Bolwell, D.W. v Australian Telecommunication Commission

[1982] FCA 64

Re: DAIN WESLEY BOLWELL
And: AUSTRALIAN TELECOMMUNICATIONS COMMISSION established by the
Telecommunications Act (Commonwealth) 1975
Nos. 2, 3 and 4 of 1981
Crown
1 IR 318

COURT

IN THE FEDERAL COURT OF AUSTRALIA

TASMANIA DISTRICT REGISTRY
INDUSTRIAL DIVISION
Smithers J.

CATCHWORDS

Crown - Commonwealth Statutory Corporation representing Crown - whether Australian Telecommunications Commission is an instrumentality, agency or emanation of the Crown - nature of enterprise engaged in by Australian Telecommunications Commission.

Crown - immunity of - Liability of Crown to prosecution under statute - Conciliation & Arbitration Act (1904) s.5. Industrial law - Conciliation & Arbitration Act (1904) s.5. dismissal and prejudice to employee - "Industry" "Industrial matter" - Industrial nature of enterprise engaged in by Australian Telecommunications Commission.

Telecommunications Act (1975) s.6; s.54; s.66.

Conciliation & Arbitration Act (1904) s.4; s.5.

HEARING

HOBART

#DATE 25:3:1982

ORDER

The information dated 31 August 1981 be dismissed.

JUDGE1

By an information dated 31 August 1981 one Dain Wesley Bolwell informed the District Registrar of the Federal Court at its Tasmanian Registry that, contrary to the provisions of s.5(1)(f) of the Conciliation and Arbitration Act 1904 (the Act) the defendant, the Australian Telecommunications Commission being an employer for the purposes of the Act did injure its employee one Richard Thomas Townsend in his employment by withdrawing him from notification for higher duties allowance, for the period from 13 to 17 July 1981 and subsequent periods, by reason of the circumstance that the said Townsend being a member of an organization of employees registered under the Act did do an act or thing which was lawful for the purpose of furthering or protecting the industrial interests of the organization or its members, being an act or thing done within the limits of authority expressly conferred on him by the organization in accordance with the rules of the organization.

The matter came on for hearing on 14 December 1981. Mr. Slicer appeared for the informant and Dr. Jessup for the respondent. Dr. Jessup took what he described as a preliminary point, namely that in respect of s.5 of the Act the defendant was entitled to the privileges and immunities of the Crown because it was the Crown or an agency or emanation of the Crown. It was agreed by the parties that this matter should be argued forthwith.

Section 5 is contained in Part I of the Act which is headed "Introductory". It provides that an employer shall not dismiss an employee, or injure him in his employment, or alter his position to his prejudice, by reason of certain specified circumstances, one of which is a circumstance of the kind alleged in the information.

It is provided by s.4 of the Act, that except where otherwise clearly intended, "Employer" so far as relevant, means any employer in any industry. It is also provided that "Industry" includes -

(a) any business, trade, manufacture, undertaking, or calling of employers;

(b) any calling, service, employment, handicraft, or industrial occupation or vocation of employees; and

(c) a branch of an industry and a group of industries;
and that "Industrial Dispute" means:-

(a) a dispute (including a threatened, impending or probable dispute) as to industrial matters which extends beyond the limits of any one State; and

(b) a situation which is likely to give rise to a dispute as to industrial matters which so extends,

and includes

(c) such a dispute in relation to employment in an industry carried on by, or under the control of, a State or an authority of a State;

(d) a dispute in relation to employment in an industry carried on by, or under the control of, the Commonwealth or an authority of the Commonwealth, whether or not the dispute extends beyond the limits of any one State; and

(e) a claim which an organization is entitled to submit to the Commission under section 11A of the Public Service Arbitration Act 1920-1956 or an application or matter which the Public Service Arbitrator or a Deputy Public Service Arbitrator has refrained from hearing, or from further hearing, or from determining under section 14A of that Act, whether or not there exists in relation to the claim, application or matter a dispute as to industrial matters which extends beyond the limits of any one State;"

As was said by Barwick C.J. in Pitfield v. Franki (1970) 123 C.L.R. 448 at 456,

"It has been decided that the industrial quality of a dispute may derive either from the industrial nature of the activity carried on by the employer or from the essentially industrial character of the work performed or to be performed by the employee."

And it is clear, in connection with this aspect of the Act that States and the Commonwealth and their authorities are expressly included as entities which may be parties to an industrial dispute as employers where they do not carry on industry in the ordinary sense, but do employ persons engaged in work intrinsically industrial in nature. See in particular the judgment of Dixon C.J. in ex parte The Association of Professional Engineers' Australia (1959) 107 C.L.R. 208 at pp.243, 244 and 245. To this extent the Crown is certainly named and bound. Where any employer is in a relationship with certain of his employees, that a dispute with them would constitute an industrial dispute within the meaning of the Act it would seem inevitable that that employer must be an "employer in any industry" for the purposes of s.5 of the Act. There is no express authority to this effect but it could hardly be that an entity carrying on operations and employing persons a dispute with whom would be an industrial dispute for the purposes of the Act would not be within the class of employees subject to s.5. Such employers are of the class of persons for the protection of whose employees s.5 is designed. It would seem therefore that the expression "employer in any industry" must be regarded as embracing employers in industry in this wider sense.

Accordingly the defendant may be an employer for the purpose of s.5 if it carries on an industry within the ordinary and natural meaning of that word or as defined in para (a) of the definition in s.4 of the Act, as set out above, or if it employs persons who perform work for it of an essentially industrial nature.

The operations of the defendant are of such comprehensive range that there is good reason to believe that it carries on an industry both in the ordinary and natural meaning of that word and as defined in the Act. Also there would seem to be little doubt that many of its employees perform work in the nature of industrial work and do so in the pursuit of a calling, service, employment, handicraft or industrial occupation or vocation of employees.

It follows that, so far as the terms of the Act are concerned, the defendant is an employer within the meaning of s.5 of the Act. Therefore, subject to the extension to it of what is called the shield of the Crown, or some special statutory exclusion, it is amenable to the provisions of that section. But having regard to the provisions of the Telecommunications Act 1975 it is, I think, to be seen that the defendant although carrying on an industry is the Crown or an agency or emanation thereof and that it is the intention of Parliament that it be entitled to the immunity of the Crown and thus not within the statutory command in s.5 of the Act. It is the Telecommunications Act which brought the defendant into being as a statutory corporation, specified its functions and powers and established its relationship to the Government of Australia. It also established the Australian Telecommunications Commission Service (the service) pursuant to which two classes of employees, namely officers and temporary employees are engaged by the defendant. It also provided for the prevention and settlement of industrial disputes in respect of the service by the Conciliation and Arbitration Commission and for the hearing and determination by that Commission of industrial questions submitted to it.

By s.6 of the Telecommunications Act it is provided that the defendant shall "perform its functions in such a manner as will best meet the social, industrial and commercial needs of the Australian people for telecommunications services", and "so far as it is, in its opinion, reasonably practicable to do so, make its telecommunications services available throughout Australia for all people who reasonably require those services". Its functions are stated in s.5 as follows:-

"5. The functions of the Commission are -

(a) to plan, establish, maintain and operate telecommunications services within Australia;

(b) to operate such other services as the Commission is authorised by this Act to operate;

(c) to provide, at the request of the Australian Government, technical assistance outside Australia in relation to the planning, establishment, maintenance and operation of telecommunications services in countries outside Australia; and

(d) to do anything incidental or conducive to the performance of any of the preceding functions."

For services provided, the defendant may make charges. But consistently with acquiring such revenue as is necessary to meet its expenditure properly chargeable against revenue and certain capital expenditure the duty of the department is to "operate as efficiently as possible and make available the services provided by (it . . . ) at rates and charges that are as low as practicable" (s.73(a)). Its charges for rentals in respect of standard telephone services, telephone calls within Australia and transmission of telegrams by telephone must be approved by the Minister (S.11(1)). It may fix its own charges for other services (s.11(2)). By s.7 of the Telecommunications Act it is provided that the Minister may, after consultation with the defendant, give to it in writing such directions, with respect to the performance of its functions and the exercise of its powers, as appear to the Minister to be necessary in the public interest. When such directions are given the Minister shall cause a copy of the direction to be laid before each House of Parliament within fifteen sitting days. The defendant is to be reimbursed any losses it incurs because of a Ministerial refusal to approve charges at rates submitted by the defendant (s.12). By s.7(2) any surplus of the defendant for any financial year shall be applied in such manner as the Minister determines. By s.75 it is provided that, subject to the Act, the moneys of the defendant may be applied by it in payment or discharge of its obligations in payment of remuneration and allowances payable to any person appointed or employed under the Act, and in making payments to Australia as provided by the Act, but not otherwise.

The defendant is a body corporate with perpetual succession, it has a common seal, may acquire, hold and dispose of real and personal property and may sue and be sued in its corporate name (s.21(1)). By s.21(3) it is provided that it is not subject to any requirement, obligation, liability, penalty or disability under a law of a State or Territory to which Australia is not subject.

The defendant consists of seven Commissioners all appointed by the Governor-General. One Commissioner is Managing Director, another is an officer of the department administered by the Minister, another is to represent officers and employees of the Commission. A commissioner may resign by writing under his hand to the Governor-General but the resignation does not have effect until it is accepted by the Governor-General (s.27). The Governor-General may terminate the appointment of a Commissioner, other than the Commissioner being the departmental officer, for certain reasons (s.28). The Telecommunications Act provides for the appointment by the Governor-General of a Chief General Manager of the defendant and for termination by him of that appointment in the event of misbehaviour or impropriety (s.34). In addition the nature of the defendant as a law making body is apparent from its authority to make By-laws governing the conduct of citizens in relation to a wide range of subjects relating to telecommunications. (S.111)

Thus the provisions of the Act establish dominant roles to be played by the Governor-General and the relevant Minister of State in all the operations of the defendant and in the choice of those who may be described as its directorate. Of course the defendant carries on what may be termed a large and varied business or industry. No doubt in the performance of its main functions and those things which are incidental thereto the defendant may and presumably does engage in manufacture of telecommunications equipment large and small and the production of items such as telephone directories and accessories and may sell certain of these.

As was said by Windeyer J. in the Professional Engineers' Case (supra) at p.267:-

"The word 'industry' has suffered, as words do, by the attrition of usage and from snobbery and the desire for genteelism, so that we now hear for example of the hire-purchase industry - 'trade' or 'business' would not suffice - the racing industry, and even the betting industry. Correctly used the word 'industry', however, still has a variety of meanings. Sometimes it is used in association with, and without any sure distinction from, 'trade' and 'commerce'. In one sense it denotes activities other than agriculture; in another it comprehends agriculture. Sometimes it is used to denote private enterprises carried on by private capital for profit; but often it includes 'nationalized' industries. It ordinarily carries a concept of work directly concerned with the production, maintenance, repair, distribution or transport of tangible things and also with the provision of intangible things such as gas and electricity."

The Shorter Oxford English Dictionary refers to "a particular branch of productive labour - e.g. trade or manufacture.". But it is clear that the defendant is something more than a mere business or industrial entity. Its operations are expressed to be in the nature of a provider of a service to the Australian people. It is a service designed not only to provide convenience in communications in business and social life of Australian citizens for their individual satisfaction but to promote efficiency in the nation as a commercial and industrial unit in a competitive international environment. In this connection it stands in succession to the Post Master General's Department of the Commonwealth which, since the Commonwealth came into being, had provided that same service as a recognized function of the Government of Australia. The distinction between an entity providing a national service and one merely carrying on a nationalized industry is, to my mind a distinction in nature and quality. And the provision of a service of a governmental nature simply, without regard to profit or other purpose, must be a significant mark of an agency or emanation of the Crown. Where the status of the entity providing the service is essentially managerial in nature, for and on behalf of the Government, in relation to a function intrinsically governmental, the whole operation can be seen as the Crown in action in a sphere of government.

From the terms of the Telecommunications Act the creation of the Telecommunications Commission can be seen as an exercise on the part of Parliament to forge an instrument to manage the provision of a telecommunications service on behalf of Australia whilst maintaining in the hands of the Government a very high degree of control over that instrument. The provisions referred to above all point in this direction. In relation to this aspect of the case I refer to the comprehensive discussion by Sheppard J. in F. Sharkey & Co. Pty. Ltd. & Ors. v. Fisher & Ors. (1980) 33 A.L.R. 173 of relevant authorities and the conclusion reached by him in respect of the Metropolitan Water Sewerage & Drainage Board constituted by the Metropolitan Water Sewerage & Drainage Act 1924 (N.S.W.). Thus whether the defendant conducts an industry or not the result is that the defendant is seen to be, in the words of Mason J. in Superannuation Fund Investment Trust v. Commissioner of Stamps (S.A.) (1979) 26 A.L.R. 99 at p. 116, the "alter ego of the Crown".

As such it has the immunity of the Crown. Accordingly it is not bound by a penal provision such as s.5 of the Act unless it can be gathered from the relevant statutory provisions that it was the intention that it should be so bound. Of course to bind the Crown it is not enough that the language of s.5 is wide enough to include the Crown and an emanation of the Crown. It is only when there is that width in the language used that the question of the shield of the Crown arises. To cause such language actually to bind the Crown in relation to a statutory crime some unequivocal indication is required that it was the intention that it should. As was said by Dixon J. (as he then was) in Cain v. Doyle (1946) 72 C.L.R. 409 at 424,

"There is, I think, the strongest presumption against attaching to a statutory provision a meaning which would amount to an attempt to impose upon the Crown a liability of a criminal nature . . . we should at least look for quite certain indications that the legislature had adverted to the matter and had advisedly resolved upon so important and serious a course."

In Bradken Consolidated Ltd. & Anor. v. Broken Hill Proprietory Co. Ltd. & Ors. (1979) 24 A.L.R. at p. 25 it was said by Stephen J.:

"The general rule of the common law is that the Crown is only bound by statute where there exists express mention or necessary implication."

In Commonwealth v. Rhind (1966) 119 C.L.R. 584 at p. 598 Barwick C.J. described that rule as one "to be applied universally as of this time in the construction of statutes.". However dubious the antecedents of the rule - Hogg: Liability of the Crown (1971) at pp. 167 and 199-200, ". . . only statute can alter it now.". See also Bombay Province v. Bombay Municipal Corporation (1974) A.C. 58 at p.61

As indicated above, industrial disputes between employees who perform work of an industrial nature for the Crown or its agencies and authorities who do not themselves carry on an industry other than in the special sense referred to by Dixon C.J. in the Professional Engineers' Case (supra) at pp. 243-245 are industrial disputes in respect of which the provisions of the Act apply. Thus, such disputes would support the making of an award. In such cases the Crown and the authorities of the Crown are for the purpose of the definition of an industrial dispute regarded, in a special sense, as carrying on an industry. In that sense they are employers in an industry. It is therefore not an unreasonable contention, as made by Mr. Slicer, that by the effect of the definitions of industry and industrial dispute in s.4 of the Act there is, where the postulated circumstances exist, an express naming of the Crown and its authorities as employers in an industry. The contention is, in other words, that the inclusion of such entities who may in such circumstances be parties to industrial disputes is equivalent to an express provision that they are entities who are employers in an industry for, inter alia, the purpose of s.5 of the Act. If this were so then there would be good ground for the view that with respect to such entities the shield of the Crown had been removed.

But as is indicated in the reasoning of Dixon C.J. the interpretation of the definitions, in the special sense referred to above, was but a consequence of the necessity to give effect to the general intention of the Act that industry "would embrace all that might be regarded as an industry from the point of view of the pursuit or craft of the men or the undertaking, the business or the vocation of the employer", per Dixon C.J. at p. 244. But that intention is satisfied without attributing to the legislature the intention to remove the shield from the Crown where it would otherwise apply. It is satisfied in that, subject to special provisions concerning particular authorities it renders the Crown and its authorities subject to the jurisdiction of the Conciliation & Arbitration Commission in respect of the prevention and settlement of disputes and including the making of awards. It is quite another thing to find an intention to render the Crown criminally liable. Accordingly it cannot be said that there is an unequivocal indication that the shield of the Crown is removed in respect of s.5 of the Act.

It was contended, that however this may be, the shield of the Crown is removed by division 8 of part V of the Telecommunications Act 1975. That Act confers jurisdiction on the Conciliation and Arbitration Commission in relation to industrial disputes in respect of the "Australian Telecommunications Commission Service" which was established by s.38 of the Telecommunications Act. Section 67(1) provides:-

"67. (1) The Conciliation and Arbitration Commission is empowered -

(a) to prevent or settle, by conciliation or arbitration, industrial disputes in respect of the Service; and

(b) to hear and determine industrial questions in respect of the Service submitted to it."

By s.68(1) it is provided that:-

"68. (1) Subject to this Division, Division 1 of Part III of the Conciliation and Arbitration Act 1904-1974 extends to and in relation to the powers and functions of the Conciliation and Arbitration Commission under this Division, to and in relation to proceedings under this Division and to and in relation to awards made under this Division."

It is to be noted that division 8 does not provide that any provisions other than those of Division 1 part III of the Conciliation & Arbitration Act, shall similarly extend. (s.5 of the Act is not in Part III thereof.) But s.66(3) provides that officers and employers of the defendant shall be deemed to be employees in an industry within the meaning of the Act. It is put that the necessary implication from this is that the defendant is to be deemed to be an employer in an industry. As division 8 of Part V of the Telecommunications Act is about the defendant it is certainly named. Accordingly, so it is said, the necessary implication from the express provision in s.66(3) is that Parliament's intention is to bring the defendant within the provisions of s.5 of the Act.

It was pointed out that it might be thought that protection of employees such as that provided by s.5 might be just as desirable in the case of an entity such as the defendant as in the case of private employers. Parliament might well have acted on this view. But I do not think it did.

By division 8 of the Telecommunications Act the defendant is subject to the jurisdiction of the Conciliation & Arbitration Commission in relation to the prevention and settlement of industrial disputes in the Telecom service. It is made subject to awards and presumably to the award enforcement provisions such as s.119 of the Act. These provisions stop short of suggesting that the criminal liability created by s.5 applies to the defendant.

Accordingly the informant's real case depends upon s.66(3). The difficulty is that to remove the shield of the Crown some unequivocal statutory indication is necessary. There is real work for s.66(3) to do without imputing to Parliament the intention to make the defendant amenable to s.5. That work is to lay the foundation for the association of the employees of the defendant in a registered organization pursuant to s.132 of the Conciliation and Arbitration Act. To so associate, such employees must be employed in an industry. Thus s.66(3) sets out to put the employees nationally into an industry so that they may organize under the Act, and so play their part in the operations of the jurisdiction of the Conciliation & Arbitration Commission pursuant to s.67 of the Telecommunications Act. There is therefore no unequivocal indication of intention to remove the defendant's immunity, otherwise existing, in respect of s.5. Removal of the immunity in the manner suggested would in any event be a very indirect way of expressing an intention to remove the shield of the Crown.

It is to be observed also that Part V of the Telecommunications Act contains provisions dealing specifically with the tenure of office of officers and the terms of engagement of temporary employees of the defendant. Subject to the provisions of Part V officers and employees hold office on such respective terms and conditions as the defendant determines (s.43(1)). Section 54 of Part V provides that an officer who has attained the age of 60 years is entitled to retire from service if the officer desires to do so, but may, subject to Part V, continue in service until he attains the age of 65 years (s.54(1)). An officer may be subject to disciplinary action in respect of failure to fulfil his duty as an officer. Such action may include dismissal. Conduct constituting failure to fulfil duty as an officer is specifically defined. It includes:-

"(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;

(b) . . .

(c) . . .

(d) he is guilty of improper conduct as an officer;

(e) he is guilty of improper conduct otherwise than as an officer, being conduct that effects adversely the performance of his duties, is prejudicial to the interests of the Commission or damaging to the business of the Commission;

(f) he contravenes or fails to comply with a provision of this Act, of the regulations or of the By-laws, that is applicable to him or with the terms and conditions upon which he is employed;

(e) . . . "

Provision is made for appeals and a tribunal is established to hear such appeals (s.63(1)).

It is apparent that certain conduct constituting a failure to fulfil duty may involve conduct described in sub-sections (e) and (f) of s.5(1) of the Act. Thus the disciplinary provisions of Part V of the Telecommunications Act might come into collision with the provisions of s.5 if the latter were applicable to the defendant in respect of officers. And indeed the conduct alleged in this case, although it involved disobedience of a lawful direction was nevertheless conduct of the kind specified in s.5(1)(f) of the Act. Similar considerations are relevant in relation to temporary employees with respect to whose terms and conditions of employment the defendant is given complete discretion subject to the provisions of Part V (s.43(1) of the Telecommunications Act). The defendant is authorised in absolute terms to make By-laws with respect to the terms and conditions of employment of officers and employees (s.111(1)(g)) of the Telecommunications Act. The provisions of Part V have the appearance of a statutory code dealing with the terms and conditions of officers and temporary employees covering the field of tenure and discipline including dismissal of officers and extending complete discretion in respect of temporary employees. This is not to say that there is not scope for altering the position of employees to their detriment in relation to promotion and in other ways. But the provisions referred to do discourage the notion that the defendant is subject to s.5 of the Act in the operation of these provisions of the Telecommunications Act. These provisions certainly appear to proceed on the basis that the defendant is not subject to s.5.

In the result I am satisfied that the defendant as an emanation of the Crown is not bound by or subject to provisions of s.5 of the Conciliation & Arbitration Act.

Accordingly, the information must be dismissed.