Australian Telecommunications Commission v Hart

[1982] FCA 197

Re: THE AUSTRALIAN TELECOMMUNICATIONS COMMISSION
And: JAMES ALEXANDER HART (1982) 65 FLR 41
VG No. 7 of 1982
Telecommunications Act 1975 - Administrative Law - Master and Servant

COURT

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
Fox(1), Northrop(2) and Sheppard(3) JJ.

CATCHWORDS

Telecommunications Act 1975 - Judicial Review of decision of Disciplinary Appeal Board - Power of Telecom to direct certain dress not be worn by officer - Power under Contract - Whether need for express statutory power - Application of Convention No. 111 of 1958 International Labour Conference - Whether Sexual Discrimination.

Administrative Decisions (Judicial Review) Act 1977 s.5

Telecommunications Act 1975 ss.6, 57, 58, 63

Administrative Law - Statutory corporation - Officer - Employer and employee - Contract of employment - Terms - Direction to officer - Failure to fulfil duty - Offence - Authority to give direction - Validity of direction - Telecommunications Act 1975 (Cth), ss. 43, 57, 58(1), 111(1)(g).

Master and Servant - Statutory corporation - Officer - Contract of employment - Terms - Power of corporation to determine terms and conditions of employee's office - No relevant determination - Authority to give directions to officer - Whether direction authorized at common law - Validity of direction - Telecommunications Act 1975 (Cth), ss. 43, 57, 58(1), 111(1)(g).

HEADNOTE

Section 57 of the Telecommunications Act 1975 creates an offence of failure of an officer to fulfil his duty as an officer and s. 58(1) provides that an officer shall be taken to have failed to fulfil his duty as an officer if and only if "he wilfully disobeys or wilfully disregards a direction given to him as an officer and given by a person having authority to give the direction".

The respondent, an officer of the appellant Commission, was directed by a superior officer that the practice of wearing a caftan during working hours was not acceptable and directed him to maintain a standard of dress generally acceptable in the community and in Telecom in future as expected of an officer of Telecom in the respondent's position. The respondent subsequently wore a caftan.

Section 43(1) of the Telecommunications Act 1975 provides that officers and employees hold office on such respective terms and conditions as the Commission determines and s. 111(1)(g) empowers the Commission to make by-laws making provision for or with respect to such terms and conditions. There was no evidence before the primary judge of any such determination by by-laws with respect to the mode or form of attire to be worn by officers of the Commission.

Held: (1) Per Fox and Sheppard JJ. - The employment of the respondent was governed by both the common law and statute.

Per Northrop J. - Under s. 43 of the Act, the terms and conditions of the contract between the Commission as employer and the respondent as an officer of the Commission, are those determined by the Commission, or if relevant, the terms and conditions contained in any award of the Conciliation and Arbitration Commission binding upon the Commission and the respondent.

Keeley v. Victoria (1964) VR 344, applied.
(2) Per Fox and Sheppard JJ. (Northrop J. dissenting) - In the absence of a legislative source of power which mandates or prohibits the conduct the subject of a direction referred to in s. 58(1)(a), the only available source of power for the direction was the common law.
(3) The direction authorized by the common law imposed a correlative duty to obey as the direction fell within the scope of the contract of service and was reasonable.

R. v. Darling Island Stevedoring and Lighterage Company Ltd; Ex parte Halliday (1938) 60 CLR 601, applied.
(4) The requirement prescribed by s. 58(1)(a) that the direction be "given by a person having authority to give the direction" was satisfied as the direction made to the respondent was a direction which, under the common law or statute, could be given by an employer to an employee.

Per Northrop J. - The by-laws made no provisions with respect to the mode or form of attire to be worn by officers in the service while performing their duties nor was there evidence of a power being delegated to any officer in the service to give directions with respect to such matter. The person who gave the direction to the respondent had no authority to do so and the direction was invalid.

HEARING

Melbourne, 1982, June 22-23; September 27. #DATE 27:9:1982

Appeal from the judgment of the Federal Court of Australia constituted by a single judge given in an application made under the Administrative Decisions (Judicial Review) Act 1977.

The facts appear from the judgment of Fox J.

M.E.J. Black Q.C. and P. Buchanan, for the appellant.

S.G. Langslow, for the respondent.

Cur. adv. vult.

Solicitor for the appellant: B.J. O'Donovan, Commonwealth Crown Solicitor.

Solicitors for the respondent: Bernadou & Knight.

H.W. FRASER

ORDER

1. The appeal be allowed with costs.

2. The cross-appeal be dismissed with costs.

3. The order and declaration of the judge below be set aside and in lieu thereof the application be dismissed with costs. Appeal allowed with costs.

Cross appeal dismissed with costs.

Order and declaration of judge set aside and in lieu thereof application dismissed with costs.

JUDGE1

This is an appeal from a decision of a single judge of this Court (Smithers J.) given under the Administrative Decisions (Judicial Review) Act 1977 ("the Judicial Review Act"), in which he quashed a decision of the Disciplinary Appeal Board constituted under s.63 of the Telecommunications Act 1975 ("the Act"). The appellant is the Australian Telecommunications Commission, hereafter referred to as Telecom, and the respondent, who succeeded below, was and is anofficer of Telecom.

The respondent had on a number of occasions been directed by a superior officer not to wear to work a caftan, which is described in the Shorter Oxford English Dictionary as "an oriental garment consisting of a long under-tunic tied at the waist with a girdle". On 20 December 1979 he was handed a written direction in the following terms:

"Confirming the discussion with Assistant Superintending Engineer Development (Mr A. Wright) in his office on 14 Dec 1979, your present practice of wearing a caftan and thongs during working hours is not acceptable.

You are therefore directed to maintain a standard of dress generally acceptable in the community and in Telecom in future as is expected of an officer in your position.

Disciplinary action will be taken if you wear your caftan and thongs during working hours in future."

The respondent wore the caftan on subsequent occasions, and was charged with disciplinary offences under secns 57 and 58(1)(a) of the Act, as follows:

"1. That the said James Alexander Hart on 28th day of May, 1980 was guilty of wilfully disobeying a direction namely to maintain a standard of dress generally acceptable in the community and in Telecom given to him in his official capacity by Andrew Neilson Dickson Halley, supervising engineer, country installations west, a person having authority to give such a direction.

2. The said James Alexander Hart on the 17th day of February 1981 was guilty of wilfully disobeying a direction, namely to maintain a standard of dress acceptable to Telecom given to him in his official capacity by Andrew Neilson Dickson Halley, supervising engineer, country installations west, a person having authority to give such a direction.

3. That the said James Alexander Hart on the 18th day of February 1981 was guilty of wilfully disobeying a direction, namely to maintain the standard of dress acceptable to Telecom, given to him in his official capacity by Andrew Neilson Dickson Halley, supervising engineer, country installations west, a person having the authority to give such a direction."

Section 57 creates the offence of "a failure of the officer to fulfil his duty as an officer" and s.58(1) provides:

"For the purposes of this Division, an officer shall be taken to have failed to fulfil his duty as an officer if and only if -

(a) he wilfully disobeys or wilfully disregards a direction given to him as an officer and given by a person having authority to give the direction.
. . . "

The respondent was found to have offended and was ordered to pay an amount of $40 in respect of each of the three charges. These charges were heard by an authorised officer (s.58(5)). The respondent appealed to the Disciplinary Appeals Board, which dismissed his appeal.

The application to this Court under the Judicial Review Act was based, so far as now material, on a submission that the Board had misdirected itself in law; that its decision involved an error of law (s.5(1)(b) of the Judicial Review Act).

At the hearing before the Board counsel for Telecom sought to amend the first charge by deleting the words "generally" and "in the community and" on the ground that they were suplusage, but the Board, holding that they were surplusage, declined to make or allow the amendment. Its formal findings were as follows:

"(A) The directions as set out in the aforementioned charges were in fact given to the Appellant.

(B) The Officer (Mr. A.N.D. Halley) of the Respondent named in the aforementioned charges had the necessary lawful authority to give the relevant directions to the Appellant.

(C) The Appellant wilfully disobeyed the directions contained in aforementioned charges.
The Appellant's mind went with his acts of refusing to obey all relevant directions and therefore, his acts were wilful acts.

(D) There is no dispute as to the date of the three alleged offences or as to the location at which the relevant directions were given to the Appellant.

(E) The Appellant was at all relevant times an Officer in the employ of the Respondent and there is no dispute as to his classification or rank.

(F) All charges arose as a result of the Appellant wearing a Caftan whilst on official duties.

(G) The Appellant was employed in an Office on the Seventh Floor of a building situated at 219 Elizabeth Street, Melbourne.
The evidence given by the witness Andrew Nielson Dickson Halley as to that building and that office and what transpired therein during all material times, is accepted by the Board as being as accurate as could reasonably be expected of any witness.

This evidence establishes that the Appellant wore a Caftan during relevant times. It establishes as to what the witness knows of what transpired between the Appellant and his (the Appellant's) superiors concerning the Appellant's wearing of a Caftan. It establishes that the general public did have access to that office, albeit the right of access was infrequently availed of. He said in evidence 'It is sometimes visited by members of the Public'. It establishes approximately how many Officers of the Respondent worked in that Office during material times, and he gave details of their age and sex.

On the whole of the evidence in this case, the number of persons who could be expected to view the Appellant wearing the Caftan whilst on duty could not be said to be insignificant or unimportant, and, therefore the Respondent's concern as to the mode of dress (Caftan) being worn by the Appellant was well founded and genuine. Mr. Hart gave evidence of when he considered he should refrain from wearing a Caftan. This evidence does not in the opinion of the Board, assist him in any way with his defence. Mr. McMahon's evidence regarding the conversation he had with the Appellant concerning when the Appellant considered he should not wear a Caftan is very similar to the evidence given by the Appellant himself regarding this aspect.

The whole of the evidence is sufficient to enable this Board to fully appreciate the concern of the Respondent as to its image being detrimentally affected by the Appellant's frequent wearing of Caftan whilst on duty.

The Respondent had, on the whole of the evidence, during all material times, a general basic policy or general rule in that the dress of its employees or officers should be appropriate to the occasion. That dress should be such that it will not impair the image of the Respondent conducting a very large and serious business operation. On the evidence the Appellant knew, or should have known as a reasonable man, of that policy or rule. The Appellant must have been aware that the Respondent, through its Officers senior to the Appellant, considered that the Appellant, whilst dressed in a Caftan and on duty was in breach of that policy or rule. He was given advice, orders and directions not to wear a Caftan whilst on duty, but he chose to wilfully disregard and disobey such advice, orders and directions.

There is a provision, By-Law 15, whereby the Appellant could have mounted a challenge to such directions, quite apart from proceedings such as this hearing. At all material times he was aware of such a provision, but he did not pursue this course which was open to him. The fact that he did not use the provisions of By-Law 15 has, of course, no bearing on the decision arrived at by this Board.

On the whole of the evidence the Respondent, through its Officers senior to the Appellant and who were lawfully authorised so to do, did give and was justified in giving the directions set out in the aforementioned charges. The Appellant at all material times failed to maintain a standard of dress acceptable to the Respondent. Each one of the three directions were reasonable and lawful directions in all the circumstances with which this Board is concerned."

The Board dealt with the evidence and the matters raised by way of defences. To assist in an understanding of what it did it is necessary to extract a number of further passages from what it said:

"On the whole of the evidence in this case, the number of persons who could be expected to view the Appellant wearing the Caftan whilst on duty could not be said to be insignificant or unimportant, and, therefore, the Respondent's concern as to the mode of dress (Caftan) being worn by the Appellant was well founded and genuine." . . .

"The whole of the evidence is sufficient to enable this Board to fully appreciate the concern of the Respondent as to its image being detrimentally affected by the Appellant's frequent wearing of Caftan whilst on duty." . . .

"On the whole of the evidence the Respondent, through its Officers senior to the Appellant and who were lawfully authorised so to do, did give and was justified in giving the directions set out in the aforementioned charges. The Appellant at all material times failed to maintain a standard of dress acceptable to the Respondent. Each one of the three directions were reasonable and lawful directions in all the circumstances with which this Board is concerned."

"COMMON LAW RIGHTS OF EMPLOYER AND EMPLOYEE

The Parties agree that it is the duty of an employee to obey his Employer's lawful instructions." . . .

"The Board adopts the submissions made by Mr. Black regarding the Common Law rights of the Respondent to give the three relevant directions to the Appellant, that is to say, that he was required to maintain a standard of dress acceptable to the Respondent. The actual requirement of the directions being that the Appellant was to refrain from wearing a Caftan whilst on duty. The Appellant wilfully disobeyed those directions." . . .

"The Board finds that the Respondent had a lawful and reasonable right to give the three directions mentioned in the aforementioned charges." . . .

"LACK OF ANY STATUTORY POWER ENABLING THE RESPONDENT TO GIVE THE DIRECTIONS.

The Board finds that the Respondent has all necessary power to give the three directions and that this power is implicit in the TELECOMMUNICATIONS ACT, 1975."

The only evidence presented on the original application to this Court was the evidence which was before the Board. On this appeal, we have admitted, by consent, a lengthy official document entitled "Telecommunications (Staff) By-Laws". It is dated November 1979 and is apparently the document referred to by the Board in finding G, where By-law 15 is mentioned. The last page of the document tendered has a notation

"Issue No. 104 Sheet 41 of 52 sheets".

There are apparently further pages, which I assume not to be relevant to these proceedings.

The learned judge took the view that the charges were predicated on an obligation for officers to wear (when carrying out their duties) what was acceptable to Telecom. His Honour held that there was no statutory foundation for such an obligation, and that at common law the relevant duty arose from an implied term in the contract of employment, which was to be measured by objective reasonableness (p.19, judgment 23.12.81):

"It seems to me that no more could have been found by the officious bystander concerning the matter of dress than that the parties would have included a term that the employee should adopt a standard of dress that was reasonable having regard to all circumstances relating to the performance by the employee of the work to be performed by him for Telecom under the contract. Under such a term the employer could lawfully give directions for observance of a standard of dress that was reasonable or the adoption or avoidance of particular items of dress which, objectively regarded, it would be reasonable to adopt or avoid. But it could not give directions and require obedience thereof merely on the ground that what was directed was acceptable to it."

The employment of the respondent was governed both by the common law and by positive enactment. The question has been raised whether Telecom needed statutory support for what was done in this case. I do not think it did, but I shall return to discuss the matter later. It is not a case raising the considerations dealt with by the High Court in Australian Broadcasting Commission v Industrial Court of South Australia (1977) 138 C.L.R. 399.

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 The King v Darling Island Stevedoring and Lighterage Company Limited; Ex Parte Halliday and Sullivan (1938) 60 C.L.R. 601, 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."

As to reasonableness his Honour said (p.622):

"But what is reasonable is not to be determined, so to speak, in vacuo. The nature of the employment, the established usages affecting it, the common practices which exist and the general provisions of the instrument, in this case an award, governing the relationship, supply considerations by which the determination of what is reasonable must be controlled."

(See also Laws v London Chronicle (Indicator Newspapers) Ltd. (1959) 1 W.L.R. 698, 700, per Lord Evershed M.R.; Halsbury's Laws of England 4 ed. Vol. 16 para. 641.) The English law respecting employment is now dealt with comprehensively by statute (see Harvey, Industrial Relations and Employment Law (1982)) but some of the cases relating to "conduct" justifying dismissal are helpful in the present context. Harvey (op. cit. paras 531-2) deals with appearance, including dress and grooming, and says, quoting from a passage from Boychuk v K.J. Symons Holdings Ltd. (1977) I.R.L.R. 396, ". . . a reasonable employer . . . can be allowed to decide what, upon reflection and mature consideration, could be offensive to the customers and the fellow employees . . . ". The effect on customers and staff of the conduct of the respondent in wearing the particular garment was considered by the Board in the present case.

The By-laws deal with a great number of matters respecting the relationship between Telecom and its staff. Although the document does not say so, they were presumably made by the Commission under the powers given it by s.111(1) of the Act (note also sub-sections (2) and (3)).

Section 111(1)(g) is as follows:

"111. (1) The Commission may make By-laws, not inconsistent with this Act and the regulations, prescribing all matters which are required or permitted to be prescribed by the By-laws, and making provision for, or with respect to -
. . .
(g) the terms and conditions of employment of officers and employees; and
. . . "

By-law 25 is the only one appearing under the heading "Duties and Behaviour" and is as follows:

"Every officer and employee shall -

(a) during the hours of official business promptly and correctly carry out all duties appertaining to his office and any other duty he is properly directed to perform; and

(b) at all times behave with courtesy to the public."

The terms of this By-law were not treated by counsel as carrying the present matter any further. I think this view is correct, although its presence and its terms are relevant.

I do not think that the particular By-law, or the By-laws as a whole can be regarded as constituting a code which excludes the operation of the common law in a situation such as that before us. There is however a further question of a similar nature, namely whether, bearing in mind the power given by s.111, s.58(1)(a) should be regarded as dealing only with directions which an officer is expressly or impliedly authorised by enactment to give. Put another way, must the duty to obey to which s.58(1)(a) relates be found in legislation (including by-laws) which mandates or prohibits the conduct? It does not follow that the common law duty to obey would be wholly excluded; it could, in theory, be subject to its own sanctions.

The fact that there is a disciplinary scheme, with a scale of punishments, perhaps suggests that what ss.57 and 58 (and related sections) are dealing with is conduct which is proscribed by enactment. Section 58(1)(a) refers to "a person having authority to give the direction" and this is possibly suggestive of authority, in relation to the particular matter, having a legislative origin. Two considerations militating against any such conclusion are that disciplinary provisions, containing, for example, a power to fine or to dismiss, are not the exclusive province of bodies having subordinate legislative powers; they are not infrequently found in other enterprises, where they exist by virtue of the contract of employment. The other consideration lies in what I see to be the great difficulties, legal and industrial, in formulating relevant powers and duties. Situations will differ considerably. Even in relation to dress, there are the different considerations of health, safety, comfort, utility, popular appeal and taste, and there are doubtless others as well. If a mass of confusing detail were to be avoided, the provisions would have to be in general terms, but these could pose problems. If, for example, it was desired to provide that Telecom have a right to give a direction that all officers should maintain a standard of dress acceptable to it, this could well be regarded as unduly arbitrary, authoritarian and unreasonable. On the other side of the line, the Commission may be able to legislate to ban caftans. But what then of a great variety of other forms of dress, ethnic and otherwise?

I am therefore of the view that s.58(1)(a) includes a direction authorised 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.

Perhaps the central difficulties in the case lie in determining what was charged and what the Board found proved.

As I am dealing with a matter which arises in a domestic forum, I do not think it correct to scrutinise the direction or the charges with undue refinement or technicality, but it is nevertheless necessary to ascertain what in substance was done, and for this purpose a degree of analysis is necessary. The charges used the terms of s.58(1)(a), but added in each case details of the alleged direction. The written direction of 20 December 1979 contained at least three elements: (a) a statement that the respondent's practice of wearing a caftan (and thongs) during working hours was not acceptable; (b) a direction to maintain a standard of dress acceptable in the community and in Telecom, as expected of an officer in the respondent's position; and (c) a statement that disciplinary action would be taken if the caftan and thongs were worn during working hours in the future. I do not think that the fact of the direction being given by the Supervising Engineer, as distinct from someone in higher authority, or Telecom itself, is material, provided that it was a direction which under the common law or statute could be given by an employer to an employee (I use these terms as synonymous with the older ones of master and servant). Whether a direction to maintain a standard of dress acceptable in the community and to Telecom, as expected of an officer in Mr. Hart's position, satisfied, in the circumstances, the tests which I have already mentioned was in the first instance a matter for the Board. The Board did not however deal with a direction in those terms, and was not invited to do so. What it did consider was the direction as formulated in the second and third charges. It found that that direction was reasonable and lawful. The first charge was based on the same direction but, as I have said, the extra language, which in fact came from the written direction, was treated as surplusage.

If the Board had purported to find, as a general proposition of law, that employees of Telecom were always bound to dress to a standard acceptable to it, or bound not to dress to a standard unacceptable to it, the finding might have been wrong. It seems to me on a fair reading of the materials what it did find was that the particular direction was in the particular circumstances, and related to the particular facts, reasonable and within power. Formally, its finding was that Mr. Hart had wilfully disobeyed a direction given to him as an officer by a person having authority to give the direction. The factual situation was plain. It related to the wearing of a caftan. This was a standard of dress unacceptable to Telecom. In substance, it had simply directed the respondent not to wear it. In one sentence (set out above, under the heading "Common Law Rights of Employer and Employee") the Board in fact said that this was the way in which it regarded the matter:

"The actual requirement of the directions being that the Appellant was to refrain from wearing a Caftan whilst on duty."

There is a further question, namely whether, by reason of the form of the charge, the respondent was placed at any disadvantage. This is not alleged, was not a ground of the application to this Court, and appears to me not to have been the case.

I am therefore of the view that the appeal should be allowed.

The cross appeal relates to a declaration made by the learned judge in negative terms in favour of the appellant. His Honour found in favour of the appellant on an alternative submission made by counsel for the then applicant, Mr. Hart, in which reliance was placed upon Convention III of the International Labour Conference of 1958. This deals with discrimination (as defined) in the field of employment. I respectfully agree with the learned judge that the applicant could not succeed in reliance upon this Convention, but I am of the view that there was insufficient occasion for the making of the declaration and that it should not have been made.

I shall briefly state my reasons why the argument should fail. In the first place, notice has to be taken of s.6(4) of the Telecommunications Act:

"It is the duty of the Commission, in performing its functions, to comply with the provisions of any Convention to the extent that it imposes obligations on Australia in relation to matters within the functions of the Commission."

Article 1 of the Treaty defines "discrimination":

"1. For the purpose of this Convention the term 'discrimination' includes -

(a) any distinction, exclusion or preference made on the basis of race, colour, sex, religion, political opinion, national extraction or social origin, which has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation;

(b) such other distinction, exclusion or preference which has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation as may be determined by the Member concerned after consultation with representative employers' and workers' organisations, where such exist, and with other appropriate bodies."

It was clause (a) which was relied on, and the distinction made was said to be on the basis of sex. In the present case the garment worn was regarded as inappropriate and unbefitting in the circumstances. It was being worn by a man, and the reasons why it was so regarded may have comprised a compound of factors, some possibly undefinable. It does not appear to be an item of dress usually worn by women, and there is no suggestion that the respondent was given the directions he was because he was wearing a female garment. All that happened was that in the course of evidence before the Board it was said by officers of Telecom, in answer to questions in cross-examination, that if the garment had been worn by a women there would probably have been no objection. The most the answers indicate is that a reason for regarding as inappropriate the wearing of the garment by the respondent was that it could possibly have been worn by women without objection. This is in my view a long way from saying that a distinction was made by the employer on the basis of sex.

I would therefore allow the appeal, and dismiss the cross-appeal. The order and declaration made by his Honour should be set aside, and in lieu thereof the application should be dismissed with costs. The respondent may apply for a costs certificate under s.6 of the Federal Proceedings (Costs) Act, 1981.

JUDGE2

This is an appeal from a judgment of the Federal Court of Australia constituted by a single Judge given in an application brought under the Administrative Decisions (Judicial Review) Act 1977, "the Judicial Review Act". The substantive issue raised by the appeal concerns the power of a superior officer in a service established by statute for the purpose of enabling a statutory authority to perform its functions under that statute, to give directions to a subordinate officer in that service. The particular directions related to the nature of attire to be worn by the subordinate officer while performing his duties in the service. A subsidiary issue raised is whether those directions, if otherwise lawful and valid, were rendered unlawful and invalid by reason of being in contravention of Convention No. 111 of the International Labour Conference.

The Australian Telecommunications Commission ("the Commission") is a statutory authority. It is constituted a body corporate by s.21 Telecommunications Act 1975, ("the Act"). It is established under s.4 of the Act, its functions are set out in s.5, its duties are set out in s.6, and its general powers are set out in s.9. The composition of the Commission is set out in s.22 of the Act. Under s.33 of the Act, the Commission is empowered to delegate to persons therein specified, either generally or otherwise as provided by the instrument of delegation, all or any of its powers under the Act. An officer of the Commission is a person coming within a class of persons to whom a delegation may be given. As is common with similar services, the word "officer" is defined to mean a person appointed as an officer of the Commission, while the word "employee" is defined to mean a person appointed as a temporary employee, s.3 of the Act.

Part V of the Act, comprising sections 34-70 inclusive, contains provisions relating to the staff of the Commission. Section 38 establishes the Australian Telecommunications Commission Service ("the Service") which consists of the persons appointed as officers or employed as temporary employees in accordance with Part V. This provision is similar to many other services constituted under Commonwealth and State statutes such as the Public Service, the Teaching Service, the Australian Postal Commission Service and the Railway Service. Under s.39 of the Act, the Commission is empowered to appoint persons as officers of the Commission, while under s.42 the Commission is empowered to engage persons as temporary employees. Upon attaining the age of sixty years, an officer is entitled to retire from the Service, but in any event ceases to be an officer on attaining the age of sixty-five years, s.54 of the Act. Section 43 is of importance and sub-section (1) is set out:

"43(1) Subject to this Part, officers and employees hold office on such respective terms and conditions as the Commission determines."

Sub-section (2) contains transition provisions not relevant for present purposes. Under s.111(1)(g) the Commission is empowered to make By-laws making provision for or with respect to the terms and conditions of employment of officers and employees.

Division 6 of Part V of the Act, comprising sections 57-64 inclusive, relates to dismissals and punishments. Under s.57, a reference to misconduct, in relation to an officer, is a reference to a failure of the officer to fulfil his duty as an officer. Section 58 makes provision for disciplinary action against an officer. For present purposes s.58(1)(a) is relevant and is set out:

"58(1) For the purposes of this Division, an officer shall be taken to have failed to fulfil his duty as an officer if and only if -

(a) he wilfully disobeys or wilfully disregards a direction given to him as an officer and given by a person having authority to give the direction;"

The sub-section sets out a number of other provisions which constitute misconduct. The section then contains detailed provisions concerning the procedures to be followed when disciplinary action against an officer is contemplated. Detailed reference will be made to some of those provisions later in these reasons. Under s.62(1) of the Act an officer may appeal to a Disciplinary Appeal Board against a direction or decision made or given with respect to him by an officer of the Commission under s.58. The Appeal Board is required to hear each appeal submitted to it and may confirm, vary or set aside the direction or decision against which the appeal is made, s.62(5), and is to give reasons in writing for its decision on an appeal. Under s.63 the Commission is required to establish Disciplinary Appeal Boards which are to be constituted in accordance with that section. Under s.64 the Commission has power to review findings made by a Disciplinary Appeal Board.

Division 8 of Part V of the Act, comprising sections 66-70, relates to the powers and functions of the Commonwealth Conciliation and Arbitration Commission in respect of the Service. Under those provisions, the Conciliation and Arbitration Commission is empowered to prevent or settle, by conciliation or arbitration, industrial matters in respect of the Service and to hear and determine industrial questions in respect of the Service submitted to it. This means that the Conciliation and Arbitration Commission is empowered to make awards in relation to salaries, wages, rates of pay or other terms and conditions of service or employment of officers or employees in the Service. The provisions of any awards so made prevail over any inconsistent terms and conditions of employment of officers and employees determined by the Telecommunications Commission under s.43 and s.111(1)(g) of the Act.

James Alexander Hart ("the respondent"), at all material times has been an officer in the Service. He is a Senior Technical Officer and works on the 7th floor of a building at 219 Elizabeth Street, Melbourne. Normally he does not deal with members of the public, but on occasions those members attend at the open office in which he works and the respondent is visible to them. On a number of occasions the respondent had worn a caftan while performing his duties as an officer in the Service. A caftan is a tent-like item of clothing worn loosely over the body. In the Shorter Oxford Dictionary its meaning is given as being "an oriental garment consisting of a long under-tunic tied at the waist with a girdle". The respondent dispensed with the use of a girdle. On a number of occasions officers in the Service superior to the respondent had indicated to the respondent that it was unacceptable for him to wear a caftan while performing his duties in the Service. On 20 December 1979 Mr. Halley, an officer in the Service superior to the respondent, delivered a written direction to the respondent in the following terms:

"STANDARD OF DRESS

Confirming the discussion with Assistant Superintending Engineer Development (Mr A. Wright) in his office on 14 Dec 1979, your present practice of wearing a caftan and thongs during working hours is not acceptable.
You are therefore directed to maintain a standard of dress generally acceptable in the community and in Telecom in future as is expected of an officer in your position.
Disciplinary action will be taken if you wear your caftan and thongs during working hours in future.

A.N. Halley
SUPERVISING ENGINEER - COUNTRY INSTALLATION WEST
20.12.79."

For present purposes the reference to thongs in that direction may be disregarded.

On 28 May 1980, 17 February 1981 and 18 February 1981 the respondent wore a caftan while performing his duties in the Service. An oral direction was given to him to wear something more suitable. He asserted that the Commission was not entitled to give that direction and refused to comply with it. Disciplinary action under s.58 of the Act was taken against the respondent. Under s.58(3) an officer authorized by the Commission, by writing delivered to the respondent, charged the respondent with failure to fulfil his duty as an officer. The charges were as follows:

"1. That the said James Alexander Hart on 28th day of May. 1980 was guilty of wilfully disobeying a direction namely to maintain a standard of dress generally acceptable in the community and in Telecom given to him in his official capacity by Andrew Neilson Dickson Halley, supervising engineer, country installations west, a person having authority to give such a direction.

2. The said James Alexander Hart on the 17th day of February 1981 was guilty of wilfully disobeying a direction, namely to maintain a standard of dress acceptable to Telecom given to him in his official capacity by Andrew Neilson Dickson Halley, supervising engineer, country installations west, a person having authority to give such a direction.

3. That the said James Alexander Hart on the 18th day of February 1981 was guilty of wilfully disobeying a direction, namely to maintain the standard of dress acceptable to Telecom, given to him in his official capacity by Andrew Neilson Dickson Halley, supervising engineer, country installations west, a person having the authority to give such a direction."

A number of difficulties which I do not find necessary to consider arise with respect to the wording of the charges. Under s.58(5) of the Act an officer authorized by the Commission held an inquiry into the charges. The procedural requirements of s.58 were complied with by the officer holding the inquiry who, being satisfied that the respondent had failed to fulfil his duty, exercised the powers conferred by s.58(9) and directed that the sum of $40.00 be deducted from the salary of the respondent with respect to each of the three charges. Under s.62 of the Act the respondent appealed to a Disciplinary Appeal Board. The Board refused the appeal and confirmed the decisions against which the appeal was made. It gave reasons in writing for its decision.

The substantive defence raised by the respondent was that the superior officer had no authority to give the direction contained in the notice of 20 December 1979 and subsequently confirmed orally, namely:

"You are . . . directed to maintain a standard of dress generally acceptable in the community and in Telecom in future as is expected of an officer in your position."

Pursuant to s.5 Judicial Review Act the respondent instituted proceedings in the Federal Court seeking an order of review in respect of the decision of the Disciplinary Appeal Board. In many respects, as appears hereafter, the material placed before the Court on the hearing of that application was unsatisfactory. It consisted of a transcript of the proceedings before the Disciplinary Appeal Board, the reasons in writing for its decision, some photographs of the respondent wearing a caftan, a photograph of the respondent wearing a pair of shorts and a copy of the direction headed "Standard of Dress" given to the respondent on 20 December 1979.

By order made on 23 December 1981, the Federal Court quashed the decision of the Disciplinary Appeal Board and made the following declaration:

"The Court declares the rights of the parties as follows:-

(a) in respect of the dress to be worn by the applicant in and about the performance of his duties it is a term implied in the contract of employment that at all times, the applicant will observe a standard of dress that is reasonable in all the circumstances of his employment;

(b) in respect of the Convention, No. 111 of the International Labour Conference, s.6(4) of the Telecommunications Act 1975 does not of itself impose upon the respondent Commission a duty to refrain from conduct constituting discrimination as defined in the Convention."

The Commission appeals from the whole of the judgment. The respondent cross-appeals against that part of the order dealing with the effect of Convention No. 111 of the International Labour Conference.

As a first step in considering the appeal, it is necessary to determine the terms and conditions of the contract of employment between the Commission and the respondent. There can be no doubt that there is a contract between the Commission as employer and the respondent as an officer of the Commission, or to use traditional language, the Commission as master or employer and the respondent as servant or employee. The issue is what are the terms and conditions of that contract of employment?

Under s.43 of the Act, the terms and conditions are those determined by the Commission, or, if relevant, the terms and conditions contained in any award of the Conciliation and Arbitration Commission binding upon the Commission and the respondent.

Support for this view is obtained from the judgment of Gillard J. in Keeley v. State of Victoria (1964) V.R. 344. That case concerned the Victorian Public Service and a claim for wages by an employee for performing duties extra to the duties conferred upon her and which had been done pursuant to the request of her superior officer. His Honour made a detailed examination of the nature of the contract existing between Mrs. Keeley and the State of Victoria and the basis of the claims made by Mrs. Keeley. The whole judgment merits careful reading and consideration. The following extracts from the judgment are relevant to the present case:

At pp.366-7 -

"1. In contrast to the relationship existing between members of the armed forces and the Crown, the fundamental legal relationship between the Crown in the State of Victoria and a person occupying a temporary position in the Victorian public service is contractual in character.

2. As in all actions based upon contract, it is necessary to determine the precise terms and conditions of such contract, express and implied. Since, on the facts, I have already rejected the express contract as pleaded, attention must be paid to the alleged claim on the indebitatus count.

3. If such count can be established against the defendant, it is cognizable by the Supreme Court under the Crown Proceedings Act 1958.

4. In order to discover what implications should be made in the alleged legal relationship between Mrs. Keeley and the defendant, the prime fact of importance is that Mrs. Keeley was engaged or was appointed under the provisions of the Public Service Act 1958. By virtue of its provisions she became a member of the public service and during her service therein she was bound to discharge the duties or observe the obligations imposed upon her by the Act. Prima facie, she only received the correlative rights and privileges conferred upon her by the Act.
. . .
Because of the view I take of the facts and law in this case, I have come to a firm conclusion that Mrs. Keeley cannot succeed unless she can bring herself within reg. 77. In my view, Mrs. Keeley, by applying to become and being accepted as a member of the public service as a temporary employee therein, entered into a contract with the State of Victoria on the basis of the provisions of the Public Service Act and the regulations thereunder."

At pp.370-72 -

"By production of various documents Mr. Davies has conclusively proved that his client was, at all times material, a member of the public service in Victoria : cf. s.41, the Public Service Act 1958. Mrs. Keeley was bound by the Act and it, therefore, becomes necessary to consider the relevant provisions thereof. The important features of the Public Service Act applicable to the facts of this action are as follows:-

(1) The Act constituted a Board to control and supervise the public service and its work in the departments. In particular, the Act imposed on it the function 'to determine salaries and wages and terms or conditions of service or employment in the public service' (s.5(2)). The Board, therefore, was the statutory body whose duty it was to determine the conditions of Mrs. Keeley's employment and the salary she should receive for the work performed by her in the public service.
. . .
(4) In order to assist in the work of any department, persons might be temporarily employed (s.38). On their engagement they became members of the public service (s.29). A significant use of terminology was observed in the Act. Persons temporarily employed were described as 'employes' and performed 'work' in the departments. On the other hand, all other persons in the public service were called 'officers' who occupied 'offices' which were created by the Governor-in-Council after reference from the Board.
. . .
From this review of the statutory provisions, it would appear that the policy of the Act was to confer on the Board the power and the duty to decide all questions of an employe's emoluments and terms and conditions of employment. No superior in the public service could bind the defendant to any obligation to pay for work done by a subordinate without the authority of the Board. Mrs. Keeley, by her correspondence, recognized this public service practice. While the Act gave Mrs. Keeley a clear right to her salary as prescribed in the regulations, it also limited her to that entitlement. As a member of the public service, she was bound by the terms of the Act. While the Act negatived a possible implication in her contract in favour of the Crown with respect to her entitlement to sue for salary, it also negatived any implication in her favour which may otherwise have arisen outside its terms."

The same general principles apply to the present case. The Court is concerned to determine the terms and conditions of the contract of employment between the Commission and the respondent. It is not concerned to determine questions that might arise in cases involving liability in tort in actions brought by the respondent or by third parties against the Commission. It is concerned to determine whether the direction of 20 December 1979 was given by a person having an authority to give it, cf. s.58(1)(a) of the Act, and whether that direction was valid.

There was no evidence before the primary Judge of any terms or conditions of employment determined by the Commission under s.43(1) of the Act. There was no evidence before the primary Judge of any award made by the Commonwealth Conciliation and Arbitration Commission containing terms and conditions of employment of the respondent by the Commission. There was no evidence before the primary Judge that the Commission had delegated any of its powers to Mr. Halley, being the person giving the direction, or to any other officer empowering that officer to give a direction to the respondent relating to the form of attire to be worn by the respondent or any other subordinate officer while performing duties in the Service, s.33 of the Act. The members of the Disciplinary Appeal Board may have had knowledge of these matters, but the written reasons for its decision do not mention them. Certainly, the Commission did not refer to any of them in the proceedings in the Federal Court.

At the hearing before this Court, in the exercise of the powers conferred by s.27 Federal Court of Australia Act 1976, and with the consent of the parties, a document headed "Telecommunications (Staff) By-laws" was accepted in evidence. The By-laws purport to contain the terms and conditions of employment of persons employed by the Commission. It is a lengthy document containing some 166 By-laws. Division 1 of Part 11 of the Staff By-laws is headed "Attendance and Duties of Officers". Within this Division, By-law No. 15 deals with appeals open to an officer who wishes to complain against any official instruction given to him. This course was not followed by the respondent. By-law No. 25 is headed "Duties and Behaviour" and is as follows:

"Every officer and employee shall -

(a) during the hours of official business promptly and correctly carry out all duties appertaining to his office and any other duty he is properly directed to perform; and

(b) at all times behave with courtesy to the public."

There is no material before this Court of the duties appertaining to the office occupied by the respondent. There is no material before this Court of the duties and powers appertaining to the office occupied by Mr. Halley. The question is whether the respondent was under a duty to observe the direction given to him by Mr. Halley on 20 December 1979. Implicit in this is the issue of whether Mr. Halley had power to give that direction and whether the respondent was required to observe that direction.

The By-laws contain no provisions with respect to the mode or form of attire to be worn by officers in the Service while performing their duties. There is no evidence of a power being delegated to any officer in the Service to give directions with respect to the mode or form of attire to be worn by officers in the Service while performing their duties. This is not a subject matter which can be left to the whim of any officer. If the Commission desires to impose standards of dress, or to avoid emotional words, standards of attire, to be worn by its officers and employees, it should do so by the proper method of making determinations by means of By-laws. Acting under any such determination the relevant officers could be empowered, by way of delegation, or pursuant to a duty statement, to give the necessary directions. In the absence of any such determination the respondent is quite entitled to say that there was no authority for Mr. Halley to give the direction and that thus the direction was invalid.

The Commission contended that it was entitled to require the respondent in matters of dress to comply with such directions as the Commission might reasonably consider to be appropriate. A number of defects are inherent in that contention. The Commission, by statute, is empowered to make By-laws with respect to the terms and conditions of employment of officers and employees, s.111(1)(g) of the Act and, subject to any overriding award of the Commonwealth Conciliation and Arbitration Commission, officers and employees are employed on those terms and conditions. On the material before the Court, the Commission has not made By-laws with respect to standards of dress to be observed by its officers and employees. Where there is express power to so determine, it is difficult to see how, in law, conditions of employment with respect to standards of dress can be implied. In any event, the Commission is the employer. Mr. Halley and the respondent are each officers employed by the Commission. There is no evidence that Mr. Halley has a delegated power to give directions to subordinate officers with respect to standards of dress to be observed by them while performing their duties in the Service. In the absence of a specific By-law, questions might arise whether such a power can be delegated. The Commission operates throughout Australia and in many different situations - for instance officers and employees engaged as outdoor staff, as manual workers, as indoor staff, as clerical workers, on public relations, to list just a few. Directions with respect to standards of dress may well vary from place to place and from situation to situation. Standards cannot be imposed depending upon the modes of thought of individual officers. The validity of By-laws made with respect to standards of dress, if made by the Commission, is to be considered by applying the well-known principles of law necessary to determine whether the By-laws are within the power conferred upon the Commission to make By-laws. The validity of directions given by a superior officer pursuant to those By-laws can be determined by reference to the By-laws themselves, the powers delegated to the superior officer, the nature of the directions given and to the duties appertaining to the relevant offices.

In my opinion, the views I have expressed are consistent with the opinions contained in Bennett v. Commonwealth (1980) 1 N.S.W. 581 and Australian Broadcasting Commission v. Industrial Court of South Australia (1977) 138 C.L.R. 399.

On the material before the Court, the decision of the Disciplinary Appeal Board must be quashed.

On the views expressed, the need for the cross-appeal disappears. In the absence of any valid direction there is nothing upon which the cross-appeal can operate. Accordingly the cross-appeal must be dismissed.

In all the circumstances I would dismiss the appeal but vary the orders made by the trial Judge by making the following orders. I would order that the decision of the Disciplinary Appeal Board made on 4 June 1981 be quashed and that the Commission pay the respondent's costs of the appeal, his costs of the proceedings in the court below and his costs of the proceedings before the Disciplinary Appeal Board. I would dismiss the cross-appeal.

JUDGE3

In this matter I have had the advantage of reading the judgment to be delivered by Fox J. I am in full agreement with his reasons and conclusions. I concur in the orders which he proposes.