Lucyna Zatorski v State Rail Authority of South Australia

[1983] FCA 208

Re: LUCYNA ZATORSKI
And: THE STATE RAILWAY AUTHORITY OF SOUTH AUSTRALIA
No. SA 17 of 1983
Industrial law
4 IR 350

COURT

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY
INDUSTRIAL DIVISION
Smithers J.
Northrop J.
Morling J.

CATCHWORDS

Industrial law - claim for amount in respect of position described as "ticket clerk" - appellant not formally engaged or appointed as "ticket clerk" - whether the duties which the appellant was employed to perform were those of a "ticket clerk" - relationship of classifications of employment in the award to classifications adopted by the employer pursuant to statute.

Conciliation & Arbitration Act 1904 (Cwth) s.123.

Railways Salaried Officers Award 1960 (Cwth)

HEARING

MELBOURNE

#DATE 23:8:1983

ORDER

The appeal be dismissed.

JUDGE1

This is an appeal from a decision of a judge of this court dismissing an application made under s.123 of the Conciliation and Arbitration Act 1904, as amended, by Mrs Zatorski ("the appellant"). The appellant alleges that she was not paid wages due to her whilst she was employed by the respondent during the period from 1st July 1973 to 28 February 1978.

When the application first came before the learned trial judge he dismissed it on a preliminary point of law. An appeal from that decision to the Full Court succeeded - see Zatorski v. South Australian Railways Commissioner and Anor. (1982) 41 A.L.R. 655. The matter was sent back to the trial judge for the hearing to be concluded. When the matter again came before his Honour further evidence was tendered and his Honour again dismissed the application. The present appeal is against the second dismissal of the application.

The appellant's claim was that during the relevant period she was entitled to be paid salary at the rate prescribed by the Railways Salaried Officer Award, 1960 ("the Award"). The rate to which she claimed to be entitled was that payable to an adult female officer occupying a position in the classification of ticket clerk.

Clause 9(ii) of the Award provided, in part, as follows:

"(ii) Adult female officers occupying positions in the classifications herein and employed in the South Australian Railways shall be paid at the rate of the salary prescribed in the following table:

5. Ticket Clerk . . ."

In support of her claim the appellant relied upon her work history and the duties she performed for the respondent. She conceded that she had not been formally appointed as a ticket clerk. But she claimed that was not decisive of her application and in this respect she relied upon the decision of the Full Court to which we have just referred. The Full Court said: "It is not necessarily an answer to this claim that she is unable to show that she was formally appointed to a position of ticket clerk." 41 A.L.R. at 662.

The Solicitor-General for South Australia, who appeared for the respondent, submitted that in order for her to succeed in her claim it was necessary for the appellant to show that she occupied the position of ticket clerk as classified in the Award. He acknowledged that the appellant had established employment by the respondent as a ticket agent but said that that employment was outside the ambit of the Award. He submitted that the position of ticket clerk and ticket agent were separate and distinct and that the appellant had not established that she occupied the position of ticket clerk because the facts showed that she occupied the position of ticket agent.

It is not in issue that during the relevant period the appellant was an employee of the State Transport Authority of South Australia or its statutory predecessors. A concession to this effect was made by the respondent at the trial.

In 1975 an agreement was made between the Commonwealth and the State of South Australia providing for the Australian National Railways Commission ("the Commission") to take over, as from 1st March 1978, certain railways previously conducted by the respondent. After the takeover the appellant became an employee of the Commission. The provisions effecting the transfer of employees in the service of the South Australian Railways to the Commission are referred to at 41 A.L.R. p.657 and it is unnecessary for the purposes of this decision to make further reference to them. After serving for some time as an employee of the Commission the appellant brought proceedings against it claiming that she was entitled to be, but had not been, paid at the rate prescribed by an award which may be broadly described as the successor to the Railways Salaried Officers Award. That claim failed - see Australian National Railways Commission v Zatorski (1980) 49 F.L.R. 53.

In order to understand the rival contentions of the parties we must state the facts surrounding her employment during the relevant period. A statement of agreed facts was tendered in the proceedings at the trial and although oral evidence was also tendered it did not alter the essential facts as stated in the agreed statement.

In October 1949 the applicant was employed by the South Australian Railways as a female porter. In 1952 she was classified as a ticket clerk and was employed at the Adelaide Station selling tickets. She resigned on 1 April 1953 because of the impending birth of her child, but on 13 July 1953 the Railways Commissioner approved the withdrawal of her resignation. She resumed duties as a female porter at Adelaide Station performing various duties including ticket collection, noting train arrivals and departures and assisting in the telegraph office. She continued in this employment until November 1966.

She then requested that she be appointed as ticket agent at Hawthorn Station, which was near her home, to enable her to care for her husband and her young child. Her husband was then unwell. She was offered the position as ticket agent on the condition that she resign as an employee of the South Australian Railways. This she did, and she was appointed a ticket agent at Hawthorn Station on 21 November 1966.

Until October 1972, ticket agents were remunerated on a commission basis, with a guaranteed minimum payment. The minimum payment was adjusted in line with award wage variations. Over a period of time the remuneration paid to ticket agents included paid annual, sick and gazetted leave. Historically ticket agents were independent contractors but with the passage of time their status changed to that of employees. As we have already observed, it was conceded by the respondent that the appellant was an employee at all relevant times.

On 29 July 1976 the appellant was advised by her employer that she had been regraded to the position of Station Assistant and that thereafter she would be paid the appropriate rate of pay applicable to Porter Class 3 in the Railways Traffic Permanent Way and Signalling Wages Staff Award 1960 and would be covered by that award. The appellant did not respond to this advice, taking the view that there was no need for her to do so.

From 1 August 1976 onwards the remuneration paid to ticket agents was at the same hourly rate as the remuneration of a Porter Class 3, and the conditions of that award were applied to ticket agents. But the classification of ticket agent itself did not appear in any award.

On 4 April 1977 the appellant became Station Assistant at Commercial Road Station Port Adelaide following the closure of the Hawthorn Station. On 22 September 1977 she became Station Assistant at Marion Station, where she continued to work until she became an employee of the Australian National Railways Commission.

Initially ticket agents sold tickets from commercial premises, such as shops, near railway stations. But for many years ticket agents have worked on railway station premises. Ticket agents, other than relieving ticket agents, have always been engaged to work at a particular station. The appellant was not employed as a relieving ticket agent.

Although there was no specification of the duties of a ticket clerk in the Award, female ticket clerks were always required to work the full hours provided by the Award, i.e. 40 hours in an ordinary week. They could have always been required to work either at suburban railway stations or at the Adelaide Station.

The duties of ticket agents were substantially the same as the duties of female ticket clerks employed at suburban stations. But there were some differences. As we have already observed, it was a term of their employment that ticket agents were required to work at one station only. They were required to work only 36 hours per week not 40 as in the case of ticket clerks. When a ticket clerk worked at Adelaide Station she was required to collect moneys from guards and porters who had sold tickets on trains. This was no part of the work of any ticket agent. Moreover, no doubt because of the differences in the duties that they performed, there were some minor differences in the clerical work required to be performed by ticket clerks and ticket agents.

A great deal of evidence was tendered at the trial for the purpose of demonstrating the different manner in which ticket agents and ticket clerks had been dealt with in earlier awards and in proceedings before the Arbitration Commission. This evidence clearly established that the occupation of ticket clerk was of long standing and that it differed from that of ticket agent.

In our opinion a consideration of the facts to which we have already referred, all of which were not in contest, leads to the inevitable result that the appeal cannot succeed. On any view of the facts they establish that the duties of a ticket agent were not the same as those of a ticket clerk. It is true that there was a considerable correspondence between the duties of the two occupations. But the differences were substantial. A job requiring a person to travel to any suburban railway station is significantly different from a job to which no such requirement is attached. Indeed, one reason why the appellant became a ticket agent in 1966 was that she desired to work at Hawthorn Station (and perhaps nowhere else) so she could more easily discharge her domestic responsibilities. We have no doubt that the appellant herself regarded her job as ticket agent at Hawthorn Station as a different job from that performed by female ticket clerks. Moreover the difference in the hours of work of ticket agents and ticket clerks was not inconsiderable.

As we are of the opinion that between 1 July 1973 and 1 March 1978 the appellant was not, in fact, performing the duties of a person occupying the position in the classification of Ticket Clerk in the State Salaried Officers Award and as there is nothing else to which the appellant can point as showing that she was formally or informally appointed to such a position, her claim must fail. This conclusion makes it unnecessary for us to consider the Solicitor-General's argument that even if the appellant had been able to establish that during the relevant period she performed all the work of a person occupying the position of a ticket clerk, that would not have established that she had been appointed as a ticket clerk.

We do not think that the rejection of the appellant's application leads to a surprising or unfair result. This is not a case in which an employer has unfairly obtained the services of an employee and has underpaid her by placing an incorrect appellation on her job so as to avoid paying her the amount to which she would have been entitled had the correct appellation been adopted. Indeed, it would have been surprising if the respondent had agreed to pay her the same salary as a ticket clerk, notwithstanding that she could not have been called upon to work in the itinerant fashion in which a ticket clerk might be called upon to work and notwithstanding that she was required to work a lesser number of hours per week.

Mr Williams Q.C., leading counsel for the appellant, criticised the reasoning by which the learned trial judge arrived at his decision. In particular, he submitted that his Honour's judgment proceeded upon the erroneous assumption that one of the issues in the case was, whether the appellant was an employee of the respondent during the relevant period. His Honour's judgment does appear to proceed upon this basis, not-withstanding that an express concession was made by counsel for the respondent that the appellant was an employee at the relevant time. But it is clear from his Honour's judgment that he rejected the application on the assumption that the appellant was an employee. In other words, his Honour's erroneous belief that the question of employment was an issue in the case did not affect his decision. In any event, we have decided the appeal on our own consideration of the facts, and on the basis of the concession that the appellant was an employee of the respondent at the relevant time.

Mr Williams also submitted that his Honour's decision was arrived at in part by reference to a dichotomy which his Honour perceived as existing between "salaried officers and employees". Indeed, his Honour did say that the appellant had not demonstrated that she was employed as a salaried officer or as an officer within the meaning of those expressions as used in the Award, and he seems to have treated this matter as sufficient in itself to defeat the application. It was claimed that this approach to the appellant's claim is inconsistent with the reasons given by the Full Court, reported at 41 A.L.R. 655. Whether this is so or not need not be determined in order to decide the appeal because his Honour went on in his judgment to hold that the appellant had not demonstrated that she was an employee of the respondent in the grade or occupation of a ticket clerk as referred to in the Award. Our own independent examination of the facts leads us to the same conclusion.

In the result the appeal must be dismissed.

JUDGE2

In October 1978 Mrs. Lucyna Zatorski, "the appellant", commenced proceedings in the Federal Court against the State Transport Authority of South Australia, "the respondent", under s.123 of the Conciliation and Arbitration Act 1904. By her application the appellant sought an order for the recovery of the balance of monies she claimed due to her under the Railways Salaried Officers Award 1960, "the State Salaried Officers Award". In order to succeed she had to establish that she was "entitled to the benefit of an Award", s.123 of the Conciliation and Arbitration Act, namely the State Salaried Officers' Award. The sole issue raised for decision by the Court is whether she was entitled to the benefit of that Award. If she was so entitled, the parties have reached agreement as to the quantum of the amount of the payment to which she is entitled.

The history of the application, and a related application, is ascertained by a reference to Zatorski v. Australian National Railways Commission (1980) 42 F.L.R. 244, "the No. 1 Case", Australian National Railways Commission v. Zatorski (1980) 49 F.L.R. 244, "the No. 2 Case", and Zatorski v. South Australian Railways Commissioner (1982) 41 A.L.R. 655, "the No. 3 Case". Following the judgment in the No. 3 case, the application came on for hearing before the Court constituted by a single Judge and on 26 April 1983 the Court so constituted found that the appellant was not entitled to the benefit of the State Salaried Officers Award and ordered that the application be dismissed. The appellant appeals against that order.

There is no substantial dispute as to the facts upon which the application is made. Those facts are contained in a statement of agreed facts tendered by the parties to the trial Judge. Reference will be made to the relevant facts later. Oral evidence given at the trial tended to support the facts set out in the statement. In addition, much written material was tendered and referred to at the hearing of the application but it is not necessary to refer in detail to that material. Likewise, the State legislation constituting the respondent and its predecessors including the South Australian Railways Commissioner, need not be referred to in detail. In particular, nothing further need be said about the provisions of the relevant State Acts prescribing the method by which the respondent is empowered to appoint employees, whether officers or employees, contained in ss.26-29 of the Railways Act 1936-1975 (S.A.) and the definitions of "railway service" or "service" and "permanent" contained in s.5 of that Act, nor to the powers contained in s.132 of that Act, nor to the regulations made thereunder. At all relevant times, similar provisions operated with respect to the respondent and its predecessors. It is not necessary to relate the history of those statutory bodies and for present purposes the word "respondent" is used to include the statutory bodies previously conducting railways in South Australia.

The provisions of s.25 of the Railways Act (S.A.), however, should be set out. At all relevant times that section provided:

"25.(1) The Authority may appoint such officers and employees as it considers necessary for the purposes of this Act, and from time to time dismiss them.

(2) Every officer and employee shall hold his office during the pleasure of the Authority.

(3) The Authority shall pay such salaries, wages, and allowances to the officers and employees as it prescribes by regulation, and as Parliament appropriates for the purpose.

(4) All appointments to permanent offices in the railway service shall be made in manner mentioned in the following provisions of this Act."

It is interesting to note the equivalent section as it was contained in the South Australian Railways Commissioners Act 1887:

"All appointments to the Railway Service shall be made by, and tenable during the pleasure of, the Commissioners. The Commissioners may appoint such and as many officers and employes as they think fit, and from time to time dismiss them, and may increase or diminish the number of officers. The Commissioners shall pay such salaries, wages, and allowances to the officers and employes as they may by regulations prescribe and as Parliament may appropriate for the purpose. All appointments to permanent offices in the Railway Service shall be made in manner hereinafter mentioned."

The respondent is a statutory body. One of the powers conferred upon it by the Railways Act (S.A.) is to "appoint such officers and employees as it considers necessary for the purposes of this Act". Officers and employees so appointed come within the category of servants in the phrase "master and servant" and are to be contrasted with independent contractors who could be appointed pursuant to the power to enter into contracts conferred upon the respondent by s.12 Railways Act (S.A.). In the No. 3 Case, at p.661 the Full Court considered the phrase "formally appointed" and in particular the word "appoint". The Full Court does not make clear the context in which, for the purposes of that case, the word "appoint" appears. The only relevant place in which the word "appoint" does appear is in s.25 of the Railways Act (S.A.). In that context the word "appoint" in sub-section (1) must mean engage under a contract of employment, while in sub-section (4) the word "appointment", except in the sense of a first appointment as a servant under sub-section (1), indicates a direction to an officer to occupy a position or office in the classification structure of the railway service of the respondent and that appointment may result from a promotion or a transfer or even a demotion.

In the absence of any contract of employment with the respondent, on no view could it be said that the appellant is entitled to the benefit of the State Salaried Officers Award. In the normal course of events one would expect to find an appointment by the respondent of a person as an officer or an employee evidenced by writing. In the present case the difficulty arises from the fact that although between 1952 and 1966 the appellant was an officer or an employee, in the sense of being a servant, of the respondent, the appellant in November 1966 resigned from her position as an employee of the respondent to enable her to be appointed as a ticket agent at Hawthorn station, which was nearer to her home, to enable her to care for her husband, who was unwell, and her young son. Initially, upon her resignation as a servant of the respondent, she was appointed to the position of ticket agent at Hawthorn and it is conceded that she occupied that position as an independent contractor and not as an officer or employee, in the sense of being a servant of the respondent. The parties have agreed that by reason of unspecified facts, imperceptibly and at a time which could not be specified, the appellant had become a servant of the respondent by the beginning of the year 1973. It is because of this agreement between the parties and the absence of other facts before the Court that the appellant concedes that the respondent did not formally appoint her an officer or employee. The absence of proof of those facts from which the contract of master and servant arises gives rise to some of the difficulties in the present case. Under normal circumstances nice questions would arise as to whether there can be an implied appointment by the respondent of a person as an officer or an employee under s.25 Railways Act (S.A.), but because of the agreement between the parties it is not necessary to decide that question in the present case. Nor is it necessary to express any opinion of the nature of a "service" whether a "railway service", a "public service", a "teaching service" or any other service created under a Commonwealth or State Act and nothing in these reasons is to be taken as expressing an opinion on those matters.

The State Salaried Officers Award is an award made by the Conciliation and Arbitration Commission. It is an award binding on the respondent and a number of other statutory bodies employing persons in railway services in Victoria and Tasmania with respect to persons employed, in the sense of servants, being members of named organizations, including the organization of which the appellant is a member, "in grades or occupations for which salaries are herein prescribed"; see sub-clause 2(a) of the Award. Clause 7 of the Award is headed "Salaries of Adult Male Officers" and each sub-clause thereof lists a number of offices or positions based on the classification structures within the different railway services. Sub-clauses 7(a) and 7(c) prescribe the annual salaries payable to persons occupying positions listed with respect to services in Victoria. Sub-clause 7(b) prescribes the annual salaries payable to persons occupying positions listed with respect to the service in South Australia. Sub-clause 7(d) prescribes the annual salaries payable to persons occupying positions listed with respect to the service in Tasmania. Clause 9 is headed "Salaries of Adult Female Officers" and each sub-clause thereof lists a number of offices or positions based on the classification structures within the different railway services. Sub-clause 9(a)(i) prescribes the annual salaries payable to persons occupying positions listed with respect to the service in Victoria. Sub-clause 9(a)(iii) prescribes the annual salaries payable to persons occupying positions listed with respect to the service in Tasmania. Sub-clause 9(a)(ii) provides:

"(ii) Adult female officers occupying positions in the classifications provided herein and employed in the South Australian Railways shall be paid at the rate of the salary prescribed in the following table: . . ."

Five separate classifications are then listed, some of which have a number of divisions with provision for annual increments. One of the classifications listed is "ticket clerk".

It must be noted that the State Salaried Officers Award does not prescribe the number of positions within a classification. That is a matter for the employer to determine. The Award does not prescribe what duties are to be performed by a person occupying a position within a classification. That is a matter for the employer to determine. The Award takes the bare skeleton of a classification structure and prescribes annual salaries payable to persons who occupy positions within a classification in that classification structure. The Award is not concerned with positions or duties. In this regard it should be noted that under the Railways Act (S.A.) it is the respondent who is empowered to make appointments to permanent offices in the railway service in South Australia; sub-section 25(4). By definition a permanent office means an office remunerated by an annual salary fixed and determined by regulations under the Railways Act (S.A.). The effect of the State Salaried Officers Award is to prescribe annual salaries for the persons occupying those offices and if there is any inconsistency between the regulations and the Award, the provisions of the Award prevail.

The State Salaried Officers Award contains a number of clauses having application generally with respect to all parties bound by the Award. These are included in Part VII of the Award, being clauses 16-57 inclusive. By way of illustration, clause 16 provides that Part VII applies "to officers occupying positions in the grade or class for which salaries are heretofore prescribed . . .". Clause 17 provides for a 40-hour week, while other clauses make provision for shift work and other matters commonly found in awards of the Commission. It is interesting to note that the Award makes no provision relating to the manner in which persons are to be appointed to occupy positions in a classification and no provision relating to the termination of employment of persons occupying those positions. Presumably, in the railway service in South Australia, officers are to be appointed and dismissed by the respondent pursuant to powers conferred by s.25 of the Railways Act (S.A.).

Finally, sub_clause 60(a) of the Award provides:

"In this Award (unless inconsistent with the context) - 'officer' means any person employed by the respondents in any of the callings for which rates of pay are prescribed herein."

This definition causes difficulties. In the Award, rates of pay are not prescribed with respect to callings but with respect to positions in specified classifications. Persons carrying on different callings may each occupy positions within the one classification. They become entitled to the prescribed salary by reason of occupying a position in a classification, not by reason of their calling.

In passing, it should be noted that alongside the State Salaried Officers Award, there exists the Railways Traffic Permanent Way and Signalling Wages Staff Award 1960, "the State Traffic etc., Award". The State Traffic etc., Award prescribes wages and conditions of employment with respect to employees in occupations within railway services in South Australia, Victoria and Tasmania. It prescribes weekly rates of pay for those employees as distinct from annual salaries.

In the present case it is conceded that at no stage did the respondent "formally appoint" the appellant to a position within the classification of ticket clerk appearing in sub-clause 9(a)(ii) of the State Salaried Officers Award. There is no material before the Court to show what was meant by the phrase "formal appointment", but in all probability it refers to an appointment to an office under sub-section 25(4) Railways Act (S.A.). In Case No. 3, the Full Court by order remitted the appellant's application to the trial Judge to enable him to determine whether, during the relevant period, the appellant was "occupying a position in the classification of ticket clerk".

The appellant sought to establish her claim by reference to her work history, the duties she performed as a ticket agent and the duties performed by persons who had been appointed to positions within the classification of ticket clerk. Even if that approach is permissible, on the material before the Court, the appellant's claim must fail.

The agreed facts show that the duties performed by a person occupying a position within the classification of ticket clerk, although similar in many respects to the duties performed by the appellant, were substantially different to the nature of the duties carried out by the appellant in her position of ticket agent. There is a difference in name between ticket agent and ticket clerk, assuming for the moment that the phrase "ticket clerk" is descriptive of duties as distinct from the name given to a classification. Under the State Salaried Officers Award, ticket clerks work a 40-hour week and while at Adelaide Station were required to do shift work. The appellant did not work a 40-hour week. At the most she worked a 36-hour week, later reduced to a 31-hour week. She did not do shift work. Ticket clerks could be directed to work at Adelaide Station where, in addition to doing shift work, they were required to perform additional duties not performed at suburban stations. The appellant could not be directed to work at Adelaide Station. She worked only at those suburban stations at which she agreed to work. All these facts show a substantial difference between the duties performed by a person occupying a position in the classification of ticket clerk and the duties performed by the appellant in her position of ticket agent.

This conclusion is consistent with the action taken by the parties during the relevant period. At all material times the parties treated the appellant as being a ticket agent and not a ticket clerk. She was considered to be award free. Problems arose concerning the rates of pay she should receive. In 1976 an arrangement was made between the respondent and the organization of which the appellant was a member that ticket agents employed by the respondent, including the appellant, should be paid wages based upon the wages payable to a Porter, Class 3, as prescribed from time to time by the State Railways Traffic etc., Award. Even though that arrangement may have had no legal effect, it was acted upon by the respondent and the appellant. By letter dated 29 July 1976 the respondent notified the appellant of the new arrangements as follows:

"MRS. L. ZATORSKI, In accordance with advice received from the Acting Secretary, please note as from and including Monday, 2nd August, 1976, you will be regraded to the position of Station Assistant. Accordingly you will be paid the appropriate rate of pay applicable to Porter, Class 3, and will be covered by the Railways Traffic etc., Award. L. ZATORSKI, TICKET AGENT, (I.L. MOORE) A C T I N G S U P E R I N T E N D E N T HAWTHORN."

Thereafter the respondent paid the appellant wages in accordance with the regrading and in accordance with the arrangement made with the organization. That position continued until the appellant ceased her employment with the respondent, as appears in Case No. 2.

In the result the appeal should be dismissed.