|
|
[Home]
[Databases]
[WorldLII]
[Search]
[Feedback]
High Court of Australia |
THE QUEEN v. BOOTH; Ex parte ADMINISTRATIVE AND CLERICAL OFFICERS' ASSOCIATION
[1978] HCA 14; (1978) 141 CLR 257
Industrial Law (Cth)
High Court of Australia
Gibbs(1), Stephen(1), Mason(1), Jacobs(1) and Murphy(1) JJ.
CATCHWORDS
Industrial Law (Cth) - Public Service Arbitrator - Powers - Power to make order relating to conditions of employment - Order granting right of appeal against appointment of outsiders to position in Public Service - Public Service Arbitration Act 1920 (Cth), ss. 3 (1), 12D, 22.
HEARING
Sydney, 1978, March 1; May 2. 2:5:1978DECISION
May 2.
2. On 16th January 1978 the Minister for Employment and Industrial Relations
and the Public Service Board respectively gave notices,
for the purposes of s.
12C of the Public Service Arbitration Act 1920 (Cth), as amended ("the Act"),
informing the Public Service
Arbitrator that an industrial situation existed
involving the Public Service Board and the Minister on the one hand and
members of
the Administrative and Clerical Officers' Association ("A.C.O.A.")
on the other, and applying to the Arbitrator to exercise his powers
under s.
12D of the Act. The particulars given in the notices included the following:
"The State Branches of the Association in New South Wales and Victoria
have banned the handling by their members of applications
from applicants
outside the Service for advertised vacancies of Employment Officer (Class 4)
in the Department of Employment and
Industrial Relations, until a right of
appeal against outside appointees is available . . . The decision to advertise
vacancies outside
as well as inside the Service followed the conclusion by the
Board and the Department that this course would be necessary for the
achievement of the new goals and the rapidly expanded staffing needs of the
Commonwealth Employment Service consequential on Government
decisions. . . .
Action to deal with this notification as a matter of urgency is sought because
members of the public are being greatly
inconvenienced and the Department's
efforts to alleviate severe work pressures on Commonwealth Employment Service
staff in New South
Wales and Victoria are being jeopardised . . ."
The matter was referred to a Deputy Public Service Arbitrator who called a
conference between the parties on 18th January 1978. At
the conference the
Australian Public Service Association (Fourth Division Officers) ("A.P.S.A.")
sought and was granted leave to
intervene in the proceedings. The conference
continued on 19th January and was then adjourned. On 23rd January notices for
the purposes
of s. 12C of the Act were given by the Minister and the Public
Service Board informing the Arbitrator that an industrial situation
existed
involving the Minister and the Board on the one hand and members of the
A.P.S.A. on the other. On 24th and 25th January the
matters commenced by both
sets of notices were heard together by the Deputy Arbitrator. (at p260)
3. Throughout the proceedings the Deputy Arbitrator refused to deal with the
question whether or not officers of the Australian
Public Service should have
a right of appeal against the appointment to positions in the service of
persons who were not at the time
of their appointment officers of the service.
It is convenient to refer to such persons as "outsiders". On 25th January 1978
the
Arbitrator made the following statement:
"It has been put forward by the A.C.O.A. supported by the A.P.S.A. that
I do have jurisdiction to arbitrate on the matters
in issue between the
parties.
I have considered all aspects of the question of jurisdiction and it is
my view that this tribunal does not have the jurisdiction
to arbitrate on
those matters which are at the crux of this dispute. I am therefore faced with
a confrontation between the two unions
on the one side and the Public Service
Board and the Department on the other. As I have said, the members of both
organizations are
refusing to carry out their lawful instructions. That action
is supported and endorsed by the executives of both organizations.
Responsibilities are placed upon this tribunal by s. 12D of the Act.
They are responsibilities which I cannot escape. As I
have said, I am faced
with a situation where members of the organizations are refusing to carry out
their lawful duty. They have
ignored my recommendations which were given last
Thursday . . .
In my view, I cannot stand aside from the responsibilities placed upon
me. Accordingly I propose to make orders directed against
both organizations
and their members who are involved in this illegal action, directing both the
organizations and their members
to lift all bans, restrictions and limitations
and prohibiting them from engaging in conduct that would constitute or bring
about
the industrial situation which has been referred to in both the
notifications.
Finally it appears to me necessary in this case that the orders should
also include a provision which should permit the Chief
Officer to stand down
those employees who refuse to carry out their lawful instructions. I do that
because my pleas to the organizations
and their members have been ignored, and
because every possible opportunity has been taken within the jurisdiction
which I have to
try and prevent this current situation arising where this
distasteful duty of making orders against these two organizations and their
members has become a necessity.
However, as I say, I think there is no other alternative available to
me." He proceeded to make orders directing the A.C.O.A.
and the A.P.S.A. and
their members who were employed in offices of the Commonwealth Employment
Service in the Department of Employment
and Industrial Relations in New South
Wales and Victoria to cease the application of bans, limitations or
restrictions on work involved
in the handling of applications from applicants
outside the service for advertised vacancies of Employment Officer (Class 4).
He
further ordered, inter alia, in the following terms:
"And it is hereby further ordered that as from 8 a.m. on Thursday, 26th
January 1978, the Chief Officer as defined in the Public
Service Act 1922 or
an officer authorized by the Chief Officer may stand down from duty any
officer or employee employed in the offices
of the Commonwealth Employment
Service of the Department of Employment and Industrial Relations in the States
of New South Wales
and Victoria, who refuses to perform the whole or any part
of his duties and may deduct payment for any day or portion thereof during
which such officer or employee is stood down.
A period of standdown under the preceding paragraph hereof shall be
regarded as leave of absence without pay and shall not
count as service for
any purpose under a determination of an Arbitrator or the Public Service Act."
(at p261)
4. The first question for decision is whether the Deputy Arbitrator had jurisdiction to consider the merits of the dispute, and power, if he thought it appropriate, to make an order granting to the officers concerned a right of appeal against the appointment of outsiders to positions in the service. This depends upon the proper construction of a number of provisions of the Act. (at p261)
5. It was not disputed, and could not be disputed in the light of the
definition of "industrial situation" in s. 3 (1) of the Act,
that the action
of the branches of the two Associations in banning the performance by their
members of certain of their duties gave
rise to an industrial situation. The
notices were validly given under s. 12c. The duty of the Arbitrator when such
a notice is given
is set out in s. 12D as follows:
"(1) Where the Arbitrator has been informed under the last preceding
section of the existence or likely occurrence of an industrial
situation, the
Arbitrator or a Deputy Arbitrator -
(a) shall forthwith call a conference . . . ; andevidence (if any) as he thinks fit, make such orders as he thinks necessary or desirable for putting an end to, or preventing the occurrence of, the situation or preventing the occurrence of further industrial situations or such other orders as he thinks necessary or desirable by reason of the existence or likely occurrence of the situation.
(b) may, subject to the next succeeding sub-section, after hearing such
6. Since the very wide words of s. 12D (1) (b) are subject to sub-s. 2, it is
clear that the question whether the Deputy Arbitrator
had power to make an
order giving officers of the Public Service a right of appeal against the
appointment of outsiders to positions
in the service depends on whether such
an order would be one "relating to conditions of employment" of the officers
concerned. The
expression "conditions of employment" is defined in s. 3 (1) of
the Act to mean "salaries, wages, rates of pay or other terms or
conditions of
service or employment". The expression as so defined is obviously intended to
have a wide meaning. In Australian Tramway
Employes Association v. Prahran and
Malvern Tramway Trust [1913] HCA 53; (1913) 17 CLR 680, at p 693 , in a passage cited by
Dixon
C.J. in Reg.
v. Findlay; Ex parte Commonwealth Steamship Owners'
Association
[1953] HCA 81; (1953) 90 CLR 621, at p 630 , Isaacs
and Rich JJ. said:
"The 'terms' of employment are the stipulations agreed to or otherwise
existing on both sides upon which the service is performed.
The 'conditions'
of employment include all the elements that constitute the necessary
requisites, attributes, qualifications, environment
or other circumstances
affecting the employment."
No doubt this extensive meaning should be attributed to the word "conditions"
in the definition. The "other terms or conditions of
service or employment"
cannot be limited to those which are ejusdem generis with salaries, wages and
rates of pay. A condition relating
to seniority would come within the
definition: cf. Commissioner for Railways (N.S.W.) v. McCulloch [1946] HCA 27; (1946) 72 CLR
141 . The fact that
an employee has, or has not, a right of appeal against the
appointment of an outsider to a position
the filling
of which would affect
his
seniority is a circumstance affecting his employment. It is true of employment
generally, including
employment
in the Public
Service, that importance is
attached by employees to the maintenance of their positions of seniority, with
its influence
on their
prospects of promotion, and a natural enough way of
preserving the existing seniority of an employee is to
give him a right
of
appeal
against the making of an appointment which would in a practical sense
affect his seniority or his prospects.
Under the
Public Service
Act 1922
(Cth), as amended ("the Public Service Act"), an officer is given a right of
appeal against the
promotion
of another officer
to a vacant office and
seniority is one matter which may be considered: see s. 50 (6). A right of
appeal
against
the appointment
of an outsider to a vacant office, whether
granted by statute, award or agreement, might be made a term of
the employment
of an employee
who might be affected by the appointment, and if granted would
at least be a condition of the employment
of such employee.
(at p263)
7. On behalf of the respondents reference was made to a number of cases in which it has been held that not every demand made by employees on their employer gives rise to an industrial dispute. As Walsh J. said in Reg. v. Portus; Ex parte Australia & New Zealand Banking Group Ltd. [1972] HCA 57; (1972) 127 CLR 353, at p 365 , it is necessary to have regard to the character of the demand, and an industrial dispute will only arise if the employees demand a benefit or privilege of a kind which has a relevant connexion with the relationship of employer and employee. However there is nothing "remote or tenuous" (to use the words of Dixon C.J. in Reg. v. Findlay; Ex parte Commonwealth Steamship Owners' Association (1953) 90 CLR, at p 631 ) about the connexion between an employee's seniority and prospects of promotion, and their protection by a right of appeal, on the one hand, and his employment on the other. The respondents placed much emphasis on the fact that what was sought was a mere right of appeal, and that the Deputy Arbitrator was not asked to lay down the criteria by which the decision of the appeal should be governed. This, it was said, meant that there was no direct connexion between the right of appeal and the employment. It is true that if a right of appeal is granted, and no criteria are established by which the appeal is to be determined, the discretion of the body determining the appeal is so much the wider, but it does not follow that the connexion between the right of appeal and the employment is any the less direct. In any case it should be remembered that it would be no objection to the jurisdiction of the Deputy Arbitrator if it were beyond power to make an order in the precise terms suggested in the notice: see Reg. v. Holmes; Ex parte Altona Petrochemical Co. Ltd. [1972] HCA 20; (1972) 126 CLR 529, at pp 533, 559-560, 562-563. (at p264)
8. It was also urged by the respondents that the demand for a right of appeal related to the management or administration of the Public Service, rather than to the conditions of employment of the officers. However, it is quite impossible to say that an order providing the right of appeal which is now sought would be one dealing with management or managerial policy as such. An order of that kind would deal directly with the conditions of employment of the officers concerned. (at p264)
9. It is desirable to mention two cases upon which particular reliance was placed by the respondents. In Reg. v. The Members of the Railways Appeals Board and The Commissioner for Railways (N.S.W.); Ex parte Davis [1957] HCA 22; (1957) 96 CLR 429 , a provision of an award which, inter alia, deprived officers of a right of appeal if passed over for promotion was held to be invalid. The reason given by the majority of the Court was that the dispute which was settled by the making of the award was not of sufficient ambit to authorize the inclusion of the provision. It is true that McTiernan J. and Taylor J. expressed doubts whether a dispute concerning the principles upon which the promotion of officers should be determined can be said to be a dispute as to an industrial matter within the meaning of the Conciliation and Arbitration Act 1904 (Cth), as amended (1957) 96 CLR, at pp 451, 453 . However those doubts appear to have been founded upon the form of the definition of "industrial matter" in that Act. In Reg. v. Portus; Ex parte City of Perth [1973] HCA 64; (1973) 129 CLR 312 it was held that the failure to accept the demands in a log of claims that employees whose employment was terminated or who were dismissed should have a right of appeal to the Conciliation and Arbitration Commission, which should have power to determine whether the termination or dismissal was harsh, unjust or unreasonable, did not give rise to an industrial dispute. One ground for this decision was that the demand related to the powers and functions of the Commission, and not to the relations of employers and employees; such a demand was beyond the capacity of the employers to grant, since the powers and functions of the Commission were regulated by statute (1973) 129 CLR, at pp 315, 319, 325, 328 . The case is distinguishable from the present, where the demand does not seek the conferral of new powers and jurisdiction on a statutory body. It is unnecessary to consider whether a demand of that kind might be granted by an arbitrator, having regard to the provisions of ss. 12D and 22. (at p265)
10. It was further submitted by the respondents that an order granting a right of appeal would not be "in accord with" the provisions of Div. 4 of Pt III of the Public Service Act, which confides to the Public Service Board the power to appoint officers of (inter alia) the Fourth Division, and is therefore placed beyond the powers of the Deputy Arbitrator by s. 22 (1). An order made under s. 12D (1) is a determination within the meaning of s. 22: see s. 3 (1) ("determination"). An order of the kind suggested would not deprive the Board of its power to appoint officers of the Fourth Division. The fact that an appeal may be brought against an appointment shows that the power to appoint is vested in some authority other than that which is given power to hear the appeal. The grant of a right of appeal would affect the exercise of the power to make an appointment, to the extent that it would render it reviewable, but would not take away the power. An order of that kind would not be out of "accord" with the Public Service Act. It would not directly conflict with any provision of the Public Service Act, and would do no more than indirectly affect the operation of that Act. In any case the Public Service Act is "a law . . . relating to conditions of employment of employees in the Public Service". It is apparent that Pt III of the Public Service Act contains many provisions relating to the conditions of employment of such employees. It therefore comes within the exception created by s. 22 (2). (at p266)
11. For these reasons the Deputy Arbitrator had power to make an order granting to the officers concerned in or affected by or likely to be concerned in or affected by the industrial situation a right of appeal against the appointment of outsiders to positions in the service, provided that he thought such an order "necessary or desirable for putting an end to, or preventing the occurrence of, the situation or preventing the occurrence of further industrial situations" or "necessary or desirable by reason of the existence . . . of the situation". However he misconstrued the provisions of the Act and misconceived the extent of his powers. He wrongly failed to consider the merits of the dispute which had given rise to the industrial situation. Once this conclusion was reached it was clear that mandamus should issue to command him to exercise the jurisdiction which he wrongly declined. Moreover the orders that he in fact made were made only because of the erroneous interpretation which he had placed on s. 12D and his erroneous assumption that he lacked jurisdiction to determine the merits of the dispute. His statement, which is quoted above, makes this plain. For that reason those orders could not be allowed to stand. Certiorari was issued in respect of them. (at p266)
12. The respondents placed no reliance on the provisions of s. 20 of the Act which provides (inter alia) that no determination of a Deputy Arbitrator made under the Act shall be challenged or called in question, or be subject to prohibition or mandamus, in any court on any account whatever. It is therefore unnecessary to discuss the many cases in which the effect of privative sections such as s. 20 has been considered, either in relation to the postion arising under the Constitution (see, for example, R. v. Hickman; Ex parte Fox and Clinton [1945] HCA 53; (1945) 70 CLR 598; R. v. Murray; Ex parte Proctor [1949] HCA 10; (1949) 77 CLR 387 and R. v. Metal Trades Employers' Association; Ex parte Amalgamated Engineering Union, Australian Section [1951] HCA 3; (1951) 82 CLR 208 ) or in a unitary system where no constitutional question arises (see, for example, Anisminic Ltd. v. Foreign Compensation Commission [1968] UKHL 6; (1969) 2 AC 147). (at p266)
13. On behalf of the prosecutors, it was submitted that the operation of the order which gave a power to stand down from duty any officer or employee who refused to perform his duties was in any case beyond the power of the Deputy Arbitrator. Again the question is whether the order related to the conditions of employment of the officers and employees concerned. Of course it may be, and, subject to exceptions, will perhaps ordinarily be, a condition of employment that an employee who does no work is not entitled to any wages. The respondents submitted that the Public Service Board had, without any order of the Deputy Arbitrator, power to stand down officers who refused to work. Whether that is so does not arise for decision in the present case. If the power already existed it could be exercised whether or not the order of the Deputy Arbitrator was valid. If the power did not already exist it might be conferred by the Deputy Arbitrator if it were right to say that the order conferring it was one relating to the conditions of employment of the officers or employees concerned in or affected by or likely to be concerned in or affected by the industrial situation. There is obviously a close connexion between the employment of an officer, and the power of his employer to stand him down. There would seem in principle no reason why in an appropriate case the Deputy Arbitrator could not order that it should be a condition of employment that employees be stood down in certain circumstances. In the present case the order actually made appears intended to be a provision of an enforcement or disciplinary nature rather than an order relating to conditions of employment, and it is objected that it is in any case too wide in its terms to be a proper exercise of the power. It is unnecessary to consider these particular objections, or whether the case would have been a proper one for prohibition if the main challenge made by the prosecutors had failed, because for reasons already given the order giving power to stand down was in any case quashed by certiorari. (at p267)
ORDER
This Court holds that the Deputy Arbitrator had power to make an order granting to the officers of the Australian Public Service concerned in or affected by or likely to be concerned in or affected by this industrial situation a right of appeal against the appointment to positions in the service of persons who are not at the time of their appointment officers of the service, provided, of course, that the Deputy Arbitrator thought such an order necessary or desirable within s. 12D (1) (b) of the Public Service Arbitration Act 1920, as amended.The Deputy Arbitrator therefore wrongly declined jurisdiction and mandamus should issue. Moreover, since the orders in fact made by the Deputy Arbitrator were made on the erroneous assumption that he lacked jurisdiction to determine the merits of the dispute they cannot be allowed to stand and certiorari will issue. Any order for prohibition is then superfluous.
The order nisi, so far as it relates to mandamus and certiorari, will be made absolute and so far as it relates to prohibition will be discharged.
The respondents other than the Deputy Arbitrator will pay the prosecutors' costs of the application.
AustLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.austlii.edu.au/au/cases/cth/HCA/1978/14.html