a a ET A ae a Cai a a RR A Es I eT, oan soe ae CATCHWORDS Industrial law - alleged breach of award - officers refusing to perform tasks banned by union told by employer "no work as directed no pay" - whether employer's conduct constitutes dismissal, suspension or other punishment of officers - "award shall be read in conjunction with Telecommunications Act, Regulations and By-laws" - whether Act, etc. "incorporated" into award - whether provisions in Act an exhaustive code as to action open to employer - Telecommmications Act 1975 Division 6 - Conciliation and Arbitration Act 1904 s.119. DAVID BRIERS v. AUSTRALIAN TELECOMMUNICATIONS COMMISSION (Qld No. 8 of 1979) LEO JOHN BYRNES v. AUSTRALIAN TELECOMMUNICATIONS COMMISSION (Qld No. 9 of 1979) Coram: Keely J. 5 September 1979, Melbourne. ad Fe ne av ee IN THE FEDERAL COURT OF AUSTRALIA INDUSTRIAL DIVISION Qid No. 8 of 1979 Ne ee ee QUEENSLAND DISTRICT REGISTRY IN THE MATTER of the Conciliation and Arbitration Act 1904 "BETWEEN: DAVID BRIERS Claimant and AUSTRALIAN TELECOMMUNICATIONS COMMISSION Respondent ORDER JUDGE MAKING ORDER: KEELY J. DATE OF ORDER: 5 September 1979 WHERE MADE: Melbourne THE COURT ORDERS THAT: 1. The Claim is dismissed. IN THE FEDERAL COURT OF AUSTRALIA ) ) INDUSTRIAL DIVISION ) Qld No. 9 of 1979 ) QUEENSLAND DISTRICT REGISTRY ) IN THE MATTER of the Conciliation and Arbitration Act 1904 BETWEEN: LEO JOHN BYRNES Claimant and AUSTRALIAN TELECOMMUNICATIONS COMMISSION Respondent ORDER JUDGE MAKING ORDER: REELY J. DATE OF ORDER: 5-September 1979 WHERE MADE: Melbourne THE COURT ORDERS THAT: 1. The Claim is dismissed. ee ene ineanines anit See ee eae ae ee A ee ee a Renee BO IN THE FEDERAL COURT OF AUSTRALIA INDUSTRIAL DIVISION IN THE MATTER of the Conciliation and Arbitration Act 1904 BETWEEN: DAVID BRIERS : Claimant and AUSTRALIAN TELECOMMUNICATIONS COMMISSION Respondent (Qid No. 8 of 1979) AND BETWEEN: LEO JOHN BYRNES Claimant and AUSTRALIAN TELECOMMUNICATIONS COMMISSION Respondent (Qld No. 9 of 1979) REASONS FOR JUDGMENT 5 September 1979 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 (Salaried and Specific Conditions of Employment) Award 1975" (the award). The claims were heard together without ee ei oe me oe ee cn ee tr RR ela Me objection. The alleged breaches are that the Telecommunications Commission on 12 July 1979 suspended each of the claimants "from his employment as an officer of the Australian Telecommumications Commission otherwise than in accordance with Section 59 of the Telecommunications Act 1975", 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 organisation 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 telecommuni- -cations technician. The claimant Byrnes also was employed by the Telecommunications Commission as a telecommunications _technician, but on 12 July 1979 was performing the duties of an acting telecommunications technical officer, duties which he had been performing for more than a week. On 12 July 1979 the claimant Briers, on being directed to perform certain work and told that it was to take precedence over any other work, "refused to péxform 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 12 July 1979 the claimant 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 -3- . 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". 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 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 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 telecommuni- cations technical officer might be called upon to perform in an emergency. , - 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. een ee 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 Section 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 division 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 shail 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 clause 5 is not intended to "incorporate" the Act into the award for a number of reasons. 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. Secondly, clause 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 ~ eH 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). Thirdly, the inclusion of clause 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, Yregulations and by-laws which, on the claimants' contention, have already been made part of the award itself. The insertion of clause 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. 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 27 November 1975 (the date on which the award came into operation) but "the Telecommunications — eee tte an ele teal AN he re Acl 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 clause 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. 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 Division 8 of the Telecommunications Act. Mr Spender argued that the intention of clause 5 of the award was to incorporate those sections of the Telecommunications Act, those regulations and those by-laws which relate to employment. However, clause 5 of the award does not attempt to so limit the "incorporation" for which Mr Spender argues; in my minion if clause 5 operates to "incorporate" any provisions of the Act into the award then it must operate to eR erent dnein Seni dee The ah ren meee enh te nah ata nset. 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. For these reasons I am unable to hold that clause 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, 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 clause 5 of the award does not incorporate into the award the provisions of the Telecommunications Act, it follows that y 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 Division 6 of the Telecommunications . . ee ee ae Act 1975", was also argued at some length in these proceedings, it is desirable that I express my opinion on that aspect. Division 6 of the Telecommmications Act 1975 is headed "Dismissals and Punishments". §.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). In my opinion even if Division 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 - we a ee eos e a eel eee we ee fe ee a ee claimants in these proccedings. Insofar as the provisions of Division 6 constitute a code, as contended by Mr Spender, then in my view the code is limited, as the heading of Division 6 suggests and the content of Division 6 demonstrates, to a code in relation to dismissals and punishments. I agree with and adopt with respect the words of Ash J. in Courtenay v. Australian Postal Commission 1978 Industrial Arbitration Service Current Review 32 at p.35, who, dealing with comparable provisions . in Division 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." It was submitted by Mr Spender that the actions taken by the Telecommmications 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 A le ee i anak an 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. Mr Spender agreed that at common law "one has to be ready, willing and able to do work before one is entitled to "we are not seeking to be be paid" and expressly stated that paid". However, Mr Spender submitted that the question of payment was not relevant because of the provisions of Division 6 of the Telecommunications Act (as incorporated into the award on his argument). He contended that, because the provisions of Division 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 Division 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 Division 6 even if it were incorporated into the award. As I have said, in my view insofar as Division 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. 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 em es ee es we th 8 ee oe et ee ee | -ili- 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 Courtenay v. Australian Postal Commission (supra) at p.35: . "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." 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. 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 12 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: -~12- -"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 - (a) ... {b) shall have regard to - (i) ... (ii) the need to operate its services as efficiently and economically as practicable ..." : 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. In support of both the argument that the provisions of Division 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 and Davis v. Australian Telecommunications Commission (1978) 22 A.L.R. 434. 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 , 2 ee He eR atin ELINA eR er Ub mute he ~13- there under consideration, the Australian Telecommunications Commission (General Conditions of Employment) Award 1975. 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. 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 - 14- 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. Both claims are dismissed. TO a eR ET I . : j I certify that this and the tuclean pacretizg pases ace 2 tue covy of the Trl we F . _ . Ter er for Tadgne. 'sem of the Tactile Tm. ductile Kee ' - Associate Dated: ¢ - % .7O RO : naa i Bi Nahar oboe ATE TE