Moodley v Coles Supermarkets Australia Pty Ltd [1996] IRCA 105

DECISION NO: 105/96 IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY No VI 95/4832 B E T W E E N : MOODLEY Applicant AND COLES SUPERMARKETS AUSTRALIA PTY LTD Respondent JUDGE: North J PLACE: Melbourne DATE: 19 February 1996 EX TEMPORE REASONS FOR JUDGMENT I propose to give reasons for judgment immediately in this application. In these proceedings, the applicant seeks a remedy under section 170EA of the Industrial Relations Act 1988 ("the Act") for alleged unlawful termination of his employment as a para-legal. His claim is based on an allegation that he is employed under the Clerical and Administrative Employees Retail Industry Award 1994 ("the Award"). His salary was $67,000 at the date of termination, so if he was not employed under an award, s.170CD(2) would stand in the way of his application. By notice of motion filed on 13 February 1996, the respondent seeks an order that the application be dismissed. The respondent relies on O.20 r.2 of the Rules of the Court. It alleges that the application does not disclose a reasonable cause of action because the applicant did not fall within the incidence clause (cl.2) which provides that the Award applies to the occupation of a person employed "Wholly or principally in clerical work which may include administrative duties of a clerical nature in the retail industry." The respondent relied on the affidavit of Paul Anthony Saffigna, the National Employees Relation Manager of the respondent, sworn on 13 February 1996, which describes the applicant's duties under seven subheadings as follows: provision of legal advice, reviewing correspondence, deeds control, preparation and creation of documentation, documenting deals, status reports, legal practice and procedure. Mr Saffigna was not a person to whom the applicant reported in his employment, and, although he claims to have a knowledge or belief of the work of the applicant, the applicant in his affidavit disputes that claim. In his affidavit sworn on 19 February 1996, he describes his work as that of an experienced or senior law clerk. He was the most junior member of the legal department who reported to the Real Estate Legal Manager who, in turn, reported to the General Manager, Real Estate. In relation to Mr Saffigna's description of his job, the applicant disputes that he did some of the types of work alleged by Mr Saffigna and, in other instances, he characterises the work as clerical or routine. The respondent, however, submitted that, taking the applicant's evidence alone, his work fell into a category quite outside the clerical area in that it had elements of professional advice-giving and acting like a senior legal or law clerk. The test to be applied on the hearing of an application under O.20 r.2 is not in doubt. In Dey v Victorian Railways Commissioners (1948-49) 78 CLR 62, Dixon J, as he then was, said, at 91: "A case must be very clear indeed to justify the summary intervention of the Court to prevent a plaintiff submitting his case for determination in the appointed manner by the Court with or without a jury. ...... But once it appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it, then it is not competent for the court to dismiss the action as frivolous and vexatious and an abuse of process." Applying that test to the material before the Court, it is clear that there is a real question of fact to be determined, namely, the nature of the work the applicant did. There is also a question of law to be determined, namely the meaning of the expression "clerical work" in the incidence clause of the Award. In Re Federated Clerks' Union of Australia (New South Wales Branch) v The Australian Workers' Union [1971] AR (NSW) 419, a similar question of law was considered. Sheldon J said, at 421, in relation to that question: "Obviously all employees in an office are not engaged in a clerical capacity. It is clear the professional employees are not nor are those who are truly and basically executive officers. But an employee does not cease to be employed in a clerical capacity merely because his work includes many administrative and non‑recording functions. No doubt there are cases near the border which would be difficult to determine, but in general, and subject to some special categories, those who are in a subordinate position but are engaged in the ordinary work of office administration are, in my opinion, prima facie covered by this constitutional rule." The statement of the issue before the Court in that case highlights that the legal and factual issues in a case like the present tend to merge and ultimately depend upon a balancing of facts against the terms of the definition. In this case, the final resolution of that question requires a full investigation of the facts and a careful consideration of the meaning of the term "clerical work" in the incidence clause of the Award. In those circumstances, it would be wrong to dismiss the applicant's application. Therefore, the order of the Court will be that the respondent's notice of motion filed on 13 February 1996 be dismissed. An application was initially made by Mr Lawrence of counsel, who appeared on behalf of the applicant, for the costs of the notice of motion. That application arises under s.347 of the Act. In order to succeed, the applicant has at least two hurdles. The first is whether the motion before the Court is a proceeding within the terms of s.347(1) of the Act, a matter which, as I understand it, is the subject of conflicting decisions of single judges of the Court. The issue has not been argued before me. Second, and assuming that the motion is such a proceeding, the question arises whether the respondent instituted the motion vexatiously or without reasonable cause. In the end, Mr Lawrence agreed that the basis upon which he put the lack of reasonable cause depended on a further investigation of the facts which will probably occur in the course of the trial of the application. His argument was that there must have been facts known to the respondent at the time the notice of motion was filed that made it obvious that the notice of motion could not succeed. I am disposed, in all the circumstances, to accede to Mr Lawrence's submission that this matter is best dealt with later in the proceedings, when all the facts are known. That is an unusual course, but it is appropriate because the applicant alleges that the respondent had in its possession the applicant's diary which recorded the precise nature of the work done by the applicant. That diary was not disclosed in the proceedings on the motion. Consequently, the second order will be that the application by the applicant for the costs of the notice of motion filed on 13 February 1996 be adjourned to the trial of the application. I certify that this and the preceding four (4) pages are a true copy of the reasons for judgment of his Honour Justice North. Associate: Dated: Solicitors for the applicant: A. J. Macken & Co Counsel for the applicant: Mr B. Lawrence Solicitors for the respondent: Dunhill Madden Butler Counsel for the respondent: Mr D. Chan Date of hearing: 19 February 1996 Date of judgment: 19 February 1996