"< t Administrative Law - Judicial Review - public servant - direction to work standard hours - whether decision made under an enactment - whether a valid direction - whether direction a disciplinary action Public Service - conditions of employment of officer - implied conditions - whether common law excluded Administrative Decision (Judicial Review) Act 1977 (Cth) Public Service Act 1922 (Cth) s.82D Public Service Requlations reg.13 Public Service Determination No.10 of 1983 Telecommunications Act 1975 (Cth) s.58 Ioannou v Fowell & Ors (1982) 63 FLR 170 Fowell | & Ors v Ioannou (1982) 65 FLR 360 Turner v Mason (1845) 14M&W4112; 193 ER 411 Lilley v Elwin (1848) 11 QB 742; 116 ER 642 Australian Telecommunications Commission v Hart (1982) 43 ALR 165 Excell v Harris (1983) 51 ALR 137 Sellers Vv Woods (1982) 45 ALR 113 Australian National University v Burns (1982) 43 ALR 25 BERYL JOYCE BAYLEY v JOHN OSBORNE and ORS No. G.125 of 1984 Davies, J 19 December 1984 Canberra IN THE FEDERAL COURT OF AUSTRALIA ) ) NEW SOUTH WALES DISTRICT REGISTRY ) No. G.125 of 1984 ) GENERAL DIVISION ) BETWEEN : BERYL JOYCE BAYLEY Applicant AND : JOHN _ OSBORNE JUDGE MAKING ORDER DATE OF ORDER WHERE MADE ORDER Chief Officer, Australian Taxation Office First Respondent AND : WILLIAM 0'REILLY Commissioner of Taxation, Australian Taxation Office Second Respondent AND : PETER WILENSKI, ROBERT J. YOUNG and JOHN VINCENT MONAGHAN Commissioners of Commonwealth Public Service Board Third Respondents ORDER : Davies, J 19 December 1984 : Canberra 1. The application is dismissed. 2. The applicant shall pay the respondents' costs to be agreed or taxed. IN THE FEDERAL COURT OF AUSTRALIA ) ) OUTH WALES DISTRI REGISTRY ) No. G.125 of 1984 ) ) GENERAL DIVISION BETWEEN 3 BERYL JOYCE BAYLEY Applicant AND 3 JOHN OSBORNE Chief Officer, Australian Taxation Office First Respondent AND : WILLIAM 0' REILLY Commissioner of Taxation, Australian Taxation Office Second Respondent AND : PETER WILENSKI, ROBERT J. YOUNG and JOHN VINCENT MONAGHAN Commissioners of Commonwealth Public Service Board Third Respondents REASONS FOR JUDGMENT 'o] QRAM : Davies J 19 December 1984 This is an application for an order of review under the Administrative Decisions (Judicial Review) Act 1977 (Cth). The applicant, Beryl Joyce Bayley, has been employed for Many years in the Australian Taxation Office. Since 1976, a scheme for flexible working hours has been in operation in that Office. However, senior officers of the Australian Taxation Office have not been satisfied with Miss Bayley's attendance under the scheme. There is in evidence a note from Miss Bayley to personnel dated 4 January 1977 which reads as follows : "In view of the new system to commence on 20 January, 1977, I hereby apply to be reverted to flexible hours. I was placed on standard hours on 21 June 1976, for eight weeks, and I am interested in returning to flexible hours in view of the new scheme." The following response was given on 17 January 1977 "Consideration has been given to your recent application and you are advised that approval has been granted for you to participate in the revised flexi-time scheme. It is mentioned that this approval is granted on a trial basis only and should breaches occur, without reasonable cause, the priviledge (sic) will be withdrawn." On 6 March 1980, Miss Bayley was warned : "Following your counselling with the Manager, Internal Examinations, Mr M McGrath, you are hereby warned that unless there is an immediate and sustained improvement in your attendance, and in particular arrival before 9.30 am, action will be taken to revert you to the standard hours of 8.30 am to 4.51 pm with a one hour lunch break." In early 1982, a memorandum was sent to Miss Bayly which read : "Attention has been drawn to the fact that you have, for some time been arriving late for duty. You are advised that as from the commencement of business on 17 March 1982 you will revert to standard hours, that is, 8.30 a.m. to 4.51 p.m. with one hour for lunch. You are reminded that any variation from standard hours or unauthorised absences from duty could result in disciplinary action being taken under section 61 of the Public Service Act." On 31 January 1984, Miss Bayley was advised by Mr John Osborne, the first respondent, Chief Officer of the Australian Taxation Office, as follows : "Following the decision of a Disciplinary Appeal Board to set aside my decision in relation to the 22 charges of misconduct which were laid against you under sub-section 56(b) of the Public Service Act 1922, I have decided to dismiss a subsequent charge, laid under the above sub-section, dated 7 November 1983. It has been brought to notice that you have attended jlate for duty on numerous occasions in the past six months despite my offer on 13 July 1983 to restore your flexi-time privileges, provided a sustained record of satisfactory attendance could be maintained for a trial period of three months. I take this opportunity, therefore, to formally advise you once again that you are required to work standard hours, i.e. 8.30 am to 4.51 pm with ome hour for lunch, and that any further instance of late attendance or unauthorised absence will be referred immediately to an Authorised Officer for consideration of disciplinary action under section 61 of the Public Service Act 1922." It is the re-affirmation of the direction that Miss Bayley work standard hours, contained in the second paragraph of that letter, which is the decision the subject of the present proceedings. On 3 February 1984, Miss Bayley wrote to Mr Osborne as follows : "In the course of my recent dispute with the Department over use of flexi-time as a disciplinary measure, I have received advice which raises the question of the validity of your action. Unless I am reverted immediately to flex-time it is my intention to instruct my solicitors to commence action in the Federal Court to determine whether or not you have the jurisdiction claimed." Subsequently, Miss Bayley instituted the present proceedings under the Administrative Decisions (Judicial Review) Act 1977 (Cth). The application for an order of review reads "1. The decision of the first and/or' second respondent made 3] January, 1984 to require the applicant to work standard hours, that is, 8.30 a.m. to 4.51 p.m. with one hour for lunch and to refer any instance of late attendance or unauthorized absence immediately to an authorized officer for consideration of disciplinary action under Section 61 of the Public Service Act 1922. The applicant is aggrieved by the decision and conduct referred to above on the part of the first and second respondents because 1. The applicant is required to keep standard hours. THE GROUNDS OF THE APPLICATION ARE: 1. The first or second respondents do not have jurisdiction to make the said decision. The applicant claims: (a) an order quashing or setting aside the decision of the first or second respondents. (b) such further or other relief as may seem just. (c) costs." This application came on for hearing, together with an objection by the respondents to the competency of the Court on the ground that "The decision which is the subject of the Application is not a decision made under an enactment". The case put to the Court by Mr P.J. Finch, of counsel, who appeared for the applicant, was that the direction that the applicant work standard hours was an invalid decision made or purported to be made under an enactment. The case put by Mr J.A. Farmer, who appeared for the respondents, was that the direction to work standard hours was, first, not a decision made under an enactment and therefore that the Court had no jurisdiction to review it under the Administrative Decisions (Judicial Review Act 1977 (Cth) and, secondly, that the decision was a valid direction given under the applicant's contract of service with the Commonwealth. The conditions of employment of officers of the Australian Public Service are mostiy regulated by the extensive provisions of the Public Service Act 1922 (Cth), by regulations made thereunder, by determinations of the Public Service Board made pursuant to s.82D of the Public Service Act 1922 (Cth) and by other provisions. These provisions have sometimes been described as a code. But they do not constitute a complete code. They are not the sole repository of terms and conditions affecting the employment of public servants. An officer of the Australian Public Service holds office pursuant to a contract of employment between the officer and the Commonwealth. In Ioannou v Fowell & Ors (1982) 63 FLR 170, Sheppard J said, at pp.187-9 : "It is convenient next to mention a_ submission made, almost by way of an aside, by counsel for the respondents that it was inappropriate to take into account, when endeavouring to ascertain the terms and conditions of the applicant's employment, any provisions other than those found in the Broadcastin and Television Act and the Public Service Act. It was said that the employment was 'statutory, and the entire code is contained within the Act(s)'. For this Proposition reference was made to Australian Broadcasting Commission v Industrial Court of South Australia (1977) 138 C.L.R.399 and Bennett v Commonwealth (1980) 44 F.L.R. 446. In the former case Mason J. said that in their totality the statutory provisions in question in that case constituted a comprehensive and exclusive code regulating the appointment, termination of appointment, promotion, transfer, retirement and dismissal of officers in the service of the Commission. His Honour was concerned in that case with the question of whether the Commonwealth legislation prevailed over certain South Australian legislation said to be inconsistent with it. And in Bennett's case Rogers J. had to decide whether, apart from the statutory provisions which applied, the Crown had an independent power or right to bring the employment or service to an end. Those questions do not arise here. Rather the question is whether, and to what extent (if any), the respondents have departed from statutory provisions (part of a code) which may apply to the applicant. Furthermore, I do not understand what Mason J. said in the Australian Broadcasting Commission case to mean that he is of opinion that public service pursuant to statutes such as apply here is not pursuant to any contract. That would run counter to long held notions. If he had intended to espouse that view I would have thought that a much more explicit statement to that effect would have been made. I refer in passing to the decision of Gillard J. in Keeley v. Victoria C19643 VR 344 and to Hogqq on the Liability of the Crown (1971), pp.148 et seq. The submission made on behalf of the respondents would result in the position of public servants depending upon status rather than contract and would mean that' the entirety of their rights and obligations would devolve from the relevant statutory provisions. Notwithstanding the comprehensive code which undoubtedly exists in this case, there are many gaps which need filling in, not the least of which is the necessity to understand the ambit of the responsibilities imposed by his employment upon an employee such as the applicant. These must derive from contract. Unless one were able to ascertain them in this way one would not be able to conclude whether he was efficiently discharging his duties or whether he should be made the subject of some disciplinary action. I would therefore reject the respondents' argument that the employment is entirely statutory and upon the basis only of the provisions of the Acts of Parliament in question. I would add that I do not understand how this submission of the respondents can be reconciled with their earlier submission that the condition of employment which is referred to in s.82(4) of the Public Service Act must have its origin in contract nor that provisions of the legislation which refer to a contract of employment; for example s.5 of the Commonwealth Employees Act." On appeal, Bowen CJ and Northrop J said, at (1982) 65 FLR 360 at p.369 : "There can be no doubt that the fundamental legal relationship between the Service and respondent is contractual in character: generally see Keeley v. Victoria £1964] V.R. 344, at pp.366-367 per Gillard J." Woodward J said, at p.379-380 : "In his letter the executive director purported to be acting in accordance with the requirements of that Act, the 'decision' was one which related solely to the termination of the respondent's employment and in my view it is clear that he was employed pursuant to a contract of employment the basic terms of which were constituted by a code, made up of a body of legislative, regulatory and arbitrated provisions, having the Public Service Act at its heart (see Keeley v. Victoria [1964] V.R. 344 and Australian Broadcasting Commission v. Industrial Court of South Australia (1977) 138 C.L.R. 399, at p.415 per Mason J.)." A term ordinarily implied into a contract of service is that an employee is under a duty to obey any lawful and reasonable direction given by the employer. Smith's Law of Master and Servant, 6th Ed (1906) states at p.88, "... Thus, every servant is bound to obey all the lawful orders of his master, ...". This principle is expounded at pages 102-4 where, in relation to directions as to hours of work, the cases of Turner v Mason (1845) 14 M&W 112; 153 ER 411 and Lilley v Elwin (1848) 11 QB 742; 116 ER 652 were commented on. The principle is now understood as referring to the reasonable and lawful directions of the employer, but the principle remains. In my opinion, that term is implied in the contract of employment between an officer of the Public Service and the Commonwealth. That was the conclusion of Fox and Northrop JJ in Australian Telecommunications Commission v Hart (1982) 43 ALR 165. At p.170, Fox J, with whom Sheppard J agreed, said : "There does not seem to be any doubt as_' to the common law position. I take a statement of it from the judgment of Dixon J in R v Darling Island Stevedoring and Lighterage Co Ltd; Ex parte Halliday and Sullivan (1938) 60 CLR 601 at 621-2: 'Naturally enough the award adopted the standard or test by which the common law determines the lawfulness of a command or direction given by a master to a servant. If a command relates to the subject matter of the employment and involves no illegality, the obligation of the servant to obey it depends at common law upon its being reasonable. in other words, the lawful commands of an employer which an employee must obey are those which fall within the scope of the contract of service and are reasonable.'." His Honour then went on to say, at p.172, of a disciplinary provision, s.58 of the Telecommunications Act 1975 (Cth) ;: "I am therefore of the view that s 58(1)(a) includes a direction authorized by the common law, with its correlative duty to obey. In this case, the only available source of power for the direction is the common law. The direction can be given by a person in authority, but, of course, subject to the tests I have mentioned." Thus, an officer of the Public Service, like any other employee, is under a duty to comply with any lawful and reasonable direction not inconsistent with the contract of service which is given by or on behalf of the employer with respect to the time and manner of work. Mr Finch submitted, however, that the provisions of the Public Service Act 1922 (Cth) and the Public Services Regulations and of Determination No.10 of the Public Service Board completely cover the field so far as terms of employment are concerned. Section 82D of the Public Service Act 1922 (Cth) provides : "82D.(1) Subject to sub-section (2), the Board may, by instrument in writing, determine the terms and conditions of employment (including employment overseas) of officers and employees. (4) Without limiting the generality of sub-section (1), a determination - (a) may make provision for and in relation to ~ {ii) the hours of attendance of officers and employees, and the recording of attendances; Pursuant to that power, the Public Service Board issued Determination No.10 of 1983. The Determination provides, inter alia "1.2.1¢1) In this determination, unless the contrary intention appears - 'ordinary weekly hours of attendance', in relation to an officer, means the period in any week during which, in accordance with clause 2.1.1, the officer is ordinarily required to attend for duty; 'ordinary hours of duty', in relation to an officer, means the period in any day during which, in accordance with clause 2.1.1, the officer would ordinarily be required to attend for duty; wpeeee (2) In this determination, unless the contrary intention appears, a reference to a Chief Officer shall be read as including a reference to an officer authorized by the Chief Officer for the purpose of the provision in which the reference occurs. 2.1.1(1) Subject to this Division - (a) the ordinary weekly hours of attendance of officers shall, subject to sub-clause (2), be - eeeee (iii) ain relation to officers performing duty as Clerks not referred to in sub-paragraph (i) or (ii) - 36 hours 10. and 45 minutes per week; eeeee (b) except where the Chief Officer otherwise directs in accordance with sub-clause (3), the ordinary hours of duty shall be - (ii) in relation to officers referred to in sub-paragraph (a)(iii) - hours between the hours of 8am and 6pm to be observed from Monday to Friday such that the period of attendance required on those days is equal to the ordinary weekly hours of attendance of the officer; 2.1.3(1) Subject to this clause, an officer shall record, by the means of recording attendance approved by the relevant Permanent Head - (a) at the time of arrival for duty on each day - the actual time of arrival for duty; and (2) Where an officer arrives on duty ata time that is more than 10 minutes after the time at which the officer is required to commence duty, the officer shall report on arrival to the officer in charge of his section who shall record the time of arrival of the officer and the explanation furnished by the officer for the late arrival. eonee 2.1.6(1) Where an officer is absent from duty and the period of absence is, or was, not authorized by or under the Act, the Regulations or any determination made by the Board, the Chief Officer may require the officer to perform duty at a time when the officer would not otherwise be required to perform duty for a period equal to the period during which the officer was so absent from duty." Regulation 13 of the Public Service Regulations provides : "13. An officer - (a) who records, as the time of his arrival on duty or his departure from duty, a time other than the actual time of his arrival on ll. duty or his departure from duty, as the case may be; (b) who, having arrived on duty later than ten minutes after the time at which he is required to commence duty, fails to report to the officer in charge or, having so reported, fails to give an explanation for his late arrival; (c) who commences duty after the time at which he is required to commence duty on any day or after the time at which he is required to commence duty after a meal break; (d) who ceases duty before the time until which he is required to perform duty on any day or until which he is required to perform duty before the commencement of a meal break; (e) who is frequently late in attending for duty; (f) who is, during his hours of duty, absent from duty without the express permission of the Chief Officer or the officer in charge; or (g) who, being prevented by illness or other emergency from attending for duty, does not, as soon as he may do so, report the fact to the officer in charge, commits a breach of these Regulations." It was submitted by Mr Finch that Determination No.10 permits an officer to work the ordinary weekly hours of attendance, 36 hours 45 minutes per week in the case of the applicant, at any times at the discretion of the officer during the ordinary hours of duty, 8 am to 6 pm, in respect of clerks. Mr Finch submitted that the determination conferred no power upon the Chief Officer to direct an officer to work standard hours. He submitted that Determination No.10 covered the field and excluded any common law right on the part of the employer to give directions as to the hours of work. I do not read Determination 12. No.10 as conferring a discretion upon the officer to work such hours within the ordinary hours of duty as the officer sees fit or as intending to exclude the ordinary right of the employer to determine what hours, within the ordinary hours of duty, should be worked by an officer. Clause 2.1.1(1)(b) of Determination No.10 speaks of "So .the period of attendance required on those days...", Monday to Friday, and provides that that period of attendance shall equal the ordinary weekly hours of attendance of the officer, as specified in clause 2.1.1(1)(a). This provision intends that the Commonwealth may require and therefore may specify a period of attendance for the officer on each day Monday to Friday. The Determination clearly has in mind the specification of more than the totality of hours which an officer must serve on each day for clause 2.1.3(2) speaks of "...the time at which the officer is required to commence duty..." and clause 2.1.6(1) speaks of "...a time when the officer would not otherwise be required to perform duty...". This interpretation accords with the provisions of reg.13(c) which speaks of the circumstance where an officer ",..-commences duty after the time at which he is required to commence duty on any day..." and of an officer "...who ceases duty before the time until which he is required to perform duty on any day...". Similarly, paragraph (f) of reg.13 makes it an offence for an officer during his hours of duty to be absent from duty without the express permission of the Chief Officer or the officer in charge. If the appropriate officer were not able to 13. specify hours of duty, paragraphs (c), (d) and (f) would be inoperative. I do not read Determination No.10 as intending to restrict the right of the appropriate officer to specify the hours of duty of an officer save to the extent that it limits the ordinary weekly hours of attendance that may be specified and determines the range of hours within which the ordinary hours of duty may be required. In my opinion, the power to specify an officer's hours of duty does not arise by implication from Determination No.10, rather it arises from an implied term of a contract of service which term is not excluded by but rather is recognised by Determination No.10. The application was brought upon the ground that there was no power in the appropriate officer to direct the applicant to work standard hours. In my opinion, that ground cannot be upheld. The application did not proceed upon the basis that, if there was a power to direct, the working of standard hours, the Chief Officer was not an appropriate person to exercise that power. Mr Finch further submitted that the direction that the applicant work standard hours was a disciplinary action which was not taken in accordance with the disciplinary provisions of the Public Service Act 1922 (Cth). He submitted that flexible hours were a normal incident of the employment of an officer of the 14, Australian Public Service and that the direction that the applicant work standard hours, not flexible hours, was a direction imposed upon her by way of punishment or discipline. Mr Finch did not, however, attempt to prove the precise terms of the alleged right that the applicant had to work flexible hours. The applicant exhibited to her affidavit certain documents with respect to flexible working hours. There were tendered on behalf of the respondents two exhibits - one a head office staff circular with respect to flexible working hours dated 18 October 1978 which was said by Mr Farmer' to have been the operative document in the Australian Taxation Office since 26 October 1978, and the other, Personnel Management Manual Volume 8, which had recently emanated from the Public Service Board and which applied generally to employment in the Australian Public Service. The substance of these two documents was said to have been distributed amongst the officers of the Australian Taxation Office. The former document provided for core hours between 9.30 am to 12 noon and 2 pm to 3 pm and for flexible hours between 7.30 am and 6 pn. The scheme provided for the building up of flex-time credits and for leave to be taken to offset the credits obtained. Clauses 27 and 28 of the scheme provided : "27. Supervisors are responsible for the administration of the flexible hours scheme in respect of the staff under their control. Staff should generally be permitted to choose their own working hours and the days or periods of time when they wish to take flextime credits and supervisors should not place unnecessary impediments in the way of staff seeking to utilise their flextime credits. At the same time it should be remembered that it is essential to maintain acceptable work 15. flows at all times and in order to achieve this it may be necessary for supervisors to require staff to remain on duty or to defer the taking of accumulated credits. 28. In administering the scheme supervisors are responsible for ensuring that staff do not misuse the concessions granted and also ensure that accurate records are maintained. Periodic test checks should be made of the records. Supervisors may delegate responsibility for the maintenance of records to a staff member designated as 'Controller'." This scheme did not expressly provide for placing an officer on standard hours but, by providing that "... Staff should generally be permitted to choose their own working hours..." it recognised that the appropriate senior officers would have a right to specify hours of work if they thought it appropriate to do so. The scheme which emanated from the Public Service Board was generally similar in concept but did not address itself to the question whether a particular officer could be required to work standard time or the circumstances in which officers generally could be required to work specified hours. The evidence before me as to any entitlement on the part of the applicant to work flexible hours was, in general, unsatisfactory. On the evidence before me I would conclude that, if any such terms were incorporated into the contract of employment, they were set out in the 1978 circular from the head office of the Australian Taxation Office. But that document does not assist the applicant in the present instance for it does not exclude the right of the appropriate officer of the Commonwealth 16. to give directions as to the hours of work of an officer. None of the documents with respect to flexi-time, whether the documents annexed to the applicant's affidavit or the 1978 head office circular or the Public Service Board manual, were relied upon by Mr Finch as instruments and therefore as enactments for the purposes of the Administrative Decisions (Judicial Review) Act 1977 (Cth). Mr Finch contended that the requirement to work standard hours was imposed by way of punishment or discipline and that such action can only be taken under and in accordance with the detailed provisions of the Public Service Act 1922 (Cth). However, accepting that there is a power to require an officer to work standard hours, this allegation is in substance an allegation that the power to require an officer to work standard hours was, in the circumstances, being used male fides or to achieve other than a proper end, that it was being used to punish or discipline when it ought to have been used only for achieving efficient administration. I can see the force of the submission but I think that, in the present case, it has not been established by the evidence. For that matter, the ground was not raised in the application for review and the affidavits put by the respondents do not address their attention to it. Neither the grounds of the application nor the material before me enable me to uphold the application upon the ground that the decision under review was an improper exercise of the powers of discipline conferred by the Public Service Act 1922 17. (Cth). It follows, in my opinion, that the application must fail. It also follows, in my opinion, that as the power to direct the working of standard hours was a power conferred by the contract of employment between the applicant and the Commonwealth, the decision was not a decision under an enactment. See Excell v Harris (1983) 51 ALR 137, Sellers v Woods (1982) 45 ALR 113 and Australian National University v Burns (1982) 43 ALR 25. The application will therefore be dismissed with costs. | certify that this and the sixteen (6) preceding pages are a true copy of the reasons for judgment herein of The Honour- able Mr. Justice 3.7 pAvits AR re 19/12/84. Dated