Isles, C.H. v Einfeld, J
[1989] FCA 332
•15 JUNE 1989
Re: COLIN HENRY ISLES; GABRIELLE MAREE WILKINS; GARY HOWARD GREENWAY;
JOHN STEPHEN HINDMARSH and STANLEY JAMES GIBSON
And: JOHN ENFIELD
Nos. NI 31 to 36 of 1988
FED No. 332
Industrial Law
32 IR 79
COURT
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIAN DISTRICT REGISTRY
INDUSTRIAL DIVISION
Gray J.(1)
CATCHWORDS
Industrial Law - award - breach - stand down clause - construction - whether notice of stand down essential - whether notice purporting to stand down earlier than award permits wholly ineffective - stand down in force until declaration of willingness to perform duties and agreement to cease industrial action - whether determination of genuineness of declaration permissible - whether clause relates to future rather than present conduct - clause not punitive.
Conciliation and Arbitration Act 1904 ss. 4 and 123.
Industrial Relations (Consequential Provisions) Act 1988 ss. 3 and 69.
HEARING
MELBOURNE
#DATE 15:6:1989
Counsel for the applicants: Mr. W. Haylen.
Solicitor for the applicants: Geoffrey Edwards & Co.
Counsel for the respondent: Mr. J. McCarthy Q.C. and Mr. B. Knox.
Solicitor for the respondent: Australian Government Solicitor.
JUDGE1
Five applications came before the Court for trial on Tuesday 13th June 1989. They were ordered to be heard together.
Each of the applicants was at the relevant times an employee in the Australian Public Service, attached to the Australian Customs Service. Each was a member of the Administrative and Clerical Officers' Association AGE, an organisation of employees, registered pursuant to the Conciliation and Arbitration Act 1904. The respondent is a commissioner of the Public Service Commission, and is admitted to be the employer of each of the applicants for the purposes of the proceedings.
The applications contained claims for the payment of salaries for short periods in August 1988. Those claims were made pursuant to s.123 of the Conciliation and Arbitration Act 1904, pursuant to which an employee entitled to the benefit of an award may sue for payment due under that award. On 1st March 1989, the Conciliation and Arbitration Act 1904 was repealed by s.3 of the Industrial Relations (Consequential Provisions) Act 1988, but s.69 of the latter Act provides for the proceedings to be dealt with as if the former Act had not been repealed.
The entitlement of the applicant Mr. Isles to payment of salary in ordinary circumstances arose from the Administrative and Clerical Officers' (Australian Public Service) Salaries Award 1986. The entitlements of the other applicants, Ms. Wilkins, Mr. Greenway, Mr. Hindmarsh and Mr. Gibson to payment of their salaries in ordinary circumstances arose from the Customs Officers (Australian Government Employment) Award 1985. Each of those awards was made by the Australian Conciliation and Arbitration Commission, and was an "award" for the purposes of s.123 of the Conciliation and Arbitration Act 1904.
By order made by Cohen J. in the Australian Conciliation and Arbitration Commission on 3rd August 1988, each of the two awards was varied, by the insertion of a new clause. The order varying each award was expressed to operate on and from 8th August 1988 until 5th February 1989. The two clauses were in identical terms, so it is sufficient to recite one of them. What became clause 22 of the Customs Officers (Australian Government Employment) Award 1985 was as follows:
"22 - STAND DOWN
(a) Notwithstanding anything contained in this award or in any other award or determination of the Commission:
(i)Subject to this clause, a relevant officer shall have the right to stand down from duty for any period, including any day or part of a day, any officer or employee being employed in the Australian Customs Service eligible to be a member of the Administrative and Clerical Officers' Association who is engaging in industrial action as defined in section 4 of the Conciliation and Arbitration Act 1904.
(ii) An officer or employee who is stood down pursuant to this clause shall not be entitled to receive any salary, wages, other remuneration or allowance in respect of the period of standdown.
(iii) When a relevant officer exercises the right conferred by this clause he/she shall notify the officer or employee concerned, in writing where practicable. Commencing from the time when, or the earlier of the times when an officer or employee is orally notified or a written notice is signed, and during the period such notification remains in force, the officer or employee shall be deemed to be stood down for the purposes of this clause. A notification under this clause shall remain in force until the officer or employee has declared that he or she is willing to perform the whole of his or her duties and agrees to cease all industrial action.
(iv) Any period of standdown pursuant to this clause forms part of an officer's or employee's period of service for the purposes of the Superannuation Act 1976 but does not, unless otherwise determined, form part of an officer's or employee's period of service or employment for any other purpose.
(b) For the purpose of this clause 'a relevant officer' means:
(i) the Comptroller-General of Customs; and
(ii) any person authorised by the Comptroller-General for the purposes of this clause."
Section 4 of the Conciliation and Arbitration Act 1904 defined "industrial action" in the following terms:
""Industrial action" means -
(a) the performance of work (being work the terms and conditions of which are prescribed, wholly or partly, by an award of the Commission, an award, determination or order made by another tribunal in pursuance of a law of the Commonwealth or by or under a law of the Commonwealth) in a manner different from that in which it is customarily performed, or the adoption of a practice in relation to such work, the result of which is a restriction or limitation on, or a delay in, the performance of the work;
(b) a ban, limitation or restriction on the performance of work, or on acceptance or offering for work, in accordance with the terms and conditions prescribed by an award of the Commission, an award, determination or order made by another tribunal in pursuance of a law of the Commonwealth or by or under a law of the Commonwealth; or
(c) a failure or refusal by persons to attend for work or a failure or refusal to perform any work at all by persons who attend for work,
but does not include the performance of work in a manner, the adoption of a practice, ban, limitation or restriction, or a failure or refusal, that is authorized by the employer of the persons concerned;"
Affidavits filed on behalf of both parties in each of the proceedings raised many issues of fact and detail. Central to all of the proceedings, however, was the question of construction of this clause. For this reason, after discussion with counsel for the parties, the Court directed pursuant to O.29 r. 2(a) of the Federal Court Rules that the question of construction of clause 22 of the Customs Officers (Australian Government Employment) Award 1985 and clause 14 of the Administrative and Clerical Officers' (Australian Public Service) Salaries Award 1986 be decided separately from any other question in the proceedings.
For this purpose, it is unnecessary to recite many facts, and the facts which must be recited are not in dispute. On 11th August 1988, each of the applicants ceased work during part of the day. A person falling within the definition of "relevant officer" in the clause signed a notice, directed to each of the applicants, standing him or her down, from the time of an earlier oral notice, or from the time of signing the written notice, whichever was earlier. Subsequently, on 11th August (or in the case of Mr. Gibson on 12th), each of the applicants signed a declaration that he or she was willing to perform the whole of his or her duties and agreed to cease all industrial action.
On 22nd August, each of the applicants participated in a twenty-four hour stoppage of work. On that day, a relevant officer signed a notice directed to each of the applicants, purporting to stand him or her down from a specified time on that day, or from the time of signing of the notice, whichever was earlier. On the following day, each of the applicants signed a document declaring that he or she was willing to perform the whole of his or her duties and agreed to cease all industrial action. The relevant officers who received these documents refused to accept the genuineness of the expressions in them, because of the giving of the previous declarations and the taking of the further industrial action after them. The applicants were treated as remaining stood down until the dispute which led to the taking of industrial action was resolved. They were paid from the commencement of duty on 30th August. They claim that they were ready and willing to perform work, and did in fact perform work, throughout the period from the beginning of working hours on 23rd August until the end of working hours on 29th August, with the exception of time taken on 29th August to attend a meeting concerned with the dispute.
In the present cases, it is unnecessary to decide whether the awards which ordinarily entitle the applicants to their salaries do so by virtue of the offices held by them, or only upon their readiness and willingness to perform their duties. The distinction is discussed in Automatic Fire Sprinklers Pty. Ltd. v. Watson (1946) 72 CLR 435, 452 and 465, Gapes v. Commercial Bank of Australia Ltd. (1980) 41 FLR 27, 28-29 and Australian Bank Employees' Union v. National Australia Bank Ltd. (Federal Court of Australia, Gray J., 8th March 1989, unreported). Mr. Haylen of counsel, who appeared for the applicants conceded that they were not entitled to salary while they absented themselves from duty voluntarily. Mr. McCarthy Q.C., who with Mr. Knox of counsel appeared for the respondent, did not seek to justify non-payment of salary by reference to any authority other than the clauses inserted in the respective awards by the orders of Cohen J. on 3rd August 1988.
There were two competing contentions as to the proper construction of those clauses. Mr. Haylen's argument was that an officer or employee stood down could terminate the period of stand down automatically, by making a declaration that he or she was willing to perform the whole of his or her duties and agreed to cease all industrial action, irrespective of whether the declaration was truthful as to the intentions of the officer or employee. Mr. McCarthy contended that, upon a declaration being made, it was open to the relevant officer to assess the declaration, to determine whether in all the circumstances it complied with the requirements of the clause.
The distinction between these two arguments was put by Mr. McCarthy as being between a literal approach and a purposive approach. I am by no means certain that the arguments are characterized properly in that way. There is no doubt that any document should be interpreted so far as is possible in accordance with its purpose, as gathered from the terms of the document itself. It is equally true that the identification of a purpose which the framer of a document might have hoped to achieve cannot be used as a means of remaking the document; terms which are not present cannot be supplied by reference to "purpose". In truth, the difference between the parties as to the construction of the clause in the present case is more likely to be the result of the identification of different purposes for the clause than of the adoption of different techniques for construction.
The clause is a modified form of that which was inserted into a number of Public Service Determinations by a Full Bench of the Australian Conciliation and Arbitration Commission on 14th February 1985; see 296 CAR 197. That decision was in the context of the taking of forms of industrial action which did not amount to total stoppages of work, but consisted of bans on the performance of specific tasks. Similar limited forms of industrial action apparently prompted the application to Cohen J. for the insertion of the clauses the subject of these proceedings; her Honour's decision, given on 3rd August 1988, was tendered in evidence. Further, there is a line of authorities in which it has been held, for various reasons, that employees in public employment were entitled to be paid their salaries in full, even during periods when they were not prepared to perform all of their duties. Examples are Simpson v. Australian Telecommunications Commission (1978) 34 FLR 337, Bennett v. The Commonwealth (1980) 1 NSWLR 581 and Welbourn v. Australian Postal Commission (1984) VR 257. With these facts in mind, it is safe to assume that the clauses were inserted primarily to enable officers or employees to be deprived of their salaries if they engaged in industrial action short of ceasing work altogether. Of course, the clauses cover total stoppages of work, as well as bans on the performance of particular tasks, but it should be borne in mind when construing them that they are aimed mainly at forms of industrial action short of strike action.
It must also be recognized that the purpose of the clauses is not to enable punitive action to be taken, in the sense of suspending an officer or employee beyond the period in which there is a refusal to perform all duties in the usual manner. This much is evident from the decision of the Full Bench in 296 CAR 197, at p 200, where the Full Bench said:
"In our view, the purpose of the clause sought by the applicants and "the particular circumstances" in which an employee may be stood down are apparent from the terms of the clause. Paragraph 1(a) permits the standing down of an employee who refuses to perform the whole or any part of his or her duties, but the period during which the employee may be stood down is limited by paragraph 1(c) to a period which terminates when the employee signifies willingness to cease bans and limitations. The two paragraphs, read together, restrict the stand down period to that period during which the employee declines to fulfil his or her obligations, and it is clear that this is the purpose of the proposed clause. It is immaterial that the persons stood down should themselves be responsible for the situation leading to the decision to stand them down. It cannot be said that the clause sought by the applicants is a provision which deals with the disciplining of employees and therefore it would not be out of "accord" with the provisions of Divison 6 of the Public Service Act."
Mr. McCarthy sought to establish the purpose of the clauses as being to prevent the continued taking of industrial action in any form by officers or employees of the Australian Customs Service. He relied on statements in the decision of Cohen J. as to the serious and disruptive nature of the industrial action which her Honour found to have been taking place in that service. It is to be noted, however, that her Honour refused to grant orders described as "cease and desist" orders, which might have gone more directly to preventing industrial action. Instead, the clauses were inserted.
In my view, the purpose to be gathered from the clauses, having regard to their history and the circumstances existing at the time of their insertion, is, as I have said, to enable the non-payment of salaries to officers and employees of the Australian Customs Service during periods when they were refusing or failing to perform all of their duties in the usual way.
With this in mind, I turn to the clauses themselves. The substantive right is given by para. (a)(i). It is a right to stand down for any period a person who is engaging in industrial action. A person falling within the definition of "relevant officer" in sub-cl. (b) has that right. It is discretionary, in the sense that the relevant officer may or may not decide to stand down a particular person who falls within para. (a)(i), and who is engaging in industrial action as defined.
Paras. (a)(ii) and (iv) deal with the consequences of stand downs, and need no further comment in these proceedings. Para. (a)(iii) contains machinery or procedural provisions. These provisions deal with both the beginning and end of a period of stand down. The first requirement is notice. The better view seems to be that this is only a requirement that operates where practicable, i.e. that the words "where practicable" qualify the obligation to give notice, rather than the obligation to give it in writing. This view receives support from the consideration that it will be difficult to give actual notice to an officer or employee who has taken industrial action of a kind involving absence. It is also supported by an examination of the "parent" clause in 296 CAR 197 in which the comma appears before the words "where practicable", rather than before the words "in writing", as it does in the clauses the subject of these proceedings.
Para. (a)(iii) fixes two possible starting points for a stand down. One is the giving of oral notice, the other the signing of a written notice. Mr. Haylen attempted to argue that a notice purporting to stand down from a time earlier than the time it was signed is wholly ineffective to stand down an officer or employee at all where no oral notice has been given. I do not think that this is so; such a notice should be read so as to be operative as far as it can, so that it is effective to stand down a person from the time it is signed.
The final matter dealt with by para. (a)(iii) is the determination of the time when a stand down period ends. The event which brings it to an end is the making of a declaration containing two elements: a willingness to perform all duties and an agreement to cease industrial action.
Mr. McCarthy argued that these expressions must be construed as relating to future, rather than present conduct. His argument was that a person who had been stood down would have been banished from the workplace, and would not have been engaging in industrial action during that banishment. What was required, according to this argument, was an agreement that the officer or employee would not engage in further industrial action in the future. Mr. McCarthy placed a qualification on this obligation, limiting the statement to industrial action in relation to a current industrial dispute. Even this might involve a long term promise, as an industrial dispute might last for many years, especially a paper dispute created by demands with a broad ambit.
Mr. McCarthy's reasoning led to the proposition that a declaration may not represent the real intention of the person making it, and that the relevant officer receiving the declaration could make a judgement as to this question. If the relevant officer concluded that the maker of the declaration had a real intention other than that expressed in the declaration, then the relevant officer could refuse to accept the declaration, and the stand down could continue. In support of his argument Mr. McCarthy developed an extreme case, in which the maker of the declaration made no secret of his or her actual intention to continue the same form of industrial action which had caused the original stand down. It was said that a declaration could actually be a form of industrial action, if made for the purpose of ensuring that a new stand down notice had to be signed immediately, thereby causing delay in the performance of work.
Several aspects of para. (a)(iii) tend against Mr. McCarthy's argument. It is noteworthy that a relevant officer is given expressly a role to play in the giving of notice to stand down, but is not given expressly any role to play in the receiving of a declaration. It is possible to envisage situations in which the declaration contemplated might be made or given to another officer of the Australian Customs Service, to a Public Service Commissioner, or even to the Australian Conciliation and Arbitration Commission. No express provision is made for the making of any decision about the good faith of a declarant, or his or her real intention. Nothing is said as to whether the principles of natural justice would play any part in the determination whether a declaration was to be accepted or disregarded, or as to the fate of the maker of the declaration while that determination process was on foot. No sanction is specified for the making of a declaration agreeing to cease industrial action, which declaration is accepted, but is followed by further engagement in industrial action. These are the sorts of provisions that would be expected in an award if a determination were contemplated.
Further, the expressions "is willing" and "agrees to cease" are apt to apply to present, and not future, states. The word "cease" involves the notion of bringing to an end something which has gone before, rather than refraining from doing something in the future. If an undertaking as to future conduct were to be required, it is likely that very different expressions would be used in an award. It is true that a person who has been stood down will have been deprived of an opportunity to put into effect the form of industrial action which he or she had been carrying out. The intent of the clauses, however, appears to be that a person stood down should be permitted to return to work on making a statement that his or her own involvement in industrial action of whatever kind or kinds had led to the stand down is at an end.
To adopt Mr. McCarthy's submissions would be to add to the clauses a punitive element which they will not bear. By refusing to accept a declaration as genuine and made in good faith, a relevant officer would be able to deprive officers or employees of their livelihood for a period longer than they were prepared to be parties to industrial action. It is the element of deprivation of livelihood which requires that the clauses be construed strictly against the party enforcing the stand down. Compare Kidd v. Savage River Mines (1984) 6 FCR 398. In my view, the clauses do permit an officer or employee stood down to return to work on the making of a declaration in the required form. It may be that a declaration accompanied by words or actions showing that it is a sham will not be a declaration in fact, and can be disregarded. It is not open to a relevant officer, however, to attempt to form a judgement as to the real intention of the maker of a declaration and to disregard the declaration on the basis of such a judgement.
This view involves the conclusion that a person making a declaration may afterwards change his or her intention, and may become involved in more industrial action. Such a change of intention may occur very soon after the declaration is made. It also involves the conclusion that a declarant who harbours a secret intention to continue refusing or failing to perform the whole of his or her duties, and to engage in further industrial action, will be entitled to return to work and to be paid. Neither of these conclusions leads to any real difficulty in the operation of the clauses, much less to any absurdity arising from their construction. In each situation, the remedy is simple. A further notice will stand down the officer or employee again. If the making of declarations came into widespread use as an industrial tactic, the remedy would lie in a further amendment to each of the awards, rather than in attempting to stretch the existing clauses to cover facts which do not lie within their compass.
Some attempt was made to rely on the manner in which the clauses were drafted. There was tendered in evidence a draft placed before Cohen J., and reference was made to passages in the transcript of proceedings before her Honour to show how the words "has declared that he or she" came into the clauses. Those words did not appear in the clause in 296 CAR 197. On examining the transcript, I am satisfied that the words inserted were intended only to make it clear that the willingness of an officer or employee to perform the whole of his or her duties had to be expressed openly, so that it could not be claimed afterwards that the state of willingness had come into being at some earlier time, but remained secret. The words inserted therefore do not affect my view as to the correct interpretation of the clauses.
For these reasons, I have reached the conclusion that, on the true construction of clause 22 of the Customs Officers (Australian Government Employment) Award 1985 and clause 14 of the Administrative and Clerical Officers'(Australian Public Service) Salaries Award 1986, an officer or employee who has been stood down is entitled to bring the stand down period to an end, by making a declaration that he or she is willing to perform the whole of his or her duties and agrees to cease all industrial action, and that no other person is entitled to form any view as to the real intention of the maker of such a declaration, or to disregard it. How this conclusion should translate itself into orders in the proceedings may be a matter for argument, and I shall hear counsel on it.
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