Hudson v Australian Telecommunications Corporation

[1990] FCA 668

Re: ANTHONY JOSEPH HUDSON
And: AUSTRALIAN TELECOMMUNICATIONS CORPORATION; R.J. BARTLEY; T. ROGERS and T.
HULSE
No. QG 54 of 1990
FED No. 668
Administrative Law - Telecommumications
27 FCR 97
(1990) 39 IR 13

COURT

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
Spender J.(1)

CATCHWORDS

Administrative Law - Judicial Review - notice of objection to competency - decision by Disciplinary Appeal Board - apprentice technician of Telecom dismissed for misconduct - whether decision to dismiss amenable to review under Administrative Decisions (Judicial Review) Act 1977 - whether excluded from judicial review as being a decision under an instrument of the Industrial Relations Act 1988.

Telecommunications - Determinations made under the Telecommunications Amendment Act 1988 and Australian Telecommunications Corporation Act 1989 - determinations applied the disciplinary procedures laid down in the Telecommunications Act 1975 - awards later made pursuant to the Industrial Relations Act 1988 purporting to cover Telecom employees - whether relevant disciplinary procedures are those made applicable by the determinations or by the awards.

Administrative Decisions (Judicial Review) Act 1977 ss. 3, 149, Schedule 1

Industrial Relations Act 1988 ss. 4, 111, 121, 147, 148, 149, 150, 178

Industrial Relations Regulations 1988 Reg. 4, Schedule 3

Telecommunications Act 1975 ss. 39, 42

Telecommunications Amendment Act 1988 ss. 13, 14, 32

Telecommunications and Postal Services (Transitional Provisions and Consequential Amendments) Act 1989 ss. 88, 90

Australian Telecommunications Corporation Act 1989 ss. 85, 86

Acts Interpretation Act 1901 s. 4

HEARING

BRISBANE

#DATE 22:11:1990

Counsel for the applicant: Mr B. Cotterell

Instructed by: Poteri Woods and Co.

Counsel for the respondents: Ms M. Wilson

Instructed by: Australian Government Solicitor

ORDER

The Objection to Competency of the First Respondent is upheld.

There be no order as to costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

This is the hearing of a notice of objection to competency filed by the Australian Telecommunications Corporation ("Telecom") in response to an application for an order of review filed by Mr Anthony Joseph Hudson on 11 May 1990, wherein Mr Hudson sought to review the decision of the respondents that he be dismissed from the service of Telecom.

1. The question is whether such a decision, which under the Telecommunications Act 1975 would have been a decision under an enactment amenable to review under the Administrative Decisions (Judicial Review) Act 1977 ('the ADJR Act'), is now immune from such review as a consequence of legislative changes affecting employees of Telecom in 1988 and 1989, and which included the repeal of the Telecommunications Act 1975.

2. A Mr Peter Maher, Acting District Manager, had on 25 January 1990 found a number of allegations against Mr Hudson proved, and recommended the appellant's dismissal from the service of Telecom. The second respondents, constituted as a Disciplinary Appeal Board, heard appeals by Mr Hudson concerning those matters. While it is not presently relevant, at the hearing by the Disciplinary Appeal Board of his appeals, a total of nine charges of misconduct were proffered against him. The Board determined in respect of what was set out as charges 7, 8 and 9 that the appeal be upheld and the charges dismissed. It found charges 1-5 "dealt with as one charge of misconduct only" proved, and in respect of charge 6 the appeal was dismissed. The determination stated:
   

" The penalty for charges 1-5 (dealt with as one charge) and charge 6, is that ANTHONY JAMES HUDSON be DISMISSED from the service of the Corporation."

1. The notice of objection to competency asserts that the decision sought to be reviewed is a determination of the second respondents constituted as a Disciplinary Appeal Board pursuant to cl. 10 of the Telecom General Conditions of Employment Award 1989. It is said that such a decision is a decision under the Industrial Relations Act 1988 or, alternatively, is a decision under an instrument made under the Industrial Relations Act 1988, viz. the Telecom General Conditions of Employment Award 1989. It is said as a consequence that the decision belongs to a class of decisions in respect of which the ADJR Act does not apply.

2. Section 3 of the ADJR Act provides, inter alia, that a:
   

" 'decision to which this Act applies' means a decision of an administrative character made, proposed to be made, or required to be made, as the case may be (whether in the exercise of a discretion or not) under an enactment, other than a decision by the Governor- General, or a decision included in any of the classes of decisions set out in Schedule 1;..."

and 'enactment' means, subject to matters of no present relevance,

" (a) an Act other than the Commonwealth Places (Application of Laws) Act 1970 or the Northern Territory (Self-Government) Act 1978;

(b) an Ordinance of a Territory other than the Northern Territory;

(c) an instrument (including rules, regulations or by-laws) made under such an Act or under such an Ordinance; or

... "

1. Schedule 1 referred to in the definition of 'decision to which this Act applies' commences:
   

" Classes of decisions that are not decisions to which this Act applies:

(a) decisions under the Conciliation and Arbitration Act 1904 or the Industrial Relations Act 1988..."

1. The reference in Schedule 1 to the Industrial Relations Act 1988 was inserted in 1988 by s. 86 and Schedule 2 of the Industrial Relations (Consequential Provisions) Act 1988.

2. The notice of objection to competency turns on the effect of amendments to the Telecommunications Act 1975 made in 1988. It suffices to say that the legislative changes are labyrinthine.

3. Prior to those amendments Division 6 of Part V of the 1975 Act (ss.57-64 inclusive) dealt with dismissals and punishments. Section 62 provided for an appeal to a Disciplinary Appeal Board, the establishment of which was provided by s. 63.

4. The Telecommunications Act 1975 drew a distinction between officers and employees: ss. 39 and 42. Section 39(1) provided:
   

" The Commission may appoint as officers such number of persons as it thinks necessary for the purpose of this Act."

And s. 42(1) provided:

" The Commission may engage persons as temporary employees."

1. In 1988 by the Telecommunications Amendment Act 1988 (No. 121 of 1988) the Australian Telecommunications Commission became the Australian Telecommunications Corporation. Further, the Act made extensive amendments to employment and staffing conditions.

2. Section 13 of that Act repealed Part V Division 1 of the 1975 Act, and s. 14 repealed Part V Divisions 2-7 inclusive, and substituted ss. 38 and 39. By s. 32 of the 1988 Amendment Act, all staff members became 'employees'. Section 38 provided:
   " (1) The Corporation may engage such employees as
   

are necessary for the performance of its functions and the exercise of its powers.

(2) The terms and conditions of employment shall be determined by the Corporation. "

Section 39 provided:

" The Corporation shall endeavour to achieve and maintain high standards as an employer in relation to terms and conditions of employment, occupational health, industrial safety, industrial democracy, non-discriminatory employment practices and other matters."

1. It was submitted on behalf of Telecom that the effect of these provisions was to take conditions of employment and disciplinary provisions out of the Telecommunications Act 1975 and include them in a determination made under s. 38 of the principal Act as amended.

2. By Proclamation No. S402 of 20 December 1988 the 1988 amendments changing the Commission into a Corporation came into effect on 1 January 1989. By Proclamation No. S216 of 29 June 1989, the 1988 amendments affecting staffing provisions, which includes s. 14, came into operation on 30 June 1989.

3. By a document dated 29 June 1989 the Australian Telecommunications Corporation made a s. 38 determination under the Telecommunications Act 1975. The competency of that determination is referred to in the recitals:
   " (a) Section 14 of the Telecommunications
   

Amendment Act 1988 is, under subsection 2(3) of that Act, to commence on a day to be fixed by Proclamation for the purposes of that subsection;

(b) Section 14 of that Act will, when

proclaimed, insert a new section 38 in the Telecommunications Act 1975;

(c) Under section 4 of the Acts Interpretation

Act 1901, the power of the Corporation to determine terms and conditions of employment pursuant to section 38 may be exercised before the proclamation date; and

(d) Under section 29 of the Telecommunications

Act 1975, all acts and things done in the name of the Corporation by the Managing Director shall be taken to have been done by the Corporation;"

1. Section 4 of the Acts Interpretation Act 1901 provides as follows:
   " 4. (1) Where an Act (in this section referred to
   

as the Act concerned), being -

(a) an Act enacted on or after the date of commencement of this section that is not to come into operation immediately upon its enactment; or

(b) an Act enacted before the date of commencement of this section that did not come into operation on or before that date, is expressed to confer power, or to amend another Act in such a manner that the other Act, as amended, will confer power, to make an appointment or to make an instrument of a legislative or administrative character (including rules, regulations or by-laws), then, unless the contrary intention appears, the power may be exercised, and anything may be done for the purpose of enabling the exercise of the power or of bringing the appointment or instrument into effect, before the Act concerned comes into operation as if it had come into operation."

1. The effect of cl. 2 of the determination of 29 June 1989 is that the terms and conditions of employment of Mr Hudson after the proclamation date of the 1988 amending Act, viz. 30 June 1989, were "the terms and conditions applicable to an officer immediately before the proclamation date".

2. Clause 3 provides that the reference to:
   

" terms and conditions in force immediately before the proclamation date is a reference to terms and conditions applicable under:

(a) the Telecommunications Act 1975, and the Telecommunications Regulations, as in force immediately before the proclamation date;"

1. Clause 4 of that determination is in these terms:
   

" The terms and conditions made applicable by paragraph 2 do not include:

(a) to the extent that substitute disciplinary procedures have been prescribed by or under an Award of the Industrial Relations Commission - the disciplinary procedures in Division 6 of Part V of the Telecommunications Act 1975 and the Telecommunications Regulations made under that Act; or

(b) to the extent that substitute complaint procedures have been agreed between a relevant organization and the Corporation - the provisions in By-law 15 of the Telecommunications (Staff) By-laws."

And cl. 7 is in these terms:

" Where a reference in a term or condition detailed in paragraph 3 relates to proceedings instituted or to be instituted before a Promotions Appeal Board, Disciplinary Appeal Board or Review Tribunal established under the Telecommunications Act or the Telecommunications Regulations, the reference shall be read as a reference to a board or tribunal, however named, established under a determination made by the Corporation under section 38."

1. On the following day, 1 July 1989, the Australian Telecommunications Corporation Act 1989 came into effect by the proclamation in Commonwealth Gazette S230 dated Friday, 30 June 1989. Part 7 of that Act dealt with Telecom staff. Section 85 provided:
   " (1) Telecom may engage such employees as are
   

necessary for the performance of its functions.

(2) The terms and conditions of employment shall be determined by Telecom. "

and s. 86 provided:

" Telecom shall endeavour to achieve and maintain high standards as an employer in relation to terms and conditions of employment, occupational health, industrial safety, industrial democracy, non-discriminatory employment practices and other matters."

1. On 30 June 1989, Mr M. K. Ward, the Managing Director of the Australian Telecommunications Corporation, signed a document headed "Australian Telecommunications Corporation Act 1989 Section 85 Determination". That document recited:
   " Whereas:
   

(a) Section 85 of the Australian Telecommunications Corporation Act 1989 ('the Act') is, under section 2 of the Act, to commence on a day to be fixed by proclamation.

(b) Under section 4 of the Acts Interpretation Act 1901, the power of the Corporation to determine terms and conditions of employment pursuant to section 85 may be exercised before the proclamation referred to in (a);

(c) On 29th June 1989 a determination was made by the Australian Telecommunications Corporation under section 38 of the Telecommunications Act 1975 as in force following the proclamation made under subsection 2(3) of the Telecommunications Amendment Act 1988 (the "first determination"); and

(d) Under section 24 of the Act all acts and things done in the name of the Corporation by the Managing Director shall be taken to have been done by the Corporation:"

1. By that document the Corporation determined that that determination had effect from the date on which the Act is proclaimed to commence, viz. 1 July 1989. Clause 2 of the Section 85 Determination is in these terms:
   

" The terms and conditions of employment applicable from the date on which the Act is proclaimed to commence to staff employed after that date and staff continued in employment under section 88 of the Telecommunications and Postal Services (Transitional Provisions and Consequential Amendments) Act 1989 shall be the terms and conditions determined under the first determination."

1. The effect of that clause is that the terms and conditions of employment applicable to Mr Hudson from 1 July 1989 were the terms and conditions determined under the first determination.

2. Clause 3 of the Section 85 Determination was in these terms:
   

" In the application of the first determination under this determination, a reference in the first determination to a board or tribunal established under a determination made by the Corporation under section 38 shall be read as a reference to a board or tribunal established under a determination made by the Corporation under section 38 or under section 85 of the Act."

1. Section 88 of the Telecommunications and Postal Services (Transitional Provisions and Consequential Amendments) Act 1989 ('the Transitional Provisions Act 1989') provides:
   

" Each person who, immediately before the commencing day, was an employee of Telecom continues to be employed by it as if the person had been engaged under section 85 of the new Act."

1. Section 90 of the Transitional Provisions Act 1989 repealed, inter alia, the Telecommunications Act 1975 and the Telecommunications Amendment Act 1988. The relevant provisions of the Transitional Provisions Act 1989 commenced on the first day of July 1989 (see Special Gazette No. 220 of 29 June 1989).

2. The Industrial Relations Act 1988 commenced on 1 March 1989: (Proclamation No. S53 of 14 February 1989).

3. Applying these statutory changes to the circumstances of Mr Hudson, on 21 January 1980 he had been employed by the Australian Telecommunications Commission as an Apprentice Technician (Telecommunications). Immediately before the 1988 amendments to the staffing provisions of the Telecommunications Act 1975 came into effect, he was an "officer" within the meaning of s. 39 of the 1975 Act. By s. 32 of the Telecommunications Amendment Act 1988 and s. 38 of the 1975 Act, as amended, on 30 June 1989 he became an "employee" of the Australian Telecommunications Corporation. On 1 July 1989 the Australian Telecommunications Corporation Act 1989 came into effect and, by virtue of s. 88 of the Transitional Provisions Act 1989, his employment was continued. The charges with which the Disciplinary Appeal Board was concerned related to conduct in September and October 1989. Mr Hudson was then an employee of the Australian Telecommunications Corporation.

4. It was submitted on behalf of Telecom that an award made pursuant to the Industrial Relations Act 1988 was an "instrument" under that Act, as that term is used in s. 3(1) of the ADJR Act.

5. In Chittick v. Ackland (1984) 1 FCR 254, Lockhart and Morling JJ. said at 264:
   

" We agree with the following passage from the judgment of Ellicott J. in Burns v. Australian National University (1982) 40 ALR 707 at 716-717 with which Bowen C.J. and Lockhart J. agreed on appeal: ' The clear object of the Act is to confer rights on aggrieved citizens as a result of the exercise of powers conferred by an enactment on Ministers, public servants, statutory authorities and others. In many cases the power exercised will be precisely stated in the legislation. In other cases the power to do a particular thing will be found in a broadly stated power. The Act should not be confined to cases where the particular power is precisely stated. In each case the question to be asked is one of substance, whether, in effect, the decision is made 'under an enactment' or otherwise. As at present advised we accept that to qualify as an instrument for the purposes of the Judicial Review Act the document must be of such a kind that it has the capacity to affect legal rights and obligations. It seems to us that if a document has such capacity it should be regarded as an instrument for the purposes of that Act."

1. Lockhart and Morling JJ. held that the document embodying the conditions of employment in that case was such an instrument as is defined in the definition of "enactment" in s. 3(1) of the ADJR Act. Jenkinson J. held that relevant decisions were decisions made under a section of the Health Insurance Act which were within paragraph (a) of the definition of "enactment".

2. Accepting as I do that an award made under the Industrial Relations Act 1988 is an instrument made under that Act, the question is whether the decision of the Disciplinary Appeal Board was a decision made under an award made pursuant to the Industrial Relations Act 1988. If it was such a decision, the ADJR Act does not apply.

3. It was submitted on behalf of Telecom that the relationship at the time of the alleged misconduct in September and October 1989 between Hudson and Telecom was the subject of a contract to which the provisions of the Australian Telecommunications Commission Telecommunications Technical and Trades Staff (Salaries and Specific Conditions of Employment) Award 1975, as amended, ('the Technical and Trades Staff Award'), certain provisions of the Telecom General Conditions of Employment Award 1989 and a determination under s. 85 of the Australian Telecommunications Corporation Act 1989 were applicable.

4. The Telecom General Conditions of Employment Award 1989 was made by consent by the Industrial Relations Commission on 4 September 1989. Clause 6 of that award provided that:
   " This award shall come into operation on 14 July
   1989 and remain in force for a period of six months."
   

1. Clause 4 dealing with parties bound by the award had the effect that the award bound the Australian Tele-communications Employees' Association, ('the A.T.E.A.'), its officers and members. Clause 5 is important and provided:
   " INCONSISTENCY WITH ACT AND DETERMINATIONS
   (1) This award shall be read in conjunction with
   

the Australian Telecommunications Corporation Act 1989 as amended from time to time and determinations.

(2) Where the said Act and determinations are

inconsistent with the provisions of this award the latter shall prevail."

1. Clause 10 provided for employee conduct and discipline, sub-clause 1 of which defined what behaviour was to be regarded as misconduct. Sub-clause 2 provided:
   

" Where the corporation initiates disciplinary action against an employee in connection with alleged misconduct, the matter shall be handled in accordance with procedures agreed between the parties which are set out in the exhibit 'Procedures agreed between the Australian Telecommunications Corporation and the staff organisations respondent to the Telecom General Conditions of Employment Award 1989' and which was tendered in the proceedings which led to the making of this award. An employee upon whom the corporation has imposed disciplinary action shall have the right to appeal to a disciplinary appeal board against such disciplinary action in accordance with the above procedures agreed between the parties."

1. The document embodying the agreed procedures referred to in cl. 10 of the Telecom General Conditions of Employment Award 1989 sets out in detailed sections and sub-sections the procedure to be adopted. Clause 12 of s. 1 of that document relevantly provides that disciplinary action shall not take effect if the employee appeals against the action-unless the appeal lapses or is withdrawn or a Disciplinary Appeal Board confirms the decision.

2. Clause 25 of the Technical and Trades Staff Award, as amended by clause 34 of a consent order made by the Commission on 8 September 1989, provided that cl. 10 of the Telecom General Conditions of Employment Award 1989 should apply to employees under that award.

3. Section 121 of the Industrial Relations Act 1988 provides:
   

" (1) In relation to an industrial dispute involving public sector employment, the Commission may, where it considers it proper to do so, make an award or order that is not, or in its opinion may not be, consistent with a relevant law of the Commonwealth or of an internal Territory."

The relevant law is defined in sub-section 2 of s. 121 to mean "a law of the Commonwealth or an internal Territory relating to matters pertaining to the relationship between employers and employees in public sector employment..." other than certain Acts or enactments which are not presently relevant.

1. "Public sector employment" is defined in s. 4(1) to mean, inter alia:
   " employment of, or service by, a person in any
   

capacity (whether permanently or temporarily and whether full-time or part-time): ...

(b) by or in the service of a Commonwealth authority;

...

but, other than in section 121, does not include:

(f) employment of, or service by, a person included in a prescribed class of persons; ..."

1. The effect of paragraph (f) of this definition, combined with Regulation 4(2) of the Industrial Relations Regulations 1988 and Schedule 3 of those Regulations is that, except for the purposes of s. 121, employment by Telecom is not public sector employment for the purposes of the Industrial Relations Act 1988.

2. Section 149 of the Industrial Relations Act 1988 provides that, subject to any order of the Commission, an award determining an industrial dispute is binding on, inter alios, all members of all organisations bound by the award.

3. Section 150 provides that awards are final and conclusive. Section 147 provides that an award is to specify the period for which the award is to continue in force, but s. 148 provides that, subject to exceptions not presently relevant, an award dealing with particular matters continues in force until a new award is made dealing with the same matters.

4. But for the applicability of cl. 10 of the Telecom General Conditions of Employment Award 1989, the effect of the statutory provisions and various determinations would have been that the s. 85 determination in effect adopted the s. 38 determination which, in turn, applied the 1975 disciplinary appeal provisions of the Telecommunications Act 1975.

5. In its reasons for its determination in Mr Hudson's case the Board said:
   

" The Board operates under a procedure agreed between the Australian Telecommunications Corporation and the staff organisations respondent to the Telecom General Conditions of Employment Award 1989. Two of the key provisions of this agreement concern the conduct of a Board's hearing. They are:- Section 4 Clause 2 which provides: 'A Disciplinary Appeal Board shall hear and conduct a full enquiry into each appeal submitted and may:

a) confirm, vary, or set aside the direction or decision against which the appeal is made: Section 4 Clause 8 which provides 'A Disciplinary Appeal Board shall exercise its powers having regard to the rules of natural justice and procedural fairness in making a decision. The Board takes the view that as it is not now a Statutory Body but sits only by virtue of procedures agreed to in Clause 10 of the Telecom General Conditions of Employment Award

1989, it is not bound by the rules of evidence."

1. In the view I take of the matter the provisions of cl. 10 do not apply as a consequence of cl. 4(a) of the s. 38 determination. Clause 4(a) is restricted in its operation to exclude disciplinary procedures that "have been prescribed" by or under an award of the Industrial Relations Commission. The tense used does not permit the exclusion from the pre-existing terms and conditions substitute disciplinary procedures that might in the future be prescribed by or under an award of the Industrial Relations Commission. However, in my view, cl.10 of the Telecom General Conditions of Employment Award 1989 binds Telecom, A.T.E.A. and Mr Hudson, but for a different reason.

2. In Gapes v. Commercial Bank (1981) 37 ALR 20, Smithers and Evatt JJ. said at 21:
   

" The obligation under the award to pay a salary depends upon its terms express or implied. If the terms of the award provide unconditionally for the payment of a yearly salary in stated proportions at stated times during the continuance of the relevant relationship of employer and employee, it is not to the point that, at common law, obligations to pay salary under a similar class of contract to which no award was relevant, might have been regarded by the law as conditional on a particular degree of work performance. Where there is an award applicable to a contract of employment it is necessary to ascertain what the award does provide expressly or impliedly about payment of remuneration."

And on the following page, their Honours said:

" Once there is a contract of employment of such a nature that the terms of an award are applicable to it, then, so far as the award speaks, the terms of the award must be obeyed."

1. In Bayley v. Osborne (1984) 4 FCR 141 at 143, Davies J. said:
   

" The conditions of employment of officers of the Australian Public Service are mostly regulated by the extensive provisions of the Public Service Act 1922

(Cth), by regulations made thereunder, by determinations of the Public Service Board made pursuant to s. 82D of the Public Service Act 1922 (Cth) and by other provisions. These provisions have sometimes been described as a code. But they do not constitute a complete code. They are not the sole repository of terms and conditions affecting the employment of public servants. An officer of the Australian Public Service holds office pursuant to a contract of employment between the officer and the Commonwealth."

He then referred to the well known passage of Sheppard J. in his judgment in Ioannou v. Fowell (1982) 63 FLR 170 at 187-189; and on appeal by Bowen C.J. and Northrop J. (1982) 65 FLR 360 at 369, and by Woodward J. at 379-380.

1. The exegesis of the convoluted statutory changes detailed above leads to the result that by an amendment to the Technical and Trades Staff Award made on 8 September 1989, certain provisions of the Telecom General Conditions of Employment Award, including cl. 10 dealing with employee conduct and discipline, should be binding on the A.T.E.A. and its members, with effect from 14 July 1989. By the combined effects of cl. 5 of the Telecom General Conditions of Employment Award 1989, cl. 25 of the Technical and Trades Staff Award, s. 121 of the Industrial Relations Act 1988, and the definition of "public sector employment" in s. 4(1) of that Act, if the awards are inconsistent with the Australian Telecommunications Corporation Act 1989 or determinations thereunder, the awards prevail. The awards are made under s. 111 of the Industrial Relations Act 1988 and are binding on Telecom and Mr. Hudson pursuant to s. 149 of that Act.

2. While the agreed procedures were the subject of Telecom's consent, those procedures in my view cannot properly be characterised as "terms and conditions of employment determined by the Corporation".

3. In Glasson v. Parkes Rural Distributions Pty Ltd (1983-4) 155 CLR 234, the High Court was concerned with a Commonwealth/State scheme for subsidies to distributors of petroleum products. The scheme provided that amounts overpaid to distributors should be recoverable by the State on a certificate granted under the State Act. The question before the Court was whether the certficiate was a decision made under the Commonwealth Act setting up the scheme.

4. The High Court concluded that it was a decision made under the State Act and not under the Commonwealth Act setting up the scheme.

5. In a joint judgment, the High Court (Gibbs C.J., Mason, Murphy, Wilson and Brennan JJ.) said at 241:
   

" When neither the Commonwealth Act nor the scheme is the source of the power to appoint the decision- maker, or the source of his power to make the decision, or the source of the decision's legal effect, it cannot be said that the decision was made under that enactment."

1. In the view I take of the matter, the source of the power of the Disciplinary Appeal Board to make the decisions which it did, as well as of the Board's very existence, was cl. 10 of the Telecom General Conditions of Employment Award 1989 made applicable by the Technical and Trades Staff Award. That award is also the source of the decisions' legal effect. I find it impossible to escape the conclusion that the decision of the Disciplinary Appeal Board was made under the Technical and Trades Staff Award, picking up clause 10 of the Telecom General Conditions of Employment Award 1989, and ultimately under the Industrial Relations Act 1988. The decision was thus a decision under an instrument under the Industrial Relations Act 1988 and the Federal Court has no jurisdiction to review it under the ADJR Act because of the definition of "decision to which this Act applies" in s. 3(1) and Schedule I to the ADJR Act.

2. The effect of this conclusion is to deprive an employee of Telecom of an avenue of appeal that was previously enjoyed under the Telecommunications Act 1975 (c.f. Barnes v. Australian Telecommunications Commission (1989) 27 IR 77).

3. The agreed procedures provide in clause 5 for a very attenuated "appeal", in the circumstances of new evidence, but do not provide an opportunity for review of a Disciplinary Appeal Board's decision if the Board, contrary to the requirements of clause 9 of Section 4 of the agreed procedures, denies natural justice or procedural fairness to an appellant before it.

4. There is the possibility that such a person, if he is a member of an organisation, might bring a proceeding under s. 178 of the Industrial Relations Act 1988 claiming a penalty for breach of award and might join with that a claim for breach of contract, in which he might seek damages or other appropriate relief in respect of his purported dismissal: see the judgment of the Full Court in Gregory v. Philip Morris Ltd (1988) 80 ALR 455 and the judgment of Gray J. in Wheeler v. Philip Morris Limited (1989) 32 IR 323.

5. The possibility of the availability of this procedure compared with the relative simplicity of an application under the ADJR Act sits a little awkwardly with the assurance of the Honourable Ralph Willis, the Minister for Transport and Communications, in the second reading speech of the Telecommunications Amendment Act 1988. The Court was informed by counsel on behalf of the applicant that Mr Willis said in that speech:
   

" The Government will not proclaim these changes until it is satisfied that the interests of Telecom employees are protected and existing terms and conditions are preserved on change over. The Government expects Telecom to make satisfactory arrangements, including issuing board determinations as necessary, to ensure that no current staff member loses any entitlement, classification, or other term and condition of employment on transfer to the Corporation."

1. However, for the above reasons, I uphold the objection to competency. I will hear the parties on costs.