Town, Meredyth v Australian Telecommunications Commission

I

-.

7-

IN TI-E FEDEML COURT OF AUSTRALIA

SYDNEY DISTRICT REGISTRY No. G186 of 1981

DIVISION GENERAL 1

BETVEEN: MEREDYTH TOWN

Applicant

- AND: AUSTRALIAN TELECOMNLJNICATIONS

CONMISSION and ALFRED ALEXANDER
EVES
Respondents

CORAX: Elllcott J.
MASONS FOR JUDSi'mNT ON
PRELIMINARY QUESTIONS
Meredyth Town ("the appllcanttt) was employed

on and prior to 2 December 1981 by the first respondent

(EmploTyment Provisions) Act 1977 ("the Act") that the

the Australian Telecommunications Commission (ttTelecomtt)

as an assistant technician in the subscribers control

room at the Sydney Telex Exchange. She is still so

employed. On 2 Dscember 1981, Alfred Alexander Eves

("the second respondenttt) acting as the delegate of

Telecom, by an instrument in writing, purported t o

declare, pursuant to s.5 of the Commonwealth Employees

applicant and twelve other employees of Telecom be stood

down from their employment at and from 11:30 a.m. on that
date. Purporting to act on the basis of the declaration,

Telecom did not pay the applicant wages for the period

commencing at that time and ending on 14 December 1981.
On 15 December 1981 the applicant applied to this

court (under s.5 of the Administrative Decisions (Judicial

Review) Act 1977) for an order of review of the decision to
make the declaration. Stated shortly she claims, on various
grounds, that Telecom 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.
Sections 5 and 6 of the Act provide:-

" 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 employmg authority

cannot be usefully employed; or
(b) there is serious disruptlon to the

performance of a function by an employing
authority, being a function in cormexlon
with the performance of which persons

who are Commonwealth employees in relatlon
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
bqing 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."

Provisions are also made for cancelling a

determination so made ( s . 7 ) .

"Industrial action" is defined in S . 3 as follows: -

llnindustrial action' means -

(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 unautnorized
failure or refusal to perform any work at
all by persons who attend for work.

The instrument in writing under which

Telecom purported to make the declaration under s.5 of

the Act was in t'ne followlng terms:-

'lCOMMOWEALTiT OF AUSTXALIA

COT4XOWEALTH EMPLOYEES (ENPLOYMENT PROVISIONS) ACT 1977

DECLARATION PURSUANT TO SECTION 5

WEREAS by reason of the existence of industrial action,
persons who are employed by the Australian
Telecommunlcations Commission, whether in a permanent

capacity or otherwise, cannot be usefullv emDloved. - -

NOW THEkFOFE I, Alfred Alexander Eves, .
bemg a wrson to whom the Commission has. Dursuant to
Sectyon 13 of the Commonwealth Employees (Ehployment

Provlsions) Act 1977, delegated its powers under

Section 5 of the said Act HEFEBY DECLARE, pursuant to

the said Section 5 that the persons speclfied hereunder,

being persons employed by the sald Commission, whether in

a permanent capacity or otherwise, and being some

of the persons referred to in the preamble he7eto

but not being persons engaged in the said industrial
action, are stood down during the perlod commencing at

11.30 o'clock in the fore noon on the second day of

December 1981 and ending at the time vJhen this

declaration ceases, or is deemed to have ceased, to

have effect pursuant to sub-section 7 ( 2 ) of the sald
Act.
Persons Specified

Gareth David WATTS 363-45879

Stephen Ronald BARLOW 364-77441

Peter HEALD 363-45254
Robyn Anne GREEN 363-45828

GRAC Mary Nola 363-45502
Veronlca Ann HUDSON 362-51 506
Meredyth TOIilJ 364-77273
Julie Ann MILLS 364-77062

HEAP George Kevin 364-77281
Joseph TADROS 363-44227

Glenn Charles MEYERS 365-031 44

Frank CELLINI 365-02600

Steven Paul HYLES 364-77433

Dated this second day of December 1981
A.A. Eves
Delegate of the Australian
Telecommunlcatlons Commlssion"

The actual hearing of this case commenced on 5 May

last and contlnued until 7 May. On the latter date, as

a result of discussions between counsel for the parties,
I was asked to answer certain preliminary questions before

the hearmg proceeded further. Certaln facts were also

agreed upon between the parties for the purpose of enabling

me to answer those questions. It seemed to me that a resol-

ution thereof might, depending on the answers I gave,

shorten the proceedings and I agreed to answer them.
After recelving written submissions from and hearing the oral argument of counsel, I indicated my answers to the

questions on 24 May. At the time I did this I also

indicated, because my answers did not finally determine

the matter that, unless requested, I would give reasons
for my decision in my final judgment.

I have since been asked to give my reasons in

relation totlme of the questions, namely, questions 1 and 2(b)

(answered in favour of the applicant) and questron 2(a)

(answered in favour of the respondent&). It seems, Lf

I an wrong m my answer to question Z(a), that, on the
facts agreed, the applicant would succeed in the
proceedings. There is therefore merit m the applicant
havmg an opportunity to consider whether she should
appeal at this stage on that particular matter. If she
dld appeal it may also enable the respondents to challenge

my answer to question 1 which raises another basic issue

in the case, a final answer t o which, as I understand it,

could substantially affect the scope of the evidence. I

therefore propose to give my reasons for these answers mentioned
at this stage.
The facts agreed upon between the parties are as

There was industrial action m whlch the

applicant was not engaged up to close of business
on 1 December 1981.

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 functlon 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 appiicant was employed in connection with a

particular function of the flrst respondent which

included the locating of faults In the New South

Wales equipment and lines of the telex servlce.

(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 ln 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.

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 "ceepedll and an

effort was made to hand her a copy of the
declaration, which she could have accepted.
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 lndustrial action or the

absence, following their suspension, of those who

had been engaged in it, or both.

The questions asked on the basis of the agreed facts

and my answers to them are as follows:-

QUESTION 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 o r not

facts falling within s.5(a) also then
existed?

ANSKER: The respondents are not enCitled CO make

such a case havmg chosen to rely on s.5(a).
a.

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

Itby reason of the existence of any
industrial actiontt within the meaning
o f s.5?

ANSlrJER : Yes.
QUESTION 2(b):

Is it open to me to find that s.5(b)

applies to the applicant and the
respondent?
ANSVER: No.
QUESTION 2(c): Was s.9 complied with?

ANSIER : Yes.
QUESTION 2(d):

If not, was the declaration invalid or
ineffectual?
ANSXER :

Does not arise.
QUESTION 2(e): By reason of the absence In the instrument
of an express mdication that s.6 and/or
a disentitlement to remuneratlon 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?

ANSWER : The instrument is capable of operating to
disentitle the applicant to remuneration
for the period suggested notwithstanding
the absence therein of any indication that
s.6 and/or a disentitlement to remuneratlon
would apply.

The reasons for my answers to questions 1, 2(a)

and 2(b) are as set out below.

QUESTION l AND 2(b).

Section 5 of the Act confers on an employmg

authorlty a discretion to declare that certain employees

be stood down for a period where, by reason of the existence

of any industrial action (including industrial action in which

Commonwealth employees are not engaged), either one of two
sets of circumstances exists, namely, those specified in
paragraphs (a) and (b) of the section.

At the outset two matters should be noted. First,

the instrument itself clearly shows an intention to rely on

s.5(a). Secondly, the agreed facts state that the second respondent, after considering ss. 4 , 5(a) and 5(b) intended
and purported to act under s.5(a) in relation to the applicant. This is so notwithstandlng that the facts relevant to the application of s.5(b) were known to the second respondent and
he did advert to them in relation to the applicant.
There can be no doubt therefore that Telecom, in

making the declaratlon, intended to act on the basis of
s.5(a).

Can it now support the declaration by showing that

facts existed sufficient to establish the circumstances m
s.5(b)?

In my opinion it cannot.

This view is, I think, supported by a

consideration of the section and the terms in which the
discretion is conferred.
It will be noted that the statute does not provide

that the right to exercise the discretion is dependent on

the satisfaction or opinion of the employing authority or

anybody else as to the existence of either of the
circumstances. Although the exercise by an employing

authority of its discretion under s.5 may well involve the
formation of a judgment or opinion as to the existence of these

circumstances, I think it is open to a court reviewing the

exercise of that discretlon to form its own view as to

whether the circumstances existed to justify the exercise of
the discretion. The mere complexlty of the facts which may

requlre consideration before so determining does not affect

the true construction of s.5 which, on its face, makes the
circumstances, and not the employing authority's opinion
as to them, the factor which authorises the exercise of the
discretlon to stand down employees.

Another feature of s.5 to be noted is that it

confers a discretion if circumstance (a) or (b) exists.

It does not impose a duty to make a declaration.

Section 5 also requires that the mstrument in

writing specify (in a manner permitted by s.10) the

Commonwealth employees to be stood down "being all or some
of the Commonwealth employees referred to in paragraph (a)

or (b) but not bemg Commonwealth employees engaged in the
industrial action". These quoted words lndlcate that the
employing authority, before making the declaration, will have
considered not only whether the employees are engaged in the

industrial actlon but whether those specified in the notice fall,

in the circumstances, within the description of paragraph (a) or

paragraph (b) .
In the instrument in this case, reference is made

to persons specified being IIsome of the persons referred to

in the preamble hereto". The preamble, in turn, refers to

persons "who........ cannot be usefully employed". In other words

they are employees of the class referred to in paragraph (a).

This demonstrates that, in this case, Telecom has turned its
mind to the question whether the applicant falls within the
description of paragraph (a) and thls is what the section

requires. The persons who are stood down must be persons

referred to in (a) or (b) and in the exercise of Its

dlscretion it has considered them to fall within (a). There

1 s clearly a relationshlp between those the subject of the
declaration and the circumstance whlch is thought to exist.
In my opinion the requirement that the instrument making the

declaration should specify employees in relation to (a) o r

(b) is inconsistent with any notion that, having chosen

employees by reference to (a), the employing authority is to
be entitled to justify the declaration and the instrument

requlred by the section by reference to (b). I do not think
that this was intended.

The view I have formed is, I think, also supported

by a consideration of the process of decision making necessary
to apply s.5.

If the clrcumstances mentioned in paragraph ( a )

or (b) of s.5 are satisfied,the employing authority has a

broad discretion whether o r not to make a stand down declakatlon.

The exercise of it involves welghing a number 03 factors

including the effect of a stand down on its undertaking, its

employees,lts industrial relations and the settlement of

the industrial problems underlying the industrial actlon.
It would also involve considering such factors as

these along with the facts and circumstances that led the

authorlty to decide that paragraph (a) or (b) had been
satisfied. The seriousness of these facts and circumstances
the extent of the under employment and disruption would be

material to a decision whether or not to make a stand down
declaration.

In other words the process of deciding whether to

exercise the dlscretion under the section inevitably involves

a consideration of the very circumstances which justlfy its

exercise. I think this reinforces the n e w that if a

declaration is made,based on a decision that paragraph (a)
1s satisfied, it is not open,later,to turn-around and justlfy
the exercise of the discretion on the basis of paragraph (b)
also being satisfied. In such a case the existence of the

circumstances in paragraph (b) would never have been a factor

in Justifying the employing authority's actual exercise of

the dlscretion. On the agreed facts this appears to be so

in this case.

The approach I have adopted is, in my opinlon, also

consistent with the general approach taken by the courts to

the exercise of statutory discretions. It is fundamental to
their proper exercise that the person in whom the discretlon
is reposed should glve due consideratlon to all circumstances

relevant to its exercise. A s a result of this process a

decislon is reached as to how the dlscretion should be
exercised.
Sections 5 and 6 of the Administrative Declsions

(Judicial Review) Act 1977 which set out the grounds on

which decisions or conduct leading to decislons may be
renewed, illustrate the matters relevant to the court's

assessment thereof and give some idea of Parliament's view

of the administrative decision making process. It is

clearly treated as an examinable process involvlng, as the

case may be, a consideration by the decision maker of matters

of fact and law and the application thereto of Judgment and

discretion. A decision by this court reviewing the exercise

of an administrative discretlon can involve an assessment of

whether rules of natural justice have been observed, whether

there has been an error of law or fact, whether in the

exercise of it there has been bad falth or fraud and many

other matters. The court itself has a discretior? whether to

make an order of review and thls can involve weighing the

effect a ~ y error in the process may have had on the ultimate

decislon. In relation to many decisions a person affected
is entitled to reasons. These are necessary to enable the

process leading to the decision to be analysed and thereby

to identify any error. The approach of the Courts under thls

Act,as it has been under the prerogative writ procedure,is,

therefore,to look at the actual process of decision making

and consider the matters which In truth brought about the

decislon to exercise the discretlon In the particular way.

In such cases the Courts do not in order to support the

decision indulge In speculation as to what the decisior?
might have been had other matters been taken into account.

This can be illustrated by reference to the

respondent's argument. Its effect is that the exercise
of a discretion can be justified on a ground even though
the body exercising it has decided that it did not
exist as a justification for its exercise. If it be
subsequently found that the ground it thought existed,

did not exist, the approach the Courts take 1s to hold
that the discretion was never properly exercised because it

was motivated by an erroneous view of the facts. This, I

think, should be so, even if It can be shown that the

rejected ground does in fact exist. The soundness of

this approach 1s emphasised once it 1 s realised that a

discretion, exercised in a particular way because of a view

that ground A existed, would not necessarily have been
exercised in the sane way if the view had been that ground B existed. Obviously one ground for exerclslng a

dlscretion may be more significant, m a given case, than

another and this could well lead to a different decision
depending on the particular ground found to exist. This observation applies not only to administrative decision

makmg but to Judlcial decision making as well.

Counsel for the respondents supported their

argument by contending that s.5 does not require that the

grounds be stated in the declaration and that all that must

appear therein is an indication of the employees affected
and the commencement of the period from which they are stood

down. They further contended that if grounds were stated
they were mere surplusage and could be disregarded.

I agree that it is not essential that the

instrument set out the grounds. However, If grounds are

stated, it seems to me they are evidence of the basis

upon which the discretion was exercised. At the same time,

If none is stated it does not fo l low that either ground can

be relied on. In my view if, in such a case, the employing

authority's decision is challenged, it can only support it on

the basis of the ground or grounds-upon which it,in fact,
relied.

Counsel for the respondents also relied on the

fact that no notice to employees is required of the declaration

before it is made. I agree that no such notice is necessary

but it does not follow from this that the authority can rely

on a ground not previously relied on.
For the reasons I have already given, actual

reliance on a particular ground or grounds is an essentlal
part of the discretionary process.

I was also referred to the principle that an error

In the terms of a non essential part of an instrument does not operate as an estoppel against a statutory authority

(Maritime Electrlc Co. Limited v. General Dairies Limited
(1937) A.C. 610). This does not seem to me to assist the respondents' arguments. Reliance by Telecom on ground (a)

would clearly not prevent it from relying on ground (b) in

s.5 if it were now practicable for it to reconsider the
exercise of its discretion. But the time for this has long
since passed.
I was also referred to Federal Commlssloner of

Taxation v. - Vade (1951) 84 C.L.R. 105 where Kitto J. at
pp. 116 said:-
"In the notice of assessment and the explanatory
documents attached to it there was nothing to
suggest that the commissioner had relied upon

s.26(j). For that reason, the Board of Review
considered that the commissioner was not entitled

to rely upon s.26(j) as justifying his action in
treating the 22,016 as assessable income; and they

referred to certain observations made bv Lathan C.J.
and Starke J. in Danmark Pty. Ltd. v. Federal Commissioner of Taxation (1944) 7 A.T.D. 333, at pp. 344, 352. I do not understand those observations

to mean more than this, that where there are two
provisions of an assessment Act, each giving the
commissioner a power to make an assessment, and each

creating a liability to tax in the event of the power

it confers being exercised, an assessment made in

exercise only of the power given by one o f those
sections cannot be supported as effective under the
other. The situation in the present case is quite

different. If the S2,016 formed part of the

taxpayer's assessable income by reason of s.26(j),
as I think it did, its inclusion in his assessable
income in the course of making the assessment was

right, whether or not the commissioner referred to
s.26(j), and even though he described the amount
inaccurately. No conduct on the part of the
commissioner could operate as an estoppel against the

operation of the Act."
This passage seems to me to indicate that the

present case is in the same category as the observations in

Danmark's Case describe. That is, it merely confers a power
or discretion as did the type of provisions referred to in

those observatlons. In Wade's Case the provisions required the

partlcular receipts to be treated as assessable income and
no action on the Commissioner's part could prevent that result.

For these reasons I would answer questlon 1 in the

manner I have indicated. Telecorn is not now entitled to rely
on s.5(b).
QUESTION 2(a)

The respondent contends that on its proper

construction s.5 requires that the relevant industrial
action be current at the time the declaratlon is made by

the employmg authority. It is not enough, it is argued,

that it caused the circumstances in (a) or (b) or both
to exist.

It is said that in this case the employees who

were involved In the industrial actlon were suspended at 8:OO a.m. on 2 December 1981 pursuant to s .4 of the Act and

that thereafter any failure by them to attend for work or

perform work was the result of Telecom’s actlon in suspending
them. As at 11:30 a.m. that day,vrhen the declaration was

made,the industrial actlon had ceased and it could no longer

be said that any inability for the applicant to be usefully

employed or any disruption to a fumtion was by reason of
the existence of any industrial action.

Although the applicant’s arguments have some I do not think they are correct. The effect of them in this

force,

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 camot take place subsequently even though it

was the industrial action relevant to the suspenslon which

caused the clrcumstances in s.5(a) or (b) to exist. In the

context of this law thls would be a curious result. Obviously
the purpose and object of s.5 is to enable a stand down

where Industrial action is causing underemployment or disruption.

Industrial action which has ceased may nevertheless be

found to have caused a continuing underemployment 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 1903 s.15A.A).

The word which, it is sald, prevents the section

being so construed is llexistencell in the phrase "by reason

of the existence of industrial action1'.

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.
In the context in which they are used the words "by

reason of the existence of industrial actionv1 in my opinion

mean the same as !'by reason of industrial action". In this
respect the word "existence11 really adds nothing.

IN THE FEDERAL COURT

) )
OF AUSTRALIA 1
) No. V. 23 of 1981
INDUSTRIAL DIVISION 1
1

VICTORIA DISTRICT REGISTRY 1

BETWEEN:

THE HONOURABLE ROEERT IAN
VINER (WHO SUES AS THE

MINISTER OF STATE F 0 2
INDUSTRIAL RELATIOYS)
First-named Applicant

HER MAJESTY THE QUEEN IN
RIGHT OF THZ STATE Or"

VICTORIA

Second-named App'licant

EER MAJESTY THE OUEEN IN
RIGHT OF THE STATZ OF WESTERY

AUSTRALIA

-.-- --. Third-named Applicant

HER MAJESTY THE OUEEN 11.1 THE

RIGHT OF THE STATE OF SCUTb'
AUSTRALIA
Fourth-named Applicant

AUSTRALIAN FEDERATION @F

- CONSTRUCTION CONTRACTORS

- Fifth-named Applicant
\.
THE MASTER BUILDERS'
FEDERATION OF AUSTXALIA
INCORPORATED
Sixth-named Applicant

THE 1-IASTER BUILDERS '
ASSOCYATION OF NEW SOUTH
WALES

Seventh-named ApF1icar.t
MASTER BUILDERS' ASSOCIATION
OF VICTORIA

Eighth-named Applicant

!

THE MASTER BUTLDERS'
ASSOCIATION OF SOUTH
AUSTRALIA (INCORPORATED)
Ninth-named Applicant

MASTER BUILDERS' ASSOCIATIONN

r OF THE AUSTRALIAN CAPITAL
TERRITORY
! i
Tenth-named Applicant
' -_

-- THE MASTER BUILDEFS '

ASSOCIATION OF iiESTEIlN
AUSTRALIAN (UNION O F
EMPLOYERS) PERTH
Eleventh-named Applicant
and

TBE AUSTRALIAN BUILDING
CONSTRUCTION ENPLOYEES' AND
BUILDERS LABOURERS'
FEDERATION
Respondent

AND BETWEEN:

THE HONOURABLE ROBERT IAN
VINER (WHO SUES as THE MINISTER OF STATE FOR INDUSTRIAL RELATIONS)
First-named Applicant

AUSTRALIAN FEDERATION OF
CONSTRUCTION CONTRACTORS

Second-named Applicant .

l

3.

THE MASTER BUILDERS'
FEDERATION OF AUSTRALIA
INCORPORATED
Third-named Applicant

THE MASTER BUILDERS '
ASSOCIATION Or" NEW SOUTH

__I WALES
Fourth-named Applicant
MASTER BUILDERS' ASSOCIATIOV
7)F VICTORTA
Fifth-named Applicant
THE MASTER BUILDERS'
ASSOCIATION OF SOUTH
AUSTRALIA (INCORPORATED)
MASTER BUILDERS' ASSOCIATION
OF THE AUSTRALIAN CAPITAL

---. ---- TERRTTORY

. Seventh-named Applicant
TUE MASTER BUILDERS'
ASSOCIATION OF PiESTERN
AUSTRALIA (UNION OF
EMPLOYERS) PERTH

Eighth-named Applicant
an'd

. . X.
-\
First-named Respondent

/
- -

NORMAN L. GALLPGHER
Second-named Respondent
PATRTCK DONNELLY
Third-named Respondent
PHILIP TATE

Fourth-named Respondent
B. BOYD

Fifth-named Respondent
MARTIN BINGHAM

Sixth-named Respondent
..

18 MAY 1982 KEELY J.

- -
..
-
REASONS FOR JUDGMENT

These reasons for judgment a re in tended t o be read as i f

I

there were i nco rpora t ed i n them t h e r e a s o n s f o r judgment

de l ive red on 11 May, 1982 when t h e c o u r t made o r d e r s t h a t t h e

fi:st-named, second-named and fifth-named respondents ( t h e

t h r e e r e s p o n d e n t s ) be adjudged gu i l ty o f contempt of c o u r t .
~

U n t i l t he t ime o f t he mak ing o f t hose o rde r s none of t h e

respondents had g iven ev idence o r ca l led any ev idence or

advanced any submissions as t o t h e q u e s t i o n o f p e n a l t y . When
.

the hea r ing p reced ing t hese o rde r s conc luded on 3 May, 1982,

I

Hr. Ryan Q . C . on beha l f o f t he r e sponden t s , i n answer t o a

~

l

l	q u e s t i o n	f r o m	t h e	c o u r t ,	s a i d	t h a t	t h e	r e s p o n d e n t s	w i s h e d	t o
l

c o n s i d e r t h e i r p o s i t i o n i n t h e e v e n t t h a t t h e y w e r e f o u n d

1

gu i l ty o f con tempt of court . They have now done s o and

i	cer ta in	submiss ions	have	been	p u t	t o	t h e	c o u r t	o n	t h e i r
l
I

beha l f by Mr.Ryan. . / .

I

t h ree

r e sponden t s

t he

o f

Each

found

been

gu i l t y

has

l	Of	contempt of cour t	cons i s t ing	i n t imida to ry	o f	conduc t	wh ich
i

has two a s p e c t s . The f i r s t a s p e c t c o n s i s t e d o f i n t i m i d a t o r y

conduct which was engaged i n fo r t he pu rpose o f , and w i t h t h e

tendency to , d issuade persons f rom giving evidence on behalf

of t h e a p p l i c a n t s i n t h e d e r e g i s t r a t i o n p r o c e e d i n g s o r , if

t h e r e s p o n d e n t s f a i l e d i n t ha t pu rpose , o f d i s suad ing them

f rom g iv ing ev idence unfavourable t o t h e f e d e r a t i o n i n tho3e
proceedings.

- __ There is h i g h j u d i c i a i a u t h o r i t y f o r t h e v i e w ,

which I r e s p e c t f u l l y a d o p t , t h a t t h e r e c a n b e no g r e a t e r

con tempt t han t o i n t imida te a w i t n e s s b e f o r e h e g i v e s h i s

evidence (Attorney-General v But terworth [ l9631 1 Q.B. 696 a t

p.719 per Lord Dennino M.R.). I n t h i s community t h e cocr t s

of l a w e x i s t f o r t h e b e n e f i t of a l l c i t i z e n s t o e n a b l e them

60 have t he i r c l a ims and counterclaims heard and determined

i n accordance w i t h t h e law. P l a i n l y t h e c o u r t s w i l l n o t be

a b l e t o d e t e r m i n e t h o s e c a s e s i n accordance w i t h t he l aw i f

o n e p a r t y t o t h e l i t i g a t i o n is a l l o w e d t o f r i g h t e n p o t e n t i a l

w i t n e s s e s i n t o r e f u s i n g t o g i v e e v i d e n c e a t a l l o r t o

f r i g h t e n them i n such a way t h a t t h e e v i d e n c e t h a t t h e y c o u l d

g ive , and would o t h e r w i s e g i v e , is coloured or d i l u t e d i n t o

evidence which is n o t u n f a v o u r a b l e t o t h e par ty engaging i n

t he conduc t . I n Watson v C o l l i n q s and Ors. ( 1 9 4 4 ) 70 C.L.R.

51 a t p . 5 0 , r e f e r r i n g t o t h e sending of a t e l e g r a m t o a

person who "would or might be , ca l led as a w i t n e s s f o r t h e

p l a i n t i f f " , R i c h J s a i d :-

l

"No court can allow to pass without observation an
act calculated to affect the testimony of a witness,
or to embarrass him in giving evldence. Although in
the result the transmission of the letter does not
appear to have influenced Mr. Gahan to disregard his
duty as a witness, as he gave his evidence freely,

independently and candidly, it is necessary to say

that it is agalnst the law for any person who has
any authority or means of influence over a witness

to use it for the purpose of affecting his
evidence. "
In Attorney-General v Times Newspapers Ltd. [l9741

A.C. 273 Lord Diplock (at p.309) referred to influence or

- -

pressure which might cause witnesses to be unwilling to give

evidence with candour at the trial and to the risk of
influencing someone who might be called as a witness to alter
his evidence or to decline to testify. Lord Simon (at p.318)
said that it would unquestionably be contempt of court if an

-

employer threatened a witness with dismissal whether before, pending or after trial and added that private pressure on a witness would never be justifiable and that witnesses must be

able to give honest and fearless testimony. Lord Reid (at

p.296) said that in order to prevent the trial from being

unfair "comment likely to affect the minds of witnesses ...

must be stopped...". The present case deals with

intimidatory conduct - not simply with comment.

The secocd aspect of the contempt of court
-_

committed by each respondent is that each engaged in

intimidatory conduct for the purpose of, and with the
tendency to, induce those Master Builders' Associatlons which

are applicants in the deregistration proceedings to

l .

discontinue as applicants. It is difficult to imagine a

greater contempt than to engage in such conduct for the

purpose of inducing a party to discontinue. Any such conduct

violates the fundamental purpose o f our system of justice
that all citizens must have the right to obtain the decision

of a court upon all the evidence properly available in

I	proceedings	in	which	they	are	parties.	That principle is
i
l

breached by conduct which is intended to frighten an

i

applicant

into

discontinuing

or which has the

tendency to

induce an applicant to so discontinue by reason of fear

I

-

l

brought about

by the conduct.

It was not suggested that the conduct of any
respondent which was found to constitute contempt of court,

was in any way due to any misapprehension as to the

respondent's legal obligations. No evidence in mitigation of

penalty was placed before the court by any of the respondents

after they had been found guilty and had time to consider
their position in the light of the finding of guilt. After

hearing the submission as to penalty put on their behalf I

. said that in considering my decision on the appropriate
penalties -

.I must assume ... that each respondent has been
fully advised as to the seriousness of its posltion;

that each has been advised that it is ... common for

persons found guilty of contempt of coxt to express

regret, to give some assurances as to future

conduct. Now, I note that no such expression of

regret has been forthcoming, no affidavits have

been flled lndicatlng any change of heart on the

part of any of the persons Involved. I thmk I

should draw your attention expressly to those two

matters, Mr. Ryan . . . I shall assume . . . that these

matters have been fully considered and that a

considered decision to not put any such materlal
before the court has been made. Now,if you want an opportunity to consider that, either with Mr. Merkel or with your instructors, I am quite happy to give it to you."

MR. RYAN: "We understand what your Honour has put,

but the submissions which we made were of course put -
on instructions and we have nothing further to add,
your Honour".

No respondent has expressed any regret or given any
1

- assurances, either personally or through his counsel, as tO -

. his or its future conduct. The failure of each respondent to

express regret or to give any assurances as to future conduct

. is, of course, not a reason for imposing higher penalties

. than those which would otherwise be appropriate to -che

. contempt of court of which each has been found guilty.. Its

only relevance is that, where such a course is followed, such

matters have been treated as grounds for imposing no penalty

or a lower penalty than would otherwise be the case in

respect of a particular contempt. (see, for example, Taylor V

Smith (1949) 65 C.A.R. 1137)

Mr. Ryan submitted that the contempts by the

respondents in these proceedings all occurred "in an
industrial context" and should be so viewed by the court in determinlng penalty. He dgveloped that submission at some

length (pp.244-251 of the transcript) referring to "the
hostility engendered and maintained by pending decegistration
proceedmgs", the "cut and thrust of the conflict" and said

- 9.

that "one can understand, if not excuse an insensitivity on

the part of those embroiled in the conflict to the

considerations affecting the court ... and to the

considerations affecting the processes of that court". Mr.

Ryan concluded this part of his submission by submitting
that the court should incline to leniency rather than impose
"a penalty which could be regarded as harshly retributive",

urging in support of the desirability of that course the

. ...p roper concern of the court in this wider industrial

relations context ... not to do anything which could impede a I:

. retreat from the confrontationist position in which the

parties have been concerned since the deregistration
proceedings began to eztrench themselves."

Ohe difficulty that I have with this carefully

worded submission is that there does not appear to be any

evidence as to the likelihood of any "retreat from the

confrontationist position" by the federation - other than the

lifting of the bans on the day on which the injunctive

proceedings came before this court pursuant to the order of

Smithers J. However, even if there were such evidence of a

retreat from confrontation this court must determine the
question of penalty on the same considerations as those which

would apply In the High Court of Australia or in the Supreme
Courts of the States. Havyng determined the penalties which would otherwise be approprlate, it would be quite wrong for

.
10.

this court to refrain from imposing those penalties by reason
- of a "concern" that the imposition of such penalties "could
impede a retreat from the confrontationist position".

The conduct of which the respondents have been

found gtiilty was intended to and also, viewed objectively,
had the tendency to interfere with the course of justice in

this court both by deterring witnesses and by inducing
applicants to withdraw from the deregistration proceedings.
_ -
I r i s obviously important that witnesses and parties in the
deregistration proceedings have the same protection of the
law from any intimldatory conduct whlch constitutes contempt

Of court as thars afforded to witnesses and parties in any

e t te r prc=eedings lil the court.

.. \
This coirt hears and determines cases in which it

is alleged that companies have broken the law and penalties
and fines are sought and imposed. Under the Trade Practices

Act such penalties are imposed in respect of unlawful actions

by companies as traders; under the Conciliation and
Arbitration Act fines are imposed in respect of their unlawful actions as employers. For example, unlons institute

proceedings under s.5 of the Act where. an employer has

dismissed an employee ( o r injured him in his employment)

because he is a member of an organization of employees or

because he is entitled ta the benefit of an award. Some of

the companies fined have been very large and powerful

- , .-- C I - - . F

corporations. If, after the institution of s.5 proceedings
against it, any such company locked out all its employees and
closed down its factories in an attempt to dissuade witnesses
or to induce the applicant union to withdraw its proceedings,

it would not avail the company to submit, in any

consequential proceedings f o r contempt o€ court, that, by
-
L

reason of the "industrial relations context" the court
"should incline to leniency" and should not "do anything

which could impede a retreat from the confrontationist
position in which the parties have been concerned since" the

-- institution of the proceedings.

In such a case the court would impose penalties
. -

desicned tc make it quite clear t3 all psisons thit 1: they
are or become parties to proceedings in thjs court they must

not take any intimidatory action against witnesses o r
parties. The judicial system can only continue to retain
public confidence if it adheres to the fundamental principle

that there must be equal application of the law to all

litigants. ,-

A t the hearing as to penalty it was said that it

was agreed between the parties that the bans which came into

effect on 5 April, 1982 were not lifted until Tuesday 20
April, 1982 and that work was fully resumed on the sites the

subject of the bans on Thursday 22 April, 1982. Accordingly,

I can not accept Mr. Ryan's submission that the bans were

-

12.

quickly lifted. Further they were only lifted after Smithers J. sat on 16 April, 1982 to hear an application for injunctions in respect of the bans. The Federatibn was given

notice of that application on 16 April, 1982 and was

represented by Mr. Merkel of counsel. The quite lengthy
period of time during which the bans were in force may be
contrasted with some impulsive action of a person, for
example, under the influence of strong emotion, cp. decision

of Starke J in R. v Wright [l9681 V.R. 164 at p. 167. ,

- -
I
1 -

Mr. Ryan also sought to place some reliance upon

the fact that the contempt found proved was one of conduct

having a tendency to interfere with tne administration of

justice and "that there has been no evidence of actlial

interference with any witness or party". 1- adopt with
respect the words of Cross J., in rejecting a similar submission in In re B (J.A.)(An Infant) [l9651 1 Ch. 1112 at
p. 1123 :-

"I cannot take that view of the matter at all .. .

8 -

the mere fact that no harm has been done in this

I

particular case is neither here nor there. It would

I

be unfortunate if the idea got abroad that if people

threaten witnesses in this way, the

worst that is

likely to happen to them will be that

they will have

to pay some costs and make an apology. That is certainly not a course which I can adopt in this

case.

Nor

do I thlnk that the case 'is appropriate

for a fine.

This is a case in which I think it is

my duty to make a commlttal order."

The present respandents and any other persons who

are likely to commit similar acts'must be made to realize
that, wnen such acts are proved before this court, punishment

will follow and that in future cases penalties will be of
whatever severity is necessary to ensure that such acts are

not committed and that parties and potential witnesses are

accorded the protection of the law to which they are

entitled. The penalties imposed on the three respondents
must be sufficient to make clear the serious view which this

court takes of the respondents' conduct. It must be
understood also that any repetition of such conduct will
invite substantially heavier penalties.

- -

- - b
I have taken into account all that has been put to

ne by Mr. Ryan on behalf of the respondents - except where a

submission has been expressly rejected in these reasons. In
the iis.ht of those submissions I have determined apcn

penalties which I consider to be the lowest which I can
impose in the circumstances of this case.

So far I have dealt with the question of penalty

without distinguishing between the three respondents. AS to

the Federation itself there is little more that need be saib.

Mr. Ryan informed the court that it has a membership which

ranges between 25,000 and 30,000 members. It has been found

-

I	guilty	of	intimidatory	conduct	partly	.	directed	towards
i

I

potential witnesses and partly directed towards those Master

I

Builders'

Associations

which

are

applicants

in

the

deregistration proceedings.

That conduct consisted of bans

which continued

from 5 April, 1982 until 2 0 April, 1982.

. .

I	I .
!	.-
i	-
i	14.

l

There is nothing

to suggest that it was not a deliberate use

of intimidation maintained throughout that period including

i

..

j

statements made on its behalf to the Arbitration Commission

i

in the presence of the company

and the Master Builders'

i

I

Association of Victoria.

Mr.

Ryan conceded that the nature

I I

l

. of the conduct was such that it would more often than not be

i	reported by the media	- a fact known to the "protagonists"
i

I	including the Federation. Notwithstanding the matters urged by Mr. Ryan I order that the respondent Federation pay a fine

1

!

/ I

of $15,000-00, such fine to be paid to the Registrar within 7

i

-

I	days by a person properly authorized	in writing by the
I
Federation.
I	I
I I

The respondent Gallagher made a clear and

i
!

unequivocal statement as to h i s purpose when on 14 April,

i
I

!

1982 he told the Arbitration Commission, in the presence of

I

i

the representative of the Company and of the Master Builders'

i

I

Association of Victoria, that he expected his actions would

i

achieve a withdrawal

of

support

by the Master Builders'

i

I	Associations throughout Australia	f o r the deregistration
I
I	l

proceedings against the Federation. It is plain that Mr.

I

Gallagher was not merely stating what he thought was likely

I

j

!

.to happen but was expressly specifying the objective which he

personally

sought

to

achieve

by

his

actions.

Mr. Ryan

!

--

pointed out that the sta-izenent was made in answer to a

question and I shall take that fact into account in

considering penalty. I also accept that M r . Gallagher was

not using the conference as a forum from which to reach a

wider audience than the company and the Master Builders'

Association of Victoria - but the Association itself does not

constitute a narrow audience. Further, it has not been

suggested at any time in these proceedings - in

cross-examination or in address - that Mr. Gallagher did not .-
mean to say what he said. A further indication both of Mr. Gallagher's purpose - and of the way in which he sought to influence applicants and potential witnesses - appears from

the statement he volunteered to the Company's representative i
-

at the conference on 14 April, 1982 that, on the basis of his

knowledge of the employers in the building industry, the
company would not get any support from those employers.
-

-

In paragraph 8 of my earlier reasons for judgment referred to certain statements by Mr. Boyd on 8 April, 1982

I

that he was carrying out the directions of Mr. Gallagher who

might be amenable to lifting the bans if the Company

contacted him and arranged a meeting to "talk out" the
information Mr. Gallagher had as to the company being "deeply

involved" in the deregistration proceedings. Those
statements were not denied or qualified by Mr. Gallagher on
14 April, 1982 when he appeared with Mr. Boyd for the
Federation and was given an opportunity to add to what had

_-

been said on 8 April, 1982. Nor has it been suggested in

these proceedings that Mr. Boyd's statements to the

-

i

.

!

.

16.

1

l

Arbitration Commission

on 8 Apri

,l, 1982 were not correct.

As to Mr.Gallagher's role under the registered

. rules of the Federation, as General Secretary he is a member

of the Federal Management Committee. There are seven other

members on that Committee, the quorum at a meeting is formed
by the President, the General Secretary and one other member
and a meeting can be convened "at any time". Further, under

Federal Rule 11 (f) :- -

"The General Secretary after consultation with the

- President may between meetings of the Federal

Management Committee, exercise and perform all or

any of the powers and duties of the Federal
Management Committee (other than the power to

suspend, expel, remove from office or fine a member

of the Federatlcn) as may be necessary to ensure the

' cnntinued effective functicnicg of the Federation or

to promote the Interest of its members".

In my opinion Mr. Gallagher had power under that sub-rule to
lift the bans - as was suggested by Mr. Boyd on 8 April, 1982
4

and not denied by Mr.Gallgher on 14 April, 1982.
A
In the light of all the evidence, after giving full

weight to everything that Mr. Ryan has urged and to the fact

that there is no evidence of any previous convictions, I

consider that Mr. Gallagher's conduct was such that he must
be sent to prison for a period of tw3 calendar months.

I should perhaps draw attention to Order 4 0 Rule 1 2

of the Federal Court Rules which provides that :-
"12. Where an accused person is committed to prison for a term, the Court may order his discharge before

the expiry of the term".

In Re Grant & Ors. 65 C.A.R. 238 eight persons successfully

applied to the Commonwealth Court of Conciliation and

Arbitration "for orders discharging them from imprisonment

imposed upon them by orders of committal for contenpt of

Court". In dealing with the application Kelly C.J. (at

p.240) said :-
"In my opinion the Court should deal with these
applications wlth deference to this principle: that
they should not be granted unless the Court is

satisfied that the conduct of the applicants 1 s such-

I

that

the

authority

of the Court, whlch the

disobedlence of its orders impugned has been

accepted and restored. In this connexlon the Court

must be satlsfled of the genuineness of the

statements made to it by the applicants and their

actions allegedly design56 to ex?ress their
submissions to its authority. ...
As to the statements made by the applicants, it may
be said that they represent a complete abandonment
of their attitude as expressed by most, if not all,
of them prlor to their commrttal....
Their expressions of regret and apology have been

publicly made. They have, as I have pointed out,

expressly and publicly, on the floor of the Court,

declared their acceptance of the obllgations to obey

the Court's orders irrespective of their beliefs or
supposed beliefs about the obligations under the
union rules.''
It is open to Hr. Gallagher to apply at any time for his discharge supporting his application by such evidence as he
v.

thinks fit. - _-

Lastly, as to the fifth-named respondent, Mr. B.

Boyd, I regard his conduct as constituting a serious contempt

.

. 18.
of court for reasons which will sufficiently appear from my
earlier reasons for judgment. However, although serious it

is much less serious than that of Mr. Gallaghet and in my

opinion does not warrant the imposition of a term of
imprisonment, as there are two mitigating factors in addition

to the absence of any evidence of previous convictions :-

.-

l. He was carrying out the directions of
Mr. Gsllagher and the union executive.
2. Be had no power to lift the bans.

Nevertheless his conduct calls for considerably more than the l

- order previously pronounced that Mr. Boyd be adjudged guilty
of contempt of court; it is no answer to a charge of contempt

to say that he was carrying out directions although I regard

that fact as relevant to Denalty. In all the circumstances

the court orders that the fifth-named respondent, B. Boyd,

shall pay a fine of $500-00, such fine to be paid to the

Registrar within 7 days by a person properly authorised in

writing by the said B. Boyd. In default of payment of such

fine within the time so fixed the respondent B. Boyd shall be

imprisoned for 14 days.

In his final address Mr. Ryan submitted that the

organizers were "significantly less guilty of contempt than (a journalist) who wrote the articles for the ... newspaper

and did in a real way Jend his mind and will to the

publication of what is argued . .. to be a threat to the due

administration of justice in this court". No journalist or

newspaper has yet been charged with contempt of court

consisting of the giving of publicity to the three

respondents' intimidation of potential witnesses and of the

employer body applicants. In those circumstances it is
neither necessary nor desirable for me to express any opinion
on that submission by Mr. Ryan. However, the submission
having been made, the newspaper proprietors, television

corporations acd journalists will have an opportunity to

consider their position and obtain legal advice before any -
I
-

further publicity is given to any "threats to the due
administration of justice".

It is perhaps desirable to refer to the wording of

z k order sihich I have made for the impcsitlon of fines upon

two of the respondents. When the court orders that a person -.

be imprisoned the court's intention is obviously that that

respondent shall spend a period of time in prison. Plainly
the court would not permit some other person - to spend the

period in gaol instead of the respondent. That is because

the court has imposed a term of imprisonment as the
appropriate punishment for the conduct concerned, having regard to the need to deter that respondent from similar

conduct in the future as well as the need to deter other
persons who may be likely to engage in similar conduct.

Obviously there would be no such deterrence, to the

respondent or to others, if it were known that some other

person would be allowed to go to prison instead. For the

e

20.

c
same reasons, when the court directs that a respondent pay a
fine the court’s intention is plainly that the fine be paid
by that respondent and not by some other person - whether

through fear, philanthropy or foolishness.

Of course, there is nothing to prevent a person

from offering to a person who has been fined by a court, a
sum of money in order to enable that person to pay the fine. But it is clear that a person or body which has beer? fined

a& is offered money with which to pay the fine could, ‘if he
or it wished, decline the offer refuse to pay the fine and suffer whatever consequences the law provides in such a case.

It could be said that the payment of the fine by some person
Rot authorised by him to dc so constitutes an interference with his freedom to choose to refuse t ?P e pay the fine. On the other hand, where a person who has been fined pays the

fine, using money given to him for that purpose, the decision

to pay the fine is his - and it cannot later be contended
that he did not pay the fine.

The evidence in this case discloses that Mr.

Gallagher told the Arbitration Commission that he expected

that his actions would achieve the payment of fines which had

been imposed on members of the Federation with respect to

their refusal to give evid>nce before the Royal Commission.

In the light of that evidenc2 I have decided to state

explicitly in the orders made by the cogrt that the fines

shall be paid by each respondent or by an agent properly
authorized in writing by him.

The Registrar is directed that, if there be any

doubt as to whether a person seeking to pay the fine is

properly authorized by the particular respondent, he is to

give notice to the respondent of the date, time and place at
which that question will be heard and determined by the

court. I
i

- -
I
.
--

. '\. \

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Citations

Town, Meredyth v Australian Telecommunications Commission [1982] FCA 80

Cases Citing This Decision

0

Cases Cited

1

Statutory Material Cited

0

Taylor v Smith [1926] HCA 16

the Australian Telecommunications Commission	(ttTelecomtt)
as an assistant technician	in the subscribers control
room at the Sydney Telex Exchange. She is still	so
employed.	On 2 Dscember 1981, Alfred Alexander Eves

Telecom, by an instrument in writing, purported	t o
declare, pursuant to	s.5 of the Commonwealth Employees
applicant and twelve other employees	of Telecom be stood
down from their employment at and from	11:30 a.m. on that

Telecom did	not pay the applicant wages for the period
commencing at that time and ending	on 14 December 1981.

court (under	s.5 of the Administrative Decisions (Judicial
Review) Act 1977) for an order	of review of the decision 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.

which the declaration ceases,	or is deemed to
have ceased,	to have effect.

Telecom purported to make	the declaration under s.5 of
the Act was in	t'ne followlng terms:-

Provlsions) Act 1977, delegated its powers	under
Section 5 of the said Act	HEFEBY DECLARE, pursuant to
the said Section	5 that the persons speclfied hereunder,
being persons employed by	the sald Commission, whether in
a permanent capacity	or otherwise, and being some
of the persons referred to	in the preamble he7eto
but not being persons engaged	in the said industrial

December 1981 and ending at	the time vJhen this
declaration ceases,	or is deemed to have ceased, to
have effect pursuant to sub-section	7 ( 2 ) of the sald
Act.

GRAC	Mary	Nola	363-45502
Veronlca Ann HUDSON	362-51 506
Meredyth TOIilJ	364-77273
Julie Ann MILLS	364-77062

HEAP	George	Kevin	364-77281
Joseph TADROS	363-44227
Glenn	Charles	MEYERS	365-031 44

the hearmg proceeded further.	Certaln facts were also
agreed upon between the parties	for the purpose	of enabling
me to answer those questions.	It seemed to me that	a resol-

ution thereof might, depending	on the answers I gave,
shorten the proceedings and	I agreed to answer them.

questions on 24 May. At the time	I did this I also
indicated, because	my answers did not finally determine
the matter that, unless requested,	I would give reasons

relation totlme of the questions, namely, questions	1 and 2(b)
(answered in favour of the applicant) and questron	2(a)
(answered in favour of the respondent&).	It seems, Lf
I an wrong m my answer to question	Z(a), that, on the

my answer to question	1 which raises another basic issue
in the case, a final answer	t o which, as I understand it,
could substantially affect the scope of the evidence.	I
therefore propose to give	my reasons for these answers mentioned
at this stage.

applicant was not engaged up to close	of business
on 1 December 1981.
By reason of that, as	at close of business on

5(a) and 5(b),	intended and purported to act
under section	5(a) in relation to the applicant.

the instrument itself clearly shows an intention to	rely on
s.5(a). Secondly, the agreed facts state that the second respondent, after considering	ss. 4 , 5(a) and 5(b) intended

making the declaratlon, intended to act	on the basis of
s.5(a).

[1982] FCA 80

27 May 1982

facts existed sufficient to	establish the circumstances m
s.5(b)?

consideration of the section and the terms	in which the
discretion is conferred.

requlre consideration before	so determining does not affect
the true construction of	s.5 which, on its face, makes the

industrial actlon but whether those specified in the notice	fall,
in the circumstances, within the description of paragraph (a)	or
paragraph (b)	.

to persons specified being	IIsome of the persons referred to
in the preamble hereto". The preamble,	in turn, refers to
persons "who........ cannot	be usefully employed". In other words

dlscretion it has considered them to fall within	(a). There
1 s clearly a relationshlp between those the subject	of the

(b) is inconsistent with any notion	that, having chosen
employees by reference to (a), the employing authority	is to

requlred by the section by reference to	(b).	I do not think
that this was intended.

by a consideration	of the process	of decision making necessary
to apply s.5.

broad discretion whether	o r not to make a stand down declakatlon.
The exercise of it involves welghing a number	03 factors
including the effect of a stand down	on its undertaking, its
employees,lts industrial relations and	the settlement of
the industrial problems underlying the	industrial actlon.