Davis, James William v Australian Telecommunications Commission Simpson, John Edwin v Australian Telecommunications Commission

[1978] FCA 100

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N THE FEDERAL COURT OF AUSTRALIA )

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1 QUEENSLAND DISTRICT RZGISTRY ) Nos. 5 & 6 of 1978

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DIVISION INDUSTRIAL 1

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In the matter of:-

THE CORCILIATION & ARBITRATION ACT 1904

B E T W E E N :

JOHN EDWIN SINPSON

Clalmant

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AUSTRALIAN TELECO~WNJNICATICXS CO:.!?.!ISSION

Respondent

(No.5 of 1978)

AND in the matter of:-

TIIE CONCILIATIO!\i & ARBITILYTIOLJ ACT 19CG

B E T W E E N :

JAhIES WILLIAM ~ ~ ~ 7 1 s

Clalmant

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-and-

AUSTRALIAN ?'ELCCOi.~.lUNICATIOf;S COXflIC.CIO:?

Respondent -

(No.6 of 1978)

- REASOILS FOR JUDZMENT -

MONDAY, 6 NOVFNBEF: 1978 ST-JOHN J.

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James William Davis and John Edwin Simpson, both of whom at

the relevant times were officers employed by the Australian

Telecommunications Commission as telecomnunicatlons technlclans

have each made applications to this court seeking an

interpretation of the Australian Telecommunications Commisslons

(General Conditions of Employment) Award 1975 and the

Australian Telecommunications Commission Telecommunlcatlons

Technical and Trade Staff Salaries	and,Speclfic Condltlons
of Employment Award 1975.

It would appear that the latter award was added to the

application in order that all the awards operatlve would

be before the court. It would appear to have no other relevance.

Each applicant submits that the first mentioned award should	be
interpreted in the following manner:-

"Paragraph 5 and Dlvision 6, Paragraphs

(sic) 57, 58, 59, 62, 63 and 64 of the

"Telecommunicatlons Act 1975".

THE APPLICANT submits that the above provlsions

should be lnterpreted In the following manner:-

That the only power to suspend, stand-down - .

dismiss or dlscipline an officer by the Australlan

Telecommunicatlons Commisslon under the above award

is pursuant to Provision (sic)	6 of the "Telecommunlcations
Act 1975"

AND FURTHER that the said Commission must

follow the procedural steps as contamed In Dlvision

6 of the said Act to lawfully dlscipllne, suspend,

stand-down or dismlss an officer who has wilfully disobeyed or wilfully disregarded a directlon glven

him as an officer in the course of hls employment

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AND FURTHER that the sald Commission has no

lawful power or authority to deduct from the wages

of an Officer any sum of money as a result of that

Officer wilfully disobeying or wilfully disregarding

a direction given to him as an Officer in the course of

his employment other than by exercising the Powers

confirmed on the said Commission pursuant to Division

6 of the said Act. "

In August 1978 the Australian Telecommunications Employees Association, an organisation registered pursuant to the

Conciliation and Arbltration Act 1904, (the Act) recommended

the imposition of certaln work bans, which bans were

adhered to by each of the applicazts. The applicant,

Simpson, when asked whether he would perform tasks presently

under ban stated that he was not prepared to do so when

asked by the plant manager at Metro South, Queensland. He

was then informed that he would not be paid. The task he

refused to do was within the normal range of his duties. The

applicant, Davis, similarly refused a task that was within

the normal range of his duties and he also was informed

that he was in a "no-pay'' situation. He continued to perform

other duties within his normal range for some days. He

subsequently refused another task within the normal range of

his duties and he was .informed agaln that he was in a	"no-pay''
situation.

The first mentioned award deals with a number of conditions

relating to employment such as various types of leave, meal

allowances, travelling time, condltions of payment regarding overtime and such like. It contains no provisions whatsoever

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as to when an employee is disentitled to payment of hls normal

remuneration or can be stood down or suspended. However,

Clause 5 of the award 1s as follows:-

"5-INCONSISTENCY WITH ACT A N I REGULATIONS, BY-LAWS

(1)

This award shall be read in conjunction with

the Telecomrnunlcations Act 1975 as amended

from time to tlme and Regulations and By-laws

made thereunder from time to time.

(2)

Where the said Act, Regulations and By-laws

are lnconsistent wlth the provislons of thls

award the latter shall prevail."

I quote sub-clause (2) for completeness. No question of

inconsistency arises and therefore no further conslderatlon

need be given to that sub-clause.

The application is for the exercise of this court's ~urisdlction

under s.110 of the Act. It is first to be noted that the

words of that section empower only the interpretation of

the award and do not extend to the constructlon or the

interpretation of the contract of employment where that

contract is not wholly contained wlthln the award. IIowever,

the terms of the contract could, in certaln clrcumstances,

influence the interpretatlon of the award.

Both applicants submit through their counsel that the words of

Clause 5 are sufficient to Incorporate certain sections of the

Telecommunicatlons Act 1975 into the award to the extent that they should be read as part of the award. Those provislons

are contained in Division 6 of that Act and comprise the

sections described as paragraphs in the application.

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In its ordinary meaning, in the Shorter Oxford English

Dictionary 3rd Edition, 'conjunction' is defined as:-

"1.

The action of conjoining: the fact

or condition of being conjomed:

union, connexlon, combinatlon."

The remaining definitlons relate to speclal matters.

'Conjoin' is "to Join together: to connect, unite" according

to the same lexicon.

Counsel for the respondent submits that incorporation as part

of the award 1 s not effected and relies heavily on the

failure to use in the award a phrase well known in Acts of

Parliament, that phrase being "read as one wlth". The

authorities on those latter words are collected in Craies

on Statute Law 3rd ed., p.137.

Awards are documents created by the Conciliatlon and Arbltratlon

- Act 1904 and the various State enactments to the same end.

They are comparatively recent in origln as a matter of legal - .

history and have not been the sublect of many decided cdses

where the approach to their Interpretation has been the

subject of detalled analysis. The reported decisions indicate

that the approach is one whlch might be described as partially

statutory and partially contractual. For example, Street J.

in Geo. A. Bond & Company Limited (in liq) v. McKenzie

(1929) A.R. 499 at p.503-4 expressed the view that:

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"Speaking generally, awards are to be interpreted

as any other enactment is interpreted ..... but

often framed without that careful attention to

form and draughtmanship which one expects to

find in an Act of Parliament. I think, therefore,

in construing an award, one must always be

careful to avoid a too literal adherence to

the strict technical meaning of words, and

must view the matter broadly, and after givlng

consideration and weight to every part of the

award, endeavour to give it a meaning consistent

with the general intention of the parties to be

gathered from the whole award."

Other authorities lay down that the conduct of the parties

can influence the interpretation In the case of ambiguity;

see Mills & Sorrell, Federal Industrial Law, 5th ed., p.293-4,

a doctrine imported from the law of contract.

Coming now to the words under consideration the above sections

of the Telecommunications Act deal with an aspect of employment

which could well form the subject matter of provisions in an

award as do other sections of the Act which are not relevant

for present purposes. That Act contains a regulation raking

power in s.il2 and a by-law making power in s.111 and

specifically in sub-section l(g) by-laws may be made relating

to the terms and conditlons of employment of officers and

employees. Some such by-laws have been made and I have been

referred to by-law 10 of the Staff By-laws which provldes for

forfeiture of salary for absence from duties.

In my view the words "read in conjunction with" manifest an intention to incorporate in the award thoso relevant sectlons

of that Act that deal with matters relating to employment.

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i The power of suspension or dismissal and the procedure to be

adopted is exhaustively dealt with in Dlvlsion 6 and could

have been invoked in relation to the facts supportlng these

applications. The definition of wilful misconduct

comprehends refusal to perform a task within the normal

range of duties. The procedure lald down in Dlvlslon 6

was not invoked. What happened was that refusal to perform

specific tasks was apparently relied upon to justlfy non-

payment of salary.

Much argument has centred around the terms of the contract

of employment. Submisslons and counter submssions have been

made on the questlon of whether the applicant should be pal6

or not on terms to be implied by the common law. The hct

does not erpower me to declare what terms should be implied

by common law as those terms could not be regarded as part of

the award.

The award contains no provisions relatlng to standing employees

down.	I can only say as	a matter of interpretation that	the
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award is silent as to standing down.

As to suspension, dismissal and dlsclpllnlng offlcers the

Sections referred to form a complete code and must be utillsed to achieve any of those ends.

As to the last submission that the respondent "has no power

or authority to deduct from the wages of an offlcer... ....l'

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I can only say as a matter of interpretation of the award

that no such power or authority exlsts in the award. I

repeat that I am nctentltled to declare what are in my view

the terms of the contract of employment. There is no

evidence that the whole of the terms are contained In the

award: indeed, the award is obviously conflned only to

certain aspects of employment. Whether power or authority

exists outside the award is not for me to determlne.