hae ee CATCHWORDS Industrial Law - claim for balance of salary due - appointment to a position in a grade or class - Salaried Officers' (Australian National Railways) Award 1978 - Traffic Operation, Workshops and Miscellaneous Grades (Australian National Railways) Award 1978 - Agreement between Commonwealth of Australia and State of South Australia re take over of certain railways in South Australia - Railways (Transfer Agreement) Act 1975, (South Australia) s.14 ~- Railways Agreement (South Australia) Act 1975, (Commonwealth) s.13 - Australian National Railways Act 1917 (Commonwealth) as amended, ss.4 and 46 and Division 2 of Part III - Conciliation and Arbitration Act 1904 s.123 Australian National Railways Commission v. Lucyna Zatorski (S.A. No.15 of 1980) Coram: J.B. Sweeney, Evatt and Northrop JJ. 2 October 1980 Melbourne IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY S.A. No. 15 of 1980 wee rw INDUSTRIAL DIVISION ON APPEAL FROM THE FEDERAL COURT OF AUSTRATA BETWEEN: AUSTRALIAN NATIONAL RAILWAYS COMMISSION Appellant (Respondent ) AND: LUCYNA ZATORSKI Respondent (Applicant) ORDER JUDGES MAKING ORDER: J.B. SWEENEY, EVATT AND NORTHROP JJ. DATE OF ORDER: 2 OCTOBER 1980 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: (1) The appeal be allowed. (2) The order of the Court of 17 April 1980 be set aside. (3) The application of Lucyna Zatorski dated 18 October 1979 in matter S.A. No.32 of 1979 be dismissed. IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY S.A. No.15 of 1980 weve ewe wv INDUSTRIAL DIVISION ON_ APPEAL FROM THE FEDERAL COURT OF AUSTRALIA BETWEEN: AUSTRALIAN NATIONAL RAILWAYS COMMISSION Appellant (Respondent ) AND: LUCYNA ZATORSKI Respondent (Applicant ) J.B. SWEENEY J. EVATT J. NORTHROP J. REASONS FOR JUDGMENT 2 OCTOBER, 1980 The Australian National Railways Commission, hereinafter called "the Commission", 1s established as a corporate body by the Australian National Railways Act 1917 as amended, hereinafter called "the Act". Prior to 1975 the Act was entitled Commonwealth Railways Act. Subject to the Act, the Commission 1s empowered to conduct railways throughout Australia. In the Act, the words "Railway Service" are defined to mean: "the Service consisting of the persons appointed as officers or engaged as employees in accordance with Part III." o-/2.. Part 11] cf the Act is heedch "The Farlvay fervica", Fectioar 496(1), whicr 15 in Pert 11), 18 75 follevs: "AE(1) Tee "ommissian such of Fficors erg er cmployecs es it Fhinks necc the purpose of this Acre." Unless c< contrary Intention ccercers in the Act "employce"" is Acfinze te mear "eny person employs? py th: Commaissi¢en under tris Act". The word ""affiecr" 1s net Cefircd, iherc are a rumbcr of scctions in Part 1]] of the Act in "hick the wore "employec" cppe-re erd censecuently vror> tho @cfine4 meaning éprlies. Fewover, un ¢.465(1) the vorA "ompleyerze" appeere to ko vsed in centradictinction to to yore "oFFicerc"™ ena af ais possible that tho word "emmloyees" when use ir s.4€(1) foes rot hive the "ofined mearing. Pricr te 1 July 1°75, the date uror wrich the Australian Meticnel Pralways Act 1£75 came inte orerrtior, ¢.44 of the Act was ze follows: "ée(1) Subject to tris Act the Commissioner shel] tproint or emoloy Such cersons to agsist in the cyreu- tion of this Act -s he thirkse neecss- sry en' t+very rersor ¢9 efpeirnted shall hol' office Furing ple-sure only." The 1975 Act cestoblisho? tho Commission te rerleco th- Cemmicsioner end the same Act amcndet? the ther dsfinitzon cl "erployec" by svbstituting the wor? "Commission" For tha were "Commissioner", Until 7 June J°77 tha rrevisiore of the Public Service Arbitrzticn *ct 1°20, as applied te tee Frilwey Servier in Jikt neneer as that Ack senlicd te the Pustrolison Puklic Szrvice and for thet nurpose a reference te tre Public Service PBortrG wes rerd as oa referener to the Commiesioner cr tha Commission, 7S th case may he, cer s.47 of the Act as it anperre¢ befor. ard after 1 July 75, Reforencs shoulda be made te Sections EN, F1 ar' 5? of the Act ee they existcs¢ Eefore being deleted by the 1°7F Act. The Australien Natione] Pailways tmenAment *%et 1977, which anark from ss.12 ane 13, ocrme into orerction cr 7 June 1977, a" reprcled ¢.47 and insertz3 Davisien 2 irto FE xrt 171 of the aced Act. Division ? is he: "Powers and Functions cf the *®ustral- 1an Coneciliction and Arbitretic mission in resneoct of the Reilv: Service." The Division empowers the Cenciliaticn and Arbitretier Commission to prevant cr settle ircustriel]l Gisnutes in resnect of thr Rzilway Cervicc, es "efinec, and to herr cng Actermine industrial questions in resprct of the Fsilvay Service, ac fined, submitted to it. TE 1¢ not reesssary te m=ke further % i reference to the crovisicns centaired in Pivision 7. Tn addition, th: 1977 Act ansertel the existing @cfinition of Rallway Cervice zppcering in ¢.4 of the Act. Srction 1? cf the 1977 Bet come inte operstion on J] Merch 1°78. Thet eccticn esteklishes Promotions &nperl Roards to hear zepoccls ky "cmployees" egeinst cromotions cr dJirertione to act, 2n4 Disciplinary 4npee Boards te bear appesls by "" ) wrelovecs" egairst decisions mcda in ceses cof miscon7uct. The .:+ slso inserted -daditicncl sub-sect a fe) i] (9 B is] Di . "ES of the "et, bel the detail of those new sub-sections nceec not ke consiaerid. Pricr to 1 March 1 oO 78 the State of Soutkr Lustr-13> conducted reilways in fFeuth Austrelie. Those rrjlweys wero vested in and opereted by the a oO G cr oa o Ga uw) + K tyo y Jny H = - on) < a Commissioner pursuant to the 'Scuth Austrelitn Cormissioncr's Act 1° [es ¢ 2 «cS amen3ec, subject te centrol andl Firection by the Stete Transport Authority Act 1°74, Cy an aarcotent F2toF 21 May 1975 and made between the Commonweelth of Zustrce1lis en? the State of South Austreélie, the Australian Vationel Paijlweys Cormission was to take over certein of the reilvays thoarstofors conducted by the State authorities ane te essume Full sdministration, meintenance and control of tnose railways 1n accordance with the terms of the aqreement. For the purrosc of the agreemont the declered date was 1 Merch 197F. Cleuse 15 of the Agreement 1¢ as follows: "15. On the declare? Jzte the Cormicsicr will aovoint es officers, or encace es employees, #11 persons ecrpleye3 on th- South Australian Failways ummecictcly before thet datc whe corsent to ke so Eeppointcd or engaged." Te give cffect to the fgreement, Icgislation wes p2esed being h the Reilways (Transfer Agrecnuert) ert) Act 1°78, Court and the Farlwoys Aagresrent (South tustralic) Act 1°75, Cormonweelth. Eection 14 cf the Stcete Act provide? cs fellows: an "14. Cn tho cCoeclarcd date every officer "ne employes aprointed pursuant vo Secticn 25 of the South Auct- yalizn Pailways Commissioner's fet 1926-1974 in offic > immeCiately before that dete shall by forcee of this section vaccte his office." Section J2(1) cf the Commonwe-lth Act provided zs follows: "12(1) The Commissicr shell, cn tho dccleraa _date, ] Pursuence of Section 46 of the 4Sustr-lisn Neticnel Railways Act 1°17-1°75 anpoint 3s officers or engege =s ommploye7e all persons omployed in the service of the Soutn Avetralien Peilvevs imred- 1wstely before thet gate who consent to be so sepointcd or enozge." Immefiately before the declared fate, 1 arch 1°7°, Mrs. Lucyn2 Zatorski, boercinefter crllet "the resronderr™, vas employe? in the service cf the Seuth fustrelian Rerilwove, Trt: 1n the year 1°77 th> Gen-ral Man-ger of the Comission, hy =n uncatcad Jetter ecdresseS to "Mrs. L. @otoreki, tation Db ecistent, Merion (emphasis sverlicd) cfferet employrent co the rcspontent. The letter wre heetee "Offer cf Empley~ent". It referred to the Peilways Aareerent (Touth Yustrrilva) Act 1975, s.1é of the South Australian Feilweys (Transfer Agrzement) Act 1975 and Clevse 15 of the Agreement betyretn tie Commonwealth cf Austrelis arg the tTtate of Fouth Australie. The letter then cortinuee: n "Pursuant te Cltuse 15 of the Aare:- ment the Commission hercby offers you employment ir your substantive arad¢ et a selery or wage, as tha cxse may be, not Jess than that epplicrblo to your grede on the dat2 immecairtely t prior to the declarcd date. In the cvent thet you cansent tc bo so eppointed ar crgaced your emrloymert with the Commission would comers on ad from the @eclered Aztt2z enc weoulr be subject to the Tailwsy €crvico Fules cond awarde of the Concsliation and Arbitration Cormission to which the Commission is 2 raspordent. i) a Ke [o) G n rigbt an TC you rtarece to er s itt use 15 cE the cecordence with Cc Agreement, 1t we re Sian the atteched censent return te me or cr hefore the 27 Jan 1975." a tad ro) Yoo Tre lett+r comprises e voro-formo Jetter on which the name, grace and a oy, fall KR ip) m n oO Kh + y m KK Vo to ie) 3° i] ary D+ s i dD or cP) >MetD y i] tu ov x Db date, ?7 Jar. 1°7°, plocee by merre of a rubbrr stir. The respondert signe4t and eated the consent notice which alse w3e 2» pro-form= lstter, with the nome Ure. L. Zeatorski and ner number 15/99/6910 berng tyn=e in. the return) d the notice to the Genersl Manecger of the Commicsian The rclevant certs of the notice wore as follows: "With reference to your offer of omployment wth the Austrzlian Fatienel Pajlways Commission Of ........ cee eee el tee Pursuant to Claus- 12(2) of the Paillways (Trensfer to the Cermon- wealth) Act 1°75 Aaqrecment, T hereby 7. "agree to trensfer in my omployment te the Comrission on end from the ecclcored ¢Ccote. Le. Z*TCPCrT Signature cf Employee MPR. GL. Z2ATCESUT Dat> 23.12.77." It 1S difficult to understenée the reference te Cleusa 12(2) of the Reoilweys (Tr=nsfer to the Ceommonyverlth) Act 1975 Agreement. Cection 12(1) of the Pailweys (Couth 2ustrrt1w) Act ptical with hu ip) 1975, Comnonweclth, (Act No. *9 cf 1975) wes 2 a s.123(1) of the Pailwayse Agrecrent (Couth Fustrelie) Bet 1°75, Commonwealth, (Act No. 105 of 1975). The Lotter Act, however, repealec Act "No. 69 of J°75., Likewise, the reference ta "transfer in my enplcyment"™ is confusine. The Jetter contzining the offer of emolcyment refers to the tivo ets hy which effect was given to Cleuse 15 of the agreerent 2n4 untir s.46 cf the those cts th: Commissicn in ursuanc7™ of , Rustralian Netional Reilways 4ct 1917 as #mence4, was obliged to appoint cs officers or engag= 2£ emeloyects cll fersors employed un the service of the South Australian Pailweys immediately befors that Crxte who consecnt to be so anpointed cor n na2ged. To comply with the legislation, @1] thet ves reoulr?* was c¢ censent ta the empleyment in the Commerverlth Prilvey Service. In the events which had hepponce, vren the consent of the respondent, the Commission wes reovires Ey ¢.3?(1) of Pet Ne. 105 of 1°75 te appoint or engege the reenordcnt in pursuence of s.45 Australian Mational Tailacys Act 19717 as amended. In the evants which happened, the respenécnt hecare - momber of the Pa1llwey Servics on 1 Marck, 1°7?. Pursuant to the ccwers conferred by Civision 2 of Part lll of the Act, the Corcilisticn ene Arbitration »" al _ P) uu fe) n a)ie) rn n Commission meee tyvo awards, nemely the ¢€ ay (Australien Netional Railways) %wer@ 1°74, heretmnaftor caller "the Calaried Officers' Aware", ana the Trsffic Optretine Workshops and Miscellenecus Grades (*ustralien Metionel Failways) Award 1°78, hereincfteor called "the Traffic Cocrcoting award". Each avard was made 27 conseav on 26 June 1972 and on 20 Jun 1975 pesvecsively and care ite onerstion on and from 1 March 1978. Whe Corr_oss is a party to each eward ane? the Australian Feilweys Union, herainafter cclled "the Union", is once of 2 number of organizations of employees which are partizs toa cach arer*, io The swards recconize and edept the d'enotomy botvean "officers" and "employees" appesring in 3.44 of the Sct, in the ¢cefinition cf Railway Service centainc? in s./ of the Act, in Cleven 15 of the Agrenment and ¢.12 of the Poilwavs Acreemant (Fovth Buetrelis) Act 1°75, Commrenwoclth. Tn th iP) Salericze Officers' Avera, the word "officcr" 1s defined to meen: "Any pcrson employed unéer tho provisicns of "the Auctrelien Neticnel Peilucys 2 clessifie@ in a grade or clase pr this ward." oa * 191 ecrikb Tho S:leriedq Officors' Aw-rd is binding vnen the Cemmoner1+r end the Union ené4 "?1l rerseongs Slisgible for membershio of any ef the aferesaiA unione ergeg-d in Pry of tha arodec or Callings specified in this awerd", Tn the awer@ tha ord "officer" is usec to fescribe a persor erpleye? by the Commission. Clause § of tne cwarc provides thet Part 11 of th- award ""shel]j aprly to cfficers occuryira pvositians for woien Sola Lad KB es @ere hereinbefore Prescribee", Part 11 compricas Cl w u m mn 4 ~ 3? inclusive relating to gcelerics ana consiticns of employment. Cleuse 4 1s headed "S21 g aDcy Ss a? a c + I q — by) G m fD) A J ~ commences with the words: "(2@) Adult cfficers occuryirg positions jn the classifications Provided herein che] be peld at the rata cf salary presctrikb37 ir the following taklos:" Th.re ere then Set out three celumre herded "Number" "Graca 1 ""Grore and Clies" and "Salery per yeer, Divisions" resnectively. Tlerven Cifferent classifications are liste? under the heading "Numeec". Fach of these Clessificections is Given aA title under classes within cech gredo, while in others there ere no classes, For some grz@os ane For some c¢cl-sens thora ag one division on} while in others there Yr ny ra jn the divisions rcpresent salarics ircressed by annual incromonce faid to en officer on satisfectory comptction of fF yoer service in a or ny de or class. Tn ceack cese the srlery is specificd by reference to a yearly amount. By wey of 1llustration we szt out & summery cf the gqredes, closses erd Civisions. Number Grade ené Cless Salary ner yerr, Divisions 1 Clerical Assistart Yarying number of 7ivisinons 5 clesses numborced J-§ for ecck cless 2 Clerk 4 Aivisions for Clrss J] ani 10 cleesos numbered 1-19f 2? divisions for each of tho other ° classes 2 Stationmaster-train 1 division only for each controlicr cless ll classes numberoée I-11 4 Yardmaster-wharf forcnen 2 divisions for ¢ech cl2s¢ 6 classes numbered 1-6 5 Foroman-suporvisor 2 divisions for czch class 18 classes rnumbere? 1-13 6 Yiscellencous 2 @ivisicens for tech cleses 21 classes numbered 1-21 7 Typist, stenogrepheor, tele- "4 @iviciors for Closes 3 printer operator, accounting 2 for Class 2, ane i for er calculating mechinisk, ecch of the other 2? clasecse Gate processing oper2tor, telephonist, including these engage on more then one of tke classes of work Mentioned ond any others that the Comrrission mezy Secide to inclué¢e in tris qJroug 5 classes numkcre? 1-5 8 Casualty officer 1 division only No clesscs VW. Nurker Credc_ ard Class Selrey rer yecr, Livisiorse S Assistant casuelty officer 2 divistons Mo classcs 10 Ticket clerk 4 Aivisions No classes divisions N 1] fupervisor, Peterborough No classes It is importent to note that the SPlrried C£fiecers'! Award does not srecify the pesitions or nurbor cf vcsitions within a gra@e or > class, ner toes it Gefire tho neturc cf Ere futies atteche? to positions. Part J11 of the werd eroscrikbcts Saleries znd canditiore aprlicecble te senior officers. Under Clouse 34 there cre 11 classos of senior officers end each class has two divisions. In the Troffic Gnerating Averc, the tor? "enplovee" 4 end not the wore "officer" 1¢ used to frecrihe ,1)m 2) C employes ky the Commicsion. The word "cmployee" ic not acfines in the awerd. The eward is bin@ina upon the Cornicsion ard the Union "and ww 1] persons eligible for membership fer any of the aforcs?12 unions engaged gn any gredes cr cellinas specifies in this award". Part ll of the Trrf£ic Cper2ting Awerd 1s heoadod "Treffic Crerating Grades" ans contzinse cleuses numbered 1] - 2? inclusive fprescrikbinc metters rcleting to rates of pry oF employees. Part lV us headed "General Coanéitions" ane containg cleus*ss numbered 1 - 2 anclusive prescribing ay heazted n fi conditions cf e2mployment. Clause ? cf Fart 11 i 12. "Classificctions and Rates of Pay - *7tults". The orening vards cf the clause are: "An oedult eomployec cf a cleseificeticn specificd in the tablec us be eszid the rate rer week classification:-" There ero then set ont three celunns heetc3 "Murber", "Classification" and "Pate per week" respectively. There re then listed 67 classifications. Ir the vest rojerity of closeificetions one rete per week only 31s cpecified. In some = rate 18 specified for the first yoar with a secon? higher tete therecftcr. In seme there re mere then one FWifferent rte for hore thar two yeerce. Tn some classificetions a number of Hy classcs are specified with s different rate for ecch clase #né in some with Gifferent r2tes for s number of yosre in atch class. Classificetion No. 5 1s as follows: yo ty non on mow UW mW Ar fretien agesistent, Class 1, ? o relicving ct a stztion or on duty At 3 without supervision (other thar fo relic£) 3C cents per day extre." A weekly rate 1s sot cut acsinct each clees incrctasing in amount. Claus? 3 cE£ Part 11 mokce svecific pravision for two annuéel increments in y 1] eclessificcticns set cut in Claurce ?. Tt 1S to be noted thet no reference 18 mo7o in the Traffie Cpereting Awsrd to porcitions in clessificrtions, cf. the § " laried Cfficers' Award. In the Treffic Cperatina Award = weekly rate of pry 1s prescribed with respect to en "employcs of a clessification"". Following her apooirtment to the Re1rlwry Servic> on ] Merch 1°78, the Commission poid the respondent the rete of pay erescribea by the TroFFic Cvoercting Ayword for Clessification Wo. 56, f€tetion ssistent, In the appropricztc class with the adjustments moeéc, ce prescribed, ard with the increments prescribed by Clause 2, but cubject to 2 refuction by reason of the fect that she did not work the 26 hours ner fertnight prescribed by the Awerd. By erplication ¢atcd lé Cctober 1979, sho commencec procetdings against the Commission in the Feecral Court on 20 Ccteber 1979 claiming unger s.1?72 Concilietion ane Arbrtrzticn *ct 1604 ss emented, the brlenec of sclary due to her from 1 Verch 1972. At all metaric] tircs she was ¢ member of the Urion and claime? she ve antitled to be paid the salary prescribed under Clause 4 cf the Sclarisd Cfficers' Award for the classificeticn of Ticket Clerk. The substance of her claim was that she was performing tho futies of og Tacket Clerk and eccoreinealy was antiticda te th i) 7] ) a i) ra het < presecribcs for é@ Ticket Clerk. 14, Py an appliczetion mete in the yeor 1972 the respondent had mace a similar claim ag rinst the Stetec Teilwe Authorities for the veriod ending 7? PFebruery 197°. Curirs that period there were in cxistence tro aysris made by the Conciliation and Arkitrestiocn Commissicn binding urer the Strte Fa1ilway Authorities and corresponécirg to tho Salaried fficers' Awrrd and the Treffic Cceratina Yyer-, Thoect overds were "nown cs the Pailwzeys Galoried Cfficers' Award 1°6C, hereinafter called "theo State Salar Traffic, Permonent Way end Sigrpalling Wrgee Staff Aare, 1°EC, hereinafter called "the Stete Tr-ffic Fee. Award", resroctively. These two awarés likewise adopted > dichotomy between "cfficers" cnd "employecs". Tn 1°70 a cltssification entitled "Ticket Clerk" was first inserted in the Stzte Saleried Cf{ficcrs' "werd end the prescribe? ennurl celery wes to be pzie to xrcersons "cccupying positions in the classifications provided" in the -cpprorrairttc cltuses of the award. In the State Treffic Etc. Aware there were three arades of Porter en? a grade entitles "Forter, Clr>es 1, 2 er 2 when relieving et 2 station cr on 4uty at -e2 strtion sithout supervision (other than for mweel relief)" for which an ertre tw daily rato of 20 cents per Jay wee prescribed. The vrescribe? ¢ weekly rate was to be paid to persens "performing work in any of the graées or occupetions" licted ain the table to the appropriate clause cf the awrrd, ¢« simijJar dichotomy to that et) 2 "ring in the tyro awerds redo in 197°, The v ww eplicetion hv vy RY Ry rt Zs ip reepencent against the t-te Parlwey Anthorities wes for entitled to ke p21d sslery prescribeA for the classificstion Ticket Clerk uncer the Ttatc Salaries Cfficerg! Award. The At tho hearing of the crnrlication acgeinet the Commission, counsel wis given leave te intervene on Echorleé of the €tate Fr1ilwoy Authorities. At tho hoorinq ¢witonce ws given by the respondent end @ Mrs. Czuchwicki, who had ha? a Similer work history to the respondent, hut who, after receiving payment from the Commiseion orn tho basis of beirg = Stzetion Assis tr ant frem 1 "Merch 1°72 to 3] Jcnuery 1979, wee thereafter employed in the capacity of *ctina Ticket Clerk -rA7 paie th2> appropriate salary pvreserike? in the TWalrrisd witness 2 wr. Pebnisch, the f€enior Irductrie]) CFficer with the Strte Transport Puthority, Peil BDBiwisian, Tn adPitier, 2 number of cryhibite were terderet on hebslf af the reerordent and the State Palrlway 4vthorities respectively. Mo witnesees [O) were czlled on bebnlf of the Commigsion, nor wore any ervhibits tenderec on its behalf. For the purpese of thase rezsone it 1g nor necesstry to consider in "eteil the evidence given. Tt 1s sufficiont to sey th w t the rescordent hed hocr co Ticket *sent cnerged by the State Railway futhoritries ond that the histery of employment involved 2 narrative which was Len nQ a2 fe)3 fast te Q » ot 9. u fia 1é. confusing. In 12976 cn agqrocment wes reachec between the Sterto Tailweys Authorities and ths Union, The agreement was called the "South Pustrelie Ticket *%gerts' Agreement". Tneor the Agreement the Tickct Agerts, which includcd the rasvoneort, were to be described Fs ftation Assistents tnd were toa ko entitled to the weces and cerditions set cut in the ¢teto Rallweys Traffic Fte. Awerd for the orede of Porter, Clees 2, a) ry anc the extra rate wher relieving at station or on Futy et etetion without supervision (cther then for mes] rezjicf). Thereafter on 29 July J°7Ah the Actirg Cvncrintenfert of the Scuth Austrelian Railwrys wrote = Jectter acéressed to "Yrs. LI. ul Zstorski, Ticket Agent, Hawthorn, as follows: "In accor@ance with sévice received frem the Beting fccretary, Pleasca note 2s from Fné unclué@ing Mon¢esy, 2nd August, 1°7*, you will be re-grrded to the position of fteticn Assistant. Accordingly, you will be crit the arprosriste rate cf pay applicable to Porter, Cless 23, and will be cevereod by the Farlvways Treffic Etc., Awerd." On 14 February 197° the Concilietion ene Arbitrakicn Cormiesion certified the South Australian Ticket Agents! Agrecmert. The learned trial judac exnresse? the oninion thet nrither the South Augtrelian Tickct Agents! Agreement nor its ourporte? certification affected the rights of the responéent. Tn the view weheve fFcermee, and having regart to the naturo cf the 17. 1s sufficiant to say that es from ané includinsa ? August 1°74, until 22 February 1°79, the respondent was known as 7 Station Assistant and was prid weaqes at the rate soecified for Porter, Class 2? in the f&tate Pailways Traffic [te. Awerd, subiect te adjustment for the lcsscr number of hours worked then those prescribed in that award. In @ jJudgrent aivern on 17 Prril 1980 the Iserne? tricl jucge found that the Juties perforres by the resperacnt were such as to satisfy Fin: "that from 1 "arch 1°72 until the hearing this matter lrs. Zatorski bcos occupies S position of ticket clerk within the mernine of clzuse 4 of the ecward." He woes seticfied that che hed completed mort then three years of service in the grade or clres of ticket clerk before gsh- commencecé employment with the Comrission an 7 Merch 1679 cn? therefore che should heve heen paid the salary rer year for division 4. Tn the result the Court orterct thet the Commission pay the rcsvondent §8,140.93. that orver. the g The Cemrrission appealec Fr substantive contention put on the arpezl was rot put to the 1) loarned trial judge. In substance, the contentior vee thet the learned trial judge was in orror in locking solely at the ticketing Gutice and the clerical] Autres of th> respondent rnd further, or in the elternetive, the resnon@ent did not eccuny A Position in the clessificecion of ticket clerr a a 'y % 2) < Ine a i) ion Mw cleuse 4 cf the Seleried Officers' Pward. In ourerinier, the contention of the Comrissicn is correct. The Commission employed the respon'ent pursusnt to the powers conferred by s.4% of the Act. Te ohliacze ta employ the respordert by s.13 FPrilweys Acreement (Scuth Australiz) Act 1975, Cemmonvoalth. Tn ord>r to sucee27 in her claim, the reecpondent bed to show thet the Commission arrointct her to a wosition 1n the gr=te of ticket clerk ce srecifiet in the Salaried Officers' 4wari. That zward Joes not Aafine the Guties of = ticket clerk. The eéward not svecify the number of positions within the zrate of ticket clork. The aword dess not Jefine the cuties attacking to the vositicns 13) within the grade cf ticket clerk. In these circumstences, if 1s mot appropriete te take tho worés of the agrrvee "tickat clerk", to consider the @uties performed by en omployec in the Réllway fervicc, and to @etermine whether those dutics care within the normal meaning of the vords "tickot clork™. This can be ailjlustreteeé by reference to the grzac entitis#? "miscellaneous" here such 2@ method of 'Aetervining the issue would be mweeningless. Likewise, the powers of the Classification Coareé of Peference set out in cleuse 72 of tbe Selaried Cfficers' Awcrd illvetrate thet vnositions are nar necessarily fixe? within < oraee. The essential avestion te ho determired 1¢ whether the rcspontent was antoirked by tre Conmissicn to 2 position in the graege entitled ticket clerk. 19. There is no evidence that the respondent was appointed by the Commission to a position in the grade entitled ticket clerk. The only evidence is in the letter containing the offer of employment, where the respondent is described as a station assistant and 1s offered employment in her substantive grade as opposed to another acting grade, The only substantive grade referred to in the letter is that of station assistant. The offer of employment and its acceptance by the respondent cannot be treated as an appointment to a position in the grade of ticket clerk as specified in the Salaried Officers' Award. Our judgment 1s one reached on a consideration of the Material placed before us and depends on the Salaried Officers' Award. On our construction of this, the respondent is not an officer because at the relevant dates she has not been classified in a relevant grade or class and she is therefore not an adult officer occupying a position in a classification provided for in that award. It follows that we have not reached and do not express any view whether the work she does and the conditions under which it 18S 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. Likewise we have not reached and do not express any view on 20. whether the South Australian Ticket Agent's Agreement and its purported certification have any effect on any rights the respondent may have against the State Railway Authorities. We would allow the appeal, set aside the order of 17 April 1980, and dismiss the application by the respondent. Tocevtiry io. tats aq tt. Anekeen y Prevolnst ole oe i> ~yv OP Ale Wr. eustive Swecueyy Evatt 4 Noemeor | Dated: Q note eae a fep 7 - tee TT TTP foc on Ace ciate & LABO