Zatorski v Australian National Railways Commission

[1980] FCA 140

Re: AUSTRALIAN NATIONAL RAILWAYS COMMISSION
And: LUCYNA ZATORSKI (1980) 49 FLR 53
No. SA 15 of 1980
Industrial Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY
INDUSTRIAL DIVISION
Sweeney(1), Evatt(1) and Northrop(1) JJ.

CATCHWORDS

Industrial Law - claim for balance of salary due - appointment to a position in a grade or class - Salaried Officers'(Australian National Railways) Award 1978 - Traffic Operation, Workshops and Miscellaneous Grades (Australian National Railways) Award 1978 - Agreement between Commonwealth of Australia and State of South Australia re take over of certain railways in South Australia - Railways (Transfer Agreement) Act 1975, (South Australia) s.14 - Railways Agreement (South Australia) Act 1975, (Commonwealth) s.13 - Australian National Railways Act 1917 (Commonwealth) as amended, ss.4 and 46 and Division 2 of Part III - Conciliation and Arbitration Act 1904 s.123

Conciliation and Arbitration - Claim for balance of salary due under award - Agreement between Commonwealth of Australia and State of South Australia for takeover of certain South Australian railways - Offer of employment by Australian National Railways Commission to former employees of South Australian railways - Whether employee appointed to position in grade of ticket clerk - Appeal - Conciliation and Arbitration Act 1904 (Cth), s. 123 - Australian National Railways Act 1917 (Cth), ss. 4, 46 - Railways Agreement (South Australia) Act 1975 (Cth), s. 13 - Railways (South Australia) Act 1975 (Cth), s. 12 (1) - Railways (Transfer Agreement) Act, 1975 (S.A.), s. 14.

HEADNOTE

On 1st May, 1978, the appellant took over certain South Australian railways pursuant to an agreement which received legislative sanction. It was a term thereof that the appellant would appoint as officers or engage as employees all employees of the South Australian railways concerned who consented. The respondent, one such employee, had been employed at one stage as a station assistant and shortly prior to 1st May, 1978, had been paid at the rate specified for a porter under a State award. She accepted an offer from the appellant in the following terms: ". . . the Commission hereby offers you employment in your substantive grade at a salary or wage . . . not less than that applicable to your grade on the date immediately prior to the takeover date".

Two federal awards to which the appellant was a party were made operating from 1st March, 1978, one dealing with officers (the Salaried Officers' Award) and the second with employees (the Traffic Operating Award).

The respondent was paid by the appellant as a station assistant under the Traffic Operating Award. She obtained an order under s. 123 of the Conciliation and Arbitration Act 1904 by a single judge of the court that the appellant pay her arrears of salary due upon the basis that she was entitled to be paid the salary prescribed under the Salaried Officers' Award as a ticket clerk.

On appeal.

Held: Per curiam - (1) (a) the respondent had not established that she has been appointed by the appellant to a position in the grade entitled ticket clerk ; and (b) the respondent was not an officer within the Salaried Officers' Award because, at the relevant date, she had not been classified in a relevant grade or class.

(2) Although this argument had not been put to the trial judge, the appeal should be allowed.

HEARING

Melbourne, 1980, July 22-23, October 2. #DATE 2:10:1980

APPEAL.

Appeal from judgment and orders of a single judge of the Federal Court.

M. F. Gray and G. L. Muecke, for the appellant.

O. C. Isaachsen, for the respondent.

Cur. adv. vult.

Solicitor for the appellant: G. C. Prior.

Solicitors for the respondent: Murray & Cudmore.

T. J. GINNANE

ORDER

(1) The appeal be allowed.

(2) The order of the Court of 17 April 1980 be set aside.

(3) The application of Lucyna Zatorski dated 18 October 1979 in matter S.A. No.32 of 1979 be dismissed. Appeal allowed.

Order of court of 17th April, 1980, set aside.

Application of Lucyna Zatorski dated 18th October 1979 in matter SA 32 OF 1979 dismissed.

JUDGE1

The Australian National Railways Commission, hereinafter called "the Commission", is established as a corporate body by the Australian National Railways Act 1917 as amended, hereinafter called "the Act". Prior to 1975 the Act was entitled Commonwealth Railways Act. Subject to the Act, the Commission is empowered to conduct railways throughout Australia. In the Act, the words "Railway Service" are defined to mean:

"the Service consisting of the persons appointed as officers or engaged as employees in accordance with Part III."

Part III of the Act is headed "The Railway Service". Section 46(1), which is in Part III, is as follows:

"46(1) The Commission may appoint such officers and engage such employees as it thinks necessary for the purpose of this Act."

Unless a contrary intention appears in the Act, the word "employee" is defined to mean "any person employed by the Commission under this Act". The word "officer" is not defined. There are a number of sections in Part III of the Act in which the word "employee" appears and consequently where the defined meaning applies. However, in s.46(1) the word "employees" appears to be used in contradistinction to the word "officers" and it is possible that the word "employees" when used in s.46(1) does not have the defined meaning.

Prior to 1 July 1975, the date upon which the Australian National Railways Act 1975 came into operation, s.46 of the Act was as follows:

"46(1) Subject to this Act the Commissioner shall appoint or employ such persons to assist in the execution of this Act as he thinks necessary and every person so appointed shall hold office during pleasure only."

The 1975 Act established the Commission to replace the Commissioner and the same Act amended the then definition of "employee" by substituting the word "Commission" for the word "Commissioner". Until 7 June 1977 the provisions of the Public Service Arbitration Act 1920, as amended, applied to the Railway Service in like manner as that Act applied to the Australian Public Service and for that purpose a reference to the Public Service Board was read as a reference to the Commissioner or the Commission, as the case may be, see s.47 of the Act as it appeared before and after 1 July 1975. Reference should be made to sections 50, 51 and 52 of the Act as they existed before being deleted by the 1975 Act. The Australian National Railways Amendment Act 1977, which apart from ss.12 and 13, came into operation on 7 June 1977, repealed s.47 and inserted Division 2 into Part III of the Act. Division 2 is headed:

"Powers and Functions of the Australian Conciliation and Arbitration Commission in respect of the Railway Service."

The Division empowers the Conciliation and Arbitration Commission to prevent or settle industrial disputes in respect of the Railway Service, as defined, and to hear and determine industrial questions in respect of the Railway Service, as defined, submitted to it. It is not necessary to make further reference to the provisions contained in Division 2. In addition, the 1977 Act inserted the existing definition of Railway Service appearing in s.4 of the Act. Section 12 of the 1977 Act came into operation on 1 March 1978. That section establishes Promotions Appeal Boards to hear appeals by "employees" against promotions or directions to act, and Disciplinary Appeal Boards to hear appeals by "employees" against decisions made in cases of misconduct. The Act also inserted additional sub-sections in s.46 of the Act, but the detail of those new sub-sections need not be considered.

Prior to 1 March 1978 the State of South Australia conducted railways in South Australia. Those railways were vested in and operated by the South Australian Railways Commissioner pursuant to the South Australian Commissioner's Act 1936 as amended, subject to control and direction by the State Transport Authority Act 1974. By an agreement dated 21 May 1975 and made between the Commonwealth of Australia and the State of South Australia, the Australian National Railways Commission was to take over certain of the railways theretofore conducted by the State authorities and to assume full administration, maintenance and control of those railways in accordance with the terms of the agreement. For the purpose of the agreement the declared date was 1 March 1978. Clause 15 of the Agreement is as follows:

"15. On the declared date the Commission will appoint as officers, or engage as employees, all persons employed on the South Australian Railways immediately before that date who consent to be so appointed or engaged."

To give effect to the Agreement, legislation was passed being the Railways (Transfer Agreement) Act 1975, South Australia, and the Railways Agreement (South Australia) Act 1975, Commonwealth. Section 14 of the State Act provided as follows:

"14. On the declared date every officer and employee appointed pursuant to Section 25 of the South Australian Railways Commissioner's Act 1936-1974 in office immediately before that date shall by force of this section vacate his office."

Section 13(1) of the Commonwealth Act provided as follows:

"13(1) The Commission shall, on the declared date, in pursuance of Section 46 of the Australian National Railways Act 1917-1975 appoint as officers or engage as employees all persons employed in the service of the South Australian Railways immediately before that date who consent to be so appointed or engaged."

Immediately before the declared date, 1 March 1978, Mrs. Lucyna Zatorski, hereinafter called "the respondent", was employed in the service of the South Australian Railways. Late in the year 1977 the General Manager of the Commission, by an undated letter addressed to "Mrs. L. Zatorski, Station Assistant, Marion" (emphasis supplied) offered employment to the respondent. The letter was headed "Offer of Employment". It referred to the Railways Agreement (South Australia) Act 1975, s.14 of the South Australian Railways (Transfer Agreement) Act 1975 and Clause 15 of the Agreement between the Commonwealth of Australia and the State of South Australia. The letter then continued:

"Pursuant to Clause 15 of the Agreement the Commission hereby offers you employment in your substantive grade at a salary or wage, as the case may be, not less than that applicable to your grade on the date immediately prior to the declared date.

In the event that you consent to be so appointed or engaged your employment with the Commission would commence on and from the declared date and would be subject to the Railway Service Rules and awards of the Conciliation and Arbitration Commission to which the Commission is a respondent.

If you agree to exercise your right in accordance with Clause 15 of the Agreement, it is necessary for you to sign the attached consent notice and return to me on or before the 27 Jan 1978."

The letter comprises a pro-forma letter on which the name, grade and address of the respondent have been typed and the date, 27 Jan. 1978, placed by means of a rubber stamp.

The respondent signed and dated the consent notice which also was a pro-forma letter; with the name Mrs. L. Zatorski and her number 15/89/6010 being typed in. She returned the notice to the General Manager of the Commission. The relevant parts of the notice were as follows:

"With reference to your offer of employment with the Australian National Railways Commission of . . . . . . . . . . . . . . . 77 . . pursuant to Clause 12(2) of the Railways (Transfer to the Commonwealth) Act 1975 Agreement, I hereby "agree to transfer in my employment to the Commission on and from the declared date.

L. ZATORSKI

Signature of Employee MRS. L. ZATORSKI

15/89/6010

Date 21.12.77."

It is difficult to understand the reference to Clause 12(2) of the Railways (Transfer to the Commonwealth) Act 1975 Agreement. Section 12(1) of the Railways (South Australia) Act 1975, Commonwealth, (Act No. 69 of 1975) was identical with s.13(1) of the Railways Agreement (South Australia) Act 1975, Commonwealth, (Act No. 105 of 1975). The latter Act, however, repealed Act No. 69 of 1975. Likewise, the reference to "transfer in my employment" is confusing. The letter containing the offer of employment refers to the two Acts by which effect was given to Clause 15 of the agreement and under those Acts, the Commission in pursuance of s.46 of the Australian National Railways Act 1917 as amended, was obliged to appoint as officers or engage as employees all persons employed in the service of the South Australian Railways immediately before that date who consent to be so appointed or engaged. To comply with the legislation, all that was required was a consent to the employment in the Commonwealth Railway Service. In the events which had happened, upon the consent of the respondent, the Commission was required by s.13(1) of Act No. 105 of 1975 to appoint or engage the respondent in pursuance of s.46 Australian National Railways Act 1917 as amended. In the events which happened, the respondent became a member of the Railway Service on 1 March, 1978.

Pursuant to the powers conferred by Division 2 of Part III of the Act, the Conciliation and Arbitration Commission made two awards, namely the Salaried Officers' (Australian National Railways) Award 1978, hereinafter called "the Salaried Officers' Award", and the Traffic Operating Workshops and Miscellaneous Grades (Australian National Railways) Award 1978, hereinafter called "the Traffic Operating Award". Each award was made by consent on 26 June 1978 and on 28 June 1978 respectively and came into operation on and from 1 March 1978. The Commission is a party to each award and the Australian Railways Union, hereinafter called "the Union", is one of a number of organizations of employees which are parties to each award. The awards recognize and adopt the dichotomy between "officers" and "employees" appearing in s.46 of the Act, in the definition of Railway Service contained in s.4 of the Act, in Clause 15 of the Agreement and s.13 of the Railways Agreement (South Australia) Act 1975, Commonwealth.

In the Salaried Officers' Award, the word "officer" is defined to mean:

"Any person employed under the provisions of "the Australian National Railways Act 1917 and classified in a grade or class prescribed in this Award."

The Salaried Officers' Award is binding upon the Commonwealth and the Union and "all persons eligible for membership of any of the aforesaid unions engaged in any of the grades or callings specified in this award". In the award the word "officer" is used to describe a person employed by the Commission. Clause 6 of the award provides that Part II of the award "shall apply to officers occupying positions for which salaries are hereinbefore prescribed". Part II comprises Clauses 4 - 33 inclusive relating to salaries and conditions of employment. Clause 4 is headed "Salaries" and sub-clause (a) commences with the words:

"(a) Adult officers occupying positions in the classifications provided herein shall be paid at the rate of salary prescribed in the following tables:"

There are then set out three columns headed "Number", "Grade and Class" and "Salary per year, Divisions" respectively. Eleven different classifications are listed under the heading "Number". Each of these classifications is given a title under the heading "Grade and class". In some there are a number of classes within each grade, while in others there are no classes. For some grades and for some classes there is one division only, while in others there are up to five divisions. The divisions represent salaries increased by annual increments paid to an officer on satisfactory completion of a year's service in a grade or class. In each case the salary is specified by reference to a yearly amount. By way of illustration we set out a summary of the grades, classes and divisions.

Number Grade and Class Salary per year,
______ _______________ ________________

Divisions _________

1 Clerical Assistant Varying number of

divisions 5 classes numbered 1-5 for each class

2 Clerk 4 divisions for Class 1

and 10 classes numbered 1-10 2 divisions for each of the other 9 classes

3 Stationmaster-train 1 division only for each

controller class 11 classes numbered 1-11

4 Yardmaster-wharf foreman 2 divisions for each

class 6 classes numbered 1-6

5 Foreman-supervisor 2 divisions for each

class 18 classes numbered 1-18

6 Miscellaneous 2 divisions for each

class 21 classes numbered 1-21

7 Typist, stenographer, tele- 4 divisions for Class 1

printer operator, accounting 2 for Class 2, and 1 for or calculating machinist, each of the other 3 classes data processing operator, telephonist, including those engaged on more than one of the classes of work mentioned and any others that the Commission may decide to include in this group 5 classes numbered 1-5

8 Casualty officer 1 division only

No classes

Number Grade and Class Salary per year,

______ _______________ _________________

Divisions _________

9 Assistant casualty officer 2 divisions

No classes

10 Ticket clerk 4 divisions

No classes

11 Supervisor, Peterborough 2 divisions

No classes

It is important to note that the Salaried Officers' Award does not specify the positions or number of positions within a grade or a class, nor does it define the nature of the duties attached to positions. Part III of the award prescribes salaries and conditions applicable to senior officers. Under Clause 34 there are 11 classes of senior officers and each class has two divisions.

In the Traffic Operating Award, the word "employee" and not the word "officer" is used to describe a person employed by the Commission. The word "employee" is not defined in the award. The award is binding upon the Commission and the Union "and all persons eligible for membership for any of the aforesaid unions engaged in any grades or callings specified in this award". Part II of the Traffic Operating Award is headed "Traffic Operating Grades" and contains clauses numbered 1 - 23 inclusive prescribing matters relating to rates of pay of employees. Part IV is headed "General Conditions" and contains clauses numbered 1 - 20 inclusive prescribing conditions of employment. Clause 2 of Part II is headed "Classifications and Rates of Pay - Adults". The opening words of the clause are:

"An adult employee of a classification specified in the tables in this clause shall be paid the rate per week assigned to that classification: -"

There are then set out three columns headed "Number", "Classification" and "Rate per week" respectively. There are then listed 67 classifications. In the vast majority of classifications one rate per week only is specified. In some a rate is specified for the first year with a second higher rate thereafter. In some there are more than one different rate for more than two years. In some classifications a number of classes are specified with a different rate for each class and in some with different rates for a number of years in each class. Classification No. 56 is as follows:

"56. Station assistant -

Class 1
Class 2
Class 3
Class 4
Class 5

Station assistant, Class 1, 2 or 3 when relieving at a station or on duty at a station without supervision (other than for meal relief) 30 cents per day extra."

A weekly rate is set out against each class increasing in amount. Clause 3 of Part II makes specific provision for two annual increments in all classifications set out in Clause 2.

It is to be noted that no reference is made in the Traffic Operating Award to positions in classifications, cf. the Salaried Officers' Award. In the Traffic Operating Award a weekly rate of pay is prescribed with respect to an "employee of a classification".

Following her appointment to the Railway Service on 1 March 1978, the Commission paid the respondent the rate of pay prescribed by the Traffic Operating Award for Classification No. 56, Station Assistant, in the appropriate class with the adjustments made, as prescribed, and with the increments prescribed by Clause 3, but subject to a reduction by reason of the fact that she did not work the 80 hours per fortnight prescribed by the Award. By application dated 18 October 1979, she commenced proceedings against the Commission in the Federal Court on 30 October 1979 claiming under s.123 Conciliation and Arbitration Act 1904 as amended, the balance of salary due to her from 1 March 1978. At all material times she was a member of the Union and claimed she was entitled to be paid the salary prescribed under Clause 4 of the Salaried Officers' Award for the classification of Ticket Clerk. The substance of her claim was that she was performing the duties of a Ticket Clerk and accordingly was entitled to the salary prescribed for a Ticket Clerk.

By an application made in the year 1978 the respondent had made a similar claim against the State Railway Authorities for the period ending 28 February 1978. During that period there were in existence two awards made by the Conciliation and Arbitration Commission binding upon the State Railway Authorities and corresponding to the Salaried Officers' Award and the Traffic Operating Award. Those awards were known as the Railways Salaried Officers' Award 1960, hereinafter called "the State Salaried Officers Award", and the Railways Traffic, Permanent Way and Signalling Wages Staff Award, 1960, hereinafter called "the State Traffic Etc. Award", respectively. Those two awards likewise adopted a dichotomy between "officers" and "employees". In 1970 a classification entitled "Ticket Clerk" was first inserted in the State Salaried Officers' Award and the prescribed annual salary was to be paid to persons "occupying positions in the classifications provided" in the appropriate clauses of the award. In the State Traffic Etc. Award there were three grades of Porter and a grade entitled "Porter, Class 1, 2 or 3 when relieving at a station or on duty at a station without supervision (other than for meal relief)" for which an extra daily rate of 30 cents per day was prescribed. The prescribed weekly rate was to be paid to persons "performing work in any of the grades or occupations" listed in the table to the appropriate clause of the award, a similar dichotomy to that appearing in the two awards made in 1978. The application by the respondent against the State Railway Authorities was for the balance of salary due to her on the basis that she was entitled to be paid salary prescribed for the classification Ticket Clerk under the State Salaried Officers' Award. The application has not yet been heard by the Federal Court.

At the hearing of the application against the Commission, counsel was given leave to intervene on behalf of the State Railway Authorities. At the hearing evidence was given by the respondent and a Mrs. Czuchwicki, who had had a similar work history to the respondent, but who, after receiving payment from the Commission on the basis of being a Station Assistant from 1 March 1978 to 31 January 1979, was thereafter employed in the capacity of Acting Ticket Clerk and paid the appropriate salary prescribed in the Salaried Officers' Award. The State Railway Authorities called as a witness a Mr. Bahnisch, the Senior Industrial Officer with the State Transport Authority, Rail Division. In addition, a number of exhibits were tendered on behalf of the respondent and the State Railway Authorities respectively. No witnesses were called on behalf of the Commission, nor were any exhibits tendered on its behalf.

For the purpose of these reasons it is not necessary to consider in detail the evidence given. It is sufficient to say that the respondent had been a Ticket Agent engaged by the State Railway Authorities and that the history of her employment involved a narrative which was long, complicated and confusing. In 1976 an agreement was reached between the State Railways Authorities and the Union. The agreement was called the "South Australia Ticket Agents' Agreement". Under the Agreement the Ticket Agents, which included the respondent, were to be described as Station Assistants and were to be entitled to the wages and conditions set out in the State Railways Traffic Etc. Award for the grade of Porter, Class 3, and the extra rate when relieving at a station or on duty at a station without supervision (other than for meal relief). Thereafter on 29 July 1976 the Acting Superintendent of the South Australian Railways wrote a letter addressed to Mrs. L. Zatorski, Ticket Agent, Hawthorn, as follows:

"In accordance with advice received from the Acting Secretary, please note as from and including Monday, 2nd August, 1976, you will be re-graded 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."

On 14 February 1979 the Conciliation and Arbitration Commission certified the South Australian Ticket Agents' Agreement. The learned trial judge expressed the opinion that neither the South Australian Ticket Agents' Agreement nor its purported certification affected the rights of the respondent. In the view we have formed, and having regard to the nature of the Commission's contentions put on the appeal, it is not necessary for us to express any opinion on this aspect of the case. It is sufficient to say that as from and including 2 August 1976, until 28 February 1978, the respondent was known as a Station Assistant and was paid wages at the rate specified for Porter, Class 3 in the State Railways Traffic Etc. Award, subject to adjustment for the lesser number of hours worked than those prescribed in that award.

In a judgment given on 17 April 1980 the learned trial judge found that the duties performed by the respondent were such as to satisfy him:

"that from 1 March 1978 until the hearing of this matter Mrs. Zatorski has occupied the position of ticket clerk within the meaning of clause 4 of the award."

He was satisfied that she had completed more than three years of service in the grade or class of ticket clerk before she commenced employment with the Commission on 1 March 1979 and therefore she should have been paid the salary per year for division 4. In the result the Court ordered that the Commission pay the respondent $8,140.83.

The Commission appealed from that order. The substantive contention put on the appeal was not put to the learned trial judge. In substance, the contention was that the learned trial judge was in error in looking solely at the ticketing duties and the clerical duties of the respondent and further, or in the alternative, the respondent did not occupy a position in the classification of ticket clerk as provided in clause 4 of the Salaried Officers' Award.

In our opinion, the contention of the Commission is correct. The Commission employed the respondent pursuant to the powers conferred by s.46 of the Act. It was obliged to employ the respondent by s.13 Railways Agreement (South Australia) Act 1975, Commonwealth. In order to succeed in her claim, the respondent had to show that the Commission appointed her to a position in the grade of ticket clerk as specified in the Salaried Officers' Award. That award does not define the duties of a ticket clerk. The award does not specify the number of positions within the grade of ticket clerk. The award does not define the duties attaching to the positions within the grade of ticket clerk. In these circumstances, it is not appropriate to take the words of the grade "ticket clerk", to consider the duties performed by an employee in the Railway Service, and to determine whether those duties come within the normal meaning of the words "ticket clerk". This can be illustrated by reference to the grade entitled "miscellaneous" where such a method of determining the issue would be meaningless. Likewise, the powers of the Classification Board of Reference set out in clause 33 of the Salaried Officers' Award illustrate that positions are not necessarily fixed within a grade. The essential question to be determined is whether the respondent was appointed by the Commission to a position in the grade entitled ticket clerk.

There is no evidence that the respondent was appointed by the Commission to a position in the grade entitled ticket clerk. The only evidence is in the letter containing the offer of employment, where the respondent is described as a station assistant and is offered employment in her substantive grade as opposed to another acting grade. The only substantive grade referred to in the letter is that of station assistant. The offer of employment and its acceptance by the respondent cannot be treated as an appointment to a position in the grade of ticket clerk as specified in the Salaried Officers' Award.

Our judgment is one reached on a consideration of the material placed before us and depends on the Salaried Officers' Award. On our construction of this, the respondent is not an officer because at the relevant dates she has not been classified in a relevant grade or class and she is therefore not an adult officer occupying a position in a classification provided for in that award.

It follows that we have not reached and do not express any view whether the work she does and the conditions under which it is performed are such that she should or should not be classified as a ticket clerk. That is a question for the Classification Board or perhaps the Commissioner who made the award. Likewise we have not reached and do not express any view on whether the South Australian Ticket Agent's Agreement and its purported certification have any effect on any rights the respondent may have against the State Railway Authorities.

We would allow the appeal, set aside the order of 17 April 1980, and dismiss the application by the respondent.