Re Lucyna Zatorski v the South Australian Railways Commissioner And/Or the General Manager of the State Transport Authority of South Australia [1982] FCA 39; (1982) 68 FLR; 450 (2 April 1982)

FEDERAL COURT OF AUSTRALIA

Re: LUCYNA ZATORSKI
And: THE SOUTH AUSTRALIAN RAILWAYS COMMISSIONER and/or THE GENERAL MANAGER OF
THE STATE TRANSPORT AUTHORITY OF SOUTH AUSTRALIA [1982] FCA 39; (1982) 68 FLR 450
No. 14 of 1980
Estoppel - Industrial Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA
INDUSTRIAL DIVISION
Fisher(1), Sheppard(1) and Fitzgerald(1) JJ.

CATCHWORDS

Estoppel - findings of fact of primary judge - judgment reversed on appeal on other grounds - no estoppel.

Industrial Law - Sum due under Award - whether applicant occupied position described in award - meaning of "occupying a position" - whether formal appointment necessary - Conciliation and Arbitration Act 1904 (Cth.) sec. 123 - Railways Salaried Officers Award 1960 (Cth.).

Zatorski v. Australian National Railways Commission (1981) (unreported) distinguished.

Reynolds v. Victorian Railways Commissioner (1903) 9 Argus LR 42 referred to.

Royal Australian Nursing Federation Industrial Union of Workers, Perth v. Martindale Hospital Pty Ltd (1978) WA Indus Gaz 1251 referred to.

Industrial Law - Sum due under Award - Whether applicant occupied position described in Award - Meaning of "occupying" a position - Whether formal appointment necessary - Conciliation and Arbitration Act 1904 (Cth), s. 123 - Railways and Salaried Officers' Award 1960 (Cth).

Estoppel - Findings of fact by primary judge - Judgment reversed on appeal on other grounds - Whether estoppel. The appellant alleged that she was underpaid whilst employed by one or other or both of the respondents during the period 1 July 1973 to 28 February 1978. To succeed the appellant had to show that she was, at the relevant time, "occupying" the position of Ticket Clerk within the meaning of the Railways and Salaried Officers' Award 1960 (Cth). The primary judge dismissed her claim on the grounds that she was unable to prove that she was formally appointed to the position. From this decision the appellant appealed, arguing that the primary judge erred in law. The appellant further argued that the respondents were bound by the findings of the primary judge in other proceedings by the appellant against another employer, in which the respondents had intervened, notwithstanding that the primary judge's decision was reversed on appeal on a point which was not argued before him.

Held (per curiam): (1) A person may be an officer "occupying" a certain position within the meaning of the Railways and Salaried Officers' Award 1960 (Cth) if he or she was employed to perform the relevant duties. It is not necessary that the person be able to prove that he or she was formally appointed to the position.

Reynolds v. Victorian Railways Commissioner (1903) 9 Argus LR 42 at 43; Royal Australian Nursing Federation Industrial Union of Workers, Perth v. Martindale Hospital Pty Ltd (1978) W.A. Indus. Gaz. 1251 at 1252, referred to.

Zatorski v. Australian National Railways Commission [1980] FCA 39; (1980) 42 FLR 243, distinguished.

(2) The respondents, who had intervened by leave in other proceedings commenced by the appellant against a later employer, were not bound by the findings of fact and law made in those proceedings by the primary judge whose decision was reversed on appeal, notwithstanding that the particular point on which it was reversed was not argued before the primary judge. No estoppel resulted in such circumstances.

HEARING

Adelaide, 1981, December 10, 11; 1982, April 2. 2:4:1982
APPEAL

Appeal on a question of law against the dismissal of a claim made pursuant to s. 123 of the Conciliation and Arbitration Act 1904 (Cth) that the appellant was underpaid whilst working for one or other or both of the respondents.

R. Millhouse Q.C. and A.H. Charlton, for the appellant.

K. Branson, for the respondents.

Cur. adv. vult.

Solicitors for the appellant: Murray & Cudmore.

Solicitor for the respondents: B.J. O'Donovan, Commonwealth Crown

Solicitor.

F.P.C.

ORDER

1. The appeal be allowed.

2. The matter be remitted to the trial judge for the hearing to be concluded. Appeal allowed.

Matter remitted to the trial judge for the hearing to be concluded.

DECISION

Mrs Zatorski ("the appellant") has appealed to this Court from the dismissal of a claim made by her under s.123 of the Conciliation and Arbitration Act 1904, as amended. She alleges that she was underpaid whilst employed by one or other or both of the respondents during the period to which the claim relates, namely from 1 July 1973 to 28 February 1978. The claim was dismissed on a preliminary point of law which was permitted to be raised during the proceedings.

In the course of the argument of this appeal, we indicated, without calling on counsel for the respondents, that we did not accept the appellant's first point, which was that the respondents, who had intervened by leave in other proceedings commenced by the appellant against a later employer, The Australian National Railways Commission ("the previous proceedings") were bound by the findings of fact and law made by the primary judge in those proceedings, notwithstanding that his decision was reversed on appeal on a point which was not argued before him. We remain satisfied that no estoppel resulted in such circumstances.

Because of the way in which this matter has proceeded to date, no more falls to be decided on this appeal than the question of law which was answered adversely to the appellant by the learned primary judge. There is no occasion for an investigation into the merits generally. If the appeal succeeds, the matter will have to go back for the hearing to be concluded and it will remain for the appellant to establish her case.

The appellant's claim is that, during the period in question, she was entitled to be, but was not, paid at the rate prescribed by the Railways Salaried Officers Award, 1960 ("The State Salaried Officers' Award") for payment to an adult female officer, a member of the Australian Railways Union, employee in the South Australian Railways, and occupying a position in the classification of Ticket Clerk. The appellant relies upon her work history and the duties she performed. The respondents' sole answer to her claim is that since, as the appellant concedes, she is unable to prove that she was formally appointed to such a position, she was not, within the meaning of the Award, an officer occupying the position as required by the Award. It was this contention which found favour below.

The learned primary judge said that, in view of the appellant's inability to prove a formal appointment, he considered himself constrained by the decision of the Full Court in the previous proceedings to dismiss her claim in these proceedings.

The Australian National Railways Commission ("the Commission" was established as a body corporate by the Commonwealth Railways Act 1917, as amended, (re-titled The Australian National Railways Act in 1975). Subject to that Act, the Commission is empowered to conduct railways throughout Australia.

An Agreement dated 21 May 1975 made between the Commonwealth and the State of South Australia ("the Agreement") provided for the Commission to take over, from 1 March 1978, certain railways previously conducted by the South Australian Railways, i.e. as we take it, by the present respondents. Clause 15 of the Agreement was as follows:-

"15. On the declared date the Commission will appoint as officers, or engage as employees, all persons employed on the South Australian Railways immediately before that date who consent to be so appointed or engaged."

To give effect to the Agreement, legislation was passed, namely The Railways (Transfer Agreement) Act 1975, South Australia, and The Railways Agreement (South Australia) Act 1975, Commonwealth. Section 14 of the State Act provides as follows:-

"14. On the declared date every officer and employee appointed pursuant to Section 25 of the South Australian Railways Commissioner's Act 1936-1974 in office immediately before that date shall by virtue of this section vacate his office."

Section 13(1) of the Commonwealth Act provides as follows:-

"13(1). The Commission shall, on the declared date, in pursuance of Section 46 of the Australian National Railways Act 1917-1975 appoint as officers or engage as employees all persons employed in the service of the South Australian Railways immediately before that date who consent to be so appointed or engaged."

Whilst we do not intend to shut out the right of the respondents to challenge any fact if so desired, it does not seem to be disputed that the appellant was employed on the South Australian Railways until 28 February 1978 or that the appellant commenced to be employed by the Commission on 1 March 1978. According to the judgment of the Full Court in the previous proceedings, the General Manager of the Commission, by undated letter addressed to the appellant offered late in the year 1977 employment to her which she subsequently accepted. It is sufficient for present purposes to note that the Full Court in the previous proceedings held the position offered and accepted was not that of a Ticket Clerk.

Pursuant to the powers conferred by Division 2 of Part III of The Australian National Railways Act, the Commonwealth Conciliation and Arbitration Commission made two awards, The Salaried Officers (Australian National Railways) Award 1978 (hereinafter called "The Salaried Officers Award"), and the Traffic Operating Workshops and Miscellaneous Grades (Australian National Railways) Award 1978, (hereinafter called "The Traffic Operating Award"). Each Award was made by consent, on 26 June 1978 and 28 June 1978 respectively, and each came into operation on and from 1 March 1978. The Commission is a party to each Award as is the Australian Railways Union, of which it does not seem to be disputed the appellant was at all material times a member.

For the appellant to succeed in the previous proceedings it was necessary for her to bring herself within the operation of The Salaried Officers Award. The Full Court held that she did not do so.

Although the word "officer" is not defined in the Australian National Railways Act, and the word "employee" is there defined to mean "any person employed by the Commission under this Act", there are critical sections of that Act in which a distinction is drawn between officers and employees. For example, s.46(1) is as follows:-

"46(1). The Commission may appoint such officers and engage such employees as it thinks necessary for the purpose of this Act."

Section 46(1) is in Part III of that Act, which is headed "The Railway Service", a term defined to mean "the service consisting of the persons appointed as officers or engaged as employees in accordance with Part III".

Reference has already been made to the fact that the Commonwealth Awards were made pursuant to Part III of the Act. The Full Court in the previous proceedings said that the two Awards "recognise and adopt the dichotomy between 'officers' and 'employees' appearing in s.46 of the Act, in the definition of Railway Service contained in s.4 of the Act, in Clause 15 of the Agreement and s.13 of the Railways Agreement (South Australia) Act 1975, Commonwealth".

Having regard to the terms of the Salaried Officers Award, and in particular the definition therein of 'officer' and clause 6 and Part II which deal with entitlements to the salary rates prescribed by the Award, it was necessary, to come within the Award, that the appellant be:-

(i) employed under the provisions of the Australian National Railways Act, i.e. in the case of an officer, appointed as distinct from engaged;

(ii) occupying a position in a classification provided in the Award; and

(iii) classified in a grade or class prescribed in the Award.

Obviously, in her employment by the Commission, the appellant did not meet these requirements in respect of a position of a Ticket Clerk.

In view of the finding that the position that the appellant was offered and which she accepted was not that of Ticket Clerk, it is apparent that the decision by the Full Court does not directly decide this case. Nor, indeed, did it seek to do so; on the contrary, reference was made to this matter as undecided and the judgment was expressly described as one "reached on a consideration of the material before us and depends on the Salaried Officers Award". The respondents specifically disavowed any reliance upon that judgment as resulting in any estoppel in these proceedings. Further, there was no submission made to us that the legislation and awards in the respective proceedings were relevantly identical, or that for some other reason a detailed comparison, beyond that contained in the Full Court judgment in the previous proceedings, was likely to be productive. Likewise it was not suggested that a detailed comparison between the subject award and any other award would be of particular assistance. Our own survey of the Acts and the Awards confirms the parties' approach.

However, brief reference to these matters is appropriate because the Full Court in the previous proceedings did refer to this matter. They said:-

"By an application made in the year 1978, the respondent had made a similar claim against the State Railway Authorities for the period ending 28 February 1978. During that period there were in existence two awards made by the Conciliation and Arbitration Commission binding upon the State Railway Authorities and corresponding to the Salaried Officers' Award and the Traffic Operating Award. Those Awards were known as the Railway and Salaried Officers Award 1960, hereinafter called 'the State Salaried Officers' Award' and the 'Railways Traffic, Permanent Way in Signalling Wages Staff Award, 1960' hereinafter called 'The State Traffic Etc. Award' respectively. Those two awards likewise adopted a dichotomy between 'officers' and 'employees'. In 1970 a classification entitled 'Ticket Clerk' was first inserted in the State Salaried Officers' Award and the prescribed annual salary was to be paid to persons 'occupying positions in the classifications provided' in the appropriate clauses of the award. In the State Traffic Etc. Award there were three grades of Porter and the grade entitled 'Porter, Class 1, 2 or 3 when receiving at a station or on duty at a station without supervision (other that for meal relief)' for which an extra daily rate of 30 cents per day was prescribed. The prescribed weekly rate was to be paid to persons 'performing work in any of the grades or occupations' listed in the table to the appropriate clause of the award, a similar dichotomy to that appearing in the two Awards made in 1978. The application by the respondent against the State Railway Authorities was for the balance of salary due to her on the basis that she was entitled to be paid salary prescribed for the classification Ticket Clerk under the State Salaried Officers' Award. The application has not yet been heard by the Federal Court."

(We have for convenience, adopted here as elsewhere the same abbreviated names for the Awards and Acts).

It is correct, as was there said, that whereas the State Traffic Etc. Award speaks of employees, the State Salaried Officers' Award speaks of officers. But the definition of "officer" in the latter award and, if it is relevant, the definition of "employee" in the last paragraph of Part V of the former, seem to us at least to diminish the significance of this distinction. More relevant, to our minds, is the distinction between the definition of "officer" in the Salaried Officers Award and the definition of the same term in the State Salaried Officers' Award, which is set out below.

It is also correct, as the other Full Court observed, that there is a difference between the language of the State Traffic Etc. Award and the language of the State Salaried Officers' Award dealing with the bases of entitlement to salaries, just as there is a difference with respect to those matters in the Commonwealth Awards with which that Court was concerned. We are not, however, satisfied that, at least so far as the appellant is concerned, the State Traffic Etc. Award provided for payment to persons "performing work in all of the grades or occupations" listed, any more than does the Traffic Operating Award. Such a provision is made in the State Traffic Etc. Award with respect to adult male employees (Part 5, Clause 2), but in the case of adult females the requirement is simply that they be "employed in the classifications" listed (Part 5, Clause 5; see also Part 2 "Incidence of Award").

In any event, whereas in the previous proceedings the case against the appellant was that she was not covered by the Salaried Officers' Award but by the Traffic Operating Award, here the case against her asserts that she was not covered by the State Salaried Officers' Award in the relevant classification notwithstanding that the consequence would be that, at the relevant time, she would not have been covered by any award. This serves at least to highlight the difficulty of using changes in language from award to award as a basis for the construction of one or the other. Further, although both the State Traffic Etc. Award and the State Salaried Officers' Award were made by the same Commissioner at about the same time, they arose out of different disputes and there were some differences in the parties.

Whether or not the comments in the previous judgment on the position whilst the appellant was employed by the South Australian Railways were entirely accurate, we do not see any reason to express the slightest doubt as to the correctness of the judgment of the Full Court in the previous proceedings with respect to the matter which was there under consideration. We do not understand that the Full Court based its decision on the mere existence of the two differences found to exist between the later Awards. Rather, those differences derived particular significance both from the Commonwealth Acts under which those Awards were made, and from the requirement, in the definition of "officer" in the Salaried Officers' Award, that an officer be classified. Those Commonwealth Acts drew a similar distinction to that contained in the awards and required that officers be appointed and not engaged, a scheme also to be found in the Agreement and in the Railways Agreement (South Australia) Act 1975, Commonwealth.

The Agreement is, of course, irrelevant in this present matter and the State Acts, the South Australian Railways Commissioners Act, 1936 (renamed the Railways Act of South Australia in 1975) and the Railways (Transfer Agreement) Act 1975, do not correspond with the Commonwealth Acts to which reference had been made. Further, although we were pressed to the contrary, we have not been able to find in the South Australian statutes a similar legislative scheme to that discerned by the other Full Court in the Commonwealth statutes. There seems little point in embarking upon a detailed description of the provisions of the South Australian Acts which, at least in the case of the earlier of the two statutes above referred to need, as we were told, to be set into historical context in order to be properly understood. For what it is worth, we observe that in the more recent statute in 1975, the South Australian Parliament seems to have been totally heedless of any difference between appointing an officer and engaging an employee. It describes those who were to vacate their employment by the State instrumentalities and become employed by the Commission, both officers and employees, as having been "appointed pursuant to s.25 of The South Australian Railways Commissioners Act, 1936- 1974" and as being "in office" : see s.14. Any suggestion that this was not intended to deal with all officers and employees in the State Railways at the time is denied by the absence from the Act of any other provision directed to the termination of the employment of any employees not dealt with by that section.

It is by no means surprising that the uniformity found to exist between the later Awards and the Commonwealth Acts is missing when one turns to the earlier Awards and the South Australian statutes. On the contrary, it is extremely improbable that those earlier Commonwealth Awards would be found to contain a formula which reflected at the same time the different legislative schemes in South Australia, Victoria and Tasmania, employees in each of which were the subject of the Awards.

The relevant provisions of the State Salaried Officers' Award, on which the appellant's claim is based, are as follows:-

"2 - INCIDENCE OF AWARD

(a) . . .

(b) This award shall be applicable to . . . members of the Australian Railways Union employed by . . . the South Australian Railways Commissioner in grades or occupations for which salaries are herein prescribed . . .
(c) . . . "

"9 - SALARIES OF ADULT FEMALE OFFICERS

(i) . . .

South Australian Railways

(ii) Adult female officers occupying positions in the classification provided herein and employed in the South Australian Railways shall be paid at the rate of salary prescribed in the following table: . . . " (One of the classifications is 'Ticket Clerk').

"60 - DEFINITIONS

In this award (unless inconsistent with the context)

(a) 'Officer' means any person employed by the respondents in any of the callings for which rates of pay are prescribed herein.

. . . "

As we have earlier noted, the respondents' submission is that the appellant must fail because she was not formally appointed as a Ticket Clerk. We stress the notion of formal appointment since the word "appoint" may bear more than one meaning (see e.g., Tarnesby v Kensington, Chelsea and Westminster Area Health Authority (Teaching) (1980) I.C.R. 475, 481) and informal appointment may be sufficient even where there is specific reference to appointment in a statute (see e.g. Frost v Bolland (1826) 5 B & C 612, 621). The difficulty of the word has also been noticed in other contexts; an example is Gillespie v South Clifton Colliery Pty. Ltd, (1970) 72 S.R. (N.S.W.) 366, 37 -375.

The essential requirement for present purposes of the State Salaried Officers' Award is that the appellant was in the relevant period occupying a position in the classification of Ticket Clerk. Whilst no doubt it follows that in one sense it was necessary that she was appointed to such a position, this need mean no more than that she was employed to perform the relevant duties: cf. Reynolds v Victorian Railways Commissioner (1903) 9 Argus L.R. 42, 43. The question ultimately for determination is a question of fact: cf. Royal Australian Nursing Federation Industrial Union of Workers, Perth v Martindale Hospital Pty. Ltd. (1978) W.A. Indus. Gaz. 1251. The appellant's position is stronger than the claimant in that case since the Award there did speak of appointment. There is a passage in the judgment of Wallace J. at page 1252 which is reminiscent of the Full Court judgment in the previous proceedings, although, as we have earlier said, in that judgment of the Full Court the language of the Award derived special significance from the associated statutory provisions.

There is one final matter. For the respondents, our attention was drawn to Clause 51 of the State Salaried Officers' Award which provided for a Classification Board of Reference with respect to the South Australian Railways and reliance was also placed upon the following further passage in the judgment of the Full Court in the previous proceedings:

"It follows that we have not reached and do not express any view whether the work she does and the conditions under which it is performed are such that she should or should not be classified as a ticket clerk. That is a question for the Classification Board or perhaps the Commissioner who made the award."

We propose to say no more than that we are satisfied that Clause 51 can have no relevant operation in these proceedings consistently with the respondents' submission that the appellant is not covered by the subject Award or indeed any Award.

In summary we are of the opinion that to succeed in her claim the appellant must establish that, in the relevant period, she was "employed . . . in" the "grade or occupation of Ticket Clerk" and that she was "occupying" a position in that classification. It is not necessarily an answer to this claim that she is unable to show that she was formally appointed to a position of Ticket Clerk.

Accordingly, we are of opinion that the appeal should be allowed and the matter sent back for the hearing to be concluded.