondent submitted that group 4 employees were those employed in buildings and construction on land.  His argument focused on the heading to the classification “Division A – building and construction workers” and to the list of tradesmen in items 1 to 9 and the list of occupations in groups 1 to 3 in the schedules contained in clause 51.  Apart from “labourer assistant to tradesman” there is no specific classification for a general labourer, or for that matter, a deckhand.  Although the award clearly covers the construction of rivers and harbours, the only specific occupation which is peculiar to that type of work mentioned in the award is work boat drivers.  Counsel for the respondent submitted that the award did not cover every occupation coming within its scope.  Notwithstanding these forceful submissions, I consider that general labourers come within the group 4 classification.  The work performed by the appellant was concerned with the dredging of the harbour, and in my opinion the appellant was a construction worker, as this work was part of the work needed to construct the new harbour.  I therefore find that the appellant’s basic entitlement was that of a group 4 employee under Division A of clause 6 of the award.

	The next question is whether, on the evidence and findings of the learned Magistrate, the appellant has established his entitlement under the mixed functions clause to be paid as a work boat driver.  The appellant submitted two dictionary definitions of the expression “work boat”.  Wester’s Third New International Dictionary states:  “a boat used for work purposes (as commercial fishing, harbor and waterway maintenance, ferrying supplies and machinery) rather than for sport or for passenger or naval service.”  The World Book Dictionary, Eds Clarence L Barnhalt and Robert K Barnhart states:  “a boat used for work, such as a fishing boat: Work boats to carry out the steady stream of supplies needed by a drilling crew (Listener)”.  These are both American dictionaries.  The expression does not appear in the Macquarie Dictionary.  The Oxford English Dictionary, 2nd Edn, Vol XX p 538, contains a single reference to it, (under “work”) as “a simple attributive as in work-boat”, but does not otherwise offer a definition.  The appellant said he had consulted numerous other dictionaries and found no reference to the word.  My own researches have also been fruitless, and counsel for the respondent could offer no further assistance.  Nevertheless the expression is familiar to me.  I consider it means a boat used for the purposes of enabling one to carry out work.  I do not consider that a boat which is used to transport passengers is a work boat, as such a boat would be described more appropriately as a ferry, but if the boat is used to transport workers and their equipment to other vessels, it may be a work boat.

	The boats which the appellant drove were punts.  It is clear that they were not dinghies, and that the witnesses used these terms interchangeably.  He needed no special qualifications to drive them.  There is evidence that on one occasion he drove another boat as well.  The question is whether those punts or the activities he engaged in, whilst driving them, were such as to require a finding that he was on those occasions a work boat driver.  The facts as found by the learned Magistrate were that he drove punts and dinghies during his shifts working on the dredging operation and that much of this work involved the shifting of personnel and bunkering of fuel.  His Worship made no other findings.  His Worship seems to have accepted the evidence of the appellant and his witnesses – he certainly does not indicate otherwise, and there is nothing in the transcript to indicate that they ought not to have been believed or that their evidence was in serious contest.  The evidence was not presented in a very clear or logical fashion, but close analysis of it establishes the following.  There were two punts, both 14' long and between 3' and 4' wide.  One was driven by a 75 or 80 HP outboard motor, the other by a 60 HP outboard motor.  The punts had tanks on board for bunkering fuel.  Fuel was stored in a tank on land.  A hose was connected from this tank to the tanks on the punts.  The punts then took the fuel (and also drums of hydraulic oil) to other vessels which had no means of self-propulsion.  These included two dredges, the larger one of which was called D12, and the smaller one of which was called the Hastings Pride.  There were other vessels which were barges on which were fitted large frames and winches to lift the anchors which kept the dredges in position.  One of these was called Birdon and Sand Pontoon 1 (or the Birdon Anchor Barge No 1), referred to as “the blue pontoon”.  The other was called DL Pontoon 1, or the “green barge”.  The barges were not self-propelled.  There was also, for a period of time, a shark cat and a fishing vessel called the Jessie Lyn.  There was also a boat called the Darwin 9 or the “cream puff”.  The appellant was mainly employed as an assistant dredge operator on the dredge D12, topping up water, oil and hydraulic tanks, greasing winches and sheaths, and the main shaft of the pump and the engine.  At times, he would perform the same functions on the other dredge, the Hastings Pride.  From time to time the dredge operators would require the dredges to be moved.  This involved raising heavy anchors, and moving pipes used to remove the sand and other material from the sea floor, the positions of which were marked by floats.  The punts were used to shift the barges into position so that the anchors and pipes could be moved, as well as to hold the dredges.  Usually two persons were involved on the punts, one to drive the punt, and the other would be taken on board the barges to help with the lifting of the anchors and floats.  The appellant’s evidence was that he drove one of the punts in these circumstances.  His evidence was supported by the witness Welfare.  The system was that the punt was tied to the barge and used to push it to its new location.  Sometimes (perhaps usually) the appellant was the person who climbed aboard from the punt onto the barge and acted as a deckhand.  According to the witness Donnelly, on occasions the appellant drove the punt to shift him to the barges and to work as his deckhand.  The evidence of the witness Phillips was that, in addition to moving the barges, the punts were used to ferry equipment from the shore to the dredges.  The witness Rutledge agreed that he saw the appellant drive the punts, as I have said before, each shift for upwards of two hours but only to transport personnel from one place to another.  Rutledge did not always work the same shift as the appellant.

	Having regard to the uses to which the punts were put, I consider that they are properly described as “work boats” and that when being driven by the appellant, he acted as a work boat driver, even if, at the time, the punts were being solely used to transport personnel from the shore to a vessel, or vice-versa, or from vessel to vessel.  In each case the punts were an integral part of the system of work devised by the respondent for the dredging of the sea floor.  Although they were used for differing purposes, the ultimate purpose was to enable that work to be done.  As the appellant performed that work on each shift, in my opinion, he is entitled pursuant to clause 35 of the award, to be paid as a work boat driver, if the rates therefor are higher than his rates as a general hand.

	The precise amount of the appellant’s claim is contained in Exts 8 and 10.  The hours and dates upon which he worked is set out in Exts 7 and 10, and this is not in dispute.  Further calculations and submissions were presented to me by the parties at the hearing.

	Under the award, work boat drivers were to be paid “an hourly rate calculated by dividing the following weekly rate by 38”.  The weekly rate for work boat drivers on site was $429.30, which results in an hourly rate of $11.2974.  The rate for group 4 employees is $390.80 which gives an hourly rate of $10.2842.  The appellant has arrived at a rate of $16.2694 in Ext 8 by adding penalties to the rate.  Counsel for the respondent submitted that this was wrong in principle.  I agree.  The correct starting point is the ordinary rate.  The shift allowances are not subject to any penalties or premium addition and are not to be taken into account when computing overtime:  see clause 34(f).  They are calculated at a percentage of the ordinary rate:  see clause 34(e)(i) and (iii)(3).  It is not disputed that the appellant is entitled to a shift allowance of either 15% of 30% of the appropriate ordinary rate, as the case may be.

	Therefore, the rates applicable are	$11.30 +15%  =  $13.00 per hour.
		 $11.30 + 30%  =  $14.69 per hour.
Where rates are to be paid at double time under clause 34(d) the rate is 
$11.30 x 2  =  $22.60 per hour.  Where under clause 23 (b)(iii) the penalty rate is 2.5 times the ordinary rate, the appropriate amount is $11.30 x 2.5  =  $28.25 per hour.

	Accordingly the appellant is entitled to the following, (not including other allowances to which I shall come):

	235 hrs	@	$13/hr	$3,055.00
	80 hrs	@	$14.69/hr	$1,175.20
	626 hrs	@	$22.60/hr	$14,147.60
	13 hrs	@	$28.25/hr	$367.25

					$18,745.05
The appellant claimed a further $2.85 for each hour worked pursuant to clause 16 of the Award.  The items claimed are not clear from the exhibits but are referred to in the transcript of 3 March 1997 at pp 31-32 and 34 before the learned Magistrate and appear to be:

Clause 16(a)(ii) and/or (iv)	-	working in hot/cramped conditions in the engine rooms of the dredges.
Clause 16(a)(x) or (xii)(3)	-	working removing obnoxious epoxy resins on the Shark Cat.
Clause 16(a)(i)	-	employed on work involving the handing of certain obnoxious substances.

	These items of claim relate to the work he did as a deckhand and not to his work as a work boat driver.  The respondent therefore says they are not claimable.  I do not agree.  I consider, that, if the evidence establishes his entitlement to any of those items, he is entitled to claim them. This is because the provisions of clause 16 provide those entitlements as being payable “in addition to the rates otherwise prescribed”.

	There is evidence that the work undertaken by the appellant in the bowels of the dredges was hot and confined.  The appellant was asked if the temperature in the engine rooms exceeded 49°C, to which he replied: “Your Worship, you couldn’t put your hand on the railing as you came down, yes.  Oven temperature.”  Clause 16(a)(ii) applies only if the temperature has been raised to more than 49°C by artificial means.  He was not cross-examined on that issue.  There is some support from Mr Welfare (Tr p4, 4/3/97) who described the conditions inside the engine room of the Hastings Pride as extremely hot, and said that one could not touch the walls because of the heat.  He did not say that the engine room of the dredge D12 was hot, although he did say that the top of the engine was “extremely hot” and that it was necessary to climb over it to service it.

	The clause provides for an extra rate of 55¢ per hour.  There is no provision in the award, or in the former Industrial Relations Act 1988 (Cth) (or the Workplace Relations Act 1996, Cth), or in the Acts Interpretation Act 1901 (Cth) which I can find which explains what is meant by “per hour”, and whether, for example, a part of an hour is to be treated as one hour.  I have been unable to find any authority which supports the proposition that a part of an hour is to be treated as an hour.  The evidence does not enable me to find that the appellant spent at least an hour or more each day working in hot conditions above 49°C.  If “per hour” means “per hour or part thereof”, I could award at least 55¢ per day, as the evidence is that the appellant worked for at least some time each day in conditions where the temperature exceeded 49°C.  I do not consider that “per hour” means “per hour or part there of”.  The ordinary meaning of “per hour” is, in my opinion, “for each completed period of one hour”.  As there is no evidence as to how long each day the appellant worked in these conditions, this part of the claim therefore fails.

	The same problems arise with the claim in respect of clause 16(a)(iv), (working in cramped conditions) and this claim also fails.

	The claim for working in areas involving the handling of obnoxious substances under clause 16(a)(i) relates to loose asbestos in the engine rooms of the dredges.  I doubt if the claim is valid, as there is no evidence that the appellant was required to handle the loose asbestos, but in any event it fails for the same reason as the claim under clause 16(a)(ii).

	The claim under clause 16(a)(x) or 16(a) (xii)(3) relates to work performed on removing epoxy resins and foam from the inside of the hull of the shark cat.  The evidence of the appellant was that that work took fifteen hours spread over two shifts.  The rate allowable is 55 cents per hour under each clause, but as clause 16(b) makes clear, only one claim can be made.  It is not necessary to decide which clause covers the claim – they probably both do.  I consider the appellant is entitled to 15 x 55¢ = $8.25 and I allow this sum.

	The appellant claims a meal allowance under clause 23(f) of the award of 173 meals @ $6.60 = $1,141.80.  The quantum of this item is not disputed, and I award that sum.

	The appellant claims two amounts of $1,168.44 and $1,055.21 for crib time pursuant to clause 23(c) of the award.  The award requires paid rest periods for meals and rest before starting overtime, and after having worked a period of four hours of overtime, “at the appropriate overtime rates”.  It is not disputed that the appellant was not provided crib time and worked through these periods, (for which he has already received the appropriate overtime rates for a shift worker).  There is no provision in the award which states what the financial consequence is of failing to provide the crib time.  The respondent relies on this and contends that further compensation would require the employer to pay twice for these periods.  I consider that the correct approach is to treat the breach of clause 23(c) as entitling the appellant to be paid compensation for working through his crib time.  The respondent was required to provide the crib time, and had it done so, and had the appellant worked the same total hours, the end result would have been that the extra hours would have attracted the highest penalty rates, ie. $22.60 per hour.  The time claimed is 61 days @ 50 minutes/day (51 hours) plus 17 days @ 90 minutes/day (25.5 hours).  The hours are not disputed.  I consider that the appellant is therefore entitled to 76.5 hours @ $22.60, viz $1,728.90 and I allow this sum.

	The appellant claims a travelling allowance @ $6 per day for 78 days, pursuant to clause 13(a)(i) of the award.  The award rate is $6 per day.  The amount claimed is $468.00.  The appellant is entitled to this sum.

	The appellant claims a district allowance of $225.28 ($16.60 per week x 13.571 weeks), pursuant to clause 10(a) of the award.  The claim is not disputed, and I allow the amount claimed.

	The appellant claims $618.24 for annual leave entitlement pursuant to clause 28(i) of the award.  The respondent disputes the quantum of the claim, because clause 28(i) of the award requires payment at the “ordinary rate of wage”, whereas the appellant has included allowances.  The respondent submits that the correct calculation is $430.00 if he was a work boat driver.  The appellant was a group 4 employee whose ordinary rate was $10.28 per hour, and that in my opinion is the correct rate.  I allow therefore 
$10.28 x 2.929 x 13 weeks = $391.43.

	The appellant is also entitled to a 17.5% leave loading, pursuant to clauses 28(i) and (h).  The amount of this entitlement is 17.5% of $391.43 = $68.50 and I allow this amount.

	The appellant claims $7,469.77 for 11 days waiting time for his last pay after termination of his employment.  The claim is based on clause 32(f) of the award, which provides:

Subject to subclauses (c) and (e) hereof, any employee whose services are terminated by the employer through no fault of the employee shall be paid the full amount of wages due to him or her at the termination of his or her employment or be paid waiting time at overtime rates until payment…

	It was submitted by counsel for the respondent that this type of clause was considered by Madgwick J in Wahlgren v Transfield Power Systems Manufacturing (unreported, Industrial Relations Court of Australia, 17/6/96).  In that case, the clause was somewhat different, being more akin to clause 32(e) of this award than 32(f), and it provided that

…if an employee is kept waiting for his wages on pay day, after the usual time for ceasing work, he shall be paid at overtime rates for the period he is kept waiting.

	Madgwick J held that the clause applied only where the employee was not paid on time, and was consequently kept waiting at the workplace:

The clause gives to the employee a right to remain where he/she is, to demand payment while waiting, and to be paid while waiting.

	His Honour held that the clause did not set out to impose condign punishment on an employer who has not paid his employee all that is due, so that, if the employee does not in fact wait at the workplace, but leaves the workplace, and is not paid his full dues until later, the clause does not apply, and as this is what had occurred, the claim was dismissed.

	In later proceedings Mr Wahlgren sought an extension of time to lodge an appeal from this decision.  The application was heard by Moore J (Walhgren v Transfield Power Systems Manufacturing Pty Limited (unreported, Industrial Relations Court of Australia, 18/9/96) who refused leave, observing that the construction of the clause contended for, and rejected by Madgwick J, was untenable.

	The wording of clause 32(f) is not identical to the clause considered in the Wahlgren litigation, but nevertheless I agree in the result that the clause is clearly designed to allow the employee to wait at the employer’s premises until he is paid what is due to him, and if he does so, he is to be paid at penalty rates; it is not designed to be a penalty for non-payment where the employee does not wait.  If the employer does not pay the employee at all, or pays less than he or she is entitled to, the remedy is to sue for what is due, and claim interest pursuant to s179A(1) of the Workplace Relations Act 1996 (which incorporated and amended the previous Industrial Relations Act 1988.  S179A(1) is in identical form to the form as it was in 1995).  I therefore reject this part of the appellant’s claim.

	The appellant claims, pursuant to clause 25(j)(ii) of the award $338.92 for post termination public holidays.  The respondent submits correctly that the rate is at ordinary rates (clause 25(j)(i)).  The ordinary rate for group 4 employees is $390.80 per week or $10.28 per hour.  The appellant is entitled to three public holidays:  8 hrs x 3 @ $10.28 = $246.72, and I allow this sum.

	The appellant claims an amount of $260.31 for a rest period pursuant to clause 23(f) of the award for Tuesday 26 September 1995.  The only evidence in support of the claim is the hours worked set out in the table “Casual Labourer” (Ext 10).  This shows that on 26 September 1995 the appellant worked from 6:30 am to 10:30 am and from 6:30 pm to 6:30 am the following morning.  Clause 23(f) requires at least ten consecutive hours off duty between the work of successive days, before the extra allowance or penalty is payable.  Ext 10 shows that the appellant had twelve hours rest between the work on 25 and 26 September 1995 and between the work on 26 and 27 September 1995.  The claim is therefore not made out and must be rejected.

	The appellant claims $207 for clothes and tools he lost when a punt sank, pursuant to clause 38 of the award.  The learned Magistrate did not deal with this part of the claim at all, which did not in any event depend upon a finding that he was employed as a work boat driver, or entitled to be paid at the rates applicable thereto.  This is an error of law, since, having found that the award applied, he should have considered whether the evidence supported the claim.  The appellant said he lost his bag in which he carried food, water and coffee, a torch, knife, thermos, pair of reading spectacles, books, shirt, towel, and lunch box.  He also included in this amount a claim for spoiled cloths (which had hydraulic oil spilled on them) and for a pair of new work (safety) boots which he said the employer should have provided.  The appellant said that in all these items were worth $207.  He tendered a receipt for the boots (Ext 4) which was for $82.00.  There is no provision in the award for safety boots.  The appellant was not cross-examined as to the value of the other items ($125) and the amount claimed seems reasonable for the items lost when the punt sank.  The respondent submits that the items are not recoverable under clause 38 which applies to “clothes or tools…accidentally spoilt in the course of…employment by acid, sulphur or other deleterious substances…”.  Water is a substance which could ‘spoil” many items, but the intent of the clause is to compensate for items spoilt by products such as acid or sulphur, and I therefore do not consider water is a “deleterious substance” within the meaning of the clause.  This claim is therefore rejected.

	The appellant further claims $65.07 pursuant to clause 17(d) of the award due to a shutdown.  The respondent accepts that under the clause the appellant is entitled to claim for four hours employment @ $11.29 (the correct rate is $11.30).  I allow therefore $45.20.

	The last of the appellant’s claims is for $370 sick leave.  There is evidence that the appellant suffered an injury at work but no evidence he took time off work.  The injury if compensible at all, is compensible under the Work Health Act.  A claim under the award is prohibited by s52(3) of that Act.  In any event there is no entitlement under clause 26 of the award for sick leave not taken.  This part of the claim must therefore be rejected.

	In summary, the appellant is entitled as follows:

Wages (clause 6)	$18,175.05
Allowances (clause 16)	8.25
Meal allowance (clause 23(f))	1,141.80
Crib time (clause 23(c))	1,728.90
Travelling time (clause 13(a)(i))	468.00
District allowance (clause 10(a)	225.28
Annual allowance (clause 28(i))	391.43
Leave loading (clause 28(i) & (h)	68.50
Waiting time (clause 32(f)	0.00
Post termination public holidays (clause 25(j)	246.72
Rest period (clause 23(f)	0.00
Lost cloths and tools (clause 38)	0.00
Shut down (clause 17(d)	45.20
Sick leave (clause 26)	0.00

	$23,069.13
Less paid	13,923.75
	
	$9,145.38

	The appellant is entitled to interest, notwithstanding the lack of any plea for interest, pursuant to s179A(1) of the Workplace Relations Act 1996 at such rate as the court sees fit from the date the cause of action arose until the date of judgment.

	The “cause of action” did not arise at any specific date, as the claims arose at different times during the period of employment.  However, all claims had arisen by the time of termination on 29 December 1995.  Commercial rates of interest have generally decreased since 1995.  I think a rate of 8% (simple interest) during the whole period would be fair.  It is not possible to accurately calculate interest without evidence as to the rates, and an analysis of the various dates on which the various components of the claim became due.  Doing the best I can I propose to allow a lump sum in accordance with s179A(1)(b) of $1,800 on account of interest.  Accordingly the amount to which the appellant is entitled to judgment is $10,945.38.  

	The formal orders of the Court are:

1.	The appeal is allowed.
2.	The order of the Local Court dismissing the claim with costs is set aside.
3.	In lieu thereof there will be judgment for the appellant in the sum of $10,945.38.
4.	I will hear the parties as to costs, and as to the release of the monies paid by the appellant by way of security for costs.