Briers v Australian Telecommunications Commission; Bynes v Australian Telecommunications Commission [1979] FCA 49; (1979) 33 FLR 375 (5 September 1979)

FEDERAL COURT OF AUSTRALIA

BRIERS v. AUSTRALIAN TELECOMMUNICATIONS COMMISSION; BYNES v. AUSTRALIAN
TELECOMMUNICATIONS COMMISSION [1979] FCA 49; (1979) 33 FLR 375
Conciliation and Arbitration

COURT

FEDERAL COURT OF AUSTRALIA
INDUSTRIAL DIVISION
Keely J.(1)

CATCHWORDS

Conciliation and Arbitration - Australian Telecommunications Commission Technical and Trades Staff (Salaries and Specific Conditions of Employment) Award 1975 (Cth.) - Refusal of employees to perform work as directed by employer - Existence of restriction by organization on performance of work by members employed by telecommunications commission - "No work as directed, no pay situation" - Alleged breach of award - Proceedings for imposition of penalty - Provision in award requiring it to be read "in conjunction with" Telecommunications Act 1975 "as amended from time to time" - Division 6 of Act dealing with "Dismissals and Punishments" - Provisions of Act extending beyond regulation of industrial matters - Award expressed to prevail over inconsistent statutory provisions - Whether award incorporated statutory provisions - Construction - Award-making powers of Australian Conciliation and Arbitration Commission - Award to be construed as within power of Australian Conciliation and Arbitration Commission - Non-observance of statutory procedures in relation to suspension - Whether employees "ready, willing and available" to perform obligations as employees - Nonpayment of wages - Whether non-payment constituted suspension of employees from employment - Conciliation and Arbitration Act 1904 (Cth.), s. 119 - Telecommunications Act 1975 (Cth.), divn 6. The Conciliation and Arbitration Act 1904 provides by s. 119(1) that where any organization or person bound by an order or award has committed a breach or non-observance of a term of the order or award, a penalty may be imposed by the court. The Australian Telecommunications Commission Technical and Trades Staff (Salaries and Specific Conditions of Employment) Award 1975 provided by c. 5:

1. "This award shall be read in conjunction with the Telecommunications Act 1975 as may be amended from time to time, Regulations and By-laws made thereunder from time to time.

2. Where the said Act, Regulations and By-laws are inconsistent with the provisions of this award the latter shall prevail."

Division 6 of the Telecommunications Act 1975, "Dismissals and Punishments", provided for action which might be taken in respect of an officer's alleged failure to fulfil his duty, including, in certain circumstances, the laying of a charge, an inquiry and punishment, including, under s. 59, a power of suspension of the officer.

Following the imposition by an organization party to the award of restrictions upon the performance of work by its members employed by the Australian Telecommunications Commission, two employees, members of the organization, refused to perform work as directed by the employer. Each was then told that he was in a "no work as directed, no pay situation".

Proceedings were instituted under s. 119 of the Conciliation and Arbitration Act 1904 by the employees against the Australian Telecommunications Commission for its alleged breach or non-observance of the award in that it suspended each of the employees from his employment as an officer of the Australian Telecommunications Commission otherwise than in accordance with s. 59 of the Telecommunications Act 1975.

Held: (1) On the evidence, the work each employee was directed to perform was work which the Australian Telecommunications Commission was entitled to require of each employee, being work within the scope of his employment. The employee's reason for refusal to perform the work was the existence of a restriction imposed by the organization of which each was a member, upon the performance of work by its members.

(2) Clause 5 of the award did not incorporate the Telecommunications Act 1975 and Regulations into the award because: (a) the language of the clause, was inappropriate to incorporate each section, regulation and by-law into the award with the legal effect that a wilful breach of any such provision would be an offence against the Conciliation and Arbitration Act; (b) the clause explicitly recognized the possibility of conflict between the provisions of the award and those of the Act, in which situation, the provisions of the award were expressed to prevail; (c) it would be beyond the power of the Conciliation and Arbitration Commission to make an award which included provisions to be determined at a future date by some other person or body and, accordingly, cl. 5 should be construed so as to be within power; and (d) it would be beyond the power of the Conciliation and Arbitration Commission to make an award which dealt with some of the matters prescribed by the Telecommunications Act 1975, i.e., matters other than industrial matters, and accordingly cl. 5 should be construed so as to be within power. Accordingly, as cl. 5 did not incorporate the provisions of the Telecommunications Act 1975 into the award, each claim should be dismissed.

(3) Semble, even if divn 6 of the Telecommunications Act 1975 were incorporated into the award, divn 6 did not operate to prevent the Australian Telecommunications Commission from placing employees in a "no work as directed, no pay situation": in so far as it was proper to characterize divn 6 as a code, it was a code limited to dismissals and punishments.

Courtney v. Australian Postal Commission (1978), L.B. Co's Indus. Arb. Serv., Current Review 32, applied.

(4) The action of the Australian Telecommunications Commission in placing the employees in a "no work as directed, no pay situation" did not amount to its dismissal, suspension or punishment of them: rather, it was an intimation that if the employees refused to perform the particular work directed, then their refusal would be treated as an indication that they were not ready, willing and available to perform their obligations as employees and, further, that they would not be given other work and would not be paid until the work in question was performed.

Courtney v. Australian Postal Commission (1978), L.B. Co.'s Indus. Arb. Serv., Current Review 32, applied.

Simpson v. Australian Telecommunications Commission [1978] FCA 41; (1978), 34 FLR 337, not followed.

Accordingly, the claims should be dismissed as no breach or non-observance of the award had been established.

HEARING

Brisbane, 1979, July 27; August 21, 22;
Melbourne, 1979, September 5. 5:9:1979
CLAIMS FOR IMPOSITION OF A PENALTY.

Two members of an organization of employees registered under the Conciliation and Arbitration Act 1904 instituted proceedings under s. 119 of the Act for the imposition of a penalty upon the Australian Telecommunications Commission in respect of its alleged breach or non-observance of a term of an award, the Australian Telecommunications Commission Technical and Trades Staff (Salaries and Specific Conditions of Employment) Award 1975.

J.E.J. Spender, for the claimant.

B.H. McPherson Q.C. and I.C. Diehm, for the respondent.
Cur. adv. vult.

Solicitors for the claimant: T.J. Mellifont & Co.

Solicitors for the respondent: B.J. O'Donovan (Acting Commonwealth Crown

Solicitor).

MAUREEN HICKEY

DECISION

September 5.

The following judgment was delivered.
KEELY J. These are two claims which, as amended without objection at the

hearing, seek the imposition of penalties under s. 119 of the Conciliation and Arbitration Act 1904 upon the Australian Telecommunications Commission (the telecommunications commission) for alleged failures (the alleged breaches) "to observe a term of . . . the Australian Telecommunications Commission Technical and Trades Staff (Salaries and Specific Conditions of Employment) Award 1975" (the award). The claims were heard together without objection. The alleged breaches are that the telecommunications commission on 12th July, 1979, suspended each of the claimants "from his employment as an officer of the Australian Telecommunications Commission otherwise than in accordance with s. 59 of the Telecommunications Act 1975". (at p377)

2. It was not disputed that the telecommunications commission was bound by the award in respect of each claimant and that the claimants were members of the Australian Telecommunications Employees' Association (the association) which is an organization of employees registered under the Conciliation and Arbitration Act 1904. The claimant David Briers was at all material times employed by the telecommunications commission as a telecommunications technician. The claimant Leo Byrnes also was employed by the telecommunications commission as a telecommunications technician, but on 12th July, 1979, was performing the duties of an acting telecommunications technical officer, duties which he had been performing for more than a week. (at p378)

3. On 12th July, 1979, the claimant Mr. Briers, on being directed to perform certain work and told that it was to take precedence over any other work, "refused to perform the said task as a result of a direction received from my union declaring a ban on certain specific tasks of which the said task was one". On 12th July, 1979, the claimant Mr. Byrnes, on being directed to perform certain work and told that it was to take precedence over any other work, also "refused to perform the said task as a result of a direction received from my union declaring a ban on certain specific tasks of which the said task was one". Each claimant was then told that he was in a "no work as directed, no pay situation". (at p378)

4. On the evidence, including the oral evidence given at the hearing, I accept that the work which each claimant was directed to perform was work which the telecommunications commission was entitled to require each claimant to perform. It was submitted by Mr. J.E.J. Spender, on behalf of the claimant Mr. Byrnes, that on the evidence, there was "at least an area of dispute as to whether what he was asked to do fell within the normal scope of his employment, and whether his declining to do the task . . . constituted a breach of his contract of service". There was evidence in the affidavit of the claimant Mr. Byrnes that the work concerned "was outside the normal ambit of my duties on that day", but he stated in his oral evidence that the work which he was directed to perform was work within his competence, that it was exactly the same as work which he had performed on other occasions and that it was work which an acting telecommunications technical officer might be called upon to perform in an emergency. (at p378)

5. In refusing to perform the work concerned, neither claimant suggested that the work was outside the scope of his employment. On the contrary, the affidavits of the two claimants made it clear that, at the time of refusing to perform the work, the reason given was the fact that a ban had been imposed by the association on the work. (at p378)

6. Particulars supplied in respect of each claim included the following: "2. Clause 5 of the said award incorporates in the award the provisions of the Telecommunications Act 1975, as amended, that deal with matters relating to employment and, in particular, the provisions of s. 59 of the Telecommunications Act 1975, as amended. 3. The power of suspension or dismissal and the procedure to be adopted in relation to the claimant is exhaustively dealt with in divn 6 of the Telecommunications Act 1975. . . ." Clause 5 of the award, which is relied upon as incorporating in the award the provisions of the Telecommunications Act 1975, reads as follows: "5.1. This award shall be read in conjunction with the Telecommunications Act 1975 as may be amended from time to time, Regulations and By-laws made thereunder from time to time. 2. Where the said Act, Regulations and By-laws are inconsistent with the provisions of this award the latter shall prevail." Despite the arguments advanced by Mr. Spender, I have reached the conclusion that cl. 5 is not intended to "incorporate" the Act into the award for a number of reasons. (at p379)

7. Firstly, the clause does not say that "the provisions of the Act are to be incorporated into the award" or are to be "read as one with" the provisions of the award. (at p379)

8. Secondly, cl. 5 does not in terms refer to "the provisions of the Act" (or any particular provisions) but simply refers in a broad way to the Act. The words used seem inappropriate if the intention were to incorporate into the award each section of the Telecommunications Act, together with each regulation and each by-law made under the Telecommunications Act so that each section, each regulation and each by-law would have the same legal effect as if it were a clause of the award. One of those effects would be that each provision "incorporated" into the award would be enforceable by an action for a penalty under s. 119 of the Act or by a prosecution for an offence against the Act consisting of wilfully making default in compliance with an award (s. 122). (at p379)

9. Thirdly, the inclusion of cl. 5(2) in the award, which expressly contemplates the possibility of inconsistency between the award on the one hand and the "Act, Regulations and By-laws" on the other, lends support to the view I have expressed. Clause 5(2) speaks in terms of "the award" prevailing over the Telecommunications Act, regulations and by-laws which, on the claimants' contention, have already been made part of the award itself. The insertion of cl. 5(2) in my view runs counter to the existence of an intention to incorporate the provisions of the Telecommunications Act, the regulations and the by-laws into the award so as to make each provision a part of the award itself. (at p379)

10. Fourthly, the incorporation contended for by Mr. Spender is an incorporation not only of the Telecommunications Act 1975 and the regulations and by-laws as at 27th November, 1975, (the date on which the award came into operation) but "the Telecommunications Act 1975 as may be amended from time to time, Regulations and By-laws made thereunder from time to time". In my view it would be beyond the power of the Conciliation and Arbitration Commission to make an award including as part of the award, intended to have the same legal effect as the other provisions of the award, provisions not yet decided upon and to be determined at a future date by persons or institutions other than the Conciliation and Arbitration Commission. No argument was advanced as to the existence of such a power and in my view the words in cl. 5(1) of the award, being at least capable of bearing a meaning narrower than that contended for by the present claimants, should be construed so as to be within the power of the Conciliation and Arbitration Commission. (at p380)

11. Lastly, there are many sections in the Act in its present form which do not relate in any way to industrial matters or conditions of employment. The same may be said of many of the regulations and by-laws. This again raises the question of the power of the Conciliation and Arbitration Commission to insert such provisions in an award - see divn 8 of the Telecommunications Act. Mr. Spender argued that the intention of cl. 5 of the award was to incorporate those sections of the Telecommunications Act, those regulations and those by-laws which relate to employment. However, cl. 5 of the award does not attempt to so limit the "incorporation" for which Mr. Spender argues; in my opinion, if cl. 5 operates to "incorporate" any provisions of the Act into the award, then it must operate to incorporate into the award every section of the Act, and every regulation and by-law "made thereunder" and every section, regulation and by-law made in the future. (at p380)

12. For these reasons I am unable to hold that cl. 5 was intended to incorporate each provision of the Act, the regulations and the by-laws into the award. In my opinion the clause was intended to draw attention to the fact that the Telecommunications Act, and "Regulations and By-laws made thereunder", include provisions dealing with various matters relating to employment within the telecommunications commission, but at the same time and in the same clause, to make it quite clear that the provisions of the award should prevail whenever "the said Act, Regulations and By-laws are inconsistent with the provisions of" the award. (at p380)

13. As I have said earlier, the claimants allege that the telecommunications commission failed to observe a term of the award in suspending each claimant "otherwise than in accordance with s. 59 of the Telecommunications Act 1975". Having decided that cl. 5 of the award does not incorporate into the award the provisions of the Telecommunications Act, it follows that both claims must be dismissed. However, as the contention of each claimant that "the power of suspension or dismissal and the procedure to be adopted in relation to the claimant is exhaustively dealt with in divn 6 of the Telecommunications Act 1975", was also argued at some length in these proceedings, it is desirable that I express my opinion on that aspect. (at p380)

14. Division 6 of the Telecommunications Act 1975 is headed "Dismissals and Punishments". Section 57(2) provides: "In this Division, a reference to misconduct, in relation to an officer, is a reference to a failure of the officer to fulfil his duty as an officer." Section 58(1) provides that: "For the purposes of this Division, an officer shall be taken to have failed to fulfil his duty as an officer if and only if" his conduct falls within one of the categories set out in (a) to (g). Division 6 provides for action which may be taken in respect of an officer's failure to fulfil his duty. In certain circumstances an officer may be charged. There is provision for an inquiry and for the taking of action in respect of an officer who "has failed to fulfil his duty as an officer" (s. 58(9)). There is power to suspend an officer in certain circumstances (s. 59) which suspension may be removed (s. 60). Action may be taken in respect of an officer who has been convicted by a court (s. 61). There is also provision for an appeal by an officer to a disciplinary appeal board (s. 62) and a "person may, at any time, request the Commission, in writing, to review the finding, or the action taken in respect of the charge" on specified grounds (s. 64). (at p381)

15. In my opinion even if divn 6 of the Telecommunications Act were, contrary to my opinion, incorporated into the award, it would not operate to prevent the telecommunications commission from taking the action which it took in respect of the two claimants in these proceedings. In so far as the provisions of divn 6 constitute a code, as contended by Mr. Spender, then in my view the code is limited, as the heading of divn 6 suggests and the content of divn 6 demonstrates, to a code in relation to dismissals and punishments. I agree with and adopt with respect the words of Ash J. in Courtney v. Australian Postal Commission (1978) LB Co's Indus Arb Serv, Current Review 32 who, dealing with comparable provisions in divn 6 of the Postal Services Act 1975, said: "Division 6 could indeed well be described as a 'code' but it is a 'code' relating to the matter of dismissals and punishments" (1978) LB Co's Indus Arb Serv, Current Review, at p 35 . (at p381)

16. It was submitted by Mr. Spender that the actions taken by the telecommunications commission in respect of the two claimants constituted a "de facto dismissal with the right of re-employment when you toe the line". In my view the facts completely fail to support any such suggestion. It was also argued by Mr. Spender that the two claimants had been suspended. However, in my view, the facts again completely fail to support the suggestion of a "suspension" of the claimants by the telecommunications commission. I consider that the action taken amounted to no more than making it clear to each of the two claimants that, if he refused to perform the particular work, which he was directed "was to take precedence over any other work", then he would be treated as being not "ready, willing and available" to perform his obligations as an employee and further that he would be given no other work to perform and would not be paid until the work in question was performed. In my view this cannot be regarded as a "suspension" of either claimant. (at p382)

17. Mr. Spender agreed that at common law "one has to be ready, willing and able to do work before one is entitled to be paid" and expressly stated that "we are not seeking to be paid". However, Mr. Spender submitted that the question of payment was not relevant because of the provisions of divn 6 of the Telecommunications Act (as incorporated into the award on his argument). He contended that, because the provisions of divn 6 constitute a "code", the telecommunications commission, where it considers that some or all of its employees are refusing to perform some or all of their normal duties, can only take action in accordance with one or more of the procedures laid down in divn 6 - even if it does not wish to dismiss, suspend or otherwise punish the employees concerned. I am unable to accept that contention as to the meaning of divn 6 even if it were incorporated into the award. As I have said, in my view, in so far as divn 6 is a code, it is a code limited to the procedures to be adopted by the telecommunications commission in relation to dismissals and punishments. (at p382)

18. In the course of his contention that the telecommunications commission had dismissed, suspended or otherwise punished each claimant, Mr. Spender attacked the action taken by the telecommunications commission, referring to it as "clearly a manufactured confrontation" and as "fining" the claimants the equivalent of their daily salaries for each day on which the refusal continued. Such a description of the action taken by the telecommunications commission shows a misunderstanding of the position. I agree with and adopt, as being equally applicable to the present proceedings, the words used by Ash J. in Courtney v. Australian Postal Commission: "The defendant did not prevent the plaintiff from working; it was willing for him to do so, and required him to do so. The 'direction' given by the defendant to the plaintiff was one which . . . the defendant was entitled to give him. The plaintiff's 'refusal' . . . was a refusal to perform a service which he was obliged to give the employer, and when he elected not to perform that service he thereby disentitled himself from payment; the nonpayment of wages which ensued was because of that disentitlement alone, and not because of anything else" (1978) LB Co's Indus Arb Serv, Current Review, at p 35 . In my view the action taken by the telecommunications commission cannot be fairly described as a dismissal, suspension or other punishment of either of the claimants. (at p382)

19. Mr. Spender sought, both in cross-examination and in address, to rely upon the failure of the telecommunications commission to take the action concerned at an earlier point of time as showing that the events of 12th July, 1979, constituted a "manufactured confrontation". The telecommunications commission has statutory responsibilities imposed upon it by s. 6 of the Telecommunications Act which include the following:

"6. (1) The Commission shall perform its functions in such a
manner as will best meet the social, industrial and commercial
needs of the Australian people for telecommunications services
. . .

(2) In performing its functions in accordance with sub-section
(1), the Commission - . . .

(b) shall have regard to - . . .

(ii) the need to operate its services as efficiently and
economically as practicable." (at p383)

20. Business and domestic customers, whose normal activities were being adversely affected by the existence of the bans, might understandably criticize the telecommunications commission for its failure to take action sooner. However, I am unable to see any basis upon which the claimants can gain any support for the present claims from any such delay by the telecommunications commission. (at p383)

21. In support of both the argument that the provisions of divn 6 constitute a code and the argument that the award incorporates the Act, Mr. Spender relied upon the reasons for judgment given by St. John J. in Simpson v. Australian Telecommunications Commission [1978] FCA 41; (1978) 34 FLR 337 . I am not aware how full an argument was put in those proceedings. It would appear that both the applications for interpretation and the supporting arguments were directed to a contention that ss. 57, 58, 59, 62, 63 and 64 of the Telecommunications Act 1975 were incorporated into the award there under consideration, the Australian Telecommunications Commission (General Conditions of Employment) Award 1975. (at p383)

22. I have given careful consideration to the reasons for judgment of St. John J., but have been unable to reach the same conclusions. As the matters before me are claims for the imposition of penalties upon an employer alleged to have failed to observe a term of an award, I consider that I must give effect to the opinions which I have formed as to both matters - notwithstanding the respect which I accord to the reasons for judgment of St. John J. in the applications for interpretation. (at p383)

23. It was also submitted by Mr. McPherson Q.C. and Mr. Diehm on behalf of the telecommunications commission that, even if the material before the court had demonstrated a non-observance of a term of the award, the telecommunications commission would not be liable to the imposition of a penalty under s. 119 of the Conciliation and Arbitration Act. In view of the opinions which I have already expressed, it is not necessary to deal with that submission and it is undesirable that I should do so at a time when the nature of proceedings under s. 119 - including the question of whether they are criminal proceedings - is a matter upon which there are conflicting decisions both of the Australian Industrial Court and of single judges of this Court. That question has been recently argued before a Full Court of this Court constituted by five judges and judgment has not yet been given. (at p384)

24. Both claims are dismissed. (at p384)

ORDER

Claims dismissed.