Town, Meredyth v Australian Telecommunications Commission - [1983] FCA 54

Re: MEREDYTH TOWN
And: AUSTRALIAN TELECOMMUNICATIONS COMMISSION and ALFRED ALEXANDER EVES
(1983) 67 FLR 48
No. G110 of 1982
Commonwealth employees - Appeal - Conciliation and Arbitration
3 IR 476

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Franki(1), McGregor(2) and Sheppard(3) JJ.

CATCHWORDS

Commonwealth employees - standing down of employee by reason of industrial action by other employees - industrial action at an end before declaration purporting to stand down employee made - whether declaration valid - Commonwealth Employees (Employment Provisions) Act 1977, ss. 3, 4, 5, 6, 7 and 11.

Appeal - preliminary question answered by single judge - whether appeal lies from that decision to a Full Court - Federal Court of Australia Act 1976, ss.24 and 25; Federal Court Rules, Order 29, Rules 1, 2, 3 and 4.

Conciliation and Arbitration - Commonwealth employees - Standing down of employees by reason of industrial action by other employees - Declaration that employee could not be usefully employed - Industrial action at an end before declaration purporting to stand down employees made - Whether declaration valid - Commonwealth Employees (Employment Provisions) Act 1977 (Cth), ss 3, 4, 5, 6, 7, 11.

Appeal - Preliminary question answered by trial judge - Whether appeal lies from that decision to Full Court - Federal Court of Australia Act 1976 (Cth), ss 24, 25 - Federal Court Rules O. 29, rr. 1, 2, 3, 4.

HEADNOTE

On 2nd December, 1981, the second respondent, as delegate of the first respondent, purported to declare, pursuant to s. 5 of the Commonwealth Employees (Employment Provisions) Act 1977 that the applicant and twelve other employees of the first respondent, by reason of the existence of industrial action in which the applicant was not engaged could not be usefully employed, be stood down from their employment at and from 11.30 a.m. on that day. The applicant was not paid her wages for the period commencing that day and ending on 14th December, 1981. Pursuant to the Administrative Decisions (Judicial Review) Act 1977 the appellant sought an order of review of the second respondent's declaration. The parties submitted certain questions for the decision of the trial judge upon agreed facts. One such question was whether it was open to the trial judge to find that either any inability of the applicant to be usefully employed or the disruption was "by reason of the existence of any industrial action" within the meaning of s. 5 of the Commonwealth Employees (Employment Provisions) Act 1977. The answer given was "Yes". The appellant appealed from this answer.

Held: (1) The judgment of the trial judge in respect of the question was capable of being the subject of an appeal pursuant to s. 24 of the Federal Court of Australia Act 1976.

Per Sheppard J. - In deciding to answer the question the way that he had, the trial judge had in reality made an order determining the question favourably to the respondents.

(2) Per Franki and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1983] FCA 54
Decision Date: 07 APRIL 1983

CaseChat Overview and Summary

The matter before the court involved an appeal by the appellant against a decision that declared her standing down as invalid. The appellant was employed by the respondent, the Australian Telecommunications Commission, and was stood down during a period of industrial action. The dispute centred on whether the declaration that led to the appellant's standing down was valid, given that the industrial action had ended before the declaration was made. The case was heard in the Full Court of the Federal Court of Australia.

The primary legal issue before the court was whether a declaration under section 5 of the Commonwealth Employees (Employment Provisions) Act 1977 was valid if the industrial action upon which it was based had already ceased at the time the declaration was made. The court was also required to determine if the declaration was in accordance with the relevant sections of the Act, including sections 3, 4, 5, 6, 7, and 11. The court examined the legislative framework and the timing of the industrial action and the declaration to ascertain if the declaration was valid.

The court found that for a declaration under section 5 of the Act to be valid, the industrial action upon which it was based must be in existence at the time the declaration is made. The court held that since the industrial action had ended before the declaration was made, the declaration was invalid. The court emphasised that the legislative provisions required the existence of industrial action at the time of the declaration to ensure the protection of employee rights and the proper administration of employment provisions. The court also considered the implications of this decision on the interpretation and application of the relevant sections of the Act.

The court allowed the appeal, set aside the answer to the submitted question, and substituted a new answer that reflected its findings. The court ordered that the respondents pay the appellant's costs of the argument before the court and remitted the matter to a single judge of the court for further proceedings. This decision clarified the requirements for a valid declaration under section 5 of the Commonwealth Employees (Employment Provisions) Act 1977 and provided guidance on the interpretation of the relevant legislative provisions.

Orders

Orders of the court

1. The appeal be allowed.

2. The answer to question 2(a) of the questions submitted by the parties for decision of the primary judge be set aside and in lieu thereof the following answer be substituted, namely, "For a declaration pursuant to s.5 of the Commonwealth Employees (Employment Provisions) Act 1977 to be valid, the industrial action upon which the notice is based must be in existence at the time the declaration is made."

3. The respondents pay the appellant's costs of the argument before this Court.

4. The matter be remitted to a single judge of this Court.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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