DECISION NO:564/96

IN THE INDUSTRIAL RELATIONS COURT)

OF AUSTRALIA                     )    No. NI.96/1447

NEW SOUTH WALES DISTRICT REGISTRY)

                        BETWEEN:      ROY WAHLGREN

                                      Applicant

                        AND:          TRANSFIELD POWER SYSTEMS MANUFACTURING PTY LIMITED

                                      Respondent

CORAM:    MOORE J

PLACE:    SYDNEY

DATE:     18 SEPTEMBER 1996

               EXTEMPORE REASONS FOR JUDGMENT

MOORE J:  This is an application by Mr Walhgren for an extension of time to lodge an appeal from a judgment of Madgwick J given on 17 June 1996.  The judgment was given in proceedings brought by Mr Wahlgren against Transfield Power Systems Manufacturing Pty Limited.  The issue his Honour dealt with concerned the operation of provisions of the Metal Industry Award 1984, dealing with the manner in which employees should be paid their wages and the consequences of the failure of an employer to pay wages in the way provided for in the award.

     The essential complaint of Mr Wahlgren is that the award imposes on the employer an obligation to pay wages on pay day during ordinary working hours and if that is not done, then the award further imposes on the employer an obligation to pay at overtime rates for the period during which the employee is kept waiting.  The case contended for by Mr Wahlgren is that that obligation entitles an employee to payment for the period during which the moneys due remain unpaid.

     That construction of the award was not accepted by Madgwick J, though his Honour found that nonetheless the company had breached the award and it would seem he did so on the basis that all moneys due to Mr Wahlgren were not paid on a particular day.  The claim of Mr Wahlgren as particularised in his application was that the respondent pay to him $323,638.87 which represents an amount for payment for the waiting time, being the period of 182 days, during which he had to wait for payment of all moneys due to him.

     In my view the construction of the clause contended for by Mr Wahlgren and rejected by his Honour, Madgwick J, is untenable.  In my view, as found by Madgwick J, the clause is directed to the period of time on pay day that an employee is kept waiting beyond the ordinary working hours on that day.  In my view the Mr Wahlgren, has no case of substance to raise in the appeal.  Accordingly, in my view, no extension of time should be granted so as to permit the prosecution of an appeal which is destined to fail.  I dismiss the application.

I certify that this and the preceding two (2) pages

are a true copy herein of the Reasons for Judgment

of the Honourable Justice Moore.

Associate:

Dated:     18 September 1996

                         APPEARANCES

The Applicant appeared in person               

Solicitors for the Respondent:       Ms S Bower of Cutler Hughes & Harris

Date of hearing:                           18 September 1996