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 Sheppard JJ. - The question formulated by the parties should be answered favourably to the appellant by saying that for declarations pursuant to s. 5 of the Commonwealth Employees (Employment Provisions) Act 1977 to be valid, the industrial action upon which the notice was based must be in existence at the time the declaration was made.

Per McGregor J. - The question should not be answered until all the evidence was complete.

(3) Appeal allowed. The matter should be remitted to a single judge for the hearing of further evidence concerning whether the industrial action upon which the declaration was made was, in fact, continuing and in existence at the time the declaration was signed.

HEARING

1982, October 22; 1983, April 7. #DATE 7:4:1983

APPEAL.

Appeal from the answer of the trial judge to a question of law formulated by the parties upon agreed facts in proceedings under the Administrative Decisions (Judicial Review) Act 1977.

B. O'Keefe Q.C. and R. Madgewick, for the appellant.

P. W. Young Q.C. and H. G. Shore, for the respondents.

Cur. adv. vult.

Solicitors for the appellant: S. Masselos & Co.

Solicitor for the respondents: B. J. O'Donovan, Commonwealth Crown Solicitor.

T. J. GINNANE

ORDER

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.

JUDGE1

The facts have been set out sufficiently in the judgments of Sheppard and McGregor JJ., drafts of which I have read.

I consider that this Court has jurisdiction to hear this appeal and I agree in particular with the reasons of Sheppard J. in this regard.

The parties agreed on certain facts and certain questions were put to the learned trial Judge which he was asked to answer "On the agreed facts".

The learned trial Judge, in consultation with counsel, reframed certain questions including the relevant question, number 2(a). Although at various times, both before the trial Judge and before us, there were some references to other issues of fact, I am unable to see how the parties could have sought to have question 2(a) answered upon the agreed facts other than upon the basis of the first of those facts, namely "There was industrial action in which the applicant was not engaged up to close of business on 1 December 1981". In my opinion it is not possible to conclude in any sensible way that this was other than an agreed fact that the industrial action did not continue after the close of business on 1 December 1981. Indeed in his judgment the learned trial Judge said:

"As at 11.30 a.m. that day, when the declaration was made, the industrial action had ceased and it could no longer be said that any inability for the applicant to be usefully employed or any disruption to a function was by reason of the existence of any industrial action."

Upon this basis I consider that the trial Judge was asked to decide whether in relation to s.5(a) of the Commonwealth Employees (Employment Provisions) Act 1977, the word "existence" in the phrase "by reason of the existence of any industrial action" could be satisfied where industrial action was not presently existing. By the definition of "industrial action" in s.3 of the Act a ". . . ban . . . on the performance of work or on acceptance or offering for work" is included.

The learned trial Judge answered "Yes" to question 2(a), which he posed, so far as is relevant, as: "Is it open to me to find that . . . any inability of the applicant to be usefully employed . . . was 'by reason of the existence of any industrial action' within the meaning of s.5". The parts of this question which I have replaced with dots related to s.5(b) which the learned trial Judge, in answer to question 2(b), decided was not applicable to the appellant in these proceedings.

In general I agree with the reasons of Sheppard J. in relation to the interpretation of "by reason of the existence of any industrial action". In my opinion these words are far too plain to have to resort to s.15AA of the Acts Interpretation Act 1901. I would also find it very difficult to discover what construction "would promote the purpose or object underlying the Act" in so far as this case is concerned. One view might well be that once industrial action no longer exists the Act could not have been intended to permit the suspension of employees who had not been engaged in the industrial action. Support for this view, limited as to time, might very well be found in the breadth of the definition of "industrial action". I consider that question 2(a) should be answered "No".

Since the learned trial Judge has retired, I would uphold the appeal, order the respondents to pay the costs of the appeal and remit the matter to a single Judge of this Court.

JUDGE2

This is an appeal by MEREDYTH TOWN (appellant) against a finding in the form of an answer to a question submitted to a judge of this Court exercising jurisdiction on an application for review pursuant to s.5 of the Administrative Decisions (Judical Review) Act 1977 (ADJR Act). The respondents to the appeal are AUSTRALIAN TELECOMMUNICATIONS COMMISSION (first respondent) and ALFRED ALEXANDER EVES (second respondent).

The applicant was, and is, employed by the first respondent as an assistant technician in the subscribers control room at the Sydney Telex Exchange. On 2 December 1981, the second respondent, acting as the delegate of the first respondent, by an instrument in writing, purported to declare, pursuant to s.5 of the Commonwealth Employees (Employment Provisions) Act 1977 (the Act) that the applicant and twelve other employees of the first respondent be stood down from their employment at and from 11.30 a.m. on that day.

Sections 5 and 6 thereof provides -

"(5) Where, by reason of the existence of any industrial action (including industrial action in which Commonwealth employees are not engaged) -
(a) persons who are Commonwealth employees in relation to an employing authority cannot be usefully employed; or
(b) there is serious disruption to the performance of a function by an employing authority, being a function in connexion with the performance of which persons who are Commonwealth employees in relation to the employing authority are employed;
the employing authority may, by instrument in writing, declare that Commonwealth employees specified in the declaration, being all or some of the Commonwealth employees referred to in paragraph (a) or (b) but not being Commonwealth employees engaged in the industrial action, are stood down during the period commencing at such time as is specified in the declaration (not being a time earlier than the time at which the declaration is made) and ending at the time at which the declaration ceases, or is deemed to have ceased to have effect. 6. During any period when a Commonwealth employee is, by virtue of a declaration under section 4, suspended or, by virtue of a declaration under section 5, stood down, the employee is not, except as provided in the declaration, entitled to any salary, wages or other remuneration, or allowances, that, but for this section, would be payable to him as a Commonwealth employee in respect of the period."

"Industrial action" is defined in s.3(1) thus -

"(a) the performance of work in a manner different from that in which it is customarily performed, or the adoption of a practice in relation to 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; or
(c) an unauthorized failure or refusal by persons to attend for work or an unauthorized failure or refusal to perform any work at all by persons who attend for work."

The second respondent, acting as delegate of the first respondent, made the following declaration dated 2 December 1981 at 11.30 a.m. in respect of persons including the applicant -

"WHEREAS by reason of the existence of industrial action, persons who are employed by the Australian Telecommunications Commission, whether in a permanent capacity or otherwise, cannot be usefully employed, NOW THEREFORE I, Alfred Alexander Eves, being a person to whom the Commission has, pursuant to Section 13 of the Commonwealth Employees (Employment Provisions) Act 1977, delegated its powers under Section 5 of the said Act HEREBY DECLARE, pursuant to the said Section 5 that the persons specified hereunder, being persons employed by the said Commission, whether in a permanent capacity or otherwise, and being some of the persons referred to in the preamble hereto but not being persons engaged in the said industrial action, are stood down during the period commencing at 11.30 o'clock in the fore noon on the second day of December 1981 and ending at the time when this declaration ceases, or is deemed to have ceased, to have effect pursuant to sub-section 7(2) of the said Act."

Purporting to act on the basis of the declaration, the first respondent did not pay the appellant's wages for the period commencing at that time and ending on 14 December 1981.

In these proceedings, the appellant has called in to question the validity of the declaration. The principal submission on behalf of the appellant is that a declaration can only be made in reliance on s.5 when the industrial action is on foot; and not after it has ceased.

At the hearing at first instance and so that his Honour might consider certain questions (set out below) submitted to him, facts were agreed between the parties. Those are set out in his Honour's "REASONS FOR JUDGMENT ON PRELIMINARY QUESTIONS" as follows -

"(a) There was industrial action in which the applicant was not engaged up to close of business on 1 December 1981.
(b) By reason of that, as at close of business on 1 December 1981, there was serious disruption to the performance of the telex service for subscribers wishing to send telex messages from or via Sydney. Not all telex messages are sent in Australia via Sydney. It was a function of the first respondent to provide a telex service for subscribers throughout Australia.
(c) By reason of that industrial action, at 11.30 a.m. on 2 December 1981, there was still such serious disruption. (d) The applicant was employed in connection with a particular function of the first respondent which included the location of faults in the New South Wales equipment and lines of the telex service.
(e) The parties are at issue as to whether there was serious disruption to that particular function.
(f) As at and from 8.00 a.m. on 2 December 1981, those who had been engaged in the said industrial action were denied entry to their work-place by the first respondent and had been suspended under section 4 of the Commonwealth Employees (Employment Provisions) Act.
(g) The second respondent was the duly authorised delegate of the first respondent for relevant purposes.
(h) The second respondent after considering sections 4, 5(a) and 5(b), intended and purported to act under section 5(a) in relation to the applicant.
(i) The foregoing facts were within the knowledge of the second respondent and he did advert to them in relation to the applicant.
(j) No notice was given to the applicant of the declaration until after 11.30 a.m. on 2 December 1981, copies of the declaration were posted on notice boards which she could not have reasonably been expected to see before 1.00 p.m., and until at 1.00 p.m. she was told at the entrance to her work-place that she was "ceeped" and an effort was made to hand her a copy of the declaration, which she could have accepted.
(k) Any inability of the applicant to be usefully employed as at 11.30 a.m. on 2 December 1981 was due either to the said industrial action or the absence, following their suspension, of those who had been engaged in it, or both."

His Honour summarised the applicant's case before him as follows -

". . . she claims, on various grounds, that (first respondent) had no power in the circumstances to make the declaration, that proper notice of it was not given to her and that, in any event, it was not effective in its terms to deprive her of her wages."

The hearing of the application commenced on 5 May 1982 and continued until 7 May 1982. On the latter date, his Honour was asked to answer certain preliminary questions before the hearing proceeded further. There seemed a possibility this would assist in resolving the matter expeditiously. He said -

"It seemed to me that a resolution thereof might, depending on the answers I gave, shorten the proceedings and I agreed to answer them."

The questions submitted were -

"1. Do the contents of the instruments prevent the respondents from seeking to make a case that the declaration sought thereby to be made was authorised and effective by reason of the existence at the time of making of the instrument of facts falling within s.5(b) and whether or not facts falling within s.5(a) also then existed?

2. On the agreed facts
(a) Was any inability of the applicant to be usefully employed and the disruption "by reason of the existence of any industrial action" within the meaning of s.5?
(b) Did s.5(b) apply to the applicant and the respondent?
(c) Was s.9 complied with?
(d) If not, was the declaration invalid or ineffectual?
(e) By reason of the absence in the instrument of an express indication that s.6 and/or a disentitlement to remuneration would apply, did the instrument operate so as to disentitle the applicant to remuneration until such time as the declaration ceased or was deemed to have ceased to have effect?"(225)

On 24 May 1982, after some further argument, his Honour, viva voce, answered the questions. It is helpful, having regard to the issues which arose on the appeal, to quote his words in full

"As to question one, the view I have formed is that the respondent was not entitled to rely on (b). Simply stated - these are not reasons - I think parliament intends that in a case such as this the body that has the discretion should direct its mind to that particular matter and if it wishes to rely on it for the purpose of exercising its discretion, it should do so. In effect, I answer that in what I understand to be in favour of the applicant's argument.
As to 2(a) my answer to that question is, yes, by which I mean that notwithstanding that other employees were suspended earlier, it was still open to the employing authority to stand down the applicant and other employees at a later point of time that day, which means I find that question answered in favour of the respondent.
Question 2(b) should be answered, I am not entitled to apply section 5(b) to the applicant and the respondent.
My answer to 2(c) is yes. I would say this, that if there are any other facts relating to notice, I would not shut out the applicant. I am not inviting it, Mr. Madgwick, and I simply say to you on the arguments of law that have been put to me and on the facts as admitted, I think section 9 was complied with.
So that 2(d) would be answered, no, not for that reason. 2(e), the answer I gave to the question is that the fact that the instrument did not specify the matters in section 6, the disentitlement to remuneration, did not prevent it from having that effect, that is to say the effect stated in section 6 of disentitlement to remuneration.
So that leaves an issue as to section 5(a) and whatever flows from that. There is always a hypothetical chance that in the course of going further into a case a view might be formed about, for instance, 2(a) the other way, but I do not see it happening at the moment because I faced up to that question on the basis of the submissions put to me as to whether there had to be a supervening industrial action at the time of actual stand down. On the other hand, the facts might solidify the view from the factual point of view and I might find there was industrial action somewhere else; I do not know. I hope that is clear enough to counsel." (210)

It is, in my view, clear that his Honour was aware that further evidence may well have been offered before the hearing concluded which might have affected his view as to the appropriate answer to question 2(a). The last paragraph quoted above was recognition of that and also a reference to an argument by senior counsel for the respondents that industrial action need not be ended by the suspension of employees engaged in it; or employees referred to in para.(f) of the agreed statement of facts. This seems to me to be what his Honour had in mind when he said e.g. -

". . . . and I might find there was industrial action somewhere else; I do not know."

The matter was listed on 27 May 1982. There was some amendment of the forms of questions after consultation with counsel. His Honour then said -

"In this matter I was asked to answer certain questions of law of a preliminary nature which were put to me on the basis of certain agreed facts. I answered those questions on Monday of this week. At the time I indicated that, unless I was asked to do so, I would not give reasons until my final judgment.
I have been asked to give my reasons in respect of several of the questions - namely, questions 1, 2(a) and 2(b) - and I now publish my reasons for judgment on those questions; and the reasons also set out the answers to all the questions that I was asked.
After consultation with counsel, I have re-framed, which will be noticed, questions 2(a) and 2(b) and they have been answered accordingly. Those changes have not made any difference to the substance of the questions but only make it clear that there may be issues of fact which could still arise in relation to those matters. I publish my reasons.
If counsel or others wish to see me in relation to the matter, I will be back in Sydney next week. Counsel should feel free to approach me if they wish. Otherwise I shall assume that, subject to any appeal, the matter will go on the 21st and affidavits and statements will be filed in accordance with the timetable which we discussed on Monday last."

Question 2(a) as reframed, and his Honour's answer thereto were as follows -
QUESTION 2(a): Is it open to me 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?

ANSWER: Yes."

It is the answer to this question which, as will be seen, is the subject of the appeal. The question in its amended form is, in my view, significantly different from its earlier version. I consider that the answer to the question in its redrafted form would not preclude, in fact, even envisages, further evidence before the judge at first instance, e.g. as to the continued existence of industrial action by employees whether or not including suspended employees of whom appellant was one.

The grounds taken in the Notice of Appeal are as follows:-

"2. His Honour erred in law in not answering the said Question "No.".
3. Such further or other grounds as to the Court may seem meet."

The Order sought in the Notice of Appeal is as follows -

"a) The reversal of the part of the judgment appealed from. b) Judgment for the appellant in the action. c) . . . . "

The question of the competency of the appeal was first raised by members of the court and then taken up, albeit somewhat tentatively, even equivocally, by senior counsel for the respondents. This court, or any court, anyway, must always be satisfied it is empowered to hear a proceeding before it even though notice of objection to competency has not been filed and even though parties wished the hearing to proceed. The appellate jurisdiction of the court is conferred by s.24 of the Federal Court of Australia Act 1976 (the Act) thus -

"24 (1) Subject to this section and to any other Act, whether passed before or after the commencement of this Act (including an Act by virtue of which any judgments referred to in this section are made final and conclusive or not subject to appeal), the Court has jurisdiction to hear and determine -
(a) appeals from judgments of the Court constituted by a single Judge;
(b) (c) . . . . . "

It is unnecessary to quote the rest of the section; suffice to say that sub-ss.(2),(4),(5) continue to refer to appeals from a "judgment". That word is referred to in the definition section of the Act thus -

"In this Act, unless the contrary intention appears -
". . . . .
"judgment" means a judgment, decree or order, whether final or interlocutory, or a sentence;
. . . . "

For myself, I have not detected, nor has argument suggested, there is any contrary intention. It is hardly necessary to say that "judgment" means not the reasons therefor; but the judicial determination; decision (or sentence) of the court. The further use of "judgment" in e.g. s.28, s.29 and s.32(2) does not expound the meaning; and the provision for appeals to the High Court from this court s.33(1) maintains this consistency. The judge at first instance was specifically empowered (if it were necessary to find such power) to deal with questions by Order 29 of the Federal Court Rules. These Rules, made pursuant to s.59 of the Act, are limited to making provision for practice and procedure or matters necessary or convenient for the conduct of the court's business. This Order is as follows -

"ORDER 29
SEPARATE DECISION OF QUESTIONS: CONSOLIDATION

Division 1 -Separate Decision of Questions

1. In this Order, "question" includes any question or issue in any proceeding, whether of fact or law or partly of fact and partly of law, and whether raised by pleadings, agreements of parties or otherwise.

2. The Court may make orders for -
(a) the decision of any question separately from any other question, whether before, at or after any trial or further trial in the proceedings; and
(b) the statement of a case and the question for decision.

3. Where any question is decided under this Order, the Court shall, subject to rule 4, make such order, grant such relief or give such directions as the nature of the case requires.

4. Where the decision of a question under this Order -
(a) substantially disposes of the proceeding or of the whole or any part of any claim for relief in the proceeding; or
(b) renders unnecessary any trial or further trial in the proceeding or on the whole or any part of any claim for relief in the proceeding,
the Court may, as the nature of the case requires -
(c) dismiss the proceeding or the whole or any part of any claim for relief in the proceeding; or
(d) pronounce any judgment; or
(e) make any other order.
. . . . . . "

The Order itself, in my view, distinguishes between the deciding of questions and what may follow - in an appropriate case - i.e. the making of an order or granting relief or giving directions or finally e.g. the pronouncing of judgment.

Order 29 empowers this Court (including a single judge thereof) to make a decision in respect of any question separately from any other question or questions. Such a course would be justified by consent of the parties, acted upon in an appropriate case by the judge at first instance. We have not been referred to any specific order made by the learned judge referable to that order; yet it is implicit on a consideration of the whole matter that the judge proceeded as if such an order were made, and if it is necessary to remember, with the concurrence of all parties. We should therefore, I consider, accept that he proceeded as if the orders were made. We need not concern ourselves with a consideration that e.g. there was a failure by him to take some procedural step which was available and acquiesced in by the parties. Authorities, if it is necessary to refer to them, which I suggest assist to this interpretation are Templeton v. Leviathan Proprietary Ltd. (1921) 30 C.L.R. 34 at p.68 per Higgins J., though there the order made was not the subject of appeal: Assets Company, Limited v. Mere Roihi (1905) A.C. 176 at p.203.

It is convenient to consider if the ADJR Act has added anything to this Court's relevant powers. Section 16 of that Act gives a discretion to the judge at first instance which may, for present purposes, be put aside. However, no larger power than is available in the Act or Rules is to be found in s.16. If it were argued that s.16(1)(c) conferred increased powers, no declaration as to anyone's rights were made nor was there any purported recourse to this power by the judge at first instance; so he did not get to the stage of implementing s.16 at all. In my opinion, the ADJR Act does not cause there to be any different interpretation of the court's powers.

The judgment in respect of a question or questions forming part of his Honour's orders would, therefore, be the subject of an appeal pursuant to the Act s.24. To hold otherwise would mean that Order 29 made provision for such a procedure by the judge but to be unappealable, i.e. not subject to the ordinary rights of appeal pursuant to the Act. The substance of the appeal is, therefore, to be considered.

Yet it seems to have been envisaged by the trial judge when redrafting, apparently, and significantly, I consider, with the concurrence of the parties, question 2a, that there could be further evidence on the very issue with which that question deals. His Honour's amendation of the question seems to have been designed to accommodate that eventuality. Speaking only for myself, therefore, in my view this court ought not to pronounce upon the validity or otherwise of the answer to the question as if the facts agreed contained the only factual material which might eventually bear upon it. The agreed redrafting of the question, which was later than the settling of the question, suggests it would be inappropriate to do so until all evidence is complete and perhaps findings made.

We have had the benefit of submissions orally and summarised in writing by both parties. The latter remained with the papers. I do not find it necessary to refer to them.

So far as it may assist the parties, I can say that I accept the argument that the wording of s.5 of the Act contemplates -
the existence of industrial action;
that thereby Commonwealth employees cannot be usefully employed;
declaration by instrument in writing that such Commonwealth employees not being those engaged in the industrial action are stood down;
must be substantially contemporaneous. In my opinion there is no occasion for the application of s.15AA of the Acts Interpretation Act 1901. But this construction of s.5 for the reasons mentioned and because it was envisaged there might yet be further evidence, does not mean that finally the answer to question 2a which is the subject of appeal is necessarily incorrect. The matter should, I consider, be remitted to a judge for further consideration.

I have had the benefit of seeing the orders proposed by the majority. I agree with paragraphs 2, 3 and 4 thereof.

JUDGE3

This is an appeal from the judgment of a single judge of this Court in which he determined a question concerning the construction of s.5 of the Commonwealth Employees (Employment Provisions) Act 1977 ("the Act"). The section provides:

"5. Where, by reason of the existence of any industrial action (including industrial action in which Commonwealth employees are not engaged)-

(a) persons who are Commonwealth employees in relation to an employing authority cannot be usefully employed; or

"(b) there is serious disruption to the performance of a function by an employing authority, being a function in connexion with the performance of which persons who are Commonwealth employees in relation to the employing authority are employed,

the employing authority may, by instrument in writing, declare that Commonwealth employees specified in the declaration, being all or some of the Commonwealth employees referred to in paragraph (a) or (b) but not being Commonwealth employees engaged in the industrial action, are stood down during the period commencing at such time as is specified in the declaration (not being a time earlier than the time at which the declaration is made) and ending at the time at which the declaration ceases, or is deemed to have ceased, to have effect."

The expression "industrial action" is defined in s.3(1) of the Act as follows:

"(a) the performance of work in a manner different from that in which it is customarily performed, or the adoption of a practice in relation to 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; or

(c) an unauthorized failure or refusal by persons to attend for work or an unauthorized failure or refusal to perform any work at all by persons who attend for work."

The second respondent, acting as the delegate of the first respondent, purported to make a declaration pursuant to s.5. The declaration was dated 2 December, 1981, and was signed at 11.30 a.m. on that day. So far as it is relevant the declaration was in the following form:

"WHEREAS by reason of the existence of industrial action, persons who are employed by the Australian Telecommunications Commission, whether in a permanent capacity or otherwise, cannot be usefully employed, NOW THEREFORE I, Alfred Alexander Eves, being a person to whom the Commission has, pursuant to Section 13 of the Commonwealth Employees (Employment Provisions) Act 1977, delegated its powers under Section 5 of the said Act HEREBY DECLARE, pursuant to the said Section 5 that the persons specified hereunder, being persons employed by the said Commission, whether in a permanent capacity or otherwise, and being some of the persons referred to in the preamble hereto but not being persons engaged in the said industrial action, are stood down during the period commencing at 11.30 o'clock in the fore noon on the second day of December 1981 and ending at the time when this declaration ceases, or is deemed to have ceased, to have effect pursuant to sub-section 7 (2) of the said Act."

The declaration then specified 13 persons of whom the appellant was one.

In the proceedings before his Honour the appellant, in an application for relief pursuant to s.5 of the Administrative Decisions (Judicial Review) Act 1977, challenged the validity of the declaration on a number of grounds.

There was discussion during the argument before us as to whether an appeal from his Honour's decision was competent. Notwithstanding the agreement of all parties that it was, it is necessary that the Court should be satisfied that it has jurisdiction to determine the appeal. It is a matter to which I shall return after referring to the course of the proceedings and to his Honour's reasons for judgment.

After certain evidence had been led, the parties agreed upon certain facts and then formulated for the learned primary judge's decision a series of questions. The agreed statement of facts was as follows:

"a) There was industrial action in which the Applicant was not engaged up to close of business on 1st December 1981.
b) By reason of that, as at close of business on 1st December 1981, there was serious disruption to the performance of the telex service for subscribers wishing to send telex messages from or via Sydney. Not all telex messages are sent to Australia via Sydney. It was a function of the First Respondent to provide a telex service for subscribers throughout Australia.
c) By reason of that industrial action, at 11.30 a.m. on 2nd December 1981, there was still such serious disruption.
d) The Applicant was employed in connection with a particular function of the First Respondent which included the locating of faults in the New South Wales equipment and lines of the telex service.
e) The parties are at issue as to whether there was serious disruption to that particular function.
f) As at and from 8.00 a.m. on 2nd December 1981, those who had been engaged in the said industrial action were denied entry to their work-place by the First Respondent and had been suspended under Section 4 of the Commonwealth Employees (Employment Provisions) Act.
g) The Second Respondent was the duly authorised delegate of the First Respondent for relevant purposes.
h) The second Respondent after considering Sections 4, 5(a) and 5(b), intended and purported to act under Section 5(a) in relation to the Applicant.
i) The foregoing facts were within the knowledge of the Second Respondent and he did advert to them in relation to the Applicant. "j) No notice was given to the Applicant of the declaration until after 11.30 a.m. on 2nd December 1981. Copies of the declaration were posted on notice boards which she could not have reasonably been expected to see before 1.00 p.m., and until at 1.00 p.m. she was told at the entrance to her work-place that she was 'ceeped' and an effort was made to hand her a copy of the declaration, which she could have accepted.
k) Any inability of the Applicant to be usefully employed as at 11.30 a.m. on 2nd December 1981 was due either to the said industrial action or the absence, following their suspension, of those who had been engaged in it, or both."

The questions formulated by the parties covered a number of matters. The only one with which we are concerned is question 2(a). As originally formulated it was as follows:

" On the agreed facts
(a) Was any inability of the applicant to be usefully employed and the disruption 'by reason of the existence of any industrial action' within the meaning of s.5?"

I assume there was some change made to the form of the question because in his Honour's reasons for judgment it is stated to be:

"Is it open to me 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?"

His Honour answered the question in the affirmative.

At the time he did so he did not give his reasons. These were published later. They reveal that the principal, if not the only, point at issue between the parties in relation to this question was whether, for a declaration pursuant to s.5(a) of the Act to be valid, the industrial action has to be continuing at the time the declaration is made. It was the appellant's submission that it has to be continuing. The respondents submitted that it was immaterial that the industrial action had ceased. A valid notice might still be given after the termination of the industrial action so long as the consequences of it were the cause of the inability usefully to employ the persons specified in the declaration. That submission was upheld by his Honour.

There is no mention in the parties' formulation of the question, nor in his Honour's reasons, of the source of the power he was exercising in determining question 2(a) and other questions in this preliminary way. In particular there was no reference to Order 29 of the Rules of this Court. Rule 1 of Order 29 provides that "question" includes any question or issue in any proceeding, whether of fact or law or partly of fact and partly of law, and whether raised by pleadings, agreement of parties or otherwise. Rule 2 provides, inter alia, that the Court may make an order for the decision of any question separately from any other question, whether before, at or after any trial or further trial in the proceedings. Rule 3 provides that where any question is decided under Order 29, the Court shall, subject to Rule 4, make such order, grant such relief or give such direction as the nature of the case requires. Rule 4 provides that where the decision of a question under the order substantially disposes of the proceeding or of the whole or any part of any claim for relief therein, the Court may, as the nature of the case requires, dismiss the proceeding or the whole or any part of any claim for relief or pronounce any judgment or make any other order.

In the light of these provisions I conclude that his Honour, in accepting the parties' formulation of the questions and determining the answers to them, was acting pursuant to the provisions of Order 29 of the Rules. It is unnecessary, therefore, to inquire whether there was any other source of power for the course which was taken.

Before his Honour it seems to have been agreed by the parties that if the question were answered favourably to the appellant, the proceedings would be at an end. She would be entitled to the relief which she seeks. However, there was no such agreement before us. In the submission of senior counsel for the respondents the matter would need, in that event, to go back. That was because of a submission made on behalf of the respondents that the declaration was made at a time when industrial action was continuing. That is a matter disputed by the appellant whose counsel submitted that we should not permit the argument to be relied upon.

Subject to that matter, the course proposed by the parties and adopted by his Honour had substantial utility. The determination of the question favourably to the appellant would apparently have brought an end to the proceedings and saved the time and expense in hearing evidence and argument on other issues. The fact that the question was answered adversely to the appellant does not affect that proposition. Subject to the same qualification, it would seem useful for the Court to be able to hear the appeal and determine whether the primary judge's decision should be upheld or not.

Section 24 of the Federal Court of Australia Act 1976 confers appellate jurisdiction upon the Court to hear and determine, inter alia, appeals from judgments of the Court constituted by a single judge. "Judgment" is defined in s.4 to mean a judgment, decree or order, whether final or interlocutory, or a sentence. By s.28 the Court may, in the exercise of its appellate jurisdiction, inter alia, affirm, reverse or vary the judgment appealed from and give such judgment, or make such order, as, in all the circumstances, it thinks fit.

His Honour having found against the appellant, it is superficially difficult to perceive what order his Honour has made. Unless there is an order - there is certainly no judgment - there can be no appeal pursuant to s.24 because there is nothing to appeal against. But it seems to me that in deciding to answer the question in the way that he has, his Honour has in reality made an order determining the question favourably to the respondents. The order is not a final order but an appeal lies against an order which is interlocutory only. If this view is not correct, the utility of what is provided for in Order 29 will often be lost. If one party wishes to appeal but cannot do so because there is no order, both parties will have to incur expense for further costs which may prove quite unnecessary in the event that an appellate court ultimately decides the question in such a way as to bring about the disposal of the proceedings without the need for any additional evidence. The Court has entertained appeals in similar circumstances. An example is Queensland Aggregates Pty. Limited v. Trade Practices Commission (1981) 38 A.L.R.217. There a question had been determined at first instance unfavourably to a respondent to an action for penalties brought by the Commission. A favourable determination of it would have brought about an end to the proceedings. The Full Court, which heard the appeal, did not suggest that the appeal was incompetent.

Upon this question I find it helpful to have regard to sub-section 26(2) of this Court's Act. Paragraph (2)(a) thereof in some circumstances empowers a single judge of this Court to determine a question reserved by a court from which an appeal to this Court lies; cf. sub-section 25(6). If the view that there is no jurisdiction in the present case were to prevail, it would seem to follow that there could be no appeal either to a Full Court from the decision of a single judge determining a question so reserved. Yet the provisions of paragraph 24(1)(a) point quite plainly to there being an appeal in such a case.

For the above reasons I am of opinion that this appeal is competent.

I turn to the substance of the matter. I should mention some additional provisions of the Act. By reason of the definitions of "Commonwealth employee" and "employing authority" in s.3 of the Act there is no question but that the appellant was at all material times a Commonwealth employee for the purposes of s.5 and the first respondent an employing authority for the purposes thereof. Section 4, although having an independent operation, is a companion section to s.5. It provides:

"4. Where persons who are Commonwealth employees in relation to an employing authority are engaged in industrial action, the employing authority may, by instrument in writing, declare that Commonwealth employees specified in the declaration, being all or some of the first mentioned Commonwealth employees, are suspended during the period commencing at such time as is specified in the declaration (not being a time earlier than the time at which the declaration is made) and ending at the time at which the declaration ceases, or is deemed to have ceased, to have effect."

Section 6 provides that during any period when a Commonwealth employee is, by virtue of a declaration under s.4, suspended or, by virtue of a declaration under s.5, stood down, the employee is not entitled to his remuneration or allowances which would, but for the section, be payable to him in respect of the period. Section 7 provides for the cancellation, termination and modification of declarations. The section applies both to declarations under s.4 and under s.5. Section 9 provides for notices of declarations and determinations, and for notice of the cancellation of declarations.

Finally, s.11 is as follows:

"11.(1) A declaration or determination has effect according to its tenor, and so has effect notwithstanding any law, or any award, that is inconsistent with the declaration or determination.
(2) Except as provided in sub-section (1), nothing in this Act, or in a declaration or determination, shall be taken as affecting -
(a) the application of any law, or of any award, to or in relation to an employing authority or a Commonwealth employee; or
(b) the terms and conditions of employment of a Commonwealth employee.
(3) In this section, 'award' includes a determination (other than a determination as defined in sub-section 3(1)) or other instrument making provision with respect to terms and conditions of employment, being a determination or instrument of a kind similar to an award."

As earlier stated the question raised by the competing contentions of the parties is whether a declaration pursuant to s.5 can be made after the industrial action, as distinct from the effects thereof, has ceased. It is the appellant's contention that a valid declaration may not then be made. It is the respondents' contention that it may.

In support of his submissions that the declaration can only validly be made during the currency of industrial action, senior counsel for the appellant relied strongly on the words "of the existence of" in the opening line of s.5. Counsel submitted that the ordinary meaning of the word "existence" was the state of being existent, and that, in turn, existent meant that which exists or is existing, for example, an existing person or thing. Those are the meanings of the words given in the Oxford Dictionary. No other relevant meaning is there given. It is the meaning which in my own experience the words commonly have. References to other dictionaries and to works in which words are judicially defined do not suggest any other meaning of the words.

Nevertheless senior counsel for the respondents contended that the words, in the context in which they appeared, meant "happening" or "occurrence". He conceded that he could refer us to no dictionary nor any authority in support of such a submission. I have no hesitation in saying that his submission should be rejected and that the words have the meaning contended for by counsel for the appellant.

That does not conclude the matter. One still has to come to a conclusion as to what place the words have in the overall interpretation of s.5. In this respect it should be mentioned that the learned primary judge thought they had no place. He considered them to add nothing to the section with the result that the expression "by reason of the existence of industrial action" meant the same as "by reason of industrial action".

His reasons for that view stem from the opinion he formed of the purpose and object of the legislation. His Honour said:

"Although the applicant's argument have some force, I do not think they are correct. The effect of them in this case would be that, although the stand down under s.5 can take place at the same time or shortly before the suspension under s.4, it cannot take place subsequently even though it was the industrial action relevant to the suspension which caused the circumstances in s.5(a) or (b) to exist. In the context of this law this would be a curious result. Obviously the purpose and object of s.5 is to enable a stand down where industrial action is causing under-employment or disruption of functions. Therefore the words of s.5 should, if they can, in accordance with proper canons of construction, be interpreted consistently with what seems to me to be the object and purpose of the provision. (See Acts Interpretation Act 1901 s.15AA).
The word which, it is said, prevents the section being so construed is 'existence' in the phrase 'by reason of the existence of industrial action'.
If, as a matter of fact, it were essential for industrial action to be current in order "for it to be held to be the reason for the persons not being usefully employed, or the functions being seriously disrupted the applicant's argument would be correct. However, this is not so. Industrial action on one day may well result in persons not being usefully employed or functions being seriously disrupted the next. Likewise industrial action up to 8.00 a.m. on 2 December 1981 could well be the reason for an inability to usefully employ or serious disruption at 11.30 a.m. on the same day."

It was after that passage that his Honour concluded that the word "existence" added nothing to the section. Senior counsel for the respondents supported the judgment on that ground and, alternatively, submitted that the word "existence" should be understood as meaning "existence at any time".

In my respectful opinion the starting point for determining the purpose and object of the legislation is to ascertain from the totality of its provisions what it seeks to achieve. Often that will be enough to reveal what its purpose and object is. Essentially, I think, the Act here, speaking broadly, effects two things, namely:
(a) the ability of Commonwealth employing agencies to suspend employees who are engaged in industrial action as defined in s.3;
(b) the ability of such agencies to stand down employees for whom there is no useful work because of industrial action (I have deliberately omitted reference to "existence").

The matters referred to in paragraph (a) are particularly important when the industrial action is action short of a strike, e.g. action in the form of a ban or limitation on work or on the use of equipment. Without the power conferred by s.4, such action could result, and frequently has resulted, in widespread disruption without the loss of pay by the employees engaged in it. The provisions of other legislation applying to them, particularly the Public Service Act 1922, made it difficult, if not impossible, for there to be any suspension. Similar considerations applied in relation to standing down employees for whom there was no useful work.

The two matters mentioned in the lettered paragraphs above point, I think, to the underlying purposes and objects of the Act. The Act, in my opinion, was designed to have a deterrent effect on industrial action, particularly action short of a strike. It was therefore designed to promote industrial peace and to persuade participants in an industrial dispute to follow the course of conciliation and, if necessary, the process of arbitration. In this way the Act would tend to reduce disruption in the public services made available to citizens generally by the Commonwealth Government. Those responsible for the Act undoubtedly saw it as a measure taken very much in the public interest for that reason.

Also underlying the Act is the object of saving public funds by enabling employing agencies to stand down employees for whom there is no useful work because of the industrial action of themselves or others. This is the essential object of s.5. There is probably another. Power to stand down employees who are innocent of industrial action, but for whom there is no work, is often used as a lever to persuade those engaged in the industrial action to return to work or to lift bans and limitations. Once they see that what they are doing may have adverse effects on persons not involved in the dispute and not engaged in industrial action, they are more likely to pursue the processes of conciliation and arbitration. Thus the provisions of the Act providing for the standing down of employees also have the object of maintaining industrial peace and reducing disruption to services provided to members of the public.

To my mind the principal purposes and objects of the Act are as I have stated them. I do not find in them great assistance in the determination of the question here at issue. That is because the Act, as I propose to show, is perfectly capable of fulfilling those objects and purposes if it is given the construction contended for by the appellant. Furthermore, there is a countervailing consideration to that relied upon by his Honour in the passage cited from his judgment. In my respectful opinion it has no less force than the matter he took into account.

The interpretation contended for by the respondents would permit the standing down of employees after industrial action has ceased. In other words, those responsible for it would have concluded their strike, ban, limitation or restriction on the performance of work before any standing down occurred. There is strong ground for taking the view that Parliament would not have wished to achieve such a result. That is because to stand people down after industrial action has ceased could have a most explosive effect on the then industrial situation or on future industrial relations. If no standing down has occurred during the course of the industrial action, there would, at least in some minds, be strong reasons for not standing down employees after it has ceased. That may be so, notwithstanding that there is insufficient work for the employees to do. To take such a step may have the effect of rekindling the dying embers of a dispute after industrial action has ceased.

I have not set out in detail the provisions of s.7 but its provisions are such as to enable a suspension under s.4 or a standing down under s.5 to continue beyond the date when industrial action ceases. Both counsel were in agreement with that view. Accordingly, whether the appellant's construction of s.5 be accepted or not, employees stood down during the course of industrial action may remain stood down after it has concluded if, for example, there is no, or no sufficient, work for them.

The provisions of s.7 demonstrate, in my opinion, that if the appellant's argument be right, the Act nevertheless has a wide field of operation under which each of the purposes and objects mentioned in my earlier discussion will be achieved. The acceptance of her submissions will not stultify its operation nor defeat the apparent intention of Parliament. It follows, in my opinion, that no great assistance in the present case is found in looking to the purposes and objects of the legislation. As in many cases involving the construction of statutes, one will derive most assistance from looking at the words which Parliament has used. I return to the language of the statute.

There are some additional indications of intention relied upon by counsel for the appellant which should be mentioned. The first of these was that s.4 permits suspension of employees only whilst employees are engaged in industrial action. But s.4 has an operation independent of s.5 and the fact that it may not be invoked except during the currency of industrial action may not be much help in determining the meaning of s.5.

The remaining matters relied upon by counsel for the appellant as indications that the declaration under that section had to be made at the time industrial action was current may be summarised as follows:
(a) The opening words of s.5 include, in parenthesis, "industrial action in which Commonwealth employees are not engaged".
(b) Paragraphs (a) and (b) of s.5 are couched in the present tense. These must be read in a context where the word "existence" is used in the opening words of the section. Reference was made to the words "cannot be usefully employed" in paragraph (a) and "there is serious disruption" in paragraph (b).
(c) Reference was then made to the words "employees engaged in the industrial action" in the latter part of the section. It was said that the plain sense of these words required the word "are" to be supplied prior to the word "engaged".
(d) Finally, reliance was placed upon the words in parenthesis towards the very end of the section namely, "not being a time earlier than the time at which the declaration is made".

In my opinion these matters do lend support to the appellant's argument. They are not conclusive but they are indicative of the draftsman's concern with the present rather than the past. I agree that the word "engaged" where used in that part of the section referred to in paragraph (c) above should be read in the sense of "are engaged".

What then is the warrant for supplying after the word "existence" in the opening line of the section the words "at any time"? I can see none. Considerations associated with the purpose and object of the legislation are equivocal in this respect for the reasons earlier given. The section uses plain words with well known meanings. There is no reason to give it any meaning other than that which the ordinary language which has been used will bear. Nor is there warrant for affecting its meaning by supplying words which the legislature has not used.

As earlier mentioned, it was the learned primary judge's conclusion that the presence of the word "existence" added nothing to the section. With great respect I do not share this view. The word should be given work to do unless upon no reasonable construction can this be done. Here it has a place which itself is consistent with other parts of s.5 all indicating the present rather than the past. I am therefore of opinion that the question formulated by the parties should be answered favourably to the appellant.

There are, however, some further matters that I should mention. Firstly, it was strongly submitted on behalf of the appellant that the provisions of the Act were an interference with her existing common law rights. It was said that these would only be impaired by clear words or plainly necessary intendment in the relevant legislation. I do not think that approach has any place in the considerations which one needs to take into account. Section 11 of the Act earlier set out says what the position is and I do not think one needs to go further. Furthermore, although the appellant's contract of service may depend, to a degree, upon the common law, she is employed in the Commonwealth Public Service. The various Acts and Awards which apply to her may well constitute a code with the result that there is little room for the operation of the common law; of. Australian Broadcasting Commission v. Industrial Court of South Australia (1977) 138 C.L.R. 399 per Mason J. at p.415.

Then there was discussion during the argument concerning the definition of "industrial action" in s.3 of the Act. Obviously it is not enough to look at the expression "industrial action" alone. One needs to have regard to it in the light of the definition in s.3 which I have earlier set out. The suggestion was that if one were to replace the expression "industrial action" with one of the particular forms thereof from the definition, the language of the section, particularly the word "existence", would not run as freely as it appears to do if the section is read without reference to the definition. I have performed the exercise of picking up each of the forms of industrial action specified in the definition. With respect, I do not consider that any difficulty arises about the construction of the section when this is done. The words flow just as freely as they do if one uses the compendious expression "industrial action".

Finally, although on the argument presented both to his Honour and to us, the appellant should succeed, the litigation will not terminate as was his Honour's and the parties' expectation when the matter was before him. That is because the respondents wish to show by the calling of evidence that the industrial action upon the basis of which the declaration was made was in fact continuing, and thus in existence, at the time the declaration was signed. If this be so, the declaration will clearly be valid. This was not a matter to the forefront of the respondents' submissions, but it is mentioned faintly in written submissions lodged with the primary judge. In those circumstances it seems to me that the matter must go back for the taking of such further evidence and the hearing of such further argument as may be necessary to determine this and any other outstanding questions.

In the result I would allow the appeal. I would answer the question at issue by saying that for a declaration pursuant to s.5 of the Act to be valid, the industrial action upon which the notice is based must be in existence at the time the declaration is made. I would add to the answer that it is not possible at this stage of the proceedings to determine whether it was open to his Honour to find in accordance with the terms of the question because of the outstanding factual issue to which I have just referred. The primary judge having resigned, the matter should be remitted to a single judge of this Court for further hearing and decision. The appellant should have the costs of the argument upon the question before us. I would express no view as to what order for costs should be made in relation to that argument before his Honour because the matter was argued along with a number of other questions. That is a matter which should be left to the discretion of the judge who undertakes the further hearing of the matter.