Administrative and Clerical Officers Association, Australian Government Employment v Canberra Commercial Development Authority
[1986] FCA 522
•07 NOVEMBER 1986
Re: ADMINISTRATIVE AND CLERICAL OFFICERS' ASSOCIATION, AUSTRALIAN GOVERNMENT
EMPLOYMENT and HAROLD HIRD
And: THE CANBERRA COMMERCIAL DEVELOPMENT AUTHORITY; PETER WILENSKI; ROGER
BEALE; GRAHAM GLENN and THE HON. GORDON GLEN DENTON SCHOLES
No. NSW I 2 of 1986
Industrial Law
17 IR 376
COURT
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
INDUSTRIAL DIVISION
Evatt J.
CATCHWORDS
Industrial Law - Conciliation and Arbitration Act - Determination under Public Service Arbitration Act - deemed to be an Award under Conciliation and Arbitration Act - Canberra Commercial Development Authority party to determination - Right of Minister to abolish Authority under Commonwealth Functions (Statutes Review) Act 1981 - Inconsistency between term of an Award and provision of Commonwealth Employees (Redeployment and Retirement) Act 1979 - Meaning of "with effect on and from" in s.7 of Commonwealth Functions (Statutes Review) Act.
Conciliation and Arbitration Act 1904 - ss. 4, 110, 118A
Conciliation and Arbitration Amendment Act (No. 2) 1983 - ss. 40, 43(2)(a)
Commonwealth Employees (Redeployment and Retirement) Act 1979
Commonwealth Functions (Statutes Review) Act 1981
Public Service Arbitration Act 1920
Canberra Commercial Development Authority Ordinance 1974
Federal Court of Australia Act 1976 - ss. 21, 32(1)
Public Service Act (Cth), 1922
Green v Philippine Consulate-General 1971 V.R. 12
Royal Australian Nursing Federation, Tasmanian Branch v Fawdry Full Court, Federal Court of Australia, 8 October 1986 (unreported)
HEARING
SYDNEY
#DATE 7:11:1986
ORDER
The Application be dismissed.
There be no order as to costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
JUDGE1
Questions having been raised by the Administrative and Clerical Officers' Association, Australian Government Employment, (the organisation) an organisation of employees registered under the Conciliation and Arbitration Act 1904 (the Act) and certain of its members on the one hand and such members' employer, the Canberra Commercial Development Authority (the Authority), on the other, regarding alleged agreements in respect of redundancy payments and arrangements said to have been offered to and accepted by those members on ceasing to be employed by the Authority, the organisation and the second named applicant, Harold Hird, a member of the organisation, made application to the Court seeking the following declarations:
A declaration that employees of the First Respondent are
entitled to redundancy payments and arrangements offered by the First Respondent which have been accepted by employees of the First Respondent and accepted by the Applicant, pursuant to the provisions of Determination No. 509 of 1977.
A declaration that the First Respondent is entitled to make
an offer of redundancy payments and arrangements to its employees such payments and arrangements being in terms agreed upon by the First Respondent, employees of the First Respondent and the first named Applicant.
A declaration that the Second, Third and Fourth Respondents
are not entitled or empowered to make any offers in relation to redundancy to employees of the First Respondent either in exercise of their powers and/or in accordance with the provisions of the Commonwealth Employees (Redeployment and Retirement) Act Award, 1985.
In the alternative, an order restraining the Second, Third
and Fourth Respondents from making offers of redundancy arrangements and payments to employees of the First Respondent.
A declaration that the First Respondent continues to exist as
a body corporate and that the Notice published in the Gazette dated 27 February 1986 purporting to fix the date on which the First Respondent is to cease to exist, is null and void and of no effect.
The original application named only the first, second, third and fourth respondents as respondents to the application. Subsequently, the Court ordered that the Hon. Gordon Glen Denton Scholes, the then Minister of State for Territories be joined as a party respondent to the proceedings.
Any determination of the questions raised in the application involved a possible issue whether those members employed by the Authority were at all relevant times entitled to the benefits of a Determination under the Public Service Arbitration Act 1920 being Determination No. 509/1977 (reported at (1977) 67 C.P.S.A.R. 113) (the Determination). Pursuant to s.40 of the Conciliation and Arbitration Amendment Act (No. 2) 1983, the Public Service Arbitration Acts referred to therein were repealed. By s.43(2)(a) it was provided that, "notwithstanding the repeal of the previous law by (the said amending) Act, a Determination in force under the previous law immediately before the prescribed date continues in effect" as if it were an Award made under Division 1A of Part 3 of the Act. Thus, the defined meaning of "Award" in the Act was extended. Section 14 of the amending Act inserted a new Division, namely Division 1A entitled "Industrial Matters - Commonwealth and Territory Employees" into the Act. The "prescribed date" referred to above was 1 June 1984. Accordingly the said Determination is deemed to be an Award within the meaning of the Act on and from 1 June 1984.
Further, it was clear that a determination of the present application may involve an interpretation of the said Determination pursuant to s.110 of the Act, whereby "the Court is empowered to give an interpretation of an Award". The Court referred to in s.110 of the Act means the Federal Court of Australia in its Industrial Division (see s.118A of the Act). It was agreed by the parties that there was no dispute that the Court had jurisdiction to make the said declarations sought in the application herein, such jurisdiction being founded on s.110 of the Act read together with s.32(1) and/or s.21 of the Federal Court of Australia Act 1976.
The Court being satisfied that in all the circumstances it had jurisdiction to hear the application as filed called the matter on for hearing when Mr Farmer of Queens Counsel with Mr W.R. Haylen, appeared for the applicants; Mr Brian Sully of Queens Counsel with Mrs Bonsey appeared for the second, third, fourth and fifth respondents; whilst Mr Pead who was indisputably the Chairman of the Authority up until 26 February 1986 indicated that he was before the Court. No formal appearance had been filed in the Court for or by the first respondent. No Counsel sought leave to appear for that respondent as amicus curiae. (cf Green v. Philippine Consulate-General 1971 VR 12; Royal Australian Nursing Federation, Tasmanian Branch v. Fawdry No. T3 of 1986 - Full Court, Federal Court of Australia, (Evatt, Northrop and Gray JJ) - 8 October 1986 (not yet reported)).
The Authority was established by s.3 of the Canberra Commercial Development Authority Ordinance 1974 (the Ordinance). It was established as a body corporate with the power to sue and to be sued in its corporate name, (sub-section 3(2)). Section 4 makes provision for the membership of the Authority and provides for a Chairman and not less than four or more than six other members. Section 13 states that where there are seven members, four constitute a quorum, one of whom had to be the Chairman or Deputy Chairman. There is no dispute that at all relevant times there were seven members of the Authority. Under sub-section 13(7) questions determined by the Authority were by majority of votes of members present. In Part III, s.14 are set out the functions of the Authority. They include: "to construct and conduct a shopping centre in the district of Belconnen". Section 17 makes provision for the Authority to employ such persons as it thought necessary for the purpose of the Ordinance, sub-section (2) thereof making provision that the terms and conditions of employment be as determined by the Authority with the approval of the Public Service Board. By letter dated 22 July 1981 to the Authority the Public Service Board approved certain terms and conditions of employment for the staff of the Authority as set out in an attached document to that letter. By letter dated 1 June 1983 the Public Service Board, in response to a letter from the Authority dated 25 February 1983 advised the Authority that a document, tendered before the Court, entitled "General Outline for Staff" was designed to be an adjunct to the formal code of conditions of employment for the employees of the Authority which had been attached to the Board's letter of 22 July 1981. The Board's letter of 1 June 1983 went on to say:
It was not intended that the 'hand-out' document require formal Public Service Board approval under sub-section 17(2) of the Ordinance. It was, and still is, expected, however, that the Board's Office be given an opportunity to comment on any changes to it which are contemplated by the Authority.
The second, third and fourth respondents were, at all relevant times, members of the Public Service Board constituted pursuant to the provisions of the Public Service Act, (Commonwealth) 1922.
The first named applicant and the first respondent, and the second, third and fourth respondents as the Public Service Board, are parties to and bound by the provisions of Determination No. 509 of 1977, a Determination made by the then Public Service Arbitrator. That Determination makes provision for certain redundancy payments and arrangements for Public Service employees employed in certain Departments and by certain Authorities including the Authority.
By s.7 of the Commonwealth Functions (Statutes Review) Act 1981 (Act No. 71/1981) (the Commonwealth Functions Act) assented to on 18 June 1981 - Part II headed "Australian Capital Territory, Division 3 - Canberra Commercial Development Authority" the Authority shall, if so directed by the Minister for the Capital Territory, enter into an agreement with a person designated by the Minister for the sale of such rights, property or assets of the Authority as are referred to in the agreement. The said Division 3 of Part II of that Act was proclaimed in Government Gazette S148 dated 22 July 1981 to come into operation on 24 July 1981.
Pursuant to a direction by the said Minister the Authority on 17 December 1985 entered into a written agreement between the Authority, as seller of the first part, the Commonwealth of Australia of the second part and Superannuation Fund Investment Trust and P.T. Limited jointly and severally as the buyer of the third part for the sale of the leases consisting of the Belconnen Mall and adjoining land and certain other goods.
Clause 5 of that agreement reads:
Completion shall be effected not later than 1 April 1986 and in this respect time shall be of the essence of the Agreement. At completion the balance of the purchase price shall be paid by the Buyer by a cheque drawn on the account of a Bank which is acceptable to the Seller, and shall be paid to the Seller or to such other person on behalf of the Seller as the Seller directs in writing. Any interest which may have accrued on the deposit shall belong to the Buyer.
Clauses 6 and following make provision that the buyer, on completion, be entitled to the grant of a crown lease of certain land from the Commonwealth together with the delivery from the seller of nominated documents including Certificates of Title.
Prior to 25 February 1986, the organisation and the Authority had, purportedly pursuant to the provisions of the Determination, entered into negotiations in respect of redundancy payments and arrangements which were to apply to employees of the Authority who were made redundant as a result of the proposed sale of the Belconnen Mall. During the morning of 25 February 1986 at a meeting of the Authority discussions took place between the members of the Authority (a quorum then having been constituted) concerning such redundancy payments and arrangements. During the afternoon session of that meeting (when two members who had attended the morning were absent) it was clear that two other members of the Authority, namely Messrs Hedley and Mathews, wished that the matter be deferred until the two representatives of the Public Service Board who had addressed the meeting during that session had received the legal advice sought by them from the Australian Government Solicitor in relation to whether such redundancy payments and arrangements should be ascertained under the provisions of the Determination or the provisions of the Commonwealth Employees (Redeployment and Retirement) Act 1979 (the CE(RR) Act). The meeting had been informed that such advice was then expected to be received within a few days. The minutes in respect of this meeting, called the 123rd meeting of the Authority, were tendered. They do not completely accord with the oral evidence given by Mr Hedley and Mr Pead in all respects but the Court is of the view that it was decided at that meeting that the Authority would leave open a final decision as to the making of any detailed offer from the Authority, as employer, to the organisation and its employees re redundancy payments and arrangements until 9.30am on 28 February 1986. The relevant minutes of this meeting are set out in a letter from Mr Pead as Chairman of the Authority to the Secretary of the organisation dated 6 March 1986 which letter is set out in full later herein, but it should be noted that Mr Hedley disputes the accuracy of such minutes. Also there is an issue whether the two members who were absent during the afternoon session could cast a valid vote per telephone as such minutes seem to suggest.
It is agreed between all parties that no meeting of the Authority was held thereafter until the purported meeting of 5 March 1986 referred to later herein.
Further, it is clear that no formal relevant offers were made by the Authority to its employees being members of the organisation or to the organisation before 6 March 1986.
On 27 February 1986 the Minister of State for Territories, the fifth named respondent by notice published in Government Gazette S77 of 27 February 1986 advised as follows:
COMMONWEALTH OF AUSTRALIA
Commonwealth Functions (Statutes Review) Act 1981
WHEREAS the Canberra Commercial Development Authority ("the Authority") did on the 17th day of December 1985 enter into an agreement for the sale of the rights property and assets of the Authority referred to in that agreement, pursuant to section 7 of the above Act.
And whereas it appears to me to be appropriate to fix a day on which the Authority is to cease to exist.
I, GORDON GLEN DENTON SCHOLES, Minister of State for Territories, pursuant to the provision made in section 13 of the above Act do hereby fix the 27th day of February 1986 as the day on which the Authority is to cease to exist.
Dated the 27th day of February 1986.
G. SCHOLES Minister of State for Territories
Section 13 of the Commonwealth Functions Act provides that:
Consequences of Agreement
13. If the Authority enters into an agreement in accordance with section 7, the Minister shall, as soon after the day referred to in that section as it appears to him to be appropriate to do so, by notice published in the Gazette, fix a day on which the Authority is to cease to exist. (Emphasis added).
Other relevant sections of the Commonwealth Functions Act are:
Interpretation
5. In this Division -
"Authority" means the Canberra Commercial Development Authority established under the Ordinance; "commencing day" means the day fixed under section 13; "Minister" means the Minister for the Capital Territory; "Ordinance" means the Canberra Commercial Development Authority Ordinance 1974 of the Australian Capital Territory as amended and in force for the time being; "purchaser" means a person who enters into an agreement with the Authority under section 7.
Power of Authority to enter into agreement
7. (1) The Authority shall, if so directed by the Minister, enter into an agreement with a person designated by the Minister for the sale to that person, on terms and conditions specified by the Minister, of such rights, property or assets of the Authority as are referred to in the agreement, with effect on and from the commencement of a day specified in, or ascertained in accordance with, the agreement. (Emphasis added).
(2) ...
Power of Minister to give directions to Authority
8. (1) For the purpose of facilitating the sale of the rights, property or assets of the Authority and winding up the affairs of the Authority, the Minister may give directions to the Authority in respect of the performance of its functions and duties, and the exercise of its powers, under this Division and under the Ordinance, and the Authority shall comply with any such directions.
(2) ...
Sale by transfer of assets of Authority to company
9. (1) An agreement entered into in accordance with section 7 may make provision for the sale to which the agreement relates to be carried into effect in accordance with this section and, in that case, the following provisions of this section have effect.
(2) The Authority shall -
(a) form, together with such person or persons as the Minister nominates, an incorporated company in the Australian Capital Territory under a name approved by the Minister, being a company having such directors as the Minister nominates and having a share capital all the shares in which are beneficially owned by the Authority; and
(b) on the day referred to in the agreement in accordance with sub-section 7(1), upon receipt of the consideration specified in the agreement -
(i) transfer to the company such of the rights, property or assets of the Authority as are required by the agreement to be acquired by the purchaser; and
(ii) cause the shares in the company to be transferred to the purchaser or to a person or persons nominated by the purchaser.
(3) ...
Sale by direct transfer of assets
10. (1) An agreement entered into in accordance with section 7 may make provision for the sale to which the agreement relates to be carried into effect in accordance with this section and, in that case, the following provisions of this section have effect.
(2) The Authority shall, on the day referred to in the agreement in accordance with sub-section 7(1), upon receipt of the consideration specified in the agreement, transfer to the purchaser such of the rights, property or assets of the Authority as are required by the agreement to be acquired by the purchaser.
(3) ...
Winding up of Authority
14. (1) Upon the commencing day -
(a) the Canberra Commercial Development Authority Ordinance 1974 and the Canberra Commercial Development Authority Amendment Ordinance 1977 of the Australian Capital Territory are repealed;
(b) any rights, property or assets that, immediately before that day, were vested in the Authority vest on that day, by force of this sub-section, in the Commonwealth; and
(c) the Commonwealth becomes, by force of this sub-section, liable to pay or discharge any debts, liabilities or obligations of the Authority that existed immediately before that day.
(2) Any contract to which the Authority was a party immediately before the commencing day has effect on and after that day as if -
(a) the Commonwealth were substituted for the Authority as a party to the contract; and
(b) any reference in the contract to the Authority were (except in relation to matters that occurred before that time) a reference to the Commonwealth.
(3) ...
15. On and after the commencing day, any functions, duties or powers under the Commonwealth Employees (Redeployment and Retirement) Act 1979 that would, if the Authority had not ceased to exist, be required to be performed or be permitted to be exercised by the Authority shall be performed or may be exercised, as the case may be, by the Secretary to the Department of the Capital Territory.
By letters dated 27 February 1986 the Secretary, Department of Territories wrote to various members of the organisation who had been employed by the Authority, including the second named Applicant, Mr Hird. Relevant paragraphs of Mr Hird's letter read:
Dear Mr Hird
I am writing to inform you of decisions taken by the Government on the future of the Canberra Commercial Development Authority. As you will see from the attached press statement, the Minister for Territories has abolished the Authority.
I want to assure you that this action in no way affects your immediate employment. As outlined in the Minister's press statement, the Belconnen Mall will continue to operate under the interim control of the Department of Territories. Your job, salary and other conditions will continue as normal but you will be an employee of the Commonwealth pending the further decisions to be taken in accordance with the redundancy processes already in train and the final arrangements to be made for the new owners to formally commence operating the Mall.
Thereafter on 5 March 1986, Mr Pead as Chairman of the Authority called a special meeting of the Authority, which, according to purported minutes of that meeting, was nominated to be the 124th meeting of the Authority. In his oral evidence he conceded that in calling this purported meeting he did not follow his usual practice of sending out a notice of meeting to all members with an agenda attaching the minutes of the prior meeting and any appropriate papers. For this meeting he simply gave notice by telephone to four other members, namely Messrs Elsworth, Griffiths, Clements and Ms O'Clery. He conceded that he deliberately refrained from notifying the two members representing the Government and the Public Service Board, Mr Hedley and Mr Mathews of the proposed meeting. As Mr Elsworth was not able to attend the meeting there were but the said four members, including the Chairman, who in fact met that day.
The second, third, fourth and fifth respondent challenge the validity of this meeting on the grounds that the Authority by then had ceased to exist; that the meeting was invalidly called, and that the two abovementioned members had not been given any notice at all of the calling of the meeting. The so-called minutes of that meeting were tendered. Included therein is the following so-called resolution:
It was resolved that the resolution of the Authority at its meeting held on 25 February 1986, relating to the Authority role as the third party with the staff and unions to Determination No. 509 of 1977 be conveyed to the National Secretary of the Administrative and Clerical Officers' Association.
Chronologically the next relevant step appears to be a letter dated 6 March 1986 stated to be from the Chairman of the Authority to the then National Secretary of the organisation at its office at 245 Castlereagh Street, Sydney. That letter is a lengthy one but, in the Court's view, should be set out in full.
Dear Mr Munro
We refer to your letter of 24 February 1986 in which you sought the agreement of the Canberra Commercial Development Authority as a prescribed Authority under the Commonwealth Employees (Redeployment and Retirement) Act 1979, and as a respondent to Determination No. 509 of 1977, to the additional benefits staff are entitled to under that Determination.
At a meeting of the Authority held on 25 February 1986, the Authority, as the third party with the staff and unions, to Determination No. 509 of 1977, passed the resolution contained in the following extract of the minutes of the meeting.
"A document setting out suggested redeployment and termination options as proposed by Public Service Board on basis of CE (RR) Act Award 1985 was discussed together with letter of 24 February 1986 ex A.C.O.A. to the Chairman requesting C.C.D.A. agreement to a settlement package under clause 17 of Arbitration Determination 509 of 1977.
Legal opinion ex Pamela Coward and Associates confirming that Determination 509 of 1977 was the appropriate arbitral Determination under which any redundancy package should be negotiated by the C.C.D.A. was also tabled together with extracts of relevant Ordinance Acts, Awards and Determination for the information of members. Messrs Wedgewood and Pearce of A.C.O.A. were then invited to address the meeting and provided members with a copy of counsel's opinion supporting that provided by Pamela Coward and Associates. The A.C.O.A. representatives outlined the basis of their proposed package and quoted from relevant precedents in support thereof.
On the motion put by Mr D.L. Elsworth and seconded by J.M. Clements it was agreed that -
(1) on the basis of letters of the Public Service Board dated 22 July 1981 and 1 June 1983, advice given to staff pursuant to those letters and of professional advice received and tabled, the Authority is the relevant third party to discuss and agree with staff and unions the terms of severance from the Authority under Determination No. 509 of 1977.
It was resolved -
(2) that the three options be offered to staff under Clause 17 of Determination 509 of 1977 be as follows:-
1. redeployment to an appropriate position within the Australian Public Service;
2. acceptance of suitable employment with the income maintenance provisions in Determination No. 509 of 1977 to apply; and
3. a termination payment of full entitlements under Clauses 9 and 11 of Determination 509 of 1977 as a once only lump sum, calculated on the following basis:
(a) terms of employment as agreed between the Authority and the Public Service Board in 1981, confirmed in 1983.
(b) the salary for purposes of this entitlement to include industry and other allowances, except for provision of motor vehicles.
(c) the lump sum to also include payment for -
. accrued long service leave to the end of the period including pro-rata entitlement where service is less than 10 years; and
. accrued recreation leave calculated to the end of the period plus applicable leave loading.
At the request of members Hedley and Mathews representatives of the Public Service Board were invited to address the meeting and following a brief adjournment the meeting recommended (sic) at 1.30pm for this purpose. Messrs Cadd and Linton of the Public Service Board advised that they were seeking legal advice from the Australian Government Solicitor in respect to the appropriate arbitral Determination under which redundancy terms of C.C.D.A. staff should be determined and suggested that as they had, to date, had carriage of the redundancy negotiations it was appropriate that they should continue in this role. It was expected that the legal opinion should be available within two days.
To enable receipt of the Public Service Board's legal opinion which the P.S.B. agreed to make available to the Authority there was a further resolution in respect to wihholding of notice to A.C.O.A. and employees until 9.30am, Friday 28 February 1986.
The votes of members D. Griffiths and K. O'Clery who did not attend after the luncheon adjournment were registered in favour of the resolution at the conclusion of telephone conversation during which they were appraised (sic) of the position as presented by the Public Service Board.
Messrs A.R. Hedley and W.E.C. Mathews abstained from voting on the above motions.
As a result of the discussions with the P.S.B. and A.C.O.A. representatives it was resolved that Declarations of Eligibility for Redeployment be issued to all C.C.D.A. staff members as soon as possible and no later than 28 February 1986".
Enclosed for your information is copy of a letter dated 6 March 1986 to the Minister for Territories, which has also been sent to the Prime Minister and the Attorney-General.
A legal opinion from W.P. EcElhone and Company of 4 March 1986, together with the Commonwealth Functions (Statutes Review) Act 1981, and Gazettal Notice No. S77 of Thursday, 27 February 1986, is also enclosed.
The transmittal of this letter and the attachments is endorsed by Board Members, J.H. Pead, D.L. Elsworth, J.M. Clements, K. O'Clery and D.J. Griffiths.
Yours sincerely
(J.H. PEAD)
The then National Secretary by telex dated 10 March 1986 advised the Chairman of the Authority as follows:
I refer to your letter of 6 March 1986. The redundancy offer contained there is, as previously verbally advised, acceptable to ACOA. In accordance with the provisions of Determination No 509 of 1977, could you please convey this offer to members involved.
This telex was copied to the fifth respondent.
In addition there was evidence that the second applicant and other members of the organisation purported to accept an offer of the Chairman of the Authority set out in his letter to them of 12 March 1986. Letters from members accepting the lump sum option therein referred to by those members are identical and read,
Dear Mr Pead
I refer to your letter of 12 March 1986. I hereby accept the lump sum option provided by the decision of the Board of the Canberra Commercial Development Authority in accordance with Determination 509/1977.
I request payment of that amount at the earliest possible opportunity.
Yours sincerely"
In the case of Mr Hird, the second applicant, his letter to Mr Pead is dated 21 March 1986.
It was contended by Mr Sully representing the respondents other than the first respondent that the fifth respondent's action pursuant to s.13 of the Commonwealth Functions Act fixing 27 February 1986 as the day on which the Authority was to cease to exist was a valid exercise of the Minister's powers under that Act. Accordingly, it was submitted that immediately on the expiration of 26 February 1986 the Authority ceased to exist and that any purported steps taken after that date by the Authority or by Mr Pead as Chairman of the Authority were null and void and of no effect.
Whether the said notice published in the Gazette of 27 February 1986 was a valid notice depends, in my view, upon the proper construction of both s.13 and s.7 of the Commonwealth Functions Act.
Mr Farmer for the applicants contended that the phrase "after the day referred to in that section" in s.13 must, on the proper construction of s.7, refer to the date when the sale of the subject property was effected; that is, when the agreement was completed. The evidence is that completion, within the meaning of the subject agreement was in fact effected on 26 March 1986, that being the date when the consideration specified in the agreement was received from the purchasers by the Commonwealth either in the hands of the Authority or otherwise and when the necessary duly executed transfers of title to lands and leases were handed over to the purchasers.
The applicants argue that Cl. 5 of the agreement having provided for the sale of the subject property to be completed "on or before 1 April 1986" then the words "the day referred to in that section" as appearing in s.13 can only mean the day referred to in s.7(1), which said day, on the proper construction of s.7(1), was to be the date of completion of the agreement. That date was "ascertainable in accordance with the agreement". As stated earlier, that date in fact was 26 March 1986. This, so it was argued, results from the wording of s.7(1). There the words "with effect on and from the commencement of a date specified in or ascertained in accordance with the agreement" must, it was submitted, in the circumstances of the present case mean not the date of the agreement for sale but the date when settlement was in fact effected. That is, the words "with effect on and from" refer to the words, "the sale to that person" and not to the words" "an agreement with a person" in that sub-section. It was contended by the applicants that the wording of ss. 9(2)(b) and 10(2) of the Commonwealth Functions Act supported such a construction.
On the other hand Mr Sully argued that Division 3 of the Commonwealth Functions Act provided in effect four alternative methods by which a sale of property might be effected under the direction of the Minister.
The first of such methods was that provided by s.7 standing alone. The words, "with effect on and from the commencement of a day", he argued, refer back to the "agreement" earlier mentioned in the sub-section so that it was the agreement which was to have effect on and from a particular day. Further, it was submitted that it was competent for the Minister to direct a sale on terms and conditions prescribed by him, but depending otherwise for its effect upon the general law, unaffected by ss. 8, 9 or 10 of the Commonwealth Functions Act.
The second of the suggested four methods was one which contemplates a combination of s.7(1) and s.8 particularly sub-section (1) of that section. That is to say that it would have been competent for the Minister to direct the sale in reliance of his powers under s.7 and to append to that direction further directions of the kind contemplated by s.8. Here again such an approach, so it was argued, would not have necessarily involved ss. 9 and 10 at all, those sections being concerned with the third and fourth means respectively.
The third method was one combining the operation of a sale by Ministerial direction under s.7(1) and s.8 coupled with a particular term, inserted into the agreement at the direction of the Minister, that s.9 was to have effect. In such a case, the term would simply be included in the agreement as follows:
"Section 9 of the Commonwealth Functions (Statutes Review) Act 1981 shall apply for the purpose of and to this agreement".
In such a case the machinery steps provided for in sub-sections (2), (3) and (4) of s.9 would take effect and without the need for any express provisions. Similarly under the fourth method suggested in this submission. In that case, the Minister's directions to sell would be under s.7(1), s.8 and s.10, the method operating as in the suggested third method in relation to s.9.
The argument is developed that Division 3 provides a self-contained code offering the Minister that degree of flexibility accepted by such a statutory scheme. It is a degree of flexibility that enables the Minister either to fall back in part at least on the general law to govern the effect of the agreement or to graft on to what would otherwise be provisions of the general law, the particular provisions of s.9 or the particular provisions of s.10 or such other particular provisions as the Minister might think expedient under the general power of prescription given to him by s.8.
Mr Sully submitted that it was clear that in the present case, neither s.9 nor s.10 applied and it was the second of the four methods that had been used; that is, the Minister left the general law to govern the operation of the agreement subject only to his having prescribed a number of particular terms and conditions set out in the 48 pages of the agreement. Those prescribed terms and conditions do not make any specific reference to a particular date on and from which the agreement shall take effect nor do they assist in ascertaining such a date. Consequently, so it was argued, the operation and interpretation and construction of the subject agreement for sale is governed by the general law and the date upon which the agreement took effect was also governed by that general law.
The principles applicable under ordinary contract law in respect of an uncompleted sale of land are those set out in Voumards work, "The Sale of Land", 3rd Edition at p 92. In s.1 of Chapter IV headed, "The Effect of the Contract", the Chapter itself being entitled, "Position of the Parties under an Uncompleted Contract", the learned authors state:
Upon the signing of a valid and specifically enforceable contract for the sale of land the vendor becomes in equity (and so long as the contract is specifically enforceable he continues to be) a trustee of the land for the purchaser, and the beneficial ownership passes to the latter subject to his paying the purchase money. The vendor is, however, until the whole of the purchase money is paid, a trustee in a qualified sense only, for until that time he has still a substantial interest in the property - a lien on the property as security for the payment of the purchase money, the right to retain possession (unless the contract otherwise provides) until payment in full of the purchase money, and an active right to protect his interest if anything should be done to endanger it.
The propositions by the learned authors are advanced and supported by authority which is cited.
Clearly, parties entering into a written agreement for the sale of land may agree upon a day on which that agreement will take effect and may in those circumstances express that particular agreement as a term of the agreement itself. But where such an agreement does not expressly or by necessary implication nominate such a day, then there is a well recognised and well entrenched principle of the general law of contract that such an agreement takes effect on and from the date of the agreement. Here, there is no express date set out in the agreement itself stating when the agreement was to take effect. Nor are there any terms within the agreement from which such a date might be ascertained. Accordingly, it was submitted, that, on principle, the subject agreement took effect on and from the date of the agreement, namely 17 December 1985. It follows therefore that, "the day referred to in that section" within the meaning of that phrase in s.13 of the Commonwealth Functions Act is 17 December 1985. Thereafter, it became competent for the Minister to publish in the Government Gazette a notice fixing the date upon which the Authority was to cease to exist.
Approached in this fashion ss. 14 and 15 of the Act have work to do in the general scheme of Division 3. Pursuant to s.14, on and after 27 February 1986, the Commonwealth became by force of that section liable to discharge any liabilities or obligations of the Authority that existed immediately before that date and any contract to which the Authority was a party immediately before that date has effect on and after that date as though the Commonwealth was substituted for the Authority in the contract.
The Court is of the view that Mr Sully's submissions as to the proper construction of s.7(1) and s.13 are to be preferred and should be upheld. Additionally, the Court draws attention to the use by the draftsman of the expression "may make provision for the sale ... to be carried into effect" in both s.9(1) and s.10(1) of the Commonwealth Functions Act. It is clear from those words that what is to become effective is the sale to which the agreement relates. This expression is to be contrasted with the wording of s.7(1) where, in my view, it is clear that the draftsman is speaking of the agreement taking effect on and from a particular date.
Accordingly the Court is of the view that on and from 27 February 1986 the Authority ceased to exist. As no formal offer had been made by the Authority prior to that date to its employees purporting to be an offer pursuant to the Determination herein, then the Court is firmly of the view that the Declarations sought in the applicants' application herein should be refused.
It becomes unnecessary therefore to make any definitive determination as to the further submissions put by the respondents (other than the Authority), should the Court be against their primary submission as detailed above. These further submissions were:
(a) No valid resolution of the Authority was adopted at its
meeting of 25 February 1986 that relevant offers be made by the Authority pursuant to the Determination to the organisation and its members. Nor was there any such resolution at any valid meeting of the Authority thereafter, the purported meeting of 5 March 1986 being clearly invalid.
(b) that the CE(RR) Act provides a very extensive and complicated
code for redeployment of members of the Commonwealth Public Service in the extended sense given by the definitions set out in that Act and thereafter eventually for the retrenchment of such people. Retrenchment as an end result in terms of the CE(RR) Act is itself divisible into voluntary retirement or compulsory retirement. In so far as it concerns compulsory retirement the Act itself provides an undoubted power to terminate the employment of a member of the Public Service in the extended defined sense; that is to say not only is the machinery by which it is to be done provided for but the actual fundamental power to terminate is given. On the other hand the Determination, so it was submitted, does not contain any such power to terminate at all. The Determination was designed to achieve something quite different. It is designed to provide machinery which will ameliorate, in the case of particular employees who are to be retrenched, the practical effects of their being retrenched. But the Determination itself does not contain and, as a matter of law could not contain, the power to terminate.
That being so, there is no inconsistency between the provisions of the CE(RR) Act itself in regard to actual termination of employment and the provisions of the Determination (see s.24(3) of the CE(RR) Act). Accordingly, there is nothing in the Determination which can be made paramount by virtue of the operation of s.24(3) of the CE(RR) Act to the scheme otherwise provided for in and by that Act. That being so, the CE(RR) Act takes effect according to its tenor, not being overridden by the provisions of any inconsistent term in Determination 509 of 1977.
(c) This submission deals with the validity of Cl. 17 of the
Determination which reads:
SUBSTITUTION OF OTHER PROVISIONS
17. By agreement between the association concerned, the officer or employee concerned and the Public Service Board, provisions may be applied to such officer or employee in addition to or in substitution for any or all of the provisions prescribed by this determination.
It was submitted that until the amendments made by the Conciliation and Arbitration Amendment Act (No. 2) 1983 which abolished the Public Service Arbitration Act and the Public Service Arbitrator, there was a Public Service Arbitrator especially constituted under the Public Service Arbitration Act who had very specific powers and functions. The scheme of the powers conferred by s.12 of the Public Service Arbitration Act necessarily needs to be understood by reference to s.14 of that Act. Section 14 sets out a scheme of ancillary powers conferred upon the Arbitrator including, amongst others, the power to vary any Determination or reopen any question; to allow amendments and generally to give all such directions and do all such things as the Arbitrator deems necessary or expedient in the premises. It was submitted by Mr Sully that the scheme of the Public Service Arbitration Act did not comprehend the situation where the Public Service Arbitrator's power of determination was abdicated by providing under the guise of an Award such things without reference to him as he had otherwise determined and which might be altered by agreement between the parties. It was argued by Mr Sully that the scheme of ss. 12 and 14 was a scheme which required issues to be formulated, brought to the Arbitrator and determined by him. If there was to be a variation of a Determination the scheme contemplates an application for which there is express provision made and that application would be for a variation of the Award and for a formal determination by the Arbitrator. Clause 17 of the Determination herein did not, so it was argued, meet the criteria established by ss.12 and 14 and accordingly such clause was not within the power of the Arbitrator to make and could not be relied upon by the applicants.
(d) Mr Sully's final submission was that the arrangements which
were placed in hand by the Authority and the organisation and its members and which are the subject of the present application were not arrangements that arise as a term of the Determination at all. There is nothing in the Determination that supports the package which was said to be concluded between the Authority and the organisation and its members. Once again it was submitted that there was nothing which, by virtue of s. 24(3) of the CE(RR) Act, can override the scheme otherwise established by that Act as the scheme to be followed in the redeployment and eventually the compulsory retirement of members of the Commonwealth Public Service in the extended sense.
The Court is of the view that each of these additional submissions have substance and need to be carefully considered before making any final determination thereon. Indeed, very little (if anything, in some cases) was put to the Court in rebuttal thereof. It is to be remembered there were no formal pleadings in the proceedings and the Court had the clear impression that the applicants' Counsel heard Mr Sully's arguments in regard to these submissions for the first time when they were put by him to the Court. But, as stated above, it is not necessary for the Court to make definitive findings thereon, the Court being satisfied for reasons already stated that the applicants are not entitled to any of the declarations as sought.
In all the circumstances the Court is of the view that the application herein should be dismissed. Section 197A of the Conciliation and Arbitration Act applies and accordingly there shall be no order as to costs.
0
0
0