Keetley, G.W. v Hill, A.J

[1985] FCA 485

Re: GRANT WINSTON KEETLEY
And: ANDREW JOHN HILL
No. NTG 3 of 1984
Industrial Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA
NORTHERN TERRITORY DISTRICT REGISTRY
INDUSTRIAL DIVISION
Bowen C.J.
Fox J.
Toohey J.

CATCHWORDS

Industrial Law - whether employer made false or misleading statement to an "authorized person" contrary to sub-s.126P(3) of Conciliation and Arbitration Act 1904 - statement made in answer to question "are employees required to work on weekends" - ambiguity of the word "required" - whether mens rea established.

Conciliation and Arbitration Act 1907, sub-s.126P(3).

HEARING

SYDNEY
#DATE 25:9:1985

ORDER

1. The appeal be dismissed.

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

JUDGE1

Grant Winston Keetley ("Mr. Keetley") was charged before the Federal Court of Australia in its Industrial Division with making a false or misleading statement to an authorised person contrary to sub-s. 126P(3) of the Conciliation and Arbitration Act 1904 ("the Act"). He was convicted and fined $400.00.

Mr. Keetley appealed against conviction and sentence. His original notice of appeal contained eleven grounds of appeal. At the hearing of the appeal he abandoned grounds 1 to 4 inclusive and ground 11. Ground 11 was the only ground relating to sentence. What remained were grounds 5 to 10 inclusive. Of these grounds 8 was amended by inserting certain words which appeared to have been omitted by inadvertence. As amended ground 8 read (the words added by amendment being underlined):

"The learned trial judge erred in law in finding beyond reasonable doubt that the Appellant made a statement that "no employees of Keetleys Tours Pty Ltd were required to work on Saturdays and Sundays".

In substance, s. 126 P of the Act empowers "an authorized person" to enter certain business premises and there inspect documents and interview persons with a view to ascertaining whether industrial awards and the requirements of the Act are being observed.

Sub-section 126 P (3) provides:

"A person who hinders or obstructs an authorized person in the exercise of his duties, refused or fails, without reasonable excuse, to comply with a requirement made by an authorized person in accordance with paragraph (c) of sub-section (1) or makes to an authorized person, in the course of his duties, a statement, whether orally or in writing, that is false or misleading in any particular, shall be guilty of an offence. Penalty: $500 or imprisonment for 6 months.".

At the relevant time Mr. Keetley was a director of Keetley's Tours Pty. Limited, a company which carried on a passenger transport business in Darwin. The respondent Andrew John Hill ("Mr. Hill") was an inspector attached to the Commonwealth Relations Industrial Bureau. He was an "authorized person" within the meaning of sub-s. 126 P(3) and at the time of the events in question here was acting in the course of his duties.

The statement referred to in the charge was made on 5 May 1983, when Mr. Keetley answered a series of prepared questions put to him by Mr. Hill. The questions and answers with which we are concerned were (afterwards) numbered 42, 43 and 47. They were as follows:

"42. Q. Do Keetleys' Tours Pty Ltd still do the airport run? (ie picking up and dropping off of air crews).

A. Yes.

43. Q. If yes to the above, at what times are these runs?

A. The permanent driver does Monday to Friday. Myself my wife and sister do weekend and nights.

47. Q. Are employees required to work on Saturday or Sunday?

A. No."

The trial Judge found that one particular employee, a Mr. McColough was required to work on a substantial number of weekends between late February and 10 May 1983. In February 1983 Mr. McColough damaged one of the company buses while driving in the course of his employment. Mr. Keetley required him to pay the damage assessed at $250 and threatened him with dismissal if he did not do so. The only way Mr. McColough could pay this was by doing extra work. An agreement was reached between Mr. Keetley and Mr. McColough, that Mr. McColough would do weekend runs and pay off the money progressively from his extra earnings. It seems that McColough carried out this agreement and by deduction paid off a total of $160 before he was dismissed on 10 May 1983.

As regards other drivers of Keetley's Tours Pty Limited, it appears none was required to make himself or herself available for weekend work. However, some volunteered to make themselves available for such work. Those who had indicated they were available for weekend work were given such work. When undertaking such work they were, of course, subject to the directions of the company.

Turning to the answers to questions, it appears that the answer given to question 43 was no better than a half truth. No charge was laid in respect of that answer but it was suggested in argument by counsel for Mr. Hill that it provided a context which threw light on the falsity or misleading character of the answer to question 47. It is the answer to question 47 which is said to be the statement the subject of the charge.

It will have been noted that ground 8 in the notice of appeal as amended claimed the trial judge erred in finding beyond reasonable doubt that Mr. Keetley made a statement in terms of the answer to question 47. Although it was faintly argued that the answer was not a "statement", this argument was not pressed. I consider counsel was correct in not pressing it.

It was next submitted by counsel for Mr. Keetley that the answer to question 47 was not false or misleading. Counsel for Mr. Hill argued it was both false and misleading. The determination of this issue depends largely upon the interpretation placed upon the question. The trial Judge referred to a formulation put forward at the trial by counsel for Mr. Keetley. The questions, said counsel, could have been construed in at least three ways.

"1. Does the company need employees to work Saturday or Sunday?

2. Does the company desire or request employees to work Saturday or Sunday?

3. Does the company order or direct employees to work Saturday or Sunday?"

I am of the opinion that question 47 in its context bore the second of these meanings. The question then arises whether the answer given to the question was false or misleading. This is to be judged on an objective basis. Viewing the matter on this basis, it is my view that the answer was both false and misleading.

If I had been of the opinion that question 47 in its context bore the first of these meanings, it would again have been my view that the answer was false and misleading.

If I had been of the opinion that question 47 in its context bore the third of these meanings, it would depend upon the evidence relating to weekend work by employees whether the answer was either false or misleading. The position of Mr. McColough would need special consideration. It might be said that he had a choice whether or not he would work on weekends, but was compelled by economic circumstances to choose to work. On this analysis he would not in my view be required by the company to work on those days. But it might be said that due to the claim for damage to the company's vehicle he was led to enter into an agreement or arrangement to pay for the damage by working at weekends and having moneys deducted from his pay. The analysis then would be that due to his agreement or arrangement with the company he was able to be and was, in fact, compelled to work on Saturday or Sunday.

So far as other employees are concerned, some made themselves available to work on Saturdays or Sundays. Insofar as they chose to make themselves available due to extraneous reasons such as economic considerations, I do not think they could be said to be required in the imperative sense by the company to work on those days. On the other hand having agreed to make themselves available it might be said they then became subject to direction by the company, which then had the right to require them to work on those days.

It was common ground between the parties that to constitute an offence under sub-s. 126P (3) there had to be mens rea. It is this aspect which has caused me some difficulty in the present case. Although, as I have said, I take the view that the second of the three stated meanings is the applicable meaning, if Mr. Keetley proceeded to answer Question 47 understanding it in the third sense the question is whether he had an innocent mind. Had the answer been true and not misleading if the question bore the third meaning, I would have held that the prosecution had failed to show mens rea beyond a reasonable doubt.

Mr. Keetley did not enter the witness box where he could have given an account of what he intended by his answer. But he was not obliged to give evidence. It was for the prosecution to prove him guilty, including the presence of a guilty mind in answering the question asked. Counsel for Mr. Keetley argued that the answer given to Question 47 cannot be said to have been intended to mislead Mr. Hill because Mr. Hill already had the relevant information to Mr.Keetley's knowledge. It is clear that before the interview on 5 May 1983 when the questionnaire was submitted to and answered by Mr. Keetley, Mr. Hill had received complaints about weekend work and nonpayment of penalty rates. Mr. Hill gave that as his reason for seeking his first interview with Mr. Keetley on 4 May 1983, so Mr. Keetley was aware of it. Mr. Hill had a look at the wages books on 4 May 1983. However, the evidence does not show that Mr. Hill already had the relevant information. It seems that on 5 May 1983 Mr. Hill was still investigating the facts to ascertain whether or not the complaints were justified. It is possible Mr. Keetley thought he could lull Mr. Hill or deflect his inquiries. Counsel for Mr. Hill points to the answer to Question 43 as showing that Mr. Keetley was engaged in an attempt to mislead Mr. Hill about weekend work. Certainly the answer to Question 43 was a half truth and was in its context misleading.

In the present case the trial Judge took the view that the answer to Question 47 would constitute a false or misleading statement if the question were construed in either of the first two of the three senses which have been referred to earlier.

His Honour then stated "Even if the question were construed in the imperative sense, I am of the view the answer was at the best misleading". He gave three reasons for this view. First he concluded that on the evidence Mr. McColough, while he was repaying the damage he had caused, was required to work on Saturdays and Sundays in the imperative sense. Secondly, he concluded that those drivers who made themselves available for weekend work were also required, in the imperative sense, to work on Saturdays and Sundays. And, thirdly, Mr. Keetley in his answer to Question 43 had specifically directed his attention to airport runs at the weekends. He claimed that these were done by himself, his wife and his sister. When he came to Question 47, even if he construed it in the imperative sense, Mr. Keetley was surely obliged to reveal the fact that some other employees, who had asked to be allowed to do so, also did the airport runs at weekends, in order to avoid misleading the Prosecutor.

His Honour stated he was satisfied beyond reasonable doubt that the Defendant (Mr. Keetley) made to the Prosecutor (Mr. Hill) a statement which was false or misleading and which the Defendant knew to be false or misleading.

I am of opinion the statement was false and misleading. I agree with the decision of the trial Judge and would dismiss the appeal.

JUDGE2

This case turns upon the meaning to be given to the word "required" in Question 47 of the questions put to the appellant by the respondent:

"47.Q. Are employees required to work on Saturday or Sunday?

A. No".

The word has a wide range of meanings. It can include "needed", or, on the other hand, "desired", or "wished to have".

To my mind the central consideration in the present case is that the word was being used in the context of employment and employees. On any view the reference was to a consensual arrangement; not simply its creation but more particularly its terms. There could be no suggestion that the question was directed to external circumstances, or some force or pressure antecedent to the contractual arrangement. The word "required" is in common use with regard to the desired disposition or activities of an employee, as with a nurse that she do night duty, or a bus-driver that he drive on a particular route. In these cases the scope of the employment will comprehend the desired activity, and provide that it is to be carried out, on request.

It seems to me to place an altogether too refined meaning on the word "required" to confine it to cases where there is already a contract comprehending the subject-matter of a particular requirement. If for example, a day nurse says that she is prepared to do night duty if asked, a request that she shall do so would be no less of a requirement because her antecedent contract was for day duties only. The fact is that the nature and scope of employment is in both cases a matter of agreement. It is also the fact, I think, that within the contractual context, "required" is frequently synonymous with "asked". So, the nurse available for night duty may say, with reference to a past period, that she had not been required to do night duty or, with equivalence of meaning, that she had not been asked to do so.

The more demanding sense of "required" comes from the existence of the contract, and its terms. It would in my view be an error to regard "required" in the context in which it was used as relating in some way to the act of entering into the contract. The fact that there were volunteers for week-end work is of no moment. Put another way, the fact that the offer to work precedes acceptance by the employer is irrelevant. If one is looking at the terms of a contract, how, relevantly, is a distinction to be drawn between a case where the employer makes the offer and one where the employee does?

There were a number of employees of Keetleys Tours Pty. Ltd. who, having volunteered, entered into an agreement with it for week-end work. There was also one, McColough, who had a short-term continuing agreement to work on weekends. It is not irrelevant to observe that the agreement was with the Company, although Mr Keetley was its principal executive. This fact, I suggest, offers an explanation of the way in which the question, and preceding questions, were framed. Question 47 relates to what the Company "required", and this I think tends to emphasise that what is being talked about is not pressure or command, but contract, and action under contract. It may well be said, indeed, that the requirement being referred to (the change from participle to noun is permissible for the moment) was the need, or desire, of the Company.

It is necessary to show that by his answer the appellant intended to give a false or misleading answer. The answer was in my view false rather than misleading. The trial judge was of the view that a guilty mind existed, and I accept entirely what he says. If the appellant understood the question in some sense other than what I take to be its ordinary meaning, he had the opportunity of saying so, but he did not give evidence.

In my view, the appeal should be dismissed.

JUDGE3

On 9 August 1984 in the Federal Court at Darwin the appellant was convicted of an offence against sub-s.126P(3) of the Conciliation and Arbitration Act 1904. Section 126P has now been repealed. The subsection read:

"(3) A person who hinders or obstructs an authorized person in the exercise of his duties, refuses or fails, without reasonable excuse, to comply with a requirement made by an authorized person in accordance with paragraph (c) of sub-section (1) or makes to an authorized person, in the course of his duties, a statement, whether orally or in writing, that is false or misleading in any particular, shall be guilty of an offence".

The penalty for a contravention of sub-s. 126P(3) was a fine of $500 or imprisonment for 6 months. The appellant was fined $400. A ground of appeal that the sentence was manifestly excessive was abandoned when the hearing of the appeal began; so too were a number of other grounds relating to the conviction.

The charge against the appellant was that he made a false or misleading statement to an authorized person. The charge was particularized in this way:

"On 5th May 1983 at Darwin in the Northern Territory of Australia GRANT WINSTON KEETLEY of 3 Duke Street, Stuart Park in the Northern Territory of Australia made a false or misleading statement, namely that no employees of Keetleys Tours Pty. Limited were required to work on Saturdays or Sundays, to Andrew John Hill, an authorised person as defined in the Conciliation and Arbitration Act, the said Andrew John Hill then being in the course of his duties."

The statement alleged to have been made by the appellant arose in the course of an interview by Mr. Hill who was at the time an inspector with the Industrial Relations Bureau in Darwin. Mr. Hill had with him a series of prepared written questions with provision for the insertion by him of the appellant's answers to those questions. The false or misleading statement alleged to have been made by the appellant was in the form of an answer to question 47. To understand the context in which the question was asked and the answer given, it is necessary to refer to certain earlier questions as well:

"42.Q. Do Keetleys Tours Pty. Ltd. still do the airport run? (ie picking up and dropping off of aircrews).

A. Yes.

43.Q. If yes to the above, at what times are these runs?

A. The permanent driver does Monday to Friday. Myself my wife and sister do weekend and nights.

44.Q. Are employees ever recalled to work after finishing for the day or shift?

A. No.

45.Q. What is the minimum number of hours they are paid for on a recall?

A.

46.Q. At what rates of pay do they receive for the recall? (ie time and one half; double time).

A.

47.Q. Are employees required to work on Saturday or Sunday?

A. No."

Questions 45 and 46 were in fact not asked, no doubt because of the appellant's answer to question 44.

The primary judge found that the statement contained in the answer to question 47 was misleading. It is not clear whether his Honour found the statement to be false. In the course of his reasons he said:

"I am therefore satisfied beyond reasonable doubt that the Defendant made to the Prosecutor a statement which was false or misleading and which the Defendant knew to be false or misleading. I find the Defendant guilty as charged".

In imposing a penalty, his Honour said:

"Your lack of co-operation and your false and misleading statement in answer to the questions in the interview do you no credit at all".

The appellant did not argue before us that the conviction should be set aside by reason of any uncertainty in the findings of the primary judge. But, because of the way in which the findings are couched, it is necessary to look at both questions - was the statement false, was it misleading?

Counsel for the appellant argued, though without much enthusiasm, that no answer made by the appellant constituted a statement that no employees of Keetleys Tours were required to work on Saturdays or Sundays. If the submission was that an answer to a question does not constitute a statement, it must be rejected. Words used by the appellant must be taken in context and, if the context was by way of response to a question, the answer must be taken accordingly. What the appellant said was in every sense of the word a statement that no employees were required to work on Saturdays or Sundays. If the submission went no further than that the answer, though capable of constituting a statement, did not constitute a statement that no employees of Keetleys were required to work on Saturdays or Sundays, the submission must likewise be rejected and for the same reason. It is apparent that the appellant made the statement in respect of which he was charged.

The primary judge accepted that "a dishonest intention or guilty mind is an element of the offence with which the Defendant is charged". Later in his reasons he said:

"I conclude, therefore, that the Defendant cannot be convicted unless I am satisfied beyond reasonable doubt that he knowingly or intentionally made a false or misleading statement".

The respondent did not challenge that approach on the hearing of this appeal and, in my view, rightly so.

Before this Court argument focused largely on the meaning to be attached to the word "required" and whether, in the light of that meaning, the appellant had made a false or misleading statement.

Question 47 is made unnecessarily obscure by the use of the passive voice. But it is clear that the question is directed at the employer and asks whether it requires its employees to work on Saturdays or Sundays. The word "require" is an ordinary English word. The Macquarie Dictionary gives it a number of meanings, the first of which is "to have need of; need". That is not the meaning to be attached to the word in the present context. The meaning to be attached, in my opinion, is that emerging from the other definitions, all of which have an element of demanding, ordering or enjoining. The Shorter Oxford English Dictionary offers a wider range of meanings, the initial bracket of which is in terms of questions, enquiries or requests. The second bracket introduces the note of demand or claim, the request made authoritatively or imperatively.

In my view the word "required", in the context of the questions directed to the appellant, related to what the company asked of its employees authoritatively or imperatively; it cannot be watered down to the mere making of a request. It is of interest to note that the words "require" and "required" in various statutes and instruments have been so interpreted by the courts, though none is directly in point. See for instance Stroud's Judicial Dictionary 4th ed. vol. 4 pp. 2350-2355. Furthermore the thrust of the evidence led by the respondent was directed to showing that there was some obligation on employees to work on Saturdays or Sundays. If there were any ambiguity in the question asked, the ambiguity would have to be resolved in favour of the appellant. It is not at all clear why question 47 was asked in that form. Presumably all that the Industrial Relations Bureau wished to know was whether employees of Keetleys Tours worked on Saturdays or Sundays. If that be the case, why not ask that question?

The primary judge considered various meanings that, in the appellant's submission, could be attached to the word "required". He concluded that, even using the word in its imperative sense, the appellant had made a statement that was false or misleading. It is important to see how his Honour reached that conclusion. He did so by reference to the evidence of one employee, Ian Campbell McColough, and to some general evidence regarding the circumstances in which work was done on Saturdays or Sundays.

In the course of his work, Mr. McColough damaged one of the buses belonging to Keetleys Tours and was told by the appellant to pay $250, the cost of repairs, or become unemployed. Mr. McColough did not have the $250 and so arranged with the appellant to work the airport runs on weekends until he had paid off the cost of repairs. Asked what options the appellant had given him, Mr. McColough replied "Well it was either that or unemployment". There was evidence from Rosemary Helen Keetley, the wife of the appellant and the secretary of the company, that before the accident Mr. McColough had asked for extra work and that after the accident she asked him how he chose to pay for the damages. In her words, " . . . and he said he wanted to take a little out of his wage each week rather than paying a lump sum, because he could not afford it and if possible, he would like to do some extra work."

His Honour expressed his view of the matter in these words:

"In the first place, I take the view that Mr. McColough was an unwilling worker at weekends. The choice given to him was to repay the money or to lose his job. The only way in which he could seriously contemplate repayment was to do extra work. Although he had earlier sought weekend work for another purpose, he had been given it only for the purpose of fulfilling the obligation imposed on him to pay for the damage he had caused to his employer's bus. The number of weekends which Mr. McColough worked was a direct result of this obligation and his need to fulfil it. He was therefore required to work on Saturdays and Sundays in the imperative sense."

In my respectful view, the conclusion does not follow from the premises. It may be accepted that Mr. McColough had to find $250 and that, in practical terms, the only way he could do this was by extra work. It may also be accepted that the choice given to him by the appellant was to repay the money or to lose his job. Circumstances may well have dictated that he work for the company on weekends. But it does not follow that he was required to do so by the company or by the appellant. All the appellant required was payment of $250 and he was not greatly concerned as to how Mr. McColough found the money. As it happened, working for the company on weekends was the method chosen by Mr. McColough. The appellant's conduct in this matter does him no credit but he was charged with an offence and in my view the evidence did not support a finding that he or the company required Mr. McColough to work on Saturdays or Sundays. His statement was therefore neither false nor misleading in that respect.

His Honour made a finding that, apart from Mr. McColough, no employee of the company was ordered or directed to work at weekends unless he or she had volunteered to be available for that work. He continued:

"The consensus, however, went only to the question of availability. From among those available for weekend work, some drivers were ordered or directed to do specific runs. It is fanciful to suggest that, having received such orders or directions, they could please themselves as to whether they carried them out. To have failed to perform the specific run directed would have amounted to a breach of the contract of employment of the driver concerned. The available drivers were therefore required, in the imperative sense, to work Saturdays and Sundays."

Again, with respect, I do not think that the conclusion follows from the premises. If an employee volunteered to work on Saturday or Sunday, no doubt he or she was directed as to the particular work to be done as, I assume, employees were directed during the week. But if an employee volunteered to work on Saturday or Sunday, he or she was not required to work on that day. And the evidence, particularly that of Mrs. Keetley, makes it clear that while employees were offered weekend work from time to time, each employee was free to accept or reject the offer. In this regard the appellant's answer was neither false nor misleading.

The primary judge held that, for another reason, the appellant's answer was misleading. In question 42 he was asked whether the company did the airport run and he answered "yes". He was then asked at what times were those runs and he answered "The permanent driver does Monday to Friday. Myself my wife and sister do weekend and nights." This answer was true as far as it went but it was a half truth that made the answer false or at any rate misleading. Other drivers did the airport run as well as those mentioned. But the appellant was not charged in regard to that answer. In his Honour's view, given the answer to questions 42 and 43, the answer to question 47 was misleading. His Honour said:

"If the question were construed in the imperative sense, a truthful answer would have been, 'no employee is required to work but some do voluntarily'."

While I have no sympathy at all with the appellant in this matter, I do not accept his Honour's conclusion. Question 47 was structured in terms of what employees were required to do. There was no evidence that employees were required to work on Saturdays or Sundays and the appellant cannot be convicted of having made a false or misleading statement because, in his answer to question 47, he did not explain that some employees worked voluntarily.

The appellant made a further submission that his statement was not false or misleading because the respondent already had, to the appellant's knowledge, all relevant information concerning days and times of employment. In the view I have taken of the matter, it is unnecessary to deal with this submission.

The appellant should not have been convicted of the charge against him. The appeal should be allowed and the conviction quashed.