Harris, Geoffrey Gordon v Ansett Transport Industries (Operations) Pty Ltd

[1978] FCA 57

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I	Industrial law - alleged breach of an award - whether
criminal proceedings o r action for a penalty - rvhether
respondent obliged to give discovery - doctrine of
precedent - Ghether decision of Australian Industrial
Court binding on Federal Court - construction of award -
11 pilots who have been retrenched from any division . . . l ' -
"immediate rights to bid" - whether any correlative duty
on the employer to accept in certain circumstances -
Conciliation and Arbitration Act 1904 s.119
Geoffrey Gordon Harris and Allsett Transport Industries (Operations) Pty. Ltd.
S . A . No. 2 of 1978
Coram: Keely J. Adelaide
23 June 1978
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and Arb i t r a t ion Act 1304 . I

GEOFFXEY GORE3N HARRIS Claimant

- and -

ANSETT TK4b?SPGST INDUSTRIES

(OPERATIONS) PTY. LTD. Respondent

'C--L-L- /- REASONS F3R DECISION

I 23rd .%ne L978 KEELY, J.

This i s an appl icat ion under Sect ion 119 of t h e

Conci l ia t ion and Arbi t ra t ion Act 1904 (the Act) f o r a p e i ~ a l . ~ y

to be imposed upon Ansett Transport Industr ies (Operat ions)

Pty. Ltd. (the respondent) for an al leged breach of the

Ansett Transport Industries (Operations) Pty. Ltd. Seniority

Amrd 1977 ( t h e award) made by consent by t h e P l i g h t Crew

Of f i ce r s Indus t r i a l T r ibuna l	and	which	came	i n t o f o r c e	on
1st January 1978.

The a l l e g a t i o n made i n t h e Summons, as amended a t the

hearing without objection, was that the respondent a t Adelaide

on o r about the 1st day of Apri l 1978 committed a breach of

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t he award i n t h a t it "did appoint Fl ight Off ice1 R.H.

P a l l i a e r t o f i l l a vacant equipment assignment with Ansett

A i r l i nes of South Australia as advised in the Notice to

W .

a l l A.T.I. (Operations) Pty. Limited pilots dated 10th

January 1978 f o r Adelaide". S. 4 of the Act provides that:

I t 1

Breach' award, i n r e l a t i o n t o a telm of an order or

includes a non-observance of that term".

-Mr Anderson of counsel appeared f o r the claimant and

Mr Hayne of counsel appeared for the respondent. Each

agreed to the o ther ca l l ing-ora l ev idence .

Mr Hayne also agreed:

(l) that ' the Austral ian Federat ion of Air P i l o t s ( t h e

Federation) i s a declared body for the purpose of

t h a t p a r t	of	t he Act	which	dea ls with	f l i g h t crew
o f f i c e r s ;

( 2 ) that the respondent i s a company properly incorporated;

( 3 ) t h a t t h e f o u r a i r l i n e s Icnokn respec t ive ly as Ansett

A i r l i nes of Australia, Ansett Airlines of South

Aus t r a l i a , Ansett Ai r l ines of New South Wales and MacRobertson Mi l l e r Airline Services are i n fact operating divisions of the respondent and a r e n o t

separate companies.

I accept the evidence of Geoffrey Gordon Harris ( t h e

claimant) that he i s a member of the Federation and on the

evidence I f ind tha t he i s "affected by the (alleged) breach" ,.

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with in the meaning of S. 119(2)(c) . S. SSZ(2) provides

t h a t S. 119 ( i n t e r a l i a ) o f t h e A c t has 'I eEfect as i f a

declared body were an organisation". The award i s binding

. _ '

upon the Federat ion and upon the respondent in respec t of

p i l o t s employed i n each of t h e d i v i s i o n s of the respondeut

whether they be members of the Federat ion o r no t .

O n the f i r s t day of tile hear ing Mr Hayne objec ted to

producing cer ta in company records on the ground tha t t hese

proceedings are criminal proceedings. I heard argument on

tha t a spec t and on the fol lowing morning accounced the

following decision:

I' Yesterday M r Anderson on behalf of t he app l i can t

ca l led for the product ion of the respondent ' s

r e c o r d s r e l a t i n g t o t h e t r a n s f e r of Elr P a l l i a e r

t o Melbourne i n 1972. M r Hayne on behalf of the

respondent objected to producing the documents

based on the ground that these proceedings under.

s ec t ion 119 of t he A c t are cr iminal proceedings.

In support of t ha t p ropos i t i on M r Hayne r e l i e d

upon a

given on 5 September 1977 i n Vehicle Builders

Employees Federation of Australia v. General Motors-

decis ion of the Austral ian Industr ia l Court

Holdens Pty Ltd. That decision has not yet been

reported but i s c i t e d i n t h e supplement t o Mills 6:

S o r r e l l ' s I n d u s t r i a l Law Service a t pages 363-365.

A decis ion of t he Australian Indus t r ia l Cour t is n o t

binding. upon this Court and that i s so even when

the dec is ion i s , as i n t h e V.B.E.F. Case, a dec is ion

of three ' judges and this Court i s cons t i t u t ed by

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only one judge as a t present . Of course a dec is ion

of a Court consis t ing of three judges of the Aus t ra l ian

Indus t r ia l Cour t i s of grea t persuas ive au thor i ty .

However,	t h e d i f f i c u l t y i n t h e p r e s e n t	case	i s	tha t t he
e . '

Court i n t h e V.B.E.1,'. decis ion expressly decl ined to I

f o l l o w t h r e e e a r l i e r d e c i s i o n s of the Indus t r ia l Cour t .

Those dec is ions a re Park inson ' s Case (1958) 1 F.L.R. 99;

Telegraph Newspaper v. Ausl-ral ian Journal is ts '

Assocjation (1902) 3 F.L.R. 39 and Australasian Meat

Industry Employees' Union v. Thomas P lag fa i r P t y L t d

(1962) 3 F.L.R. 234. The Court i n t h e V.B.E.F. Case

a l so re fused t o follow a decis ion of the F u l l Supreme

Court of Queensland i n - t h e Newstead Warves Case (1954)

Q.S.R. 331. The judgment a lso runs counter t o an

obil;er dictum of Cussen,	J. in Jones	v. Lorne Sawmil l s
(1923) V.L.B. 58.

In these circumstances there appeared to me t o be much

to be sa id for tak ing the course of re fer r ing th i s

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ca se to a enable this important quest ion Full Court of the Federal Court in order t o

of law to be a u t h o r i t a t i v e l y

determined. A t my reques t th i s poss ib le course of a c t i o n

was considered by both parties during the luncheon

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adjournment yesterday. On resumption M r Anderson s a i d ,

1 My i n s t r u c t i o n s a r e t h a t t h e whole matter which is

before you i s urgent , and t h a t any delay would be t o t h e

detr iment of the appl icant ' . Accordingly he asked that

thc matter be decided by me without r e f e r r i n g i t t o a

Full Court . M r Hayne on behalf of the respondent a l s o

submitted that the question should be decided without

r e fe r r ing the ma t t e r t o a Full Court . In these

circumstances, although I have power to r e fe r t he ma t t e r

t o a Ful l Court of my own motion, I shal l accede t o the

wishes o i bo th pa r t i e s and dec ide the mat te r .

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I have considered overnight the authori t ies c i tcd by

counsel and a l s o t h e a u t h o r i t i e s r e f e r r e d t o in the

V.B.E.F. Case I and, with g r e a t r e s p e c t t o t h e members

~f the Indus t r ia l Cour t i n the V.B.E.F. Case, I have

come t o the conclusion that this proceeding under _ .

sec t ion 119 i s a n a c t i o n f o r a penal ty and t h a t it i s

rLot a criminal proceeding.

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A s the mat te r i s urgent t ime does not permit me t o

formulate reasons f o r that conc lus ion in any de ta i l

but I shall i n d i c a t e the way	in which I have approached
the quest ion.

F i r s t , p u t t i n g a l l the-cases dea l ing wi th tha t sec t ion

t o one s i d e , I have formed the opinion that, as a matter

of i n t e r p r e t a t i o n of s e c t i o n 119 i n t h e c o n t e x t of t he

A c t , t he sec t ion does no t c r ea t e an offence, that

proceedings under i t are not c r imina l proceedings and

t h a t upon a breach being proved in any such proceeding

it is not intended by t h e l e g i s l a t u r e t h a t t h e Cour t

should convict a respondent. Accordingly, i t follows

t h a t the onus of proof appropr ia te to criminal

proceedings does not apply.

Secondly, the reasoning upon which t h e e a r l i e r

decis ions of the Industrial Court are based appears t o

me, wi th respec t , to be cor rec t , suppor ted as they are

by the dec i s ion of the Queensland Full Court and the

obiter dictum by Cussen, J. i n t h e Lorne Sahmi l l s Case.

Thirdly, with the g rea t e s t r e spec t t o the Cour t i n

V.B.E.F. v. G.M.H., my examination overnight of t h e

High Cour t cases c i ted by the Cour t in reaching i t s

conclusion does no t lead me t o t h e same conclusion.

The quest ion present ly undcr considerat ion does not

appear t o have been argucd before the High Court i n

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any of thoTe rases and i n m y view thc High Court d i d

no t in tend to dec ide tha t ques t ion	j.n	any	of	those
cases .

Las t ly , I may add the observat ion that the three decls ions

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of the Industrial Court were given in the per iod 1958-1962,

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t h a t i s from 16-20 years ago. The Conci l ia t ion and

Arb i t r a t ion Act has been frequently amended by the

par l iament s ince those cases; on an average the A c t hss

been amended more frequently than once per year.

I .

For example, t h e notes i n Mi1.I.s and Sorre l1 show t h a t !

sec t ion 119 i t s e l f was anended i n 1965, 1970 and 1373.

I am knowledge not o f course imput ing to the leg is la ture a

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of a l l decisions of a l l Cour ts a f fec t ing the :

i n t e r p r e t a t i o n of t he Act. However, the quest ion under

considerat ion at present i s not merely an inportant one;

i t i s quite fundamental to the enforcement of orders and

awards made under the Act.

Given the number of times on which the l eg i s l a tu re has

given i t s a t t e n t i o n t o t h e Act, inc luding spec i f ic

amendments t o s e c t i o n 119, it might be thought sdrprising

i f	the l eg i s l a tu re , o r t hose r e spons ib l e fo r d ra f t ing
the	var ious Acts amending the Conci l ia t ion and Arbi t ra t ion ,

Act since 1962, did not know of any one of t he th ree

decis ions of t he Indus t r i a l Cour t . The a l t e r n a t i v e

pos i t i on would be t h a t , knowing of them, and presumably

considering them (on the argument put), to have been

wrongly decided on such an important matter, they took

no steps t o correct the mat te r	by	amending	the
l e g i s l a t i o n .

I do not attach much impor tance to th i s aspec t , namely

the absence of any s teps of t h e l e g i s l a t u r e t o amend

the secti’on i n o r d e r t o overcome t h e e f f e c t s of t he

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ear l5.er decis ions of the Industr ia l Court . I f 1 h3.d

formed the opin ion tha t the ear l ie r dec is ions were

wrongly decided, I would of course be required to give

e f f e c t t o t h a t o p i n i o n and t o so decide. However, on

t i le 'contrary, I have reached the conclusion that the

ea r l i e r ca ses were , i f I may say so with r e spec t ,

correctly decided. Accordingiy, I r e j e c t M r Haync's

argument tha t these proceedings a re c r imina l

proceedings. - . i :

I t was fur ther a rgued by M r Hayne that if the present

proceeding is n o t a criminal proceeding, then i t i s a

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c i v i l a c t i o n f o r a penal ty , and t h a t i n s u c h a matter

the respondent i s not obl iged to give discovery. He

r e l i e d upon the Associated Northern Coll ier ies Case

(1919) 11 C.L.R. 738. I accept M r Hayne's submission

on t h i s a s p e c t , and a l s o his fur ther submiss ion tha t in

those circumstances the call by M r Anderson f o r t h e

production of t he company records i s a call t h a t i s or'

no	e f f e c t i n	this proceeding. 11
On	20th June	1978 on t h e o r a l a p p l i c a t i o n of M r Anderson

on behalf of the claimant I made an order under S. 109( l ) (d )

of t he Act enjoining the respondent from committing or

continuing a contravention of the A c t by w i l f u l l y making

defaul t in compl iance with the award unt i l the de te r in ina t ion

of the present appl ica t ion in matter numbered S . A . No. 2 of

1978 o r respondent from appointing Bobert fu r the r o rde r and i n p a r t i c u l a r r e s t r a i n i n g t h e

H. P a l l i a e r as a capta in

in Anse t t Ai r l ines of Soutll Aus t r a l i a and from taking any

fur ther s tep towards the complet ion of the procedures necessary

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f o r t h e g r a n t i n g t o M r P a l l i a e r of a f i r s t class a i r l i n e

t r anspor t p i lo t ' s l i cence .

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The hear ing of the matter cont inued in Adelaide unt i l

the a f te rnoon of 21s t June 1978, when I adjourned the fur ther

hearing of the matLer u n t i l 23rd June 1978 i n Melbourne.

Becauie the claimant 's counsel s t ressed the urgenry of the

matter ;Ind the respondent 's counsel a l s o asked that the

matter be decided as soon as poss ib l e , I announced t h a t on

23rd June 1975 I would g ive a wr i t ten dec is ion on the ques t ion

of whether the claimant had es tab l i shed a breach of the award

by the respondent. I a l s o s t a t ed tha t bo th pa r t i e s shou ld

a t t end on t h a t date prepared to proceed with the hear ing of

any evidence o r submissions as to pena l ty , i n t he even t o f

my dec id ing tha t a breach of t he award had been e s t ab l i shed ,

I

and a l s o with the hear ing of any evidence or submissions as

t o the enjoining order made on 20th June 1978 t o which I have

jus t	r e fe r r ed .
By reason of the shor t per iod of t ime avai lable , I shall ,

on ly r e fe r ve ry b r i e f ly t o t he f ac t s e s t ab l i shed be fo re the

Court . These reasons for decision may be l a t e r e l abora t ed i f

e i t h e r p a r t y so reques ts , bu t the prepara t ion of any such

e labora t ion i s l i k e l y t o be delayed for some time by reason

of other commitments.

The claimant commenced employment with the respondent

i n t h e A n s e t t A i r l i n e s of South Australian d i v i s i o n i n 1973

and a t a l l material t imes has been so employed as a P i l o t

F i r s t O f f i c e r , becoming in February 1978 the sen io r p i lo t

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f i r s t o f f i c e r r e s i d e n t i n South Australia so employed.

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,

Pfr Palliaer commenced employment with the respondent in

its South Australian division in 1964. In 1972, by reason

of a change, in the aircraft operating, six pilot first

* .

officers in the South Australian division were declared

redundant by agreement between ttqo committees. At that

point of time, unless volunteers for transfer from South

--

Australia were to come forward in sufficient numbers, the

result would necessarily be the compulsory transfer (called

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assignment") of one or more or' the six most junior pilots.

At that time by reason of his seniority on the then existing

seniority list, Mr Palliaer would n o t have been transferred

to Melbourhe against his will if he had not volunkeered.

He volunteered for a transfer from the South Australian

division to work in Melbourne with Ansett Airlines	of
Australia.

The notice to all pilots dated 10th January 1978 referrcd

to in the Summons, was over the signature of Mr Crabb, the

operations manager of the South Australian division, who give evidence in this matter. The notice included the

folLowing (inter alia) :

l 1 In accordance with the recent Tribunal decision and

the consequential A.T.J. (0) Seniority Award (effective

1/1/78) eligible pilots are invited t o submit bids for

F27 First Officer vacancies which currently exist in

A.T.I. ( 0 ) Pty. Ltd. in Adelaide, Melbourne, Brisbane

and Cairns and consequential vacancies which may arise.

Bids should stipulate one or more bid preferences in order

of priority. Bid only for those domiciles to which you

are prepared t o move. -

Awards will be made in accordance with Section 39.C.4.F.

of the Airline Pilots' Agreement 1977."

I

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b l r P a l l i a e r was appo in ted to f i l l t he "vacan t cqu~.pntant

ass ignment ' ' r e fe r red to in the Summons which I have set out

i n f u l l e a r l i e r . I t i s that appointment which the appl icant

contenas i s in b reach of the provis ions of t he award.

The award includes fol lowing c lauses: the . _

"2. A Sen io r i ty L i s t which appears as the Schedule hereto

and forms p a r t of t h i s award ( r e f e r r e d t o he re in as the

A.T. I . Senior i ty Lis t ) has been compiled f rom the nunber

and names of p i l o t s upon the fol lowing basis : . ..

3 . P i l c t s with l e s s e r s e n i o r i t y r i g h t s t h a n F/OF. Scholman

on the A,T. I . Sen io r i ty L i s t and any subsequent current

A.T . I . Sen io r i ty L i s t sha l l be en t i t l ed to c ros s b id

r i g h t s in any divis ion-of A.T.I. f o r system vacancies

a d v e r t i s e d a f t e r 30 June 1978, as ing the bid rules of

t h e A i r l i n e P i l o t s ' Agreement 1977 as amended from time

t o t ime except for F27/F28 F i rs t Off icers ' sys tems

vacancies which sha l l be open f o r b i d fo?rthwith.

4 . Pi lo ts wi th h igher sen ior i ty r igh ts than L.H. i e a t e s

on the A.T.I . Sen io r i ty L i s t and any subsequent current

A.T.I. Sen io r i ty L i s t shall have cross bid r ights to system

vacanc ie s adve r t i s ed in ano the r d iv i s ion a f t e r 30 June, 1978

by bidding immediately above the most senior pilot down t o a re la t ive pos i t ion one to another

recruited since

and including 20 November, 1972 in that division.. Should

such pi lots subsequent ly bid for a vacancy in the i r pa ren t

divis ion, their bid shal l be considered in accordance

w i t h t h e i r s e n i o r i t y p o s i t i o n on the then current A.T.I.

Sen io r i ty L i s t . P i l o t s who have been retrenched from any

divis ion shal l have immediate r ights t o bid any such

system vacancies within their previous divis ion.

!	...
8. A t r u e copy of t h i s award and the A.T.I. Sen io r i ty List
shall be provided to each A.T.I. P i l o t .
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9 . In t h i s award:
I

Division' means any A.T. I. subs id i a ry , i . e . A . O . A . ,

A.N.S.W.,	A.S.A.	and M.M.A.
1

Division' employed on 1 January means the Div is ion in which a p i l o t i s I

Parent

1978. I

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In his submissions on b c t a l f of the respondent, Mr Ilayne

made two submissions as t o tihy the Court should not f ind that

t he respon.dent had committed a breach of t he award. Before

. .

doing so, he also subni t ted that the s tandard of proof in

these proceedings i s t h a t of proof beyond reasonable doubt b u t

did not seek to address the Court fur ther on that aspect , having

-.

regard to the ru l ing g iven on 20th June 1978 which I have set . ',

ou t ea r l i e r . In t h a t r u l i n g I expressed the view that the 01x1s

of proof appropriate.to criminal proceedings does not apply i f

the proceeding i s (as I have he ld) an ac t ion for a penalty.

Speaking of actions f o r a penal ty , the Australian I n d u s t r i a l

Court	in'V.B.E.F.	v.	Gexeral Motors Holdens	P t y L t d (supra)
said :

11 It fo l lows the re fo re tha t sub jec t t o the views

expressed by Dixon J. in Briginshaw Briginshaw v. .-

t h e c i v i l onus appl ies tosuch proceedings" .

M r Hayne's f i r s t submission was t h a t a l l of t h e s i x

p i l o t s who t r ans fe r r ed from the South Aus t ra l ian d iv is ion in

1972, including Mr P a l l i a e r , f e l l within the meaning of the

11 I 1

words P i l o t s who have been retrenched frcm any division . . .

appearing i n the last sentence of clause 4 of the award, which

I have set out above. He s a i d " t h a t t h e a p p l i c a n t f a i l s i n

showing t h a t t h e last sentence of c lause 4 of h i s Honour's

award d i d no t au tho r i ze the appointment". He argued that a

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p i l o t has been retrenched from" a d i v i s i o r . i f he ceased

serv ice wi th i? tha t d iv is ion because - t he re were su rp lus p i lo t s

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with in tha t d iv is ion t o perform the avai lable work. He I

a rgued tha t a p i l o t has been "retrenched from" a d iv i s ion

i f t h e r e was a causa l l ink between his ceas ing to se rve in

a d i v i s i o n and an event (e.g. an oversupply o f p i l o t s ) which

was not brought about by the enpioyee concernred.

I

Mr Nayne fur ther submit ted that t h e f a c t t h a t t h e

i d e n t i f i c a t i o n of t h o s e p i l o t s who a re to cease se rv ice i s an !

i d e n t i f i c a t i o n a t the choice of the pi lots concerned i s

i r r e l e v a n t . bf r Hayne's argument went t o t h e e x t e n t t h 2 t where

the fact of there being surplus p i l o t s i s even one of t he

causes in a p i l o t c e a s i n g t o s e r v e w i t h i n a d iv i s ion and

t ransfer i - ing to another d iv is ion of the respondent 's employment,

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t hen tha t p i lo t i s retrenched from" the division eve11 i f t h e

p i l o t had f o r many years s t rongly des i red t o make such a

t r a n s f e r and merely took advantage of the opportuni ty to

achieve a t r ans fe r t o ano the r d iv i s ion . A s M r Hayne put i t

I the fact that a p i l o t saw t h a t a l t e r n a t i v e as b e i n g a t t r a c t i v e

d i d no t a l t e r t he conc lus ion tha t a cause of his leaving was

t h a t t h e r e were surp lus p i lo t s , and tha t was an event beyond

t h e c o n t r o l of the pi lot concerned.

I I

The d e f i n i t i o n s of t h e word retrench" in the Shorter

Oxford English Dictionary include the following:

I 1 1. Trans. To cut sho r t .

2. To cut o f f .

3. To cu t down, reduce, diminish; Esp. t o curtail one's

expenses by the exerc ise of economy.

4. To cvt shor t , r educe in s i ze .

5. To cut o f f , remove, &Ice away ( b ) t o do away with

(an item of expenditure)

6 . I n t r . To reduce expenditure. 11

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I n my view ne i the r t he d i c t iona ry meaning nor any meaning

g e n e r a l l y a t t r i h t e d t o t h e word "retrenched" in t h e a r e a of

i ndus t r i a1 , r ' e l a t ions	i s wide enough	t o	support	the	argument
l 1

t h a t Palliaer was retrenched from any divisim1" on the

facts oE this case. There were surplus pi lots but the s ix

pi lots proposed to be retrenched would not have included

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M r P a l l i a e r i f t h e p i l o t s	were	retrenched	on	t h e p r i n c i p l e	o f	i
l 1

last on, f i r s t off" o r as it is sometimes expressed "first

in , last out''. In any event, the fact i s t h a t M r P a l l i a e r

vo lunteered to take a t r a n s f e r from South Australia t o Melbourne.

A fu r the r ques t ion which arises in consider ing clause 4

I t

i s wheth&r t h e words p i l o t s Tqho have been retrenched" means

p i l o t s who have been retrenched a t any time including

retrenchments occurring before the operative date of the

award. Mr Hayne submitted that t h e words "have been retrenched' I

r e f e r t o p i l o t s who were retrenched before the operative date

of the award and t h a t the meaning of the sentence may be l i m i t e d

i n such a way t h a t i t opera tes to confer r igh ts on ly upon those

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p i l o t s who	were	retrenched	before	the	coming	in to	opera t ion	o f	i I
I

the avard and not	upon	those	who	have been since that date or	l	1
I

may be in the fu tu re .

As Mr Anderson d id no t pu t a contrary argument on t h i s !

aspec t , I shall not express any concluded view on i t , but jn

I t

my view the words " p i l o t s who have been retrenched ... may have

been intended, to mean p i l o t s xqho have been retrenched a t any

-

I

i

. *

i time a f t e r t h e d a t e of coming in to opera t ion of t h e award.

! y ,.4'

I t

In the contex t I do not regard the use of the words who

J "

have been" as necessar i ly ind ica t ing any in ten t ion to confer

r i g h t s i n 1978 upon persons who were retrenched i n 1972 o r

a t a n e a r l i e r d a t e .

M r Hayne p laced re l iance upon the use of the past tense

I t

i n t h e words have been", however, in deal ing with a poss ib le

event a t some time after the coming in to opera t ion of the award

(i.e. when such a retrenchment of p i lo t s has taken p lace) the

I t

award may in t end tha t t hose* p i lo t s who have been retrezlched"

s h a l l h a v e c e r t a i n r i g h t s . Some suppor t for tha t view may be

l 1

. gained f r o m the use of the word immediate" i n the words

" sha l l have imed ia t e r igh t s t o b id" . So worded, the

sentence may be more appropr i a t e t o confe r r igh t s a t a time

a f t e r t h e coming into operat ion of the award and upon the

happening of an event, namely, the retrenchment of p i l o t s ,

upon which event t h e " p i l o t s who have been retrenched'' are

I

given ''immediate r igh t s t o b id" . The word "immediate" may

II

be thought t o i n d i c a t e that the r ights" conferred by t h a t

sentence of t he award a r e r i g h t s which a r e t o come in to fo rce

II

immediately the pilots have been retrenched".

If the in ten t ion were , as M r Hayne contends, to confer

I

those rights immediately the award came into operat ion upsn a l l

p i l o t s a l r e a d y i n t h e s e r v i c e of the respondent who had been

I t

a t any time i n the past re t renched from any division" then i t

-

would have been much e a s i e r - and c l e a r e r - t o have said "all

-- -

. -

_.._

- 15 -

p i l o t s who, a t any t ime before the coming in to opera t ion of

t h i s award, have been retrenched from any division are hereby

I t

g iven the r igh t t o b id ... .

I n my view it is a l x open t o argument t h a t t h e word

I'

retrenched" in c lause 4 of the award means re t renched in the

sense of the relevsnt contract of employment having been

terminated by the employer - as d i s t i n c t from a compulsory

t r a n s f e r from one d iv is ion to another . On t h i s ' a s p e c t ( i n t e r

alia) M r Hayne at tached importance to the use of the words

I' from any division' ' and argued that the strict l ega l pos i t i on

should be put to one side and the consent award should be

t r e a t e d as proceeding upon the basis that the divis ions in the

respondent 's	employment	a r e t o b e t r e a t e d	as	separate employers.
11

It i s t rue tha t t he add i t ion o f t he words from any division"

may have been intended by the p a r t i e s who draf ted the consent _:

award to have extended the concept of retrenchment in.the

sense of terminat ion of employment t o a concept of retrenchment :

i n a d i f f e ren t s ense , namely, a ces sa t ion of employment i n

the par t icular divis ion concerned brought about by a compulsory

t r a n s f e r - or assignment - t o ano the r d iv i s ion of the

respondent 's employment. However, Mr Anderson, when asked

as t o this mat te r , s a i d :

"I th ink I would have, i f required, conceded that i t

could have covered a s i t u a t i o n of a p i l o t whose

se rv ices were invo lun ta r i ly t r ans fe r r ed . I think I

would have conceded t h a t . 11

In those circumstances I shall-again express no concluded view -

as on the previous question. A pa r t i cu la r answer to e i the r

i ,

question would be f a t a l t o the resnnndcnt's	f j r s t submission-	: I
!

- 16 - l

. , :

3

Mr Haync's second suhnission was that, assuming (contrary '

to his first argument) that the last sentence of clause 4 of

I

the ayard 'did not authorise the appointment of Mr Palliaer,

* _ .

nevertheless the award id not impose any obligation upon the

respondent to refrain from appointing Mr Palliaer	to the
vacancy.

I accept the following submissions by Mr Hayne:

' !	(1)	that there is no express prohibition in the award against
the appointment o€ Mr Palliaer to the vacancy;
(2)	that the Court should iot hold that there is any such
obligation on the employer by implication from the award unless the matter is plain beyond doubt;

I I

(3)	that the Court in construing the award, which is
essentially the task that is raised by this limb of
the argument ... may certainly take into account the
fact that the Airline Pilots' Agreement 1977 existed

. at the time of the making of the award; that that

document had not been certified as an award and, of

i

course, was not itself an award'' and "ought to take into

account the fact that the parties had, before the making

of the award, regulated their affairs by reference	to
the law of contract and not by reference to award
obligation".

I do not accept Mr Hayne's submission that the applicant

must show the Award is a complgte and entire code and in any

I

.

- 1 7 -

event T do not consider that the mere Lct that the awa;d

refers to the Airline Pilots' Agreement 1977 necessarily

prevents the award from being a complete and entire code.

. _ 3

Mr Hayne also submiLted that the purpose of the award

was a clearly limited purpose	and that that purpose was
I'

to create a list of seniority, to be used immediately;

I -)

to create the mechanism for determining the seniority list on

the happening of certain future events a d to prescribe some

limited additional rights such as the right created by the

last sentence of clause 4".'

Another way of expressing this aspect of Mr Hayne's

submission is that he contends the parties, in agreeing upcn

the terms of their proposed consent award, intended that the

award should be limited to the structure and content of an . I

!

integrated seniority list and that the parties elected to

leave to the operation f contract law the question of whether

appointments should be made in accordance with that list. He

did not suggest that it would have been open to the respondent

as a matter of contract law to appoint a pilot in a way that is

n o t in accordance with the list but he submitted that such an

appointment (i.e. not in accordance with the list) was not a

breach of the award even if it amounted to a breach of contract

(as to which of course he made no concession).

It was also the submission for the respondent that,

although there was correlative - duty on the employer in

' ,

- 18 -

respect of t he r igh t confe r r ed by the award upon a p i l o t ,

t ha t co r re l a t ive du ty was only a duty on the employer t o

receive and consider any bid by a p i lo t ; any ob l iga t ion on

. .

the respondent to re f ra in from appointing Plr P a l l ' a e r t o the

vacancy was an ob l iga t ion which a rose outs ide the award and

was a matter for the opera t ion of cont rac t law only.

I

The award of course i s n o t in i t s terms l imited simply to

de te rmining the s t ruc ture o r conten t o f the l i s t . For example, i

i n c l a u s e s 3 and 4 it c o n f e r s s p e c i f i c r i g h t s on c e r t a i n

c l a s ses of p i l o t s , i n c l u d i n g p i l o t s who have been retrenched.

In my view, the r ights conferred by, for example, the f i rs t

sentence of c lause 4 of t he award cannot be read as being

11

merely a r i g h t t o b i d " without any cor re la t ive duty on the

employer to accep t that b id where it i s in accordance with

t h e s e n i o r i t y l i s t and i s not contrary to any express

I provis ion of the award.

I n my v iew, the in ten t ion of t he award was t o r equ i r e

the respondent employer to refrain from appointing to a

vacancy a p i lo t excep t in accordance with the integrated

s e n i o r i t y l i s t es tab l i shed by the award. Af t e r ca re fu l

considerat ion of the extremely able advocacy by M r Hayne

of	his carefully prepared and stoutly maintained argument
on	behalf of the respondent, I am unable to accept the

11

argument t h a t t h e i n t e n t i o n of the consent award was t o

l eave to the opera t ion of con t r ac t law the question of

-

whether appointments would be mpde in accordance with" the

s en io r i ty in t eg ra t ed l i s t . l

-

- 19 - b - '

:.f the conclusion which 1 have jzs t expresscd i s not

I

c o r r e c t t h e n i n my view a t l e a s t t h e award by c lcar impl ica t ion

required the respondent employer t o r e fuse t o rece ive a bid

from 'a person, namely M r P a l l i a e r , who was n o t e n t i t l e d t o

bid under the terms of the award by reason of h is f a i l u r e t o

bring himself within the words of t he last sentence of c lause 4

of the award (as I have held) . In my view it fo l lows t h a t . ! '

the respondent , being obl iged by the award t o r e f u s e t o r e c e i v e .

such a b id from M r P a l l i a e r , was a l so r equ i r ed by the award

t o refrain from appointing.Tlim t o any pos i t ion in respec t o f

which t h e award did not en t i t l e h i m to bid. Accordingly, in

my view the respondent did comnit a breach of the award i n

t

appoint ing Mr P a l l i a e r t o f i l l the vacant equipment assignmcnt.

l

i

:	I
: I

IN THE FEDERAL COURT	1
)

AUSTRALIA	OF	1	S.A. No. 2 of 1978
)

INDUSTRIAL DIVISION )

IN THE MATTER of the Conciliation

and Arbitration Act 1904

BETWEEN :

GEOFFREY GORDON HARRIS Claimant

- and -

ANSETT TRANSPORT INDUSTRIES

(OPERATIONS) PTY. LTD. Respondent

REASONS FOR DECISION

23rd June 1978 KEELY, J.

This is an application under Section 119 of the

Conciliation and Arbitration Act 1904 (the Ac ) for a penalty

to be imposed upon Ansett Transport Industries (Operations)

Pty. Ltd. (the respondent) for an alleged breach of the

Ansett Transport Industries (Operations) Pty. Ltd. Seniority ,.

Award 1977 (the award) made by consent by the Flight Crew

Officers Industrial Tribunal and which came into force	on
1st January 1978.

The allegation made in the Summons, as amended at the

hearing without objection, was that the respondent at Adelaide

on or about the 1st day of April 1978 committed a breach of

l

- 2 -

the award in that it "did appoint Flight Officer R.H.

Palliaer to fill a vacant equipment assignment with Ansett

Airlines of South Australia as advised in the Notice to

all A.T.I. (Operations) Pty. Limited pilots dated 10th

January 1978 for Adelaide". S. 4 of the Act provides that:

"'Breach' in relation to a term of an order or

award, includes a non-observance of that erm".

Mr Anderson of counsel appeared for the claimant Mr Hayne of counsel appeared for the respondent. Each agreed to the other calling oral evidence. and

Mr Hayne also agreed:

(1)

that the Australian Federation of Air Pilots (the Federation) is a declared body for the purpose of that part of the Act which deals with flight crew

officers ;

(2)

that the respondent is a company properly incorporated;

( 3 )

that the four airlines known respectively as Ansett Airlines of Australia, Ansett Airlines of South

Australia, Ansett Airlines of New South Wales and

MacRobertson Miller Airline Services are in fact

operating divisions of the respondent and are not

separate companies.

I accept the evidence of Geoffrey Gordon Harris (the

claimant) that he is a member of the Federation and on the evidence I find that he is ''affected by the (alleged) breach"

- 3 -

within the meaning of S. 119(2)(c). S. 882(2) provides

that S. 119 (inter alia) of the Act has “effect as if a

declared body were an organisation”. The award is binding

upon the Federation and upon the respondent in respect of

pilots employed in each of the divisions of the respondent

whether they be members of the Federation or not.

On the first day of the hearing Mr Hayne objected to

producing certain company records on the ground that these

proceedings are criminal proceedings. I heard argument on

that aspect and on the following morning accounced the

following decision:

“Yesterday Mr Anderson on behalf of the applicant

called for the production f the respondent’s

records relating to the transfer of Mr Palliaer

to Melbourne in 1972. Mr Hayne on behalf of the

respondent objected to producing the documents

based on the ground that these proceedings under

section 119 of the Act are criminal proceedings.

In support of that proposition Mr Hayne relied

upon a decision of the Australian Industrial Court

given on 5 September 1977 in Vehicle Builders

Employees Federation of Australia v. General Motors-

Holdens Pty Ltd. That decision has not yet been

reported but is cited in the supplement to Mills &

Sorrell’s Industrial Law Service at pages 363-365.

A decision of the Australian Industrial Court is not

binding upon this Court and that is so even when

the decision is, as in the V.B.E.F. Case, a decision

of three judges and this Court is constituted by

..

- 4 -

only one judge as at present. Of course a decision

of a Court consisting of three judges of the Australian

Industrial Court is of great persuasive authority.

However, the difficulty in the present case is that the

Court in the V.B.E.F. decision expressly declined to

follow three earlier decisions of the Industrial Court.

Those decisions are Parkinson's Case (1958) 1 F.L.R. 90;

Telegraph Newspaper v. Australian Journalists'

Association (1962) 3 F.L.R. 39 and Australasian Meat

Industry Employees' Union v. Thomas Playfair Pty Ltd

(1962) 3 F.L.R. 234. The Court in the V.B.E.P. Case

also refused to follow a decision of the Full Supreme

Court of Queensland in the Newstead Warves Case (1954)

Q.S.R. 331. The judgment also runs counter to an

obiter dictum of Cussen, J.	in Jones v. Lorne Sawmills
(1923) V.L.R. 58.

In these circumstances there appeared to me to be much

to be said for taking the course of referring this

case to a Full Court of the Federal Court in order to

enable this important question of law to be authoritatively

I

determined. At my request this possible course of action

, .

was considered by both parties during the luncheon

adjournment yesterday. On resumption Mr Anderson said,

l My instructions are that the whole matter which is

before you is urgent, and that any delay would be to the

detriment of the applicant'. Accordingly he asked that

the matter be decided by me without referring it to a

Full Court. Mr Hayne on behalf of the respondent also submitted that the question should be decided without

referring the matter to a Full Court. In these

circumstances, although I have power to refer the matter

l

to a Full Court of my own motion, I shall accede to the

wishes of both parties and decide the matter.

- 5 -

I have considered ovcmight the authoritics citcd by

counsel and also the authorities referred to in he

V.B.E.F. Case and, with great respect to the members

of the Industrial Court in the V.B.E.F. Case, I have

come to the conclusion that this proceeding under

section 119 is an action for	a penalty and that it is
not a criminal proceeding.

As the matter is urgent time does not permit me to

formulate reasons for that conclusion in any detail

but I shall indicate the way in which I have approached

the question.

First, putting all the cases dealing with that section

to one side, I have formed the opinion that, as a matter

of interpretation of section 119 in the context of the

Act, the section does not create an offence, that

proceedings under it are not criminal proceedings and

that upon a breach being proved in any such proceeding

it is not intended by the legislature that the Court

should convict a respondent. Accordingly, it follows

that the onus of proof appropriate to criminal

proceedings does not apply.

Secondly, the reasoning upon which the earlier decisions of the Industrial Court are based appears to

me, with respect, to be correct, supported as they are

by the decision of the Queensland Full Court and the

obiter dictum by Cussen, J. in the Lorne Sawmills Case.

I

Thirdly, with the greatest respect to the Court in

V.B.E.F. v. G.M.H., my examination overnight of the

High Court cases cited by the Court in reaching its

conclusion does not lead me to the same conclusion.

The question presently under consideration does not appear to have been argued before the High Court in

I

- 6 -

any of those cases and in my view the High Court did

not intend to decide that question in any of those

cases.

Lastly, I may add the observation that the three decisions

of the Industrial Court were given in the period 1958-1962,

that is from 16-20 years ago. The Conciliation and

Arbitration Act has been frequently amended by the parliament since those cases; on an average the Act has

been amended more frequently han once per year.

For example, the notes in Mills and Sorrel1 show that

section 119 itself was amended in 1965, 1970 and 1973.

I am not of course imputing to the legislature a

knowledge of all decisions of all Courts affecting the

interpretation of the Act. However, the question under

consideration at present is not merely an important one;

it is quite fundamental to the enforcement of orders and

awards made under the Act.

Given the number of times on which the legislature has

given its attention to the Act, including specific

amendments to section 119, it might be thought surprising

if the legislature, or those responsible for drafting

the various Acts amending the Conciliation nd Arbitration

Act since 1962, did not know of any one of the three

decisions of the Industrial Court. The alternative

position would be that, knowing of them, and presumably

considering them (on the argument put), to have been wrongly decided on such an important matter, they took no steps to correct the matter by amending the

legislation.

I do not attach much importance to this aspect, namely

the absence of any steps of the legislature to amend

the section in order to overcome the effects of the

- 7 -

earlier decisions of the Industrial Court. If had

formed the opinion that the earlier decisions were

wrongly decided, I would of course be required to give

effect to that opinion and to so decide. However, on

the contrary, I have reached the conclusion that the

earlier cases were, if I may say so with respect,

correctly decided. Accordingly, I reject Mr Hayne's

argument that these proceedings	are criminal
proceedings.

It was further argued by Mr Hayne that if the present

proceeding is not a criminal proceeding, then it is a

civil action for a penalty, and that in such a matter

the respondent is not obliged to give discovery. He

relied upon the Associated Northern Collieries Case

(1910) 11 C.L.R. 738. I accept Mr Hayne's submission

on this aspect, and also his further submission that in

those circumstances the call by Mr Anderson f o r the

production of the company records is a call that is of

I l'

no effect in this proceeding.

On 20th June 1978 on the oral application of Mr Anderson

on behalf of the claimant I made an order under S. 109(l)(d)

of the Act enjoining the respondent from committing or I .

continuing a contravention of the Act by wilfully making

default in compliance with the award until the determination

of the present application in matter numbered S.A. No. 2 of

1978 or further order and in particular restraining the

respondent from appointing Robert H. Palliaer as a captain

in Ansett Airlines of South Australia and from taking any

further step towards the completion of the procedures necessary

for the granting to Mr Palliaer of	a first class airline
transport pilot's licence.

I

- 8 -

The hearing of the matter continued in Adelaide until

the afternoon of 21st June 1978, when I adjourned the further

hearing of the matter until 23rd June 1978 in Melbourne. matter and the respondent's counsel also asked that the

matter be decided as soon as possible, I announced that on

23rd June 1978 I would give a written decision on the question

of whether the claimant had established a breach of the award

by the respondent. I also stated that both parties should

attend on that date prepared to proceed with the hearing of

any evidence or submissions as to penalty, in the event of

my deciding that a breach of the award had been established,

and also with the hearing of any evidence or submissions as

to the enjoining order made on	20th June 1978 to which	I have
just referred.

By reason of the short period of time available, I shall

only refer very briefly to the facts established before the

Court. These reasons for decision may be later elaborated if

either party so requests, but the preparation of any such

elaboration is likely to	be delayed for some time by reason
of other commitments.

The claimant commenced employment with the respondent

in the Ansett Airlines of South Australian division in 1973

and at all material times has been so employed as a Pilot

First Officer, becoming in February 1978 the senior pilot

first officer resident in South Australia so employed.

- 9 -

Mr Palliaer commenced employment with the respondent in

its South Australian division in 1964. In 1972, by reason

of a change in the aircraft operating, six pilot first

officers in the South Australian division were declared

redundant by agreement between two committees. At that

point of time, unless volunteers for transfer from South

Australia were to come forward in sufficient numbers, the

result would necessarily	be the compulsory transfer (called
I t

assignment") of one or more of the six most junior pilots.

At that time by reason of his seniority on the then existing

seniority list, Mr Palliaer would not have been transferred

to Melbourne against his will if he had not volunteered.

He volunteered for a transfer from the South Australian

division to work in Melbourne with Ansett Airlines	of
Australia.

The notice to all pilots dated 10th January 1978 referred

to in the Summons, was over the signature of Mr Crabb, the

operations manager of the South Australian division, who

give evidence in this matter. The notice included the

following (inter alia) :

"In accordance with the recent Tribunal decision and

the consequential A.T.I. (0) Seniority Award (effective 1/1/78) eligible pilots are invited to submit bids for

F27 First Officer vacancies which currently exist in

I

A.T.I. (0) Pty. Ltd. in Adelaide, Melbourne, Brisbane

and Cairns and consequential vacancies which may arise.

Bids should stipulate one or more bid preferences i order

of priority. Bid only for those domiciles to which	you
are prepared to move.

Awards will be made in accordance with Section 39.C.4.F.

of the Airline Pilots' Agreement 1977. 11

- 10 -

1'

EIr Palliaer was appointed to fill the vacant equipment

assignment'' referred to in the Summons which I have set out

in full earlier. It is that appointment which the applicant

contends is in breach of the provisions of the award.

The award includes the following clauses:

"2. A Seniority List which appears s the Schedule hereto

and forms part of this award (referred to herein as the

A.T.I. Seniority List) has been compiled from the number

and names of pilots upon the following basis: ...

3. Pilots with lesser seniority rights than F/OF. Scholman

on the A.T.I. Seniority List and any subsequent current

A.T.I. Seniority List shall be entitled to cross bid

rights in any division of A.T.I. for system vacancies

advertised after 30 June 1978, using the bid rules of

the Airline Pilots' Agreement 1977 as amended from time

to time except for F27/F28 First Officers' systems

vacancies which shall be open for bid forthwith.

4 . Pilots with higher seniority rights than L.H. Yeates

on the A.T.I. Seniority List and any subsequent current

A.T.I. Seniority List shall have cross bid rights to system

vacancies advertised in another division after 30 June, 1978

by bidding down to a relative position one to another

immediately above the most senior pilot recruited since

and including 20 November, 1972 in that division. Should

such pilots subsequently bid for a vacancy in their parent

division, their bid shall be considered in accordance

with their seniority position on the then current A.T.I. I Seniority List. Pilots who have been retrenched from any

division shall have immediate rights to bid any such

system vacancies within their previous division.

...

8. A true copy of this award and the A.T.I. Seniority List

shall be provided to each A.T.I. Pilot.

9. In this award:

'Division' means any A.T.I.	subsidiary, i.e. A.O.A.,
A.N.S.W., A.S.A. and M.M.A.

t Parent Division' means the Division in which	a pilot is
employed on 1 January 1978.

I'

...

I

- 11 -

In his submissions on behalf of the respondent, Mr Hayne

made two submissions as to why the Court should not find that

the respondent had committed a breach of the award. Before

doing so, he also submitted that the standard of proof in

these proceedings is that of proof beyond reasonable doubt but

did not seek to address the Court further on that aspect, having

regard to the ruling given on 20th June 1978 which I have set

out earlier. In that ruling I expressed the view that the onus

of proof appropriate to criminal proceedings does n t apply if

the proceeding is (as I have held) an action for a penalty.

Speaking of actions for a penalty, the Australian Industrial

Court in V.B.E.F. v.	General Motors Holdens Pty Ltd (supra)
said:

"It follows therefore that subject to the views

expressed by Dixon J. in Briginshaw v. Briginshaw

the civil onus applies to such proceedings".

Mr Hayne's first submission was that ll of the six

pilots who transferred from the South Australian division in

1972, including Mr Palliaer, fell within the meaning of the

I t II

I words Pilots who have been retrenched from any division ...

appearing in the last sentence of clause 4 of the award, which

I have set out above. He said "that the applicant fails in

showing that the last sentence of clause 4 of his Honour's

award did not authorize the appointment". He argued that a

pilot has been "retrenched from" a division if he ceased

service within that division because there were surplus pilots

i

- 12 -

within that division to perform the available work. He

I'

argued that a pilot has been retrenched from'' a division

if there was a causal link between his ceasing to serve in

a division and an event (e.g. an oversupply of pilots) which

was not brought about by the employee concerned.

Mr Hayne further submitted that the fact that the

identification of those pilots ufho are to cease service is an

identification at the choice of the pilots concerned is

irrelevant. Mr Hayne's argument went to the extent that where

the fact of there being surplus pilots is even one of the

causes in a pilot ceasing to serve within a division and

transferring to another division of the respondent's employment,

then that pilot is "retrenched from" the division even if the

I

pilot had for many years strongly desired to make such a transfer and merely took advantage of the opportunity to

achieve a transfer to another division. As Mr Hayne put it

the fact that a pilot saw that alternative as being attractive

did not alter the conclusion that a cause of his leaving was

that there were surplus pilots, and that was	an event beyond
the control of the pilot concerned.

The definitions of the word "retrench" in the Shorter

I

Oxford English Dictionary include the following:

1' 1. Trans. To cut short.

2. To cut off.

3. To cut down, reduce, diminish; Esp. to curtail one's

expenses by the exercise of economy.

4 . To cut short, reduce in size.

5. To cut off, remove, take away (b) to do away with

bn item of expenditure)

I'

6. Intr. To reduce expenditure.

- 13 -

In my view neither the dictionary meaning nor any meaning

generally attributed to the word "retrenched" in the area of

industrial relations is wide enough to support the argument

I t

that Mr Palliaer was retrenched from any division" on the

facts of this case. There were surplus pilots but the six

pilots proposed to be retrenched would not have included

Mr Palliaer if the pilots were retrenched	on the principle of
11

last on, first off" or as it is sometimes expressed "first

in, last out". In any event, the fact is that Mr Palliaer

volunteered to take a transfer from South Australia to Melbourne.

A further question which arises in considering clause 4

is whether the words "pilots who have been retrenched" means

pilots who have been retrenched at any time including

retrenchments occurring before the operative date of the

award. Mr Hayne submitted that the words ''have been retrenched"

refer to pilots who were retrenched before the operative date

of the award and that the meaning of the sentence may be limited , . -

in such a way that it operates to confer rights only up those

pilots who were retrenched before the coming into operation of

the award and not upon those who have been since that date or

may be in the As Mr Anderson did not put future.

a contrary argument on this

aspect, I shall not express any concluded view on it, but in

11

my view the words "pilots who have been retrenched . . . may have

been intended to mean pilots who have been retrenched at any

I I

I

I - 14 - !

I	.
I I

time after the date of coming into operation of the award.

In the context I do not regard the use of the words "who

have been" as necessarily indicating any intention to confer

rights in 1978 upon persons who were retrenched in	1972 or
at an earlier date.

Mr Hayne placed reliance upon the use of the past tense

II

in the words have been", however, in dealing with a possible

event at some time after the coming into operation of the award

(i.e. when such a retrenchment of pilots has taken place) the

II

award may intend that those pilots who have been retrenched" shall have certain rights. Some support for that view may be

gained from the use of the word "immediate" in the words

"shall have immediate rights to bid". So worded, the

sentence may be more appropriate to confer rights at a time

after the coming into operation of the award and upon the

happening of an event, namely, the retrenchment of pilots,

upon which event the "pilots who have been retrenched" are

given "immediate rights to bid". The word "immediate" may

be thought to indicate that the ''rights'' conferred by that

sentence of the award are rights which are to come into force

I t

immediately the pilots have been retrenched".

If the intention were, as Mr Hayne contends, to confer

those rights immediately the award came into operation upon all

pilots already in the service of the respondent who had been

I 1

at any time in the past retrenched from any division" then it

would have been much easier - and clearer - to have said "all

!

I

I	..	- 15 -
I	.
I

pilots who, at any time before the coming into operation of

this award, have been retrenched from any division are hereby

II

given the right to bid ... .

In my view it is also open to argument that the word

I t

retrenched" in clause 4 of the award means retrenched in the

sense of the relevant contract of employment having been

terminated by the employer - as distinct from a compulsory

transfer from one division to another. On this aspect (inter

alia) Mr Hayne attached importance to the use of the words

II from any division" and argued that the strict legal position

should be put to one side and the consent award should be

treated as proceeding upon the basis that the divisions in the

respondent's employment are to be treated as separate employers.

I 1

It is true that the addition of the words from any division"

may have been intended by the parties who drafted the consent

award to have extended the concept of retrenchment in the

sense of termination of employment to a c ncept of retrenchment

in a different sense, namely, a cessation of employment in

the particular division concerned brought about by a compulsory

transfer - o r assignment - t o another division of the

respondent's employment. However,	Ilr Anderson, when asked
as to this matter, said:

"I think I would have, if required, conceded that it

could have covered a situation of a pilot whose

services were involuntarily transferred. I think I I t

would have conceded that.

In those circumstances I shall again express no concluded view -

as on the previous question. A particular answer to either

question would be fatal to the respondent's first submission.

r

- 16 -

Mr Hame's second submission was that, assuming (contrary

to his first argument) that the last sentence of clause 4 of

the award did not authorise the appointment of Mr Palliaer,

nevertheless the award did not impose any obligation upon the

respondent to refrain from appointing Mr Palliaer to the

vacancy.

I accept the following submissions by Mr Hayne:

(1) that there is no express prohibition i the award against

the appointment of Mr Palliaer to the vacancy;

(2) that the Court should not hold that there is any such

obligation on the employer by implication from the award

unless the matter is plain beyond doubt;

11

(3)	that the Court in construing the award, which is essentially the task that is raised by this limb of the argument ... may certainly take into account the
fact that the Airline Pilots' Agreement 1977 existed

, _

at the time of the making of the award; that that

document had not been certified as an award and, of

course, was not itself an award" and ''ought to take into

account the fact that the parties had, before the making

of the award, regulated their affairs by reference to

the law of contract and	not by reference to award
obligation".

I I do not accept Mr Hayne's submission that the applicant

must show the award is a complete and entire code and in any

l

- 1 7 -

event I do not consider that the mere fact that the award

I

refers to the Airline Pilots' Agreement 1977 necessarily

prevents the award from being a complete and entire code.

Mr Hayne also submitted that the purpose of the award

was a clearly limited purpose and that	that purpose was
'I

to create a list of seniority, to be used immediately;

to create the mechanism for determining the seniority list on

the happening of certain future events a d to prescribe some

limited additional rights such as the right created by the

last sentence of clause 4".

Another way of expressing this aspect of Mr Hayne's

submission is that he contends the parties, in agreeing upon

the terms of their proposed consent award, intended that the

award should be limited to the structure and content of an

integrated seniority list and that the parties elected to

leave to the operation of contract law the question of whether

appointments should be made in accordance with that list. He

did not suggest that it would have been open to the respondent

as a matter of contract law to appoint a pilot in a way that is

not in accordance with the list but he submitted that such an

appointment (i.e. not in accordance with the list) was not a

breach of the award even if it amounted to a breach of contract

(as to which It was also the submission for the respondent of course he made no concession).

that,

although there was a correlative duty on the employer in

- 18 -

respect of the right conferred by the award upon a pilot,

that correlative duty was only a duty on the employer to

I

receive and consider any bid by a pilot; any obligation on I

the respondent to refrain from appointing Mr Palliaer to the

vacancy was an obligation which arose outside the award and

was a matter for the operation of contract law only.

The award of course is not in its terms limited simply to

determining the structure or content of the list. For example,

in clauses 3 and 4 it confers specific rights on certain

classes of pilots, including pilots who have been retrenched.

I

In my view, the rights conferred by, for example, the first

sentence of clause 4 of the award cannot be read as being I .

merely a right "to bid" without any correlative duty on the

employer to accept that bid xihere it is in accordance with

the seniority list and is not contrary to	any express
provision of the award.

In my view, the intention f the award was to require

the respondent employer to refrain from appointing to a

vacancy a pilot except in accordance with the integrated

seniority list established by the award. After careful

consideration of the extremely able advocacy by Mr Hayne

of his carefully prepared and stoutly maintained argument

on behalf of the respondent, I am unable to accept the

I t

argument that the intention of the consent award was to

leave to the operation of contract law the question of

whether appointments would be made in accordance with" the

integrated seniority list.

- 19 -

If the conclusion which I have just expressed is not

correct then in my view at least the award by clear implication

required the respondent employer to refuse to receive a bid

from a person, namely Mr Palliaer, xvho was not entitled to

bid under the terms of the award by reason of his failure to

bring himself within the words of the last sentence of clause 4

of the award (as I have held). In my view it follows that

the respondent, being obliged by the award to refuse to receive

such a bid from Mr Palliaer, was also required by the award

to refrain from appointing him to any position in respect of

which the award did not entitle him to bid. Accordingly, in

my view the respondent did commit a breach of the award in

appointing Mr Palliaer to fill the vacant equipment assignment.

I

i

i

FEDERAL COURT OF AUSTRALIA

!

VICTORIA

........ ........ ........ ........ REGIsIl lY

I

I MlNWE T O

The Principal Registrar,

Federal Court of Australia,

Level 16,

Law Courts Building,

Queens Square,

SMlNEY. N.S.W. 2000

Herewith copies of Reasons f o r Judgment in the matters of

V No. 14 of 1978 and S.A. No. 2 of 1978 handed down by

I .

the Honourable M r . Justice Keely on 23rd June, 1978.

5. J. BELL

27th June, 1978

95/12/3

- CATCHWORDS

Industrial law - Breach of an award - Belief act not

in breach - No previouz breaches - No penalty imposed -

'I

Prohibition in s.197A against order for any costs" -

Prohibits order for ''expense$' under s.116 - No prima

facie case - Injunctions refused - Conciliation and

Arbitration Act 1904 ss. 119, 116 and 197A

Geoffrey Cordon Harris and Ansett Transport

Industries (Operations) Pty. Ltd.

S.A. No. 2 of 1978 and V. No. 20 of 1978

Coram: Keely J.

-

Adelaide

-

26 July 1978

.

JN THE FEDERAL COURT L )

- I

S . A . NO. 2 of 1970 .

S )

OF AUSTRALIA 1 .. and

1 V. No. 20 of 1970

INDUSTRIAL D I V I S I O N )

IN THE MATTER of t h e Conciliation

' and A r b ~ t r a t x o n A c t 1904

BETWEEN:

GEOFFREY GORDON I f iFXIS Claimant

- and -

ANSETT TRANSPORT INDUSTRIES

(OPERATIONS ) PTY - LTD. Respondent

I

O R D E R

I . Judge making Order: KEELY J.

Order: of Date 26 J u l y 1970

Where made : Adelaide

THE COURT ORDERS THLT:

l

1. . N o pena l ty be imposed i n Matter S.A. 2 of 1970.

2. N o order be made I n favour o f the c la imant for expenses 1. I

-

inc luding the expenses of wi tnesses in Mat te r S.?,. 2

. of 1970. I .

3. The a p p l l c a t i o n f o r i n ~ u n c t ~ o n s d a t e d 25 J u l y 1978 i n

Matter V. N o . 20 of 1970 i s refused.

4. Matter V. No. 20 of 1978 i s adlourned s ine die .

.

l

AUSTRALIA OF and

V. No . 20 of 1978

INDUSTRIAL DIVISION - )

I N THE WITTCR of the Conc i l i a t ion and

Arln t rd t lon A c t 1904

BETWEEN:

GEOFFREY GOREON EARRIS Claimant

- and -

ANSCTT RANSPORT INDUSTRIES

(OPCRAT'IONS)	P'I'Y.	LTD.	Respondent
REASONS FOR	JUDGI	'ICNT

26 July 1978 KEELY, J.

On 23 June 1978 I announced my dec i s lon i n S.A. No. 2 of

1978 t h a t the respondent had been g u i l t y of a breach of t h e .4nse~t

Transpor t Indus t r les (Opera t lons) P ty . L td . Senior i ty Award l077

( the award) heard argument by both counsel and publ lshsd my reasons for t h a t decision. I =hen

a s t o costs and pena l ty and

reserved my dec ls ion .

S. 197A of the Conc i l i a t lon and A r b i t r a t i o n A c t ( the A c t )

provides t h a t :

"A p a r t y t o -

...

(b) a proceeding _.. before the Cour t ...

.. .

s h a l l n o t be ordered b pay any costs incur red by any

o t h c r p a r t y t o tha t p roceedmg excep t where the pa r ty ,

aga ins t hhom the order 1s made l n s t l t u t e d t h e p r o c c e d m g

vexat ious ly or wlthout reasonable cause."

Counsel for . the c la imant , M r Andcrson, argued that s.197~

d i d noc prohlblt t h e Cour t from maklng an ordcr i n favour of h l s '

c l i e n t for expenses inc lud lng the expenses of witnesses. Iie

r e fe r r ed

t he

Cour t

o

a

p a s s a g e

i n

Mills

&

S o r r e l l l s

F e d e r a l

l

t

i

I

I ..

- 2 -

I n d u s t r i a l Law ( 5 t h Ecl.) a t p. 413 and contended t h a t t h e

power g iven to the Court under S. 116 t o award "expenses

( including the expenses of w i t n e s s e s ) " is not taken away

by S. 197A. The au tho r s po ln t ou t t ha t S . 197A does not

i n express words p r o h l b l t an order for "cos ts and expenses

( includlng expenses of witnesses)" . The argument f o r t h e

claimant in seeking an order against the respondent for

expenses is supportcd by contrast3ng the words used in

I

S. 197A wlth the express reference to expenses used in bath

I

S. 116 and S . 168. There 1 s some f o r c e in t h a t argument.

The q u e s t i o n t o be determined is whether t h e amendlng

A c t i n 1 9 7 3 , which i n s e r t e d S. 197A I n t h e A c t , in tended to

prohlbi t the Court and other t r lbunals f rom orderlng a p a r t y

t o pay cos t s In the l lml t ed sense o f cos t s o the r t han

expenses lncluding the expenses of wltnesses or whether the

in t en t ion was t o p r o h l b l t t h e making of an o rde r fo r cos t s

in the wider sense i n which t h e word "cos t s " i s normally

used in lega l proceedlngS, e.g. as used by a success fu l

p a r t y i n a s k i n g f o r c o s t s , as used by t h e o t h e r p a r t y i f lt

opposes an o r d e r f o r costs and a s used by t h e C o u r t I t s e l f

i

in a l lowing or r e f u s l n g c o s t s I n any ma t t e r . An o r d e r f o r

c o s t s made by a Court normally 1 s in tended to Inc lude both

p r o f e s s l o n a l c o s t s and var lous other expenses in the conduct -

!

of the l i t lgat lon (assunnng they have been properly incurred)

including the expenses 'of wltnesses .

J

.

AlthocCjh S. 1 9 7 A does ;lot expres s ly use the words "costa

and expenses (includlng thc expenses of witnesses)" which appear

i n S. 116 and S. 168 of the A c t , i t noncthe less expresses In

wide terms a p a r t y s h a l l n o t the p roh ib l t i on aga ins t an o rde r fo r cos t s by saying

be ordered to.pay "any cos ts" incur red by any

. .

B . . - 3 -

I

o the r pa r ty . A p t o h i b l t i o n in s u c h terms can not be readl ly

co~lstrued as applylng only to par t of the costs normally

ordered and should not be so construed merely because of the

f a i l u r e of t h e draf tsmen to use the words used i n S. 116 and

S. 166. The additional words i n those two sec t ions may well

have been included for greater caution.

I n my vlew, the intent ion of S. 1 9 7 A was t o p r o h i b i t

(sub-ject to the exception whlch 1 s not presen t ly ma te r i a l

I

o rde r fo r the payment by sny.par ty of any c o s t s which the

Court, i n accordance vlth well es t ab l l shed p r inc ip l e s as t o

cos ts , might o therwlse order to be pa id - lncludlng

p r o f e s s l o n a l c o s t s , w i tnes ses ' ex_nenses and other disbursements.

Accordingly I hold t h a t I have no power t o o r d e r t h e

respondent to pay the clalmant 's expenses includlng the expenses

of witnesses. If the re were power t o do so I bwuld order ths ,

respondent to pay the clalmant 's expenses mcludlng wltnesFes'

expenses as the clamant has succeeded I n h l s con ten t ion tha t

t h e award \:as breached 1.; the respondent and no mater ia l has

been put be iore the Cour t to sugges t tha t for any reason he

is c l i sen t l t l ed to such an o r d c r i f the power exists.

M r Hayne on behalf OK t h e respondent argued that no penz l ty

should be imposed i n a l l t he c l r cums tances . He ca l led evlde.n.ee

t h a t t h e a p p r o p r i a t e o f f i c e r of t h e respondent a t a l l n a t e r 2 a l

tmnes be l l eved tha t t he ac t ion I n r e l a t l o n t o I4r P a l l i a e r wss

n o t a breach of thc consent award made on 8th February 1971

. *

and t h a t it had nevcr been	suggested to the	respondent	b y	any	I
t

o f f i c e r of the Austral lan Federat ion of A i r P l l o t s ( t h e !

Fedcra t lon) tha t s u c h ac t ion \%,ould be o r was I n breach of the

I

consent award. The Fcderation and the respondent are the only l

two p a r t i e s t o t h e award and the claimant is a member of the

Fcderation.

, - 4 -

.b. .

I

Mr ISayne a lso - clalmed (although upon its relevance

being doubted he d rd no t c a l l t h c e v l d e n c e ) t h a t t h e

respondent a t t h e time of p a r t l c i p a t l n g i n t h e d r a f t l n g

of the consent award and agreelng t o i ts terms, d i d so I n

the belief t h a t the i n t e n t i o n of the consen t award was

such a s t o permit the respondent t o so act i n r e l a t l o n to

h l r P a l l i a e r .

Evidence was a lso c a l l e d t h a t the respondent 1 s and

has been for many yea r s a par ty to approximacely 2 3

different awards and It has not prev ious ly been the sublec t

of any act ion for breach of any of those awards - a t least

d u r i n g t h e l a s t 20 years.

M r Andcrson on behalf of the claimant conceded tha t thc?

Court has power t o declde n o t t o impose a p e n a l t y I n respect

of a breach found t o have occurred. I I c argued t h z t , I f it

were he ld t ha t there 1s no power t o order the payment t o ille

claimant of espcnses , then the C o u r t In de te rmlning the amount

of the p e n a l t y t o bc Imposed - I n respect of the breach of the

award should take ln to account the need to compensa te the

c l a iman t fo r the expense In winch he has been necessar l ly

involved in br inglng these proceedlngs .

hlthough I do not dec lde the poin t , I havc doubts as to

I

whether i t would be proper for the Cour t , a f t e r dec ld lng to

impose a pena l ty , t o take I n t o account In considcr lng the

amount of t h e p e n a l t y t h e d e s l r a b l l i t y o f g l v i n g a clalmant

some Incen t ive t o btrrng proceedlngs for enforcement of awa;ds.

I

However, on t h e f a c t s of t h l s case, I have reached the

I

c o n c l u s i o n t h a t t h e f a c t o r s on which M r Ilayne h a s re l led

warrant a decision agalnst imposing any penalty. Havlng

formed tha t op in lon I do no t cons lde r t ha t It vould be proper

- 5 -

to impose a penalty simply for the purpose of providing an

incentive for the claimant (or removing a disincentive as

it was also put by the claimant's counsel). Even if (contrary

to the view I have expressed) it were permissible to impose a

penalty simply for that reason I would not do so on the facts

of this matter as I consider that the factors relied upon by

Mr. Hayne, in arguing against the imposition of any penalty,

outweigh the need for an incentive urged by Yr. Anderson.

Accordingly, no penalty will be imposed.

On 26 June 1978 at the instance of the claimant a rule

to show cause was issued (Matter V. No. 20 o f 1978)

calling upon the respondent to show cause why c rtain

declarations should not be made. On the hearing of that matter

yesterday an order was made by consent	for the joint hearing of
it and the original proceeding (Matter	S.A. No. 2 of 1978) subject

to any further order which might later be made	if separate
hearings become desirable.

In the meantime the respondent had filed in the original

* proceeding an application, d&ed 18 July 1978, for an order to

discharge the enjoining order of 20 June 1978 made under s.IOg(l)(b)

of the Act (referred to in the reasons Tor decision published on

23 June 1978 which incorrectly stated that it was made under

s.IOg(l)(d)). That application was supported by an affidavit,

sworn 18 July 1978, of Lawrence Faulkner Dodd, an industrial

relations officer in the employ of the respondent who had previously

given oral evidence in Matter S.A. No. 2 of 1978. It appears from

the afiidavit that on 2'6 June 1978 the Flight Crew Officers

Industrial Tribunal, constltuted by His Honour M r Justice Coldham,

heard an application by the Pederatlon f r a variation of the award.

The nature and purpose of the variation is set out in His Honourls

I ..

decls ion which was i n the following terms:

-

“ H i s Honour: I p r o p o s e i n t h l s c a s e t o v a r y t h l s award. I have

heard evldence from the two persons vho took an lmportank

par t no t on ly I n t h e d r a f t l n g o f t h e document t h a t

beczae the award b u t also who were c l o s e t o t h e s l t u a t l o n

as it e x i s t e d a t the t l m e of the retrenchments , If I may

use tha t express ion , and the re-engagements which arc in

i s s u e i n t h l s m a t t e r .

I myself have not been a l toge ther d i sassoc ia ted

with T. No. 26 of 1 9 7 5 , and perhaps It mlght be proper

f o r me t o say tha t what I heard I n t h e w i t n e s s box r a t h e r

confirloed what	1 had come t o understand i n t h a t 1975
proceed1 ny.

However, I accept the evidence glven by

Captaln I-Iolt and Mr. Dodd a s t o t h e i n t e n t i o n s of the

p a r t i e s when the document wh~.ch became t h e i n t e g r a t l o n

award was d ra f t ed . I have t o bear i n mind t h a t t h e s e

I

awards f requent ly a re draf ted by pragmatic people d e a l ~ n c ~

w i t h i n d u s t r i a l s i t u a t l o n s as t h e y a r l ? e i n the coKrsc OE

i n d u s t r i a l l i f e . I feel the re fo re t ha t cou r ses t o be

adopted from tlme to t l m e by t h l s t r i h n n a l , exercising BS

i t does the ordlnary powers of the Arbitration Colrmiss1s.n

with few except ions, m u s t be caken in the con tex t t ha t

documents which beccme awards a r e not l e g a l l y d r a c t e d .

In these c l rcuwstances I feel t h a t t h i s m a t t e r

should be c l a r l f l e d a n d , I t h i n k , c l a r i f l e d i n accoxdznce

wlth the f a c t s and the in t en t ions o f t he partles. Thac is

the underlying reason hvhy I propose to vary the award.

The d r a f t o r d e r whlch was submitted t o m e today

of course I propose t o wake an order i n the fol lowing does not bear o u t the var i a t ions a s sough t and

terms:

And in the ma t t e r o f -

AN APPLICATION BY TFiE AUSTRALTPX

FEDERATION O F A I R PILOTS AKD t

*	ANSETT TPIAtJSPORT IXDUSTRIES
(OPCR?TIOXS) PTY. LJi*!iTCD TO VAP.’:-
THS AcmxaL‘ T’R;INSPOP.T 1wusmIzs
(OPERATI-ONS) PTY. LIMITED
SENIORlTY AWARD 1977

(l’. No.34 o€ 1978)

R. The above order i s var ied as follows: by d e l e t i n g

from c iause 4 thereof the words “ p i l o t s who hnve been

r e t r e n 3 from any d iv ls ion sha l l have lmmedla te r lgh ts

.._ .- - _- .

~ -- -. ... ~ -_ __._-_ --- . . .

! - 7 -

t o bid	any	sJch	system vacancles mthln t 'ncir prevlous
-

divisions" m d ~ n s e r t r n g I n l i e u thareof the follo-wmg:

" p i l o t s l l s t e d I n Annexure A t o t h i s o r d e r who

were dec lared surp lus t o the requlrcrnents of

a d l v i s l o n of A.'l'. I. prlor t o 1 January 1978,

and by agreement wjth the k.F.P..P. were a s a

consequence t ransierred t o another A.T. I .

S iv is lon , sha l l have lmrncdla te r igh ts t o b i d

any system vacancies wi th in their prevlous

d i v l s l o n which are advertised af ter

1 January 1978".

B. This order wlll opera t e on and from the second day

of January 1978 and wlll remain In operacion for a per lod

of f i v e y e a r s from Lhah date ."

The order for v a r l a t l o n of	t h e award was	sxgced by H i s I1onoJ;-
on 27 June 1978.

In my vlew it .is not necessary t o make an order dlscharglc;

I

the en jo ln ing order because k h a h ordcr was expressed to ope ra t e

"un t i l t he dc t enn lna t lon of the appl.lcation bjy I4r E a r r l s nu~nbzre.

S.A. No. 2 of 1978 o r fur ther order" and Matter S.A. N o . 2 of

1978 1 s detennznzcl by the_ pub l l ca t lon of these r easons fo r

judgment \\.hlch have d e a l t w i t h t h e remaining I s s u e s of penalty

and costs.

However, the m a t e r i a l as t o the v a r i a t i o n order, lnclucilng

His IIonour!s reasons fox dec is ion , arc material t o an app l l za t i cn

made yesterday on behalf of t he c l a iman t fo r an order as

"1. An i n j u n c t l b n r e s t r a l n i n g Ansett Transport Inclustr lss ,

(Opcratlons)	Pty. Ltd.	from	appointing Robert H.	Pa l l l&cr
.

a s a cap ta ln In Anse t t A l r l l nes of South Wstralis.

2. A n in-Junct lon res t ra lnlng Ansett Transpor t Indus t r i e s

(Operations) Pty. L t d . from taking any fur t l lsr step towards

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completio~f oi t he p rocedures nccessa ry fo r the granhlng to

Robert H. P a l l i a e r of a flrst class a i r l i n e t ransport

I p i1 o t ' S llcencc. "

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Before deal ing {VI t h 'his q>pl c a t i o n f o r I n junc t ions i t

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should be mentioned t h a t P l r An,.. '!:son, on behalf of the clalmant.

yes te rday appl led for an ad lck . ment of mat te r No. V.20 of 1978.

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That appl ica t lon was made on tk.g.2 ground that the clalmant has

lodged an a p p e s l t o a Full Bench of the Australian C o n c i l i a b o n

and Arb l t r a t ion Commjssion (the Commsslon) under s.88ZG of

t h e A c t aga ins t t he va r l a t ion o rde r made by Mr Jus t lcc Coldhm

on 27 J u n e 1978. The applicatlon for an adlournment was not

opposed and accordlngly that matter will be ad-~ourned s i n e d l e .

As to thc app l l ca t io r l fo r l n lunc t ions made yesterday on

behal f o f the c la lmant , the bas i s under ly ing the appl ica t lon 1 s

a con ten t ion tha t the c l a lman t ' s r l gh t s unde r the award have bee-

retrospectively a l t e r e d by the consent var ia t lon, Chat an ap2cal

has been lodgcd agalnst the decls ion of I 4 r J u s t i c e Coldham so

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varying the award by consent and tha t Ius t lce requires t h a t the

respondent be rest rained pending the deterrnlnat lon of that appeal .

I t appears from HIS Honour ' S d e c l s l o n , w h c h I have set out abovs,

t h a t a f t e r h e a r l n g e v l d e n c e t h e s a l d v a r i a t l o n was necessary in

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o r d e r t o g l v e e f f e c t t o t h e o r i g l n a l i n t e n t l o n of t h e Federat lon

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and t h e present respondent (who were and a r e t h e only two

p a r t i e s t o t h e award). They w e r e bo th r cp resen ted in the proceedx-.;r

before Coldham J . , who a l s o g r a n t e d l e a v e t o Mr White, the

s o l i c i t o r f o r t h e c l a l m a n t , t o a p p e a r on behalf of the clalmant

in those var ia t ion proceedlngs.

I n considering khe c la lmant ' s appl ica t lon for mjunct i .ons

and hls counsel ' S reference to the appea l l odged on h l s b e h a l f ,

I have had regard particular t o a l l the mater la l before the Court and I d r a ;

a t t e n t l o n CO the fo l lowing mat te rs :

1. N o appcal Iles from the var la t lon o rder o f Coldham J. "unless

i n the opin ion of the (Ful l Bench of the) Comnlsslon, the

i mat te r 1 S of such lmportancc that, 11'1 t h e p u b l i c i n t e r e s t I

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an appeal lies". ( s . R R Z G ( 3 ) ) . T t f01loi:s t h a t althouql1

an appeal has been i n s t l t u t e d on behalf of the clalmant

i n the sense, presumably, of the I.odg~ng of a no t l ce of

. appeal , i t is not yet establ lshecl that any appeal lies. ~ h s

. quest ion of whether such an appeal l ies is a matter entlrei::

f o r a F u l l Bench of t h e Commisslon.

2. Since the no t i ce of appeal was lodged It has been open CD tk:

claimant unde r s.88ZG(5) t o seek from a F u l l Bench of the

Commission an o r d e r t h a t the operation of t he va r l a t lon "he

stayed pendlng the determinatlon of the appeal" . No such

appl lcat lon has been made and accordlngly the award a s

var ied 1 s c u r r e n t l y i n force . No reason has been given to

thc Court for the f a i l u r e t o s e e k a s t ay of the va r l a t lon

order although a re ference was made t o the time nccessaxy

i n order to obta in scn lor counse l ' s op ln lon I n r e l a t i o n EO

the appeal. A t the hear ing on 26 J u n e 1978 Coldham J. was

asked by Mr White, the so l i c l to r fo r t he p re sen t c l s i m s n t ,

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t o make an order s taylng the operat ion of the va r l a t ion

order u n t i l the deterlnlnatlon of the proceedlngs i n the

I.	Federal	Court.	H i s IIonour	s a l d "I do	not	propose	to	make
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such an o rde r , even i f I had the power t o do so. The F u l l

Bench has power t o do so b u t t h a t i s only under s.34 of

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the A c t when an appeal t o t h e F u l l Bench of t he Arb i t r a t lon

Conunission 1 s pending". I t follows that whatever t h e reaso?

may have h e n f o r . thc f a i l u r e t o a p p l y t o a F u l l Bench for a:

order staying thecperat ion of the variation ordc r , i t vas

I c l e a r t h a t the claimant ' S l ega l r ep resen ta t ive was aware

of the r iglf t t o seek such a s tay order from a F u l l Bench.

However, I am not prepared to i n C e r , a s i nv l t ed by I4r Haync.

t h a t t h e r c was a de l ibe ra t e dec i s ion on behalf o i the

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claimant to re f ra ln f rom apply lng t o a F u l l Bench for a l

s t ay . -

3 . In consider lng whether t o g r a n t l n t e r i m i n l u n c t i o n s t h e Cour=

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has t o consider whether there j s a prima facie case and i n i

so doing has t o conslder the l l k e l i h o o d of success of the

I. ac t ion a t the subsequent t r i a l . However, I c o n s l d e r t h a t

the Court should not attempt t o assess t h e l i k e l ~ h o o d of

, success of an app l i ca t lon to a F u l l Bench of the C o i ~ ~ ~ s s i o n

for a s t a y of the variation order. The decision on any

such appl ica t lon 1 s a matter pure ly for t h e F u l l Bench. .

4. S lmi l a r ly , I c o n s i d e r t h a t the Court should nor attempt KO

assess t h e l l k e l i h o o d of the clalmant belny successfu l 111

persuading a F u l l Bench of t h e Comlnlssion t h a t t h e m a t t e r 1s L

of such ln ipo r t ance tha t i n the pub l l c In t e re s t an zspcal

fhould l i c . o r i f s u c c e s s ~ u l on t h a t l s s u e , on t h e mcrits

of thc appea l l t sc l f .

Summarizing the forcgolng it seems c l e a r t h a t -

( a ) the award h a s been var led by copsent wl th the In t en t ion of

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glv ing effect to what \:as found on the evidence t o be t he

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original. inKention	of	t h e par t ies	i n d r a f t i n g t h e c o n s e n t
award ;

(13) although a n o t i c e of appeal has been lodged ~t has not

yet been determined tha t an appeal l ies:

( c ) no stay order has been made by - or sought froin - a r u l l

Bench ;

( d ) I consld-sr t ha t t he Cour t shou ld no t attempt t o assess the

l l k e l i h o o d of t h e Full Bench of t h e Commisslonr

( i ) s t ay lng the operation of the va r i a t ion o rde r i f

asked t o do so:

(li) d e c l d i n g t h a t an appeal 1 ies;

(iii) upholding the appeal.

Mr Hayne has submlttcd tha t "011 no vlew can i t now be

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s a i d t h a t any conduct t ha t t he r e sponden t t h rea t ens or ln t ends

i s a breach of any provlsion of any award." Accordingly, he has

submi t ted tha t the c la imant has f a i l e d t o establish a prima f a c L

case I n the sense requi red before a Court wlll g r a n t l n t e r l o c u t o r

in junc t lons . I have had the advdntage of carefu l ly cons lder ln tg

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I overnight the t r a n s c r i p t of the subrnlssions made by M r Anclerso..

on behalf of t h e claimant. I n my opinion, blr Anderson has

i	f a i l e d t o establish a prlma facie case i n the sense used	by
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I	t h e High	Court	i n Beechm's Case (1968) 118 C.L.R.	618.
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I	Accordingly,	I	reject	t h e application	for	i n t e r l i n m ~ u n c t l o n s .
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I Mr Hayne also -

(1) a rgued tha t t he Court has no power t o g r a n t the dec lara ' ix -z

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the suS-Ject of the r u l e t o show cause In	matter V. Xo. 20
of 1978; and

( 2 ) sought t o c a l l e v i d e n c e I n r e l a t l o n to the i s s u e as to t;?e

balance of convenlence.

However, i n view of my dec ls ion thac ns pr lma fscie case

I has been es tab l l shed , it-1s not r iecessary for the C o n - t t o

de te r ln lne the l ssue in (1) nor t o hear the evidence ~n ( 2 ) .

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