Bonner, Dennis John v McAuley, Len

[1983] FCA 253

Re: DENNIS JOHN BONNER
And: LEN McAULEY
And: D. PRIOR
And: PETER KNEVITT
And: AUSTRALIAN BROADCASTING COMMISSION STAFF ASSOCIATION
No. G. 178 of 1982
Administrative Law
5 IR 306

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

Evatt J.

CATCHWORDS

Administrative law - judicial review - A.B.C. Promotions Appeal Board - appeal against promotion - decision of Chairman as to which organization (union) should nominate a member of the Board - whether A.B.C. Staff Association rightly so selected as the "organization of which it is appropriate for a person occupying the vacant position concerned to be a member".

Administrative Decisions (Judicial Review) Act 1977 s.5(1)(d) and (j) Broadcasting and Television Act 1942 ss.30, 43(2) and (6), 45, 47, 48 49, 50(2) and (5)

HEARING

SYDNEY

#DATE 30:9:1983

ORDER

1. The decision of the Chairman of the Australian Broadcasting Commission Promotions Appeal Board that the Australian Broadcasting Commission Staff Association be the organization to nominate a member of the Appeal Board in the appeal of Dennis John Bonner relating to position No.P 150622, Engineer Class 3 (Senior Engineer, Design and Development) be set aside.

2. The Court declares that the "organization of which it is appropriate for a person occupying the vacant position concerned to be a member" within the meaning of para.(ii) of s.50(2)(b) of the Broadcasting and Television Act 1942 is the Association of Professional Engineers, Australia.

3. The application is adjourned to a date to be fixed to hear evidence and argument, if any, on costs; and

4. All parties are at liberty to apply on 7 day's notice.

JUDGE1

This is an application by Dennis John Bonner an officer of the Australian Broadcasting Commission (the A.B.C.) for an order of review in respect of a decision of Len McAuley, the first named respondent, the Chairman of the Australian Broadcasting Commission Promotions Appeal Board (the Promotions Appeal Board) dated 22 September 1982 that the Australian Broadcasting Commission Staff Association, an organization registered under the Conciliation and Arbitration Act 1904, should be the organization to nominate an officer to be a member of the Promotions Appeal Board in an appeal lodged by the applicant to the Board pursuant to s.49 of the Broadcasting and Television Act 1942 (the Act).

The application is made pursuant to s.5 of the Administrative Decisions (Judicial Review) Act 1977 on the grounds set out in paragraphs (d) and (j) of s.5(1) which read:

"5.(1) A person who is aggrieved by a decision to which this Act applies that is made after the commencement of this Act may apply to the Court for an order of review in respect of the decision on any one or more of the following grounds:

(a) to (c) . . . .

(d) that the decision was not authorized by the enactment in pursuance of which it was purported to be made;

(e) to (h) . . .

(j) that the decision was otherwise contrary to law."

The facts leading up to the present application are that the applicant as an officer of the Australian Broadcasting Commission sought promotion in August 1981 to the position of Engineer Class 3, Senior Engineer, Design and Development. Thereafter another officer of the A.B.C., Mr S. Lieng, was provisionally promoted by the A.B.C. to the said position. In December 1981 the applicant appealed to the Promotions Appeal Board pursuant to s.49 of the Act against the provisional promotion of the said Mr S. Lieng, the grounds of the appeal being "equal efficiency and seniority" (see s.48).

Pursuant to s.50(2) of the Act the Promotions Appeal Board for the purpose of determining the applicant's said appeal shall consist of -

"(a) a Chairman, who shall be appointed by the Governor-General and shall hold office on such terms and conditions as the Governor-General determines; and

(b) in respect of each provisional promotion against which an appeal has been made to the Promotions Appeal Board -

(i) an officer appointed by the Commission; and

(ii) an officer nominated by the organization of which it is appropriate for a person occupying the vacant position concerned to be a member."

Sub-section 50(5) provides that in that section "an organization" means an organization registered under the Conciliation and Arbitration Act 1904.

Both the applicant and Mr Lieng are and have been at all relevant times members of the Association of Professional Engineers, Australia, (the A.P.E.A.), an organization of employees registered under the Conciliation and Arbitration Act 1904 and are not members of the Australian Broadcasting Commission Staff Association which is also an organization registered under that Act. The occupant of the position before Mr Lieng was also a member of the A.P.E.A.

After correspondence between the applicant and the A.P.E.A. on the one hand and the first named respondent on the other between 29 April 1982 and 22 September 1982 concerning the applicant's appeal, the first named respondent by letter dated 22 September 1982 informed the Branch Secretary of the New South Wales Branch of the A.P.E.A. that the Australian Broadcasting Commission Staff Association (the A.B.C. Staff Association) was the organization to nominate an officer to be a member of the Promotions Appeal Board in the subject appeal pursuant to s.50(2)(b)(ii) of the Act.

It is the applicant's contention that he was aggrieved within the meaning of s.5 of the Administrative Decisions (Judicial Review) Act by the decision of the Chairman of the Promotions Appeal Board referred to in the Chairman's letter dated 22 September 1982.

The second and third named respondents are the two officers respectively appointed and nominated under s.50(2)(b)(i) and (ii) of the Act to constitute with the Chairman the Promotions Appeal Board for the subject appeal.

On 12 October 1982 Morling J. made interim orders staying the hearing of the Appeal before the Promotions Appeal Board until further order of the Court. On that date the Court excused those three respondents from further attendance at the hearing of the application, it being indicated by an officer of the Deputy Crown Solicitor's Office, Sydney that those respondents would abide any order of the Court.

When the matter came on for hearing before the Court as presently constituted the A.B.C. Staff Association sought leave to be added as a party to the proceedings pursuant to O.6 r.8 of the Rules of Court. After hearing submissions from counsel for the A.B.C. Staff Association and for the applicant the Court granted leave for that Association to be added as a respondent to the application and consequently has had the advantage of hearing submissions on the general issue from counsel appearing for it.

The application sets out various grounds on which the application for review is based. The primary ground is that for the purpose of s.50(2)(b)(ii) of the Act the A.P.E.A. is the organization which is "the appropriate organization to nominate an officer to be a member of the Promotions Appeal Board" and the applicant seeks a declaration accordingly.

As has been stated by Lockhart J. in Hamblin -v- Duffy (No.2) (1981) 37 A.L.R. 297 @ 304, "plainly a decision of the Board to uphold or disallow an appeal is a decision which may adversely affect the rights, person and legitimate expectations of the appellant or the officer provisionally promoted. It affects their salary, position in the A.B.C. and prospects of promotion." (see also Hamblin -v- Duffy & Ors. (1981) 34 A.L.R.

Further, the decision of the Chairman of the Promotions Appeal Board which is challenged in the present application is, in my view, clearly a decision of an administrative character within the meaning of the Administrative Decisions (Judicial Review) Act 1977. The applicant's contention that he has been "aggrieved" by the said decision of the Chairman of the Board is three-pronged. First, it is argued that to put on to the Board a nominee of an organization other than his own organization, which latter organization is the sole appropriate organization within the meaning of para (ii) of s.50(2)(b) of the Act is in all the circumstances unlawful; secondly, the said decision, if not challenged, would result in the promotions Appeal Board being invalidly constituted for the hearing of the appeal in that the officer nominated by the A.B.C. Staff Association is a person not authorised by the Act to hear and determine the applicant's appeal and thirdly, the nominee of the A.B.C. Staff Association is less qualified to determine such appeal which depends (inter alia) on a determination as to "efficiency" which issue would be more fully understood by a nominee of his own organization, the A.P.E.A.

The applicant has satisfied the Court as to these two preliminary matters. Accordingly the Court has jurisdiction to hear and determine the present matter pursuant to the Administrative Decisions (Judicial Review) Act 1977.

This then involves a determination by the Court as to the proper construction of the expression "the organization of which it is appropriate for a person occupying the vacant position concerned to be a member" in para (ii) of s.50(2)(b) of the Act.

First it should be noted that it is the organization of which it is appropriate for the person to be a member and not an organization. Accordingly, in my view, there can be but one organization that is the appropriate one. Or alternatively, where there are two or more organizations which might at first sight, so to speak, be thought to be appropriate then a determination is required to be made as to which is the most appropriate.

"Appropriate" is not defined in the Act or the regulations made thereunder. A study of the surrounding sections of the Act does not assist in this regard in any particular way with the possible exception of the definition of "efficiency" in s.48 which is set out later herein.

Part III of the Act provides for the National Broadcasting Service and the National Television Service. Division 1 of that Part deals with the establishment and constitution of the Australian Broadcasting Commission ("the Commission") (s.30). Division 2 (s.41 to s.58) makes provision for the service of the Commission. Section 43(2) gives power to the Commission to appoint such officers and engage such temporary employees as it thinks necessary. Sub-section (6) of s.43 provides that the terms and conditions of employment of officers and temporary employees appointed are such as are determined by the Commission with the approval of the Public Service Board. Section 45 provides that the Commission may create any position in the service of the Commission and determine the salary, or the range of salary applicable to that position. Section 47 enables the Commission to transfer or promote an officer to fill a vacant position in the service of the Commission. Section 48 is set out:-

"48.(1) In the selection of an officer for promotion to a vacant position, consideration shall be given first to the relative efficiency of the officers available for promotion and, in the event of equality of efficiency of 2 or more officers, then to the relative seniority of those officers.

(2) For the purposes of this section -

(a) "efficiency" means special qualifications and aptitude for the discharge of the duties of the position to be filled, together with merit, diligence and good conduct, and -

(i) in the case of an officer who has at any time been engaged on war service - includes such efficiency as, in the opinion of the Commission, the officer would have attained but for his absence on war service; and

(ii) in relation to promotions to such senior positions as are prescribed - includes not only special qualifications and aptitude for the discharge of the duties of the position of higher status; and

(b) the seniority of officers shall be determined as prescribed."

Section 49(1) then provides that the promotion of an officer to a vacant position shall be provisional pending confirmation and shall be subject to appeal as provided by the section. Sub-section (2) provides:

"49(2) Any officer who considers that he should have been promoted to a vacant position in preference to the officer provisionally promoted, may appeal to the Promotions Appeal Board on the ground of superior efficiency or equal efficiency and seniority."

Relevant provisions of s.50 are set out earlier herein. The remaining sections of Division 2 of Part III of the Act (ss.51-58) are not relevant.

It is clear that when considering the issue of "efficiency" the Promotions Appeal Board would be assisted if a member thereof was conversant with the special qualifications and aptitude for the discharge of the duties of the position to be filled and in certain circumstances if the officer nominated by the employees' organization as the member of the Board had similar qualifications and experience of similar duties as those of the position to be filled he would more likely be better suited to determine that issue and no doubt his views would be of considerable assistance to the other two members of the Promotions Appeal Board. Such knowledge would obviously be of greater benefit where such duties and special qualifications of the vacant position are of a technical nature as the evidence in this matter discloses.

As stated, there is nothing otherwise in the context of s.50 or the surrounding sections dealing with the service of the Commission and the Promotions Appeal Board which throws light on the meaning of "appropriate" in s.50(2)(b)(ii).

Primary meanings of "appropriate" as set out in the Oxford English Dictionary are "specially fitted, suitable or proper". But how is one to determine what is specially fitted, suitable or proper in the relevant context. Counsel for the applicant has submitted that some five factors should be taken into consideration in making such determination.

The first of such factors, he argued, was the relative numerical strength of one organization as against another in respect of members who occupy or have occupied the position (or similar positions) which is under appeal. In this respect reference was made to Reg.109D of the Commonwealth Public Service Regulations which makes provisions for the constitution of a Promotions Appeals Board in that service. Such Boards are provided for in nearly all Government services and those of quasi-Governmental instrumentalities, both Federal and State where "internal appeals" in respect of promotions are provided for. In practice, although the wording of the various provisions setting out the constitution of such Boards may differ, the determination as to which organization or Union should nominate the "employees representative" on a particular Appeal Board is often governed by the largest number of officers or employees occupying positions of the class to which the provisional promotion has been made. Relevant parts of Reg.109D read:

"109D (1) A Promotions Appeal Committee or a Central Promotions Appeal Committee shall be constituted by -

(a) a Chairman appointed by the Board, who, while acting as Chairman, shall not be subject to direction by any person or authority under the Act;

(b) an officer nominated by the Permanent Head of the Department in which the provisional promotion has been made; and

(c) an officer nominated by the appropriate organization.

(1B) Where the rules of more than one organization provide that an officer who occupies the office to which a provisional promotion has been made is eligible for membership, the appropriate organization for the purposes of sub-regulation (1) of this regulation is the organization the membership of which includes the largest number of officers occupying offices of the class to which the provisional promotion has been made.

. . . . . . . . . . .

(8) In this regulation, "organization" means an organization within the meaning of the Commonwealth Conciliation and Arbitration Act 1904."

Here the evidence clearly shows that the A.P.E.A. has the largest number of officers amongst all the engineers employed by the A.B.C., as is the position in the particular class of officers under review, namely Class 3 Engineers.

The second factor suggested by counsel for the applicant as a relevant criterion is the relative activity of one organization compared with another in pursuing benefits for incumbents of positions under appeal. Although the A.P.E.A. is not a party to the determinations of the Public Service Arbitration in respect of the subject position, the evidence shows that the A.P.E.A. has been very active in furthering the rights and benefits of engineers employed by the A.B.C. over many years. It has on three or four different occasions over the years sought to become a party to such determinations and has made separate applications to the Arbitrator all of which have, to date, resulted in the Deputy Arbitrator, in the exercise of his discretion, refraining from making a determination thereon. But the A.P.E.A. has been very active in pursuing benefits and conditions for engineers in industry generally with the result that in practice the engineers in the A.B.C. have received by way of "flor-on", albeit belatedly, the benefits won in industry generally by the A.P.E.A. . There was evidence that apparently the A.B.C. Staff Association at times has allowed many months to elapse before applying for such flow-on. Counsel for the applicant further argued that the suggested lack of activity of the A.B.C. Staff Association in this regard was high-lighted by its role in the present proceedings. Here, it was not until the day appointed for the hearing of the present application that the A.B.C. Staff Association sought leave to be made a party thereto even though the matter had been listed before the Court on two previous occasions for directions. Further, even after becoming a respondent that organization saw fit to call no evidence in the matter at all. On the other hand, it was the A.P.E.A. who had pursued this application and attended at Court and made certain of its officials available as witnesses in the applicant's case.

The third factor upon which the applicant relied was the specialization of A.P.E.A. whose members are exclusively qualified engineers, qualified in accordance with the requirements of the Australian Institute of Engineers. It was argued that it was preferable that the employees' representative on the Promotions Appeal Board when considering the position under appeal which clearly was one requiring professional qualifications should himself be a member of a professional organization of engineers, namely the A.P.E.A. The evidence shows that the number of employees of the A.B.C. throughout Australia who were members of the A.B.C. Staff Association totalled approximately 6200. These employees are employed in all types of employment with varying qualifications and different classes of occupations. There were separate and distinct organizations of employees representing A.B.C. employees engaged in journalism and in music. There is within the A.B.C. a special group totalling some 76 persons who are engineers. Clearly, in my view, even though the eligibility rule of the A.B.C. Staff Association (which was not before the Court) may permit such engineers to be members of that organization, the appropriate organization for those 76 employees employed by the A.B.C. would be an engineering organization rather than one that has, as a vast majority of its members, persons not qualified as engineers.

The fourth relevant factor relied on by the applicant was the history of the incumbents of the position under appeal. As stated earlier herein the incumbent prior to the vacancy occurring, a Mr Bridle, was at relevant times a member of the A.P.E.A. . Mr Lieng, the provisional appointee to fill the vacancy, is a member of the A.P.E.A. whilst the applicant, Mr Bonner, is also a member of that organization.

The fifth factor argued on behalf of the applicant is that some special knowledge of the technical engineering skills is required of the officials of any organization if such organization was to properly and adequately represent engineers employed by the A.B.C. The officials of the A.B.C. Staff Association do not have such specialized knowledge. Additionally the evidence shows that the view of such engineers as represented through the A.P.E.A. frequently differed from the views of the A.B.C. Staff Association.

Counsel for the A.B.C. Staff Association submitted that as paragraph (ii) of s.50(2)(b) does not specifically make membership of a particular organization an essential criterion, then the question as to the appropriate organization which should nominate the employees' representative on the Appeal Board is to be determined irrespective of membership of an organization. The test, he submitted, is simply a question which organization has the coverage of the vacant position under an award or determination. On the evidence, that organization is the A.B.C. Staff Association. This submission is rejected.

I am of the view that generally the submissions of counsel for the applicant should be accepted. In all the circumstances the Court determines that on the proper construction of s.50(2)(b)(ii) the organization of which it is appropriate for a person occupying the vacant position the subject of the appeal to be a member, is the Association of Professional Engineers, Australia. Accordingly, that organization is the appropriate organization to nominate the officer who is to be the member of the Promotions Appeal Board pursuant to s.50(2)(b)(ii) of the Act for the purpose of hearing the subject appeal of the applicant.

I propose to order therefore that the decision of the Chairman of the Australian Broadcasting Commission's Promotions Appeal Board made on or about 22 September 1982 wherein he decided that the A.B.C. Staff Association was the organization to nominate the member of the Promotions Appeal Board pursuant to s.50(2)(b)(ii) be set aside.

Further, the Court makes a declaration that the appropriate organization for the person occupying the said vacant position to be a member is the A.P.E.A. and that that organization should nominate the member of the Promotions Appeal Board pursuant to s.50(2)(b)(ii) of the Act.

The application is to be adjourned to a date to be fixed to hear evidence and argument, if any, on costs. All parties are to be at liberty to apply on 7 days notice.