Abbey v Whale; Watson v Whale [2007] ACTSC 69 (31 August 2007)

Last Updated: 19 September 2008

MARK ABBEY v ANDREW WHALE; KENNETH WATSON v ANDREW WHALE
[2007] ACTSC 69 (31 August 2007)

PRACTICE AND PROCEDURE – application for summary dismissal – whether claim bound to fail
ADMINISTRATIVE LAW – judicial review – whether decision under an enactment
INDUSTRIAL LAW – plaintiffs ACT public servants – whether bound by certified agreement – whether consideration of question within exclusive jurisdiction of the Federal Court of Australia

Administrative Decision (Judicial Review) Act 1989, s 5, s 6
Public Sector Management Act 1994, s 9, s 179
Workplace Relations Act 1996 (Cth), s 170LX, s 170LY, s 170LZ, s 170 LM
Occupational Health and Safety Act 1989
Holidays Act 1958

ACTEW Corporation Ltd Limited v Pangallo [2002] FCAFC 325
General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; 1964 112 CLR 125
Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321

No. SC 308 and 386 of 2007

Judge: Master Harper
Supreme Court of the ACT
Date: 31 August 2007

IN THE SUPREME COURT OF THE )
) No. SC 308 of 2007
AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: MARK ABBEY

Plaintiff

AND: ANDREW WHALE

Defendant

ORDER

Judge: Master Harper
Date: 31 August 2007
Place: Canberra

THE COURT ORDERS THAT:

1. The defendant’s application dated 18 July 2007 be dismissed.
   
2. The defendant pay the plaintiff’s costs of that application.

IN THE SUPREME COURT OF THE )
) No. SC 386 of 2007
AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: KENNETH WATSON

Plaintiff

AND: ANDREW WHALE

Defendant

ORDER

Judge: Master Harper
Date: 31 August 2007
Place: Canberra

THE COURT ORDERS THAT:

1. The defendant’s application dated 25 July 2007 as amended on 2 August 2007 be dismissed.
2. The defendant pay the plaintiff’s costs of that application.

1. The plaintiffs in these two actions are employees or former employees of the Department of Disability, Housing and Community Services, a department of the ACT Government. The defendant in both actions is the Director of Disability ACT, a division of the Department. Both plaintiffs have commenced proceedings seeking review under the Administrative Decisions (Judicial Review) Act 1989 of decisions said to have been made by the defendant. The defendant has applied in each case for orders dismissing the originating application commencing the proceedings. The applications by the defendant in the two actions were heard together.
2. The facts in the two matters broadly follow the same pattern, with minor differences. A senior officer of the Department wrote to each of the plaintiffs in November 2006 asserting conduct in breach of s 9 of the Public Sector Management Act 1994. The provisions of that section said to have been relevant are:
9 General obligations of public employees
A public employee shall, in performing his or her duties:
...
(i) comply with any lawful and reasonable direction given by a person having authority to give the direction;
...
(o) not make improper use of the property of the Territory;
...
3. There is no issue that each plaintiff was at the relevant time a public employee for the purpose of the section. The letter requested a response within a specified period. After further correspondence, the defendant wrote to each plaintiff directing him to attend a meeting with an external investigator. Following an interview, the defendant wrote to each plaintiff saying that he had formed the provisional view that he had committed breaches of s 9 of the Public Sector Management Act, and that he had thus failed to fulfil his duty as an officer within the meaning of s 179 of the Public Sector Management Act. That section is in the following terms:
179 Meaning of failure to fulfil duty as officer
For this division and divisions 9.3 and 9.7, an officer shall be taken to have failed to fulfil his or her duty as an officer only if he or she fails to comply with section 9.
Section 179 is contained within Part 9 of the Act, which deals with discipline.
4. The defendant went on to say that he intended to terminate the employment of each of the plaintiffs, subject to any submissions they wished to make. The letter concluded:
If... I confirm the decision to terminate your employment, section 81.2 of the Department of Disability, Housing and Community Services Certified Agreement 2004-2007 provides the only right of appeal.
The defendant attached to the letter a statement of ‘reasons for finding the misconduct proven’.
5. After further correspondence, the plaintiff Kenneth Watson on 20 July 2007 gave notice of resignation effective 3 August 2007. Mr Watson has made it clear that he nevertheless wishes to proceed with his application for review of the defendant’s decision because it reflects negatively upon him and may have an adverse impact on him in the future.
6. The plaintiff Mark Abbey at the time of the hearing of the applications remained an employee of the Department and I assume continues to do so.
7. The basis of the defendant’s challenge to the proceedings is that no decision has been made which is capable of review under the ADJR Act. Section 5 of that Act provides that a person aggrieved by a decision to which the Act applies may apply to this Court for an order of review in relation to the decision, on specified grounds. Section 6 provides for such a person to apply to the Court for an order of review where a person has engaged, is engaging, or proposes to engage, in conduct for the purpose of making a decision to which the Act applies, again on specified grounds. A decision to which the Act applies is defined in the Dictionary as a decision of an administrative character made, proposed to be made or required to be made (whether in the exercise of a discretion or not) under an enactment (with certain exceptions which are not presently relevant). An enactment is defined to mean, for present purposes, an Act or subordinate law of the Territory.
8. Counsel for the defendant submits that the action taken, or proposed to be taken, against the plaintiffs is in the nature of disciplinary proceedings by the Department pursuant to section K of the Department of Disability, Housing and Community Services Certified Agreement 2004-2007, an instrument certified under the Workplace Relations Act 1996 (Cth). The Certified Agreement, whilst having legislative or quasi-legislative force for some purposes, is a Commonwealth instrument and is not an enactment for the purposes of the ADJR Act. The Certified Agreement was certified by the Australian Industrial Relations Commission and came into force on 19 November 2004. It was expressed in clause 3.1, and certified by the Commission, to remain in force until 31 March 2007. Section 170LX of the Workplace Relations Act provides that a Certified Agreement remains in operation beyond its expressed expiry date until it is replaced by another Certified Agreement. By virtue of section 170LY, a Certified Agreement prevails over a Commonwealth award to the extent of any inconsistency. Section 170LZ further provides that a Certified Agreement prevails over terms and conditions of employment specified in a State law, State award or State employment agreement, to the extent of any inconsistency. State law in this context includes a law of a Territory.
9. In the course of the hearing I raised an issue as to how I could be satisfied that the plaintiffs were bound by the Certified Agreement. Section 170M of the Workplace Relations Act provides that a certified agreement binds the employer and ‘all persons whose employment is, at any time when the agreement is in operation, subject to the agreement’. However, when one turns to the terms of the Certified Agreement, it is not immediately clear how one identifies persons whose employment is subject to the agreement. Clause 2.1 of the Certified Agreement provides as follows:
2.1 In accordance with section 170M of the Workplace Relations Act 1996, the persons bound by this Agreement are:
a) The Chief Executive of the Department of Disability, Housing and Community Services on behalf of the Australian Capital Territory;
b) All persons whose employment is, at any time when the agreement is in operation, subject to the Agreement; and
c) Community and Public Sector Union (CPSU)
d) Association of Professional Engineers, Scientists and Managers Australia (APESMA); and
e) Health Services Union of Australia (HSU).
10. That is to say, the drafter of the Agreement has, in relation to employees, simply repeated the words of section 170M. I am assured by counsel that the position of the Department is that the Certified Agreement binds all employees of the Department. This invites the comment that it would have been a simple matter for the parties to have used those words in clause 2.1(b), rather than using what appears on its face to be a circular definition.
11. The confusion is compounded by the fact that the letter of offer of appointment to Mr Watson in March 2005 informed him that his employment was in accordance with the Public Sector Management Act, certain sections of which were specified in the letter. Neither the letter, nor the pro forma acceptance of appointment which he was invited to, and did, sign, made any mention of the Certified Agreement. Mr Abbey, so far as the evidence discloses, commenced employment with the Department prior to the Certified Agreement coming into force, although it is apparent from cl 4.1 of the Certified Agreement that it replaced a previous Certified Agreement which applied during 2003 and 2004. Mr Abbey seems to have commenced employment during 2003. I am unable to make any finding as to whether his employment commenced before or after the earlier Certified Agreement came into force, or whether there was an even earlier Certified Agreement in place before that. I also have no evidence about Mr Abbey’s offer of employment or its acceptance.
12. The Certified Agreement is clearly a document prepared by or on behalf of the Department. Whilst its provisions might be argued to include a number of terms which are for the benefit of persons bound by it as employees, I would read it substantially as an instrument which implements the policy of the Department, and as aimed at achieving the wishes of the Department rather than those of any individual employee. It seems to me strongly arguable that the avenues for review of disciplinary decisions against employees under the Certified Agreement are less favourable than those under the Public Sector Management Act, which provides for an appeal to a disciplinary appeal committee. In the circumstances it seems to me one which should be construed as between the Department and the plaintiffs, by reference to the contra proferentum doctrine, that is to say, that I should prefer the construction less favourable to the Department.
13. From this perspective, I must take account of the fact that in the offer of appointment to Mr Watson, no mention was made of the Certified Agreement as applicable to his employment, or as relevant in any way. I also take account of the fact that the Department had the opportunity to define in cl 2.1(b) the persons bound by the agreement as extending to all persons employed by the Department, or to some more restricted group of departmental employees which included the plaintiff. The Department failed to take advantage of this opportunity.
14. I should add that there is no evidence, or indeed any suggestion, that either plaintiff was at any relevant time a member of any of the three unions specified as parties to and persons bound by the Agreement.
15. There is no evidence that the terms of the Certified Agreement, or indeed the existence of the Agreement, were brought to the attention of either plaintiff at any time during the course of their employment. As ACT public servants they would reasonably assume that they had been employed pursuant to the Public Sector Management Act. There is no basis for supposing that it was ever suggested to either of them that their conditions of employment were contained in some piece of Commonwealth legislation or quasi-legislation which, to the extent of any inconsistency, overrode the provisions of that Act. In the case of Mr Watson, any assumption on his part would have been reinforced by the terms of his letter of appointment. In the absence of any countervailing evidence, I infer that the terms of appointment of Mr Abbey were relevantly the same.
16. I should acknowledge that there is a contrary argument arising from the terms of section A of Part 2C of the Certified Agreement. Clause 1.1 of that Part provides that the Part applies to all disability support officers employed in Disability ACT, and that the terms and conditions of employment for staff employed as disability support officers are prescribed in that Part. This provision is, however, buried on page 96 (of 142 pages) of the Certified Agreement, and there is no suggestion that either plaintiff was ever made aware of it. I am inclined to the view that its terms are inadequate to override the provisions of cl 2.1, at the beginning of the Agreement where one would expect to find it, which purports to specify the persons who are bound by the Agreement.
17. Clause 4.2 of the Agreement provides that it is to be read in conjunction with the Public Sector Management Act and with the Public Sector Management Standards, as well as other ACT legislation including the Occupational Health and Safety Act 1989 and the Holidays Act 1958. Clause 4.3 provides that the Agreement prevails over those provisions to the extent of any inconsistency.
18. Section K of the Certified Agreement deals with discipline. Clause 73.4, within that section, provides that the procedures in section K apply to the exclusion of provisions contained in Part IX of the Public Sector Management Act, and the discipline procedures contained in the Public Sector Management Standards.
19. It seems to me that for the purposes of the present applications, the defendant bears the onus of establishing that the plaintiffs are persons bound by the Certified Agreement. I am not satisfied that the defendant has discharged this onus.
20. I am cognisant of the fact that it might be said that in arriving at this conclusion, it has been necessary for me to interpret the terms of the Certified Agreement, and that it has been held by the Federal Court of Australia, on appeal from this Court, that this Court has no jurisdiction to make declarations of right by way of interpretation of a Certified Agreement under the Workplace Relations Act: ACTEW Corporation Ltd Limited v Pangallo [2002] FCAFC 325 per Whitlam, Giles and Allsop JJ. I am not, however, purporting to grant declaratory relief in relation to the Certified Agreement. I am simply considering its terms to the extent necessary to determine whether the defendant has established that his decisions in relation to these plaintiffs, or conduct preparatory to such decisions, relate to an enactment as defined in the ADJR Act, or not. For the purpose of determining this threshold jurisdictional issue, it is necessary for me to consider whether I have been satisfied by the defendant that the plaintiffs were at the relevant time persons bound by the Certified Agreement. To the extent that I am embarking on a process of interpretation of the Certified Agreement, it is for that limited purpose only.
21. If the present applications were successful, they would bring the litigation to an end. They are analogous to an application for summary judgment for a defendant. The test to be applied was explained by Barwick CJ in General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; 1964 112 CLR 125 at 128 and following. His Honour quoted expressions which had been used in earlier cases such as ‘so obviously untenable that it cannot possibly succeed’; ‘manifestly groundless’; ‘so manifestly faulty that it does not admit of argument; ‘discloses a case which the court is satisfied cannot succeed’; among others.
22. I am conscious that if I refuse these applications, this does not mean that the defendant may not ultimately succeed on the very issue which has been raised as the basis of the applications. At this stage, however, I am not persuaded that the substantive applications are bound to fail purely by reason of the Collective Agreement issue. It may be that in due course the defendant will be able to adduce evidence which will satisfy the Court on the hearing of the substantive applications that one or both plaintiffs were at the relevant time bound by the Collective Agreement. But on the present applications I am not persuaded that either plaintiff will inevitably be found to be bound by the Collective Agreement and must fail on that account.
23. The defendant has not sought to argue on this application that if the Collective Agreement argument fails, the plaintiffs must still fail because no reviewable decision under a Territory enactment has yet been made. As I mentioned earlier, s 6 of the ADJR Act provides that a person can apply for an order of review where another person proposes to engage in conduct for the purpose of making a decision to which the Act applies. The ambit of the equivalent section in the Commonwealth legislation was considered by the High Court of Australia in Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321. For the purpose of the present applications it is sufficient to say that it has not been necessary to examine the asserted conduct of the defendant by reference to the Public Sector Management Act. That may be an issue for a later stage in the proceedings.
24. The defendant submits that there is a further ground for dismissing the application by the plaintiff Kenneth Watson: now that he has resigned from his employment, no disciplinary action will be taken against him, and, counsel for the defendant submits, any relief available under the ADJR Act would be academic and futile. I have not been referred to any decision where an application has been dismissed in similar circumstances on such a ground. Suffice to say that it seems to me that Mr Watson has at least an arguable case that conduct has already taken place which is capable of having an adverse effect upon him in the future, such that he should be entitled to have that conduct reviewed. I would not dismiss his application for review summarily on that ground.
25. In each case, the application for an order dismissing the originating application will be dismissed with costs.

I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Master.

Associate:

Date: 31 August 2007

Solicitors for the plaintiff: Ms JA Keys
Counsel for the defendant: Mr GC McCarthy
Solicitors for the defendant: Australian Government Solicitor
Date of hearing: 2 August 2007
Date of judgment: 31 August 2007