Zatorski, Lucyna v The South Australian Railways Commissioner and/or the General Manager of the State Transport Authority of South Australia

[1983] FCA 70

Re: LUCYNA ZATORSKI
And: THE SOUTH AUSTRALIAN RAILWAYS COMMISSIONER AND/OR THE GENERAL MANAGER OF
THE STATE TRANSPORT AUTHORITY OF SOUTH AUSTRALIA
S.A. No. 3 of 1978
Industrial Law
4 IR 16

COURT

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY
INDUSTRIAL DIVISION
Evatt J.

CATCHWORDS

Industrial Law - recovery of wages due under award - whether applicant an employee in the legal sense - if an employee, which of two awards applies - construction of relevant awards - distinction between "salaried officer" and "employee".

Conciliation and Arbitration Act 1904 (Cth) s.123 South Australian Railways Commissioner's Act 1936 (S.A.) South Australian Railways Commissioner's Act Amendment Act 1938 (S.A.) Railways Salaried Officers Award 1960 as varied. Railways Traffic, Permanent Way and Signalling Wages Staff Award 1960 as varied.

HEARING

ADELAIDE

#DATE 26:4:1983

ORDER

The application be dismissed.

JUDGE1

This is an application filed on 24 October 1978 by Lucyna Zatorski against the South Australian Railways Commissioner and/or the General Manager of the State Transport Authority of South Australia (the S.T.A.) wherein the applicant claims, pursuant to s.123 of the Conciliation and Arbitration Act 1904 (the Act), that she is entitled to recover from the respondents certain sums of money by way of salary for various periods of her employment by the respondents as a ticket clerk in accordance with the provisions of the Railways Salaried Officers Award 1960 as varied, an award made under the Act. The relevant period during which the applicant claims she was not paid in accordance with the award extends from 1 July 1973 to 28 February 1978.

It is not disputed that the S.T.A. is a body corporate and since the date when the Act creating that authority came into force in 1975, the office of the South Australian Railways Commissioner has ceased to exist (see The State Transport Authority Act 1974-75 (S.A.)). Accordingly the proper respondent in these proceedings should be the S.T.A. and the record should be amended accordingly.

The respondents dispute that the applicant was entitled to the benefits of the Railways Salaried Officers Award 1960 as varied during any relevant period and that she was employed by either of the respondents as a ticket clerk at any time during the relevant period.

There is no dispute that since 1 March 1978 the applicant has been employed by the Australian National Railways Commission (the Commission) and has been paid under and in accordance with the provisions of a federal award known as the Traffic Operating, Workshops and Miscellaneous Grades (A.N.R.) Award 1978 as varied. This change came about pursuant to the Railway Transfer Agreement of 1975 made between the Australian Government and the South Australian Government which is set out in the schedule to both the Railways Agreement (South Australia) Act 1975 (Cth) and the Railways (Transfer Agreement) Act 1975 (S.A.) whereby the Commission took over the operations of the South Australian Railways from the S.T.A. as from 1 March 1978.

On 18 October 1979 the applicant also filed an application in the Court pursuant to s.123 of the Act against the Commission claiming moneys being the difference between what she had in fact received by way of wages and the rate of pay due to a ticket clerk under the provisions of the Salaried Officers' (A.N.R.) Award 1978 between 1 March 1978 and the date of the hearing of that application (S.A. No.32 of 1979). For reasons which have not been explained to the Court the applicant's claim against the Commission came on for hearing before the present proceedings against the S.T.A. Judgment in the action against the Commission was given on 17 April 1980 in favour of the applicant in the sum of $8140.83 (see (1980) 42 F.L.R. 244). An appeal by the respondent Commission against that judgment was allowed by a Full Court of the Court on 2 October 1980 (see (1980) 49 F.L.R. 53).

Thereafter, on 21 July 1981 the present proceedings were listed for hearing before a single judge of the Court. When the matter was called on the applicant moved under 0.29 of the Rules of Court raising as a preliminary point the question whether the applicant was entitled by way of issue estoppel to the benefit of findings of fact of the trial judge in the action brought against the Commission referred to above, the respondents herein having been granted leave to intervene therein. This motion was refused by the Court.

The respondent herein then moved by way of motion under 0.29 of the Rules of Court seeking an order that the application herein be dismissed because of certain views expressed by the Full Court in its reasons for judgment in the appeal in the applicant's action against the Commission. After hearing submissions from counsel for both parties in this regard the Court held that, subject to any question as to quantum, the only issue for determination then was whether the applicant during any part of the relevant period had been appointed an officer of the S.T.A. (there being no dispute that the duties then performed by her were substantially the same as those performed by ticket clerks) so as to become entitled to the benefits of the said Railways Salaried Officers Award and invited the applicant to lead any further evidence to support this position. Counsel for the applicant then indicated that the applicant could not call any further evidence in this regard to elaborate on the facts set out in the document of agreed facts which had been tendered. These facts are fully set out later herein. The Court then determined that the applicant had failed to show that she was such an officer and dismissed her application. The Court's reasons for judgment in this regard are unreported.

Thereafter on 2 April 1982 an appeal by the applicant to the Full Court of the Court against that judgment was allowed, (see (1982) 1 I.R. 354), the Full Court ordering that the matter be sent back in order that the hearing before the single judge might be concluded. Accordingly the matter came on for hearing before the Court as presently constituted.

The respondents have conceded that the applicant, at all relevant times, has been a member of the Australian Railways Union an organization of employees registered under the Act (the A.R.U.) and that between 1 July 1973 and 1975 she had occupied a position of ticket agent for the South Australian Railways Commissioner and that thereafter was such a ticket agent for the S.T.A. up until 1 August 1976 when she became an employee of the S.T.A., her grading being that of a Station Assistant - Porter, Class 3, a position covered by the Railways Traffic Permanent Way and Signalling Wages Staff Award 1960, an award made under the Act. She held this position from 1 August 1976 until 28 February 1978.

Consequently it was clear that the real issues in the case were first, was the applicant an employee in the legal sense of either respondent during relevant periods; secondly, if so, did the Railways Salaried Officers Award 1960 as varied cover such employment.

In addition to the concessions made by the respondents set out above and the affidavit of the applicant sworn 23 October 1978 oral evidence was given by the applicant and other witnesses called on her behalf. The respondents also called oral evidence including that of Mr Bahnisch, the Senior Industrial Officer of the S.T.A. who had held various positions within the South Australian Railways prior to the coming into existence of the S.T.A.. It is to be noted that the Court has also considered the oral evidence of Mr L.M. Wilcox an Executive Officer with the Industrial Relations Bureau who gave evidence (subject to objection) in July 1981 when the matter was first before the Court.

In addition to such oral evidence certain documents were tendered by the applicant and the respondents. The documents tendered by the applicant include the statement of agreed facts referred to earlier herein; various letters from the applicant to officers of the South Australian Railways and answers thereto commencing in November 1966; the Railways Salaried Officers Award 1960 as varied to 1972 (146 C.A.R. 693); transcript of evidence given before Keely J. in S.A. No.32 of 1979 (the applicant's action against the Commission) being pages 45-115 of the appeal book filed in the appeal from those proceedings.

Documents tendered by the respondents include a copy of the record of the industrial history of the applicant entitled "S.A. Railways Employee's Record" which is in accord with records kept by the Railways Commissioner in respect of all employees (whether officers or not), contractors or agents of the South Australian Railways during the relevant period; various correspondence between the applicant and officers of the respondents; relevant regulations made pursuant to the South Australian Railways Commissioner's Acts between November 1922 and October 1957; State awards made in September 1940 and July 1942 pursuant to s.53(a)(1) of the South Australian Railways Commissioner's Act Amendment Act, 1938; relevant awards made under the Conciliation and Arbitration Act 1904 in 1945, 1948, 1950, 1951 and 1960; logs of claim served upon the South Australian Railways Commissioner in 1958 and 1960 by the A.R.U. and the Australasian Transport Officers' Federation (A.T.O.F.) a registered organization under the Act; a copy of the transcript of proceedings before the Conciliation and Arbitration Commission in matter C No.655 of 1970 varying, by consent, the Railways Salaried Officers Award 1960 by making provision for a new classification of ticket clerk in C1.9 of Part IV of the award; a copy of the transcript of proceedings in the said Commission between the A.R.U. and the S.T.A. in matter C No.3100 of 1976 wherein an agreement between the A.R.U. and the S.T.A. is set out (this agreement is set out in full later herein); copies of advertisements lodged by the South Australian Railways headed "South Australian Railways - Vacancies for Ticket Agents"; copies of South Australian Railways Weekly Notices headed "Qualifications and Requirements for Salaried Positions". In addition, copies of Acts making provisions for the South Australian Railways commencing with Act No.414 of 1887 through to the South Australian Railways Commissioner's Act No.2303 of 1976 were tendered and referred to by counsel. Included in these Acts is Act No.2404 of 1938 which amended the South Australian Railways Commissioner's Act 1936 so as to provide for the establishment of a Railways Officers Classification Board.

It is clear from a perusal of the above mentioned Acts and Regulations that since the establishment of the South Australian Railways there has always been in that railway system a dichotomy between "salaried officers" and "employees" (cf. s.25 of the South Australian Railways Commissioner's Act 1936), a distinction that has been reflected in all the relevant State Acts up until the Transfer Agreement Act of 1975 (s.14) when the South Australian Railways were transferred to the Commission. This dichotomy is referred to by the Full Court in the Commission's appeal: (1980) 49 F.L.R. @ 62-63. The dichotomy is reflected in the regulations made pursuant to s.132 of the 1936 Act and also in the 1938 Act inserting a new part into the 1936 Act establishing the Railways Classification Board. This Board was authorised by the legislation(s.53) to classify officers and to fix minimum and maximum salaries payable to the holders of such offices.

Also tendered were several relevant regulations made pursuant to the South Australian Railways Commissioner's Acts, commencing with Regulation 56 dated 1 November 1922 through to Regulation 140 dated 17 October 1957. These were the forerunners to the State awards made under s.53(a)(1) of the South Australian Railways Commissioner's Act Amendment Act 1938 referred to above. Again the dichotomy between salaried officers and employees is to be seen throughout these regulations.

The same dichotomy is again seen in the awards made pursuant to s.53(a)(1) of the 1938 Act which have been tendered.

In the earliest federal award tendered namely, the Railways Salaried Officers (South Australia) Award 1945 the dichotomy is apparent. This award simply adopted the classifications established under the South Australian Railways Commissioner's Act 1936 which were reflected in the South Australian State awards made pursuant to s.53(a)(1) of the 1938 Act, whilst Part V of the federal Railway and Tramway Employees Award 1947 ((1947) 58 C.A.R. 302 @ 445) made provisions in respect of "employees" of the South Australian Railways Commissioner other than "officers". There were in fact other federal awards earlier than those which have been tendered wherein the same dichotomy appears (see for example, Consolidated Award, South Australian Railways 1936 (36 C.A.R. 330) and the Consolidated Award, 1930 (28 C.A.R. 882).

It is clear in my view that such dichotomy between "officers" or "salaried officers" and "employees" has not been blurred by the various federal awards made by the Conciliation and Arbitration Commission up until the making of the Railways Salaried Officers Award 1960 and the Railways Traffic, Permanent Way and Signalling Wages Staff Award 1960 or by any subsequent variation to those awards. The dichotomy between "salaried officers" and "employees" is well known in industry and is recognised in awards, both federal and state and in regulations in respect of persons employed by Government instrumentalities particularly the Government Railways of the various States of Australia and also in Local Government. Indeed the very dichotomy is reflected in the two organizations referred to in these reasons, namely the Australasian Transport Officers Federation and the Australian Railways Union. (cf. also the Municipal Officers Association and the Municipal Employees Union, two organizations of employees registered under the Act.).

An examination of the logs of claim tendered which gave rise to the 1960 Railways Salaried Officers Award make it abundantly clear that it was not claimed in such logs that the award should be the instrument determining which employees of the Railways Commissioner were to be "officers" but simply to fix the salaries and conditions of those employees who had already been classified or were to be classified officers within the meaning of the South Australian Railways Commissioner's Act by the South Australian Railways Commissioner. In my view it is necessary when construing the definition of "officer" in C1.53 of the 1960 Railways Salaried Officers Award to bear this in mind. One cannot simply use the definition of "officer" in the award, as the basis for a conclusion that a particular person carrying out the duties applicable to any calling referred to in that award is necessarily an "officer" employed by the South Australian Railways.

The use of the definition in that fashion would in my view go beyond the ambit of the logs on which the award was based. In my view such definition should be read down accordingly.

Turning then to the agreed facts. Although lengthy, it is felt that the document (Exhibit A) should be included in these reasons for judgment in full. The document reads:-

"STATEMENT OF AGREED FACTS

Personal Background of applicant

1.01 The applicant is of Polish origin and migrated to Australia in September 1949 from a transit camp in Germany.

1.02 The applicant completed training in Germany as a kindergarten teacher.

1.03 In October 1949 the applicant was employed by the S.A. Railways as a Female Porter. Her duties in this position were to act as a ticket collector at the Adelaide Station.

1.04 In 1952 the applicant was classified as a Ticket Clerk and was employed at Adelaide Station selling tickets.

1.05 On 1 April, 1953 the applicant resigned from the S.A. Railways on account of her pregnancy.

1.06 On 13 July, 1953 the Railways Commissioner approved the withdrawal of the applicant's resignation and she resumed duties as a Female Porter at Adelaide Station performing various duties including ticket collecting, noting train arrivals and departures and assisting in the telegraph office.

1.07 The applicant continued in her employment as a Female Porter at Adelaide Station until 18 November 1966.

1.08 In November, 1966 the applicant requested that she be appointed as Ticket Agent at Hawthorn Station, which was near her home, to enable her to care for her husband, who was unwell, and her young son.

1.09 The applicant was offered the position of Ticket Agent at Hawthorn Station on the condition that she resign as an employee of the S.A. Railways.

1.10 The applicant was appointed Ticket Agent at Hawthorn Station on 21 November, 1966. She had resigned from the South Australian Railways as from 18 November, 1966.

1.11 On or about the 29th July, 1976 the applicant received the notice dated 29 July, 1976 from the Acting Divisional Superintendent a copy of which is included in exhibit C to her affidavit filed herein on the 24th October, 1978.

1.12 The applicant did not respond to the notice referred to in paragraph 1.11. The applicant says that there was no need for her to respond to the said notice.

1.13 On 4 April, 1977 the applicant became Station Assistant at Commercial Road Station, Port Adelaide following the closure of Hawthorn Station.

1.14 On 22 September, 1977 the applicant became Station Assistant at Marion Station.

1.15 The applicant continued as Station Assistant at Marion Station until her employment by ANR and thereafter.
History of the classification "Ticket Agent"

2.01 The S.A. Railways has employed Ticket Agents since at least 1915.

2.02 The methods by which Ticket Agents have been remunerated are as follows:-

(a) Prior to February, 1951 by commission only based on the value of tickets sold and the number of parcels handled.

(b) From February, 1951 until 31 October, 1972 guaranteed minimum payments were introduced. These were adjusted in line with basic wage variations until eventually the guaranteed minimum payments in nearly all cases exceeded commissions earned.
(c) From 1 November, 1972 until 31 July, 1976 by direction of the Minister of Transport remuneration was calculated at an hourly rate based upon the federal minimum wage.

(d) The applicant was not notified by S.A. Railways of the basis upon which the guaranteed minimum payments referred to in paragraph (b) hereof were adjusted or of the manner in which the hourly rate referred to in paragraph (c) hereof was calculated.

(e) From 1 July, 1973 remuneration included paid annual, sick and gazetted leave.

(f) From June, 1974 remuneration included penalty rates for public holidays.

(g) From 1 August, 1976 until 26 February, 1978 remuneration was at the same hourly rate as the remuneration of the classification of Porter Class 3 in the Railways Traffic Permanent Way and Signalling Wage Staff Award, 1960 and the conditions of that award were applied to ticket agents.

2.03 Initially Ticket Agents sold tickets from commercial premises e.g. shops) near the stations but for many years Ticket Agents have worked on the station premises.

2.04 Ticket Agents, other than Relieving Ticket Agents, have always been engaged to work at a particular station.

2.05 The S.A. Railways did not require any applicant for appointment as a Ticket Agent to satisfy the Railway's Board of Examiners as to his or her competence.

2.06 Some women were appointed as Female Ticket Clerks by the S.A. Railways notwithstanding that they had not satisfied the Railway's Board of Examiners as to their competence.

History of the classification "Ticket Clerk"

3.01 Female Ticket Clerks always worked the full hours provided by the relevant award.

3.02 Female Ticket Clerks were part of the clerical staff of the S.A. Railways.

3.03 Female Ticket Clerks could be required to work either at suburban stations or at the Adelaide Station.

Comparison of the duties of Ticket

Clerks and Ticket Agents (Station
Assistants)

4.01 The duties of Ticket Agents were substantially the same as the duties of Female Ticket Clerks employed at suburban stations except that:-

Female Ticket Clerks rendered monthly returns known as "Account Current" which Ticket Agents did not render whilst Ticket Agents rendered monthly returns known as "Traffic Statements" which Female Ticket Clerks did not render. Prior to 1976 both Female Ticket Clerks and Ticket Agents maintained a record known as the "Outstanding Book" but from 1976 Ticket Agents did not maintain Outstanding Books.

4.02 Female Ticket Clerks at Adelaide Station performed duties which Ticket Agents and Female Ticket Clerks at suburban stations did not perform such as collecting monies from guards and porters who had sold tickets on the train. Female Ticket Clerks at Adelaide Station worked under more constant pressure, they worked shifts and they were supervised in their work.

Agreement of July 1976

5.01 Mrs Sweeney and Mrs Selway referred to in the transcript of the hearing before Mr Commissioner Walker of C.No.3100 of 1976 were at the date of the hearing Ticket Agents with the S.A. Railways.

5.02 The applicant was aware before the date of the said hearing before Mr Commissioner Walker that the Australian Railways Union proposed to take to arbitration the question of the remuneration of Ticket Agents in the employ of the S.A. Railways.

5.03 The applicant was remunerated at the same hourly rate applicable to a Porter Class 3 under the Railways Traffic Permanent Way and Signalling Wages Staff Award from the 1st August 1976.

5.04 After the agreement read into the transcript in C. No.3100 of 1976 the S.A. Railways increased the hourly rate of pay to Ticket Agents and reduced the hours of work of Ticket Agents from 36 hours per week to 31 hours per week."

The notice dated 29 July 1976 referred to in fact 1.11 above, which is Exhibit C to the affidavit of the applicant sworn 23 October 1978 and filed in support of the application, reads:

SOUTH AUSTRALIAN RAILWAYS

Office of the Divisional Superintendent,
ADELAIDE. 29th July, 1976.

S.A.R. 8912/49.

MRS L. ZATORSKI,

In accordance with advice received from the Acting Secretary, please note as from and including Monday, 2nd August, 1976, you will be regraded to the position of Station Assistant.

Accordingly you will be paid the appropriate rate of pay applicable to Porter, Class 3, and will be covered by the Railways Traffic etc., Award.

L. ZATORSKI,
TICKET AGENT, (I.L. MOORE)
HAWTHORN. ACTING SUPERINTENDENT

Attached to the letter is a document setting out the duties and rates of a Porter, Class 3.

Further, it is necessary to set out in full the transcript of the hearing in matter No. C3100 of 1976 heard on 16 July 1976 before the Conciliation and Arbitration Commission referred to in 5.01 and 5.02 of the agreed facts. This transcript is Exhibit 11 in these proceedings and reads:

"Mr E.J. Stanistreet and Mr J. Donaldson appeared for the Australian Railways Union.

Mr P.T. Bahnisch appeared for the South Australian Railways Commissioners.

Mr Stanistreet: After your conference with us yesterday, Mr Bahnisch and I had a further discussion and we quite agreed with the conclusion reached during the conference with you that there was no necessity for this grade of station assistant, which has been the name generally agreed upon in lieu of the old title of ticket agent, no need for that to go into the award at all, but we feel that it is desirable that something should appear in transcript to show the result of our private discussions and the agreement that we have reached.
It is this:

"The parties have agreed that as on and from Sunday 18 July 1976 all persons in the grade of ticket agent employed in the South Australian Railways shall be known as station assistants and shall be entitled to all the conditions of the Railways Traffic Permanent Way and Signalling Wages Staff Award to which the grade known as item 30, 'porter class 3' and item 33, 'porter class 3, when relieving at a station or on duty at a station without supervision (other than for meal relief')' are entitled excepting, until 1 August 1976 to the award and over-award rates of pay as provided in that award and as otherwise provided.

Until 31 July 1976 the hours of duty to be worked by station assistants shall be 36 hours per week, as at 16 July 1976, and the rate of pay shall be calculated as a weekly amount at 36 fortieths of the adult minimum wage of $95.40.

The rosters in use as at 16 July 1976 shall not be altered prior to 1 August 1976.

On and after 1 August 1976 the grade of station assistant shall, in addition to retaining the award conditions of items 30 and 33, also be entitled to the rates per week prescribed in the wage table in clause 90 for those two occupations. In addition to the foregoing, they shall also be entitled to payment in accordance with the South Australian rates of pay award, the service payments and the over-award payments. In addition to their being entitled to all the award conditions to which items 30 and 33 are entitled, station assistants shall also be similarly entitled to all the benefits of conditions otherwise provided.

It is understood by both parties that the grade of station assistant shall be considered as employees who are employed under and are entitled to the benefits of clause 93, casual employees, and that the hours of employment may be subject to alteration at any time after 1 August 1976 after consultation with the Australian Railways Union.

This agreement does not in any way restrict the union from proceeding at any time after 1 August 1976 to seek a variation as they may see fit in the terms of clause 93, casual employees."

If that appears in transcript the parties will know exactly where they stand and if there are any matters that arise from it I think they will be able or hope they will be able to adjust anything that occurs.

Mr Bahnisch: I agree with the statement which Mr Stanistreet has read out to you which does in fact reflect the terms upon which the parties have agreed so far as the employment of ticket agents or the employees formerly known as ticket agents are concerned, and whilst there are one or two areas - and one in particular - which have not been resolved at this stage I feel confident that we will be able to resolve all of these things to the mutual satisfaction of the parties.

Basically I am saying that I agree to the statement read out by Mr Stanistreet. . . . "

Exhibit 12 is a statutory declaration of one James Donaldson, the then Assistant National Secretary of the A.R.U. declared on 24 January 1979 and lodged with the Conciliation and Arbitration Commission in January 1979 in the matter of a dispute between the A.R.U. and the S.T.A. re Ticket Agents. Annexed to Mr Donaldson's statutory declaration is a declaration of Mr Bahnisch declared on 24 January 1979. Mr Bahnisch's declaration (omitting formal parts) reads:

"I am an officer authorized by the General Manager of the State Transport Authority, South Australia and I do solemnly and sincerely declare that the General Manager of the State Transport Authority, South Australia has approved the principle terms of the agreement in relation to the rates of pay and working conditions of Station Assistants as recorded in the transcript of proceedings in Dispute C. No.3100 of 1976 on 16th July, 1976."

As stated above, Mr Bahnisch, the Senior Industrial Officer of the S.T.A. was called as a witness. His evidence is accepted by the Court particularly the following which is copied from the transcript of evidence:

"Mrs Branson: (Counsel for the respondents) Were ticket agents appointed for particular stations or for use as the railways wished to use them?---ticket agents were generally appointed to particular stations. However in approximately the mid-1970s the South Australian Railways did employ two ticket agents to carry out relief.

I think the advertisement with respect to that appeared on the document exhibit 14?---That is so, as I recall.

Apart from those, were ticket agents employed for a particular station?---Yes, they were always employed at a particular location.
What was the position with ticket clerks, or base grade clerks, if they were men, in terms of their employment?---All employees of the railways knew that they were subject to being transferred at the departmental convenience to virtually any part of the railway organization. An officer, although appointed to a certain position, could and indeed was in some instances transferred to another place within the same class.

In giving that answer, you appear to draw a distinction between ticket agents and railway employees. Do you draw that distinction?---Yes, I do.

Why do you do that?---I do that because throughout the period of my experience in the industrial office I always regarded ticket agents not to be employees of the railway.

How did you regard them?---I regarded them as a form of contractor. It was necessary for us on occasion to try to determine this question; when queries arose over their entitlement to various benefits that employees enjoyed. Our inquiries led us to believe that they were not indeed to be regarded as employees of the South Australian Railways.

His Honour: I think what Mrs Branson was getting at was, if a person was appointed a ticket agent at station X, that appointment or engagement - using that in a neutral sense - was in respect of that station and not as a ticket agent generally?---No, it was at that station.

The commissioner at his will could not say to that agent, "as from next week go and do the work at another station". That person would have the right to say, "No, I do not want to. I have the job here at the station and that is where I am staying. You either terminate the agreement or not, otherwise---", whereas with a clerical officer, the officer knew that he was subject to be transferred at the will of the commissioner?---That is so.

If he refused, then certain consequences would apply?---Quite so, yes.

Mrs Branson:You are aware that the period which is of interest to his Honour in this matter is the period from July 1973 until February 1978?---Yes.

In that period were you aware of whether or not there were any male ticket agents employed by the South Australian Railways?---Yes, there were male ticket agents employed.

Are you aware of whether there were any formal requirements as to qualification for people applying for appointment as ticket agents?---No, I am not aware of any formal qualification that was necessary.

For appointment as a ticket clerk or a base grade clerk?---Yes. In respect of clerks generally, officers or potential officers, persons seeking to be engaged as officers, had to satisfy the requirements of the Railways Examining Board.

Having given full consideration to the above facts and the transcript extracts, the various Acts and Regulations and the various awards, both state and federal, the Court is firmly of the view that the applicant has not demonstrated that at any time during the relevant period referred to in these proceedings she was employed by either of the respondents as a salaried officer within the meaning of that phrase as used in the relevant Regulations or Acts in force during that period or within the meaning of the expression "officer" or "salaried officer" as used in the Railways Salaried Officers 1960 Award as varied. Nor has she demonstrated that she was an employee of the respondents or either of them in the grade or occupation of a Ticket Clerk referred to in the relevant clause of the Railways Salaried Officers Award 1960 at any time during such period. Nor has she demonstrated that she occupied a position in that classification or grade at any time during such period.

Although it is not necessary for the Court to make any findings as to the applicant's position whilst working for the South Australian Railways during the relevant period, the Court is of the view that between 1966, when she took up the position of a ticket agent at Hawthorn shortly after her resignation from the railways, and 1 August 1976 when she was first graded by the S.T.A. as a Station Assistant - Porter, Class 3 the applicant was engaged by the Railways Commissioner under a contract for services carrying out the functions of a "ticket agent" and as such was award free. Between 1 August 1976 and 28 February 1978 she was an employee of the S.T.A. entitled to the benefits of the provisions of the Railway Traffic Permanent Way and Signalling Wages Staff Award 1960 as varied, her grade being Station Assistant - Porter Class 3.

Accordingly it becomes unnecessary for the Court to consider the respondents' submissions in respect of an estoppel argument which was put on two bases; first, estoppel by conduct and secondly, that the Court in the exercise of its discretion should prevent the applicant from continuing with the proceedings which if not prevented would amount to an abuse of the process of the Court, namely the Court being used to subvert proceedings instituted and determined before the Conciliation and Arbitration Commission in July 1976 when the agreement set out above was mentioned before the Commission (cf. Port of Melbourne Authority -v- Anshun 1980 V.R. 321 @ 325).

As a consequence of the views already expressed the applicant's claim under s.123 of the Act for payment of salary during the relevant period at the rates provided for a ticket clerk in the Railways Salaried Officers Award 1960 as varied fails and the application herein should be dismissed.