Zatorski v Australian National Railways Commission [1980] FCA 39; (1980) 42 FLR 243 (17 April 1980)

FEDERAL COURT OF AUSTRALIA

ZATORSKI V. AUSTRALIAN NATIONAL RAILWAYS COMMISSION [1980] FCA 39; (1980) 42 FLR 243
Conciliation and Arbitration

COURT

FEDERAL COURT OF AUSTRALIA
INDUSTRIAL DIVISION
Keely J(1)

CATCHWORDS

Conciliation and Arbitration - Sum due under award - Whether applicant occupied position described in award - "Ticket clerk" - Meaning of - Length of period applicant had occupied such position - Whether certified agreement between union and former employer applied to applicant - Validity of certification - Conciliation and Arbitration Act 1904 (Cth), ss. 58, 123 - Salaried Officers (Australian National Railways) Award 1978. The applicant sought payment from her employer, the respondent, of an amount alleged to be due to her under the Salaried Officers (Australian National Railways) Award 1978 ("the award") in respect of the period 1st March, 1978, to 5th April, 1980. The application was made under s. 123 of the Conciliation and Arbitration Act 1904 which provides: "An employee entitled to the benefit of an award may, at any time within six years from any payment becoming due to him under the award, but not later, sue for the amount of the payment in the Court . . . . "

Prior to 1st March, 1978, the applicant had been employed first by the South Australian Railways Commissioner and later by the State Transport Authority of South Australia. The offer of employment from the respondent that the applicant accepted stated that the employment was to be "in your substantive grade at a salary or wage . . . of not less than that applicable to your grade on the date immediately prior to the declared date . . . subject to . . . awards of the Conciliation and Arbitration Commission to which the (Australian National Railways) Commission is a respondent".

The application turned on the applicant establishing that she was employed as a ticket clerk within the meaning of cl. 4 of the award. This being established the applicant's rate of remuneration during the relevant period under cl. 4 depended upon the number of years of service of the applicant in that grade or class of employment.

Held: (1) On all the evidence, during the relevant period, the applicant had occupied the position of ticket clerk within the meaning of cl. 4 of the award because: (a) most of the applicant's duties could be described as those of a clerk and were directly related to tickets. The purely clerical work performed by the applicant could not be described as occupying a small proportion of her working time; (b) the application could not be determined solely by the name given to the applicant's work by her employer or any prior employer.

(2) The applicant was entitled to be remunerated at the highest rate under cl. 4 of the award for her work as a ticket clerk during the relevant period, as within the meaning of cl. 4 she had completed more than three years of service in that grade or class of employment before the relevant period commenced.

(3) The application was not affected by the fact (if established) that the applicant's union and her previous employer had agreed that her duties should be remunerated at a lesser rate under a different classification and award. The terms of that agreement did not apply to her present employment because the agreement had not been validly certified by the Conciliation and Arbitration Commission under s. 58 of the Act as: (a) It had not been made in settlement of an industrial dispute within the meaning of the Act. R. v. Kirby; Ex parte Transport Workers' Union of Australia [1954] HCA 19; (1954), 91 CLR 159, applied. (b) It did not comply with s. 58 (1) (b) of the Act because it did not specify a period not exceeding three years from the date on which the memorandum of agreement came into force, during which period the agreement was to continue in force. R. v. Foster; Ex parte Crown Crystal Glass Pty. Ltd. [1945] HCA 28; (1945), 70 CLR 405; R. v. Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust.) Ltd. [1949] HCA 33; (1949), 78 CLR 389, applied.

HEARING

ADELAIDE, 1980, April 15 - 17. 17:4:1980
APPLICATION.

The facts appear from the judgment.

O. C. Isaachsen, for the applicant.

T. Owen, for the respondent.

G. L. Muecke, for the South Australian Railways Commissioner and the State Transport Authority of South Australia (by leave).

Solicitors for the applicant: Murray & Cudmore.

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

Solicitor for the South Australian Railways Commissioner and the State Transport Authority of South Australia: G. C. Prior (Crown Solicitor for South Australia).
T. J. GINNANE

DECISION

APRIL 17.

KEELY J. delivered the following judgment.
This is an application under s. 123 of the Conciliation and Arbitration Act

1904 (Cth) ("the Act") by Mrs. Lucyna Zatorski ("the applicant") for an order that the respondent Australian National Railways Commission (the Commission) pay to the applicant a sum of money being the amount of a payment claimed to be due to her under the provisions of the Salaried Officers (Australian National Railways) Award 1978 ("the award"). It was announced to the court that if, contrary to the Commission's argument, the applicant was found by the court to be employed in the grade or calling of a ticket clerk within the meaning of the award, then the parties were in agreement as to the amount of the payment due to the applicant under the award in respect of the period from 1st March, 1978, to 5th April, 1980. The agreed payment due was $8,140.83 if the appropriate rate under the award for her first year of service with the Commission was the salary prescribed for Divn 4 and $5,775.30 if the appropriate rate under the award for her first year of service with the Commission was the salary prescribed for Divn 1 of the Divisions set out in cl. 4 of the award. (at p245)

2. An agreed statement of facts was placed before the court and it established that the applicant was at all relevant times a member of the Australian Railways Union ("the union") which was bound by the award. The award came into operation on and from 1st March, 1978 (cl. 37) and since that date has bound the respondent Commission "in respect of the officers and members of" certain unions including the Australian Railways Union "employed in any of the grades and callings specified in this award" (cl.3 (b)). The award "supersedes those parts of the Railways Salaried Officers Award 1960 which applied to salaried officers formerly employed by the State Transport Authority - Rail Division, South Australia . . . and who transferred their employment to the Australian National Railways Commission on 1st March, 1978" (cl. 2A). (at p245)

3. Clause 4 of the award provides that: "4. Salaries - (a) Adult officers occupying positions in the classifications provided herein shall be paid at the rate of salary prescribed in the following tables." The clause then sets out under the heading of "Grade and Class" an item of "ticket clerk" for which it prescribes a salary per year for each of four "Divisions". It is necessary to determine whether the applicant occupied the position of a "ticket clerk" under the award. (at p245)

4. Throughout the period from 1st March, 1978, Mrs. Zatorski was employed by the Commission at the suburban station of Marion. For many years before 1st March, 1978, the applicant performed work initially for the South Australian Railways Commissioner and later for the State Transport Authority of South Australia. For most of that time the work performed by the applicant was called that of a ticket agent: the work was the subject of detailed evidence, both oral and documentary. By letter dated 29th July, 1976, from an acting divisional superintendent of the South Australian Railways the applicant was advised that from 2nd August, 1976, she would "be re-graded to the position of station assistant. Accordingly you will be paid the appropriate rate of pay applicable to porter, class 3, and will be covered by the Railways Traffic etc. Award". Of course the question of whether the applicant's work was, as a matter of law, covered by the Railways Traffic etc. Award as asserted in the letter is not one which the South Australian Railways as the applicant's employer could authoritatively determine. (at p246)

5. On 21st December, 1977, the applicant accepted an offer of employment made to her by the Commission under the Rail Transfer Agreement which is a schedule both to the Railways Agreement (South Australia) Act 1975 (Cth) and to the Railways (Transfer Agreement) Act, 1975 (S.A.). The employment, which was to operate from 1st March, 1978, was to be "in your substantive grade at a salary or wage, as the case may be, of not less than that applicable to your grade on the date immediately prior to the declared date . . . subject to the railway service rules and awards of the Conciliation and Arbitration Commission to which the (Australian National Railways) Commission is a respondent". (at p246)

6. The question of whether Mrs. Zatorski occupied the position of ticket clerk cannot depend solely on the name given (whether "ticket agent" or "station assistant") to her work by the Commission or by any prior employer. In this connexion some of the documentary exhibits in referring to the applicant, used words "staff", "clerical staff" and two sent to her by the acting general traffic manager, dated 11th July, 1977, were addressed to "The Ticket Clerk, Commercial Road". The award does not define "ticket clerk"; nor does it fix a salary for a "station assistant". (at p246)

7. I accept the evidence given by the applicant that in her work at Marion Railway Station she: (i) worked in a ticket office; (ii) was the only employee of the Commission working in the ticket office; (iii) sold tickets and before handing them over put a date stamp on them; (iv) wrote the name of the destination on blank tickets used when tickets for the particular destination printed on them were not available and recorded in a book the issue of blank tickets immediately after their issue. In 1977 and again in 1979 the ticket system was changed, the printed cardboard tickets being replaced by "soft" tickets said to be "more like bus or tram tickets". However, on the evidence I do not consider that those changes altered the nature of the work being performed by the applicant; (v) prepared requisitions which were used to order various types of tickets; (vi) recorded in a stock book all tickets received; (vii) recorded at the end of her shift, before closing the ticket office, in a ticket issue book, all tickets sold - in various categories of single, return, weekly, monthly and student. If she was unable to balance the tickets sold with the cash receipts on hand she had to go through all the books again and check the opening and closing numbers of the tickets; (viii) recorded in a separate "season book" the issue of tickets to railway employees; (ix) recorded in a cash book each day the amounts received - about $22,000 per annum. In this connexion auditors called from time to time without prior notice and the ticket office was also visited from time to time by railways inspectors and superintendents; (x) prepared a form in triplicate each day setting out the amounts of money and the denominations of the notes and coins sent and put two copies of that with the money in a bag which she then sealed. She then made an entry in a "value book", gave the bag of money to the guard of a particular train, signed his book and obtained his signature for the receipt of the bag or bags; (xi) prepared and forwarded monthly returns of all tickets in the various categories which had been sold including blank tickets; (xii) occasionally prepared and forwarded requisitions for various stores such as soap and disinfectants; (xiii) kept up to date a station property book by adding any new items. She also checked the existing items against the book each June and December, signed the book and forwarded it to the superintendent's office; (xiv) was also responsible for the cleaning of the office each day and she gave information about trains to the public. (at p247)

8. In my opinion all of the duties listed (other than the selling of tickets and the last item) may fairly be described as the duties of a clerk. I accept the submission by Mr. Owen that the action of selling tickets when isolated from the other duties is not a clerical duty. The word "clerk" is defined in the Shorter Oxford English Dictionary as including: "5. Hence, in current use: a. An officer who has charge of the records, correspondence, etc. and conducts the business, of any department, court, corporation, or society 1526. b. A subordinate employed to make written entries, keep accounts, etc. 1512." Further, most of the clerical duties to which I have referred were directly related to tickets. They include duties of ordering tickets from the department, of selling tickets to the public, of stamping dates on tickets, of writing destinations on tickets, of recording the issue of tickets, of recording the receipt of tickets, of recording the money received from the sale of tickets and of preparing the monthly returns of all tickets. (at p247)

9. I do not accept Mr. Owen's submission that on the evidence the applicant spent only a comparatively small proportion of her time on purely clerical work. (at p247)

10. The documentary evidence showed a very considerable variety of forms which the applicant had to complete from time to time. The importance of the proper performance of the clerical work involved in the preparation of the monthly ticket returns was stressed in a circular from the acting revenue accountant of the South Australian Railways, dated 24th August, 1973, which said: "7. It cannot be overstressed that legibility, neatness and accuracy in preparing monthly ticket returns is of the utmost importance. A little extra care in this direction will help keep the incidence of errors to a minimum." There was also evidence from Mrs. Czuchwicki - although no similar evidence was given by the applicant - that before her first appointment as a ticket agent she had been asked by the acting superintendent whether she had had previous clerical experience which would enable her to do the work. (at p248)

11. I attach little weight to the evidence of the applicant's work as a ticket clerk for one month in 1952 at Millswood and in 1952-1953 for approximately one year at the Adelaide ticket office. There was also evidence that the applicant on 1st April, 1977, was put in the place of a person employed until then as a ticket clerk at the Commercial Road Station, Port Adelaide, and that that person was transferred to the station at Peterhead where there had previously been a ticket agent. Although there was no cross-examination as to that evidence I accept the submission made by Mr. Muecke in reply that that evidence does not establish that the applicant performed the same work as the ticket agent who was transferred. The applicant performed the work for nearly six months, at Port Adelaide, working on her own. I have also considered the evidence of Mrs. Czuchwicki as to the differences between the work she performed when employed as a ticket agent and the work she performed when employed as a ticket clerk. (at p248)

12. On all the evidence I am satisfied that from 1st March, 1978, until the hearing of this matter Mrs. Zatorski has occupied the position of ticket clerk within the meaning of cl. 4 of the award. (at p248)

13. I turn now to the question of whether, if the applicant occupied the position of a ticket clerk, the appropriate rate of salary under the award for her first year of service with the Commission was the salary prescribed for Divn 1 or the salary prescribed for Divn 4 of the Divisions set out in cl. 4 of the award. Clause 36 of the award defines the word "Division" appearing in cl. 4 as meaning "the first, second, third, fourth (etc.) year of service of an officer in the grade or class in which" she is employed. The clause defines the words "year of service" appearing in the definition which I have just quoted as meaning "the service of an officer in the grade or class in which (she) is employed, either before or after the making of this award". (at p248)

14. On the evidence I am satisfied that the applicant had completed more than three years of service in the grade or class of "ticket clerk" before she commenced employment with the Commission on 1st March, 1978. Accordingly, in my opinion the appropriate salary per year for the applicant from 1st March, 1978, was the salary per year for Divn 4 fixed by cl. 4 of the award I am unable to accept the submission that the applicant and other ticket agents were not employees before 26th July, 1976. In my opinion on all the evidence, including the documentary material, they were employees at least from July 1973. From that time the ticket agents were required to work prescribed hours and were paid at what Mr. Bahnisch, the senior industrial officer of the State Transport Authority of South Australia, described in his evidence as "the hourly equivalent of the federal minimum wage". In addition, they were required to sign on and off duty in an appearance book and were granted annual leave and sick leave. Further, the ticket agents were issued with a book which contained very detailed instructions as to their duties. In my view there is no evidence before the court to support in any substantial there is no evidence before the court to support in any substantial way the argument that the ticket agents were not employees before 26th July, 1976. (at p249)

15. An argument was put by Mr. Owen on behalf of the Commission and by Mr. Muecke on behalf of the South Australian Railways Commissioner and the State Transport Authority of South Australia - which were granted leave to intervene in these proceedings - that the applicant was not a ticket clerk because in July 1976 the union had agreed with her then employer, the State Transport Authority of South Australia, that: ". . . all persons in the grade of ticket agent employed in the South Australian Railways shall be known as station assistants and shall be entitled to all the conditions of the Railways Traffic Permanent Way and Signalling Wages Staff Award 1960 to which the grade known as item 30, 'porter class 3' and item 33, 'porter class 3, when relieving at a station or on duty at a station without supervision (other than for meal relief)' are entitled excepting, until 1st August, 1976, the award and over-award rates of pay as provided in that award and as otherwise provided." (at p249)

16. An attempt was made to rely on the fact that on 14th February, 1979, the Conciliation and Arbitration Commission purported to certify the agreement. In my opinion the certification was not valid for several reasons. First, on the evidence of Mr. Bahnisch there was no interstate industrial dispute in existence at the material time and the agreement was therefore not one made in settlement of an industrial dispute within the meaning of the Act. As the Full High Court said in a unanimous judgment in R. v. Kirby; Ex parte Transport Workers' Union of Australia [1954] HCA 19; (1954) 91 CLR 159 : ". . . if there was no dispute or no dispute extending beyond the limits of any one State in settlement of which the agreement was made, it is difficult to see how for any purpose the agreement could have acquired any of the attributes of an award by a purported certification under s. 37 of the Act" (1954) 91 CLR, at p 173 ; and: "In these circumstances it is clear that the certification of the agreement in purported pursuance of s. 37 of the Act did not add anything to its efficacy. The agreement did not thereafter 'have the same effect as' nor was it 'deemed to be an award for all purposes' of the Act for the terms of the section are designed to produce such a result only upon certification of an original agreement made in settlement of a dispute as to industrial matters extending beyond the limits of any one State" (1954) 91 CLR, at pp 174-175. (at p250)

17. Secondly, the agreement, although it fixed a commencing date, did not specify a period not exceeding three years from the date on which the memorandum of agreement came into force, during which period the agreement was to continue in force (see s. 58 (1) (b) of the Act). In R. v. Foster; Ex parte Crown Crystal Glass Pty. Ltd. [1945] HCA 28; (1945) 70 CLR 405 the Full High Court had to consider the effect of a failure to specify the period of operation of an award - as required by s. 28 of the Act at that time which was in similar terms to s. 58 of the Act. Latham C.J. said that the failure to fix a definite period of operation of the award meant that: ". . . the award would (unless set aside) last indefinitely and therefore a period exceeding five years. The possibility, in the case of any award, that it may be set aside, does not make it unnecessary to comply with s. 28. A period cannot be said to be 'specified' when it is described by reference to a definite commencing date but when no certain point of time is named for its termination. . . . Thus, in my opinion, the award . . . is invalid because it does not specify a period during which it is to continue in force" (1945) 70 CLR, at pp 420-421. Similar views were expressed by Rich J. (1945) 70 CLR, at p 422 , Starke J. (1945) 70 CLR, at p 427 and Dixon J. (1945) 70 CLR, at p 433. In the later case of R. v. Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust.) Ltd. [1949] HCA 33; (1949) 78 CLR 389 the court, consisting of Latham C.J., Rich, Dixon, McTiernan and Webb JJ. cited the Crown Crystal Glass case [1945] HCA 28; (1945) 70 CLR 405 as being authority for the proposition that: "This award, however, fails to specify a period during which it is to continue in force, and therefore does not satisfy the requirement of s. 48 (1) of the Act and is invalid" (1949) 78 CLR, at p 403. (at p250)

18. Having regard to the two matters to which I have just referred, it is not necessary to consider the other difficulties in the way of the attempted reliance upon the invalid certification of the agreement. (at p250)

19. They included: (1) the fact that there was no evidence that the memorandum of agreement was ever signed by either of the parties. (2) The fact that the statutory declaration by Mr. Donaldson, the assistant national secretary of the union at the time, did not say when the committee of management approved the principal terms of the agreement. Accordingly, the approval may have been in January 1979, although the employment of the ticket agents by the State Transport Authority of South Australia terminated on 28th February, 1978. (3) The statutory declaration did not identify in any way the agreement or set out its terms so as to ensure that the approval referred to in the statutory declaration was the approval of the agreement presented for certification. The heading to the statutory declaration did refer to a dispute re ticket agents but it did not identify that dispute by number or even by an approximate date - although the agreement concerned had been made in July 1976 and the application for certification in January 1979. (4) The question whether a certification made after the employment of the ticket agents had been terminated on 28th February, 1978, could operate to take away any vested rights of ticket agents under a federal award. (5) The difficulty of reconciling a certified agreement (if valid) with an existing federal award, i.e. whether both operate with full force or one impliedly cuts down the operative effect of the other. (at p251)

20. It was also argued by both Mr. Muecke and Mr. Owen that, even if the certification were invalid, the agreement of July 1976 was negotiated on behalf of the applicant and other ticket agents and was binding on her. However, it is clear that parties cannot contract in such a way as to require the surrender by one party of rights under an award made under the Act. (at p251)

21. Again, there are other difficulties in the way of this argument which it is not necessary to consider. They include the question whether the union, as an organization under the Act, which normally operates to seek minimum wages and conditions, has power to reach an agreement binding on its members in the sense of preventing them from seeking to obtain higher wages either by contract or by pursuing rights under an award. (at p251)

ORDER

I have already expressed the view that, apart from the arguments based upon the certified agreement and alternatively the agreement on its own, on the evidence before the court the applicant, from 1st March, 1978, until this hearing, has occupied the position of ticket clerk within the meaning of the award. Accordingly, I order the Commission to pay the applicant the sum of $8,140.83.