Ex parte Davis; Re Commissioner for Railways (NSW) [1957] HCA 22

Ex parte Davis; Re Commissioner for Railways (NSW) [1957] HCA 22 - HCA 1957 case summary — Zoe

The duty which it is the purpose of Davis to enforce by means of the writ is said to lie upon the Appeals Board by reason of the operation of certain sections of the Government Railways Act 1912-1955 N.S.W.. Section 76 deals with promotions in any branch of the railway service to a vacancy not open to competitive examination. Sub-section (1) provides that such a vacancy shall be filled if possible by the promotion of some officer next in rank, position or grade to the vacant office, and that no such officer shall be passed over unless the head of his branch, in writing, so advises the commissioner. By sub-ss. (2), (3) officers are divided into two classes. In the case of such salaried officers as are prescribed a proposal to fill a vacancy in the office must be referred to a promotions committee formed under the Act: in the case of other officers a decision to promote an officer to fill the vacancy who is not next in rank position or grade must be notified to any officer who is to be passed over and he is to be given an opportunity to appeal. Section 86 provides in terms that where a decision has been made by the commissioner to promote an officer to fill any vacancy in any branch of the railway service and such officer is not the next in rank, position or grade any officer in the branch who has been passed over may appeal to the Appeals Board. The board, which is provided for by s. 87, consists of three members, a chairman possessing legal qualifications appointed by the Governor in Council, an officer of the railway service appointed by the commissioner who is not a member of the appellant's branch and an officer, who is a member of his division, elected by the officers of that division. The board not only hears appeals by officers passed over for promotion, it hears also appeals by officers punished by heads of branches for misconduct or breach of rule by-law or regulation: see ss. 82, 87 and 91A. Every decision of the board is final and conclusive, unless it imposes punishment involving dismissal or reduction in rank, position, grade or pay, in which case there is a further appeal to the commissioner: s. 93.

[8]

The material provisions of the award as varied occur in Pt. II of that instrument, a part applying only to the Commissioner of Railways of New South Wales and to officers filling certain descriptions that are set out. The positions held by White and by Davis respectively are included, as well as that of estate agent. Clause 4A (ii) is headed " promotion and reduction " and, omitting an immaterial exception, it is as follows: - "(a) Promotion and reduction in consequence of a surplus of officers in any classification shall be governed by relative ability, suitability, record, experience and seniority : Provided that in considering an officer's ability, suitability, record and experience, regard shall be had to the nature and quality of his service in the armed forces of Her Majesty the Queen. The reason for passing over any senior officer for promotion to a higher position or for reducing any senior officer in the event of a surplus of staff shall be stated in a recommendation by the Head of the Branch to the Commissioner. If an officer considers he has been improperly passed over for promotion to any position provided for" (in certain clauses) "for which a salary of less than £1,356 per annum (which amount is to be increased or decreased as the case may be, by any basic wage fluctuations or award marginal variations subsequent to the date of this variation), is prescribed by this Award, he may appeal to the Railways Appeals Board or to the Commissioner. If he appeals to the said Appeals Board and a decision is given in his favour, it shall not become effective unless and until it is approved by the said "Commissioner" whose decision shall be final and conclusive. No officer shall be entitled to appeal to the Railways Appeals Board if he is passed over for promotion to a position for which a salary of more than £1,356 per annum (which amount may vary in the manner specified in the above paragraph of this clause) is prescribed by this Part of this Award, and the decision of the "Commissioner" in promoting or appointing an officer to fill any such position shall be final and conclusive."

[10]

The post of estate agent is remunerated at more than £1,356 per annum and there can be no doubt that the prohibition contained in the award as varied against appealing in the case of promotion to such a post is directly inconsistent with s. 86 of the State statute. Moreover it seems fairly clear that the basis of promotion prescribed by cl. 4A (ii) of the award is quite different from that contemplated by s. 76 of the Act. When you turn to the log of claims forming the basis of the industrial dispute for the settlement of which the award was made, you do not find it easy to identify any specific demand or demands the refusal of which would provide an industrial dispute whose ambit would justify the provisions of cl. 4A (ii) creating these inconsistencies. Seeing that the log is that of the organisation and that it is the Commissioner of Railways who is setting up the inconsistencies, perhaps this difficulty should not be a matter for surprise. But on the commissioner's behalf two main answers to the difficulty were put forward. The first is that to take the log of demands and interpret it without regard to the history of the industrial regulation of the topic in respect of the New South Wales Railways and the immediately previous situation is to misunderstand the true significance of the material claims in the log. The second answer given is that after the dispute resulting from the log came before the conciliation commissioner the parties met in negotiation and that by the course of their discussions the ambit of the dispute was changed or enlarged so that at all events in the end it sufficed to support the material provision of the award as varied. Although logically these contentions may be alternatives they mean in effect that the story must be told from beginning to end before it is possible to say that the relevant part of the award lacks a sufficient foundation. In any case the first of the two contentions cannot be considered without an examination of the course of industrial regulation with reference to promotion and appeals against promotion in the case of railway professional officers in New South Wales. It is accordingly desirable to give a brief account of what had happened before the delivery of the log of claims and then to examine its terms and state what occurred during the subsequent negotiations. The history begins with an award made by the Commonwealth Court of Conciliation and Arbitration during the war. It was made under the authority of the National Security (Industrial Peace) Regulations as well as of the Conciliation and Arbitration Act Cth. and it therefore did not depend for its validity on the legislative power conferred by s. 51 (xxxv.) of the Constitution. This award, which was dated 21st June 1943, came into operation in July 1943 and was expressed to remain in operation for the duration of the war or until 30th June 1946, whichever was the shorter term, and unless varied or rescinded for a further two years. So far as the subject of promotion goes the award dealt with it and other conditions of employment by taking up and incorporating a New South Wales instrument of industrial regulation published in August 1940. The provision so incorporated dealt with classification promotion and seniority. It required that the officers should be graded in the different classes by the commissioner. This having been done, promotion from class to class was to be in order of seniority provided the senior officer was suitable for the higher grade position. At the time when these provisions were incorporated in the award an officer could appeal under s. 86 of the Government Railways Act 1912-1941 against the adoption or confirmation of the advice or decision of the head of his branch with regard to his right to promotion and the appeal was to the Railways Commissioner. But otherwise there was no appeal. Within a few weeks, however, by Act No. 23 of 1943 (N.S.W.) the Appeals Board was established and s. 86 was amended to its present form giving an appeal to an officer passed over where the commissioner decides to promote an officer to fill a vacancy in a branch of the railway service and such officer is not next in rank, position or grade. Section 76 had long since taken its present form and it remained untouched. It would seem, therefore, that during the currency of the award dated 21st June 1943 in its first condition there was no clash of substance between the award and ss. 76 and 86. The substance was the same even if the manner in which the effect of s. 76 was rewritten in the text incorporated in the award meant that the latter text must be taken to exclude that of s. 76. This award was in effect but not in terms supplemented by an award made by the same judge on 13th September 1946. The National Security (Industrial Peace) Regulations had not been repealed. Indeed so far as legislative action could go they were maintained until 31st December 1952: Defence (Transitional Provisions) Act 1946-1951: cf. Act No. 104 of 1952 and in particular s. 11 (1).

[11]

In consequence the Court of Conciliation and Arbitration felt free to treat an application to vary the old award as an occasion for making a new award by way of supplement to the old. The purpose was to cover more senior officers. With respect to them it embraced in the one award the members of the Federation of Salaried Officers of Railways Commissioners and the members of any other registered industrial organisation as well as the members of the Association of Railway Professional Officers of Australia. The award was called the " Senior Officers New South Wales Railways Award ". It included the office to which Davis seeks promotion, viz. "Estate Agent, Legal Estates Branch", though the office he holds was governed by the older award. The new award was to commence on 1st July 1946 and continue during the currency of the award of 21st June 1943. The importance of the instrument for present purposes is that it introduced the provision displacing seniority as the governing factor in promotion. It gave finality to the commissioner's decision. "Promotion", the award said, " shall be governed by relative ability, suitability, record, experience and seniority : Provided that in considering an officer's ability, suitability, record and experience regard shall be had to the nature and quality of his service in the Armed Forces of H.M. the King. The reason for passing over any senior officer for promotion to a higher position shall be stated in a recommendation by the Head of the Branch to the Commissioner whose decision upon the matter shall be final." The award provided for a board of reference and subsequently a report was made by the board concerning, among other things, the right of appeal of officers passed over for promotion. As a result the judge varied the foregoing provision as from June 1947 by removing the last words "whose decision upon the matter shall be final" and adding instead the following paragraph: - "If an officer considers he has been improperly passed over for any position carrying less than £1,300 per annum he may appeal to the Railways Appeals Board or to the commissioner. If he appeals to the Appeals Board and a decision is given in his favour, it shall not become effective unless and until it is endorsed by the commissioner. In respect of any matter arising out of this clause the commissioner's decision shall be final." We are not informed which party pressed for the respective portions of the foregoing clauses. But we do know that, in a log of claims delivered on 1st June 1942 before any of these awards or variations was made, the association sought (i) a triennial classification of officers in grades or classes by a board of reference, (ii) promotion from class to class in order of seniority subject to the senior man being suitable for the higher position, and (iii) the determination of suitability by the board of reference. The demand was for a separate board of reference for each State on which the department and the association should be equally represented, and there were express claims that the board of reference should classify officers in grades and classes, hear and determine all appeals by officers regarding their classification and inquire into and report to the department their opinion on any recommendation for the promotion of an officer not next in order of seniority. It is probably safe to assume, therefore, that the primary case for the organisation, considered as a whole, was that promotion should be by seniority where possible and that an appeal to a tribunal on which there was a representation of salaried officers should be open if a senior was passed over for promotion. If that was the case of the organisation it would, of course, be satisfied by the provisions of the State Act.

[12]

Early in 1948 the organisation prepared another log of claims covering wages and conditions and served it on the commissioners of the various States. Conferences seem to have taken place and a year later this log was replaced by a log of revised claims dated 24th March 1949. A little later this revised log was further amended in material respects. The result may be stated shortly as follows. Notwithstanding that the document described itself as a log of claims, it was drawn in the form of an award. Comments have before been made in this Court upon the difficulties arising from this course when the claims are afterwards relied on as having promoted a dispute and as having defined its ambit. But for present purposes it perhaps does not matter except to explain the first clause, which is to the effect that the award, i.e. expected award, rescinds all previous or existing awards made by the Arbitration Court between the railway and transport authorities mentioned of the respective parts of Australia and the organisation. The "award" is to bind the same bodies and the organisation and its members. There is a claim that in each State a classification committee for professional officers should be formed composed of an agreed chairman or the industrial registrar and of two professional officers representing the railway authority and two representing the organisation. It should act by a majority and its functions should include the immediate and then the triennial classification of the positions of officers. At first the claim as to appeals was expressly confined to the consideration and determination by the classification committee of an appeal by an officer who, in any State, is not provided for by an appeals board constituted by State legislation on which professional officers are represented. But by amendments of the log a complete change was made in the basis sought for promotion and perhaps for this reason there was a restatement of the position as to appeals. It was now claimed that to the proposed classification committee a function should be given of determining lines of promotion within a department and of altering such a line of promotion if necessity should arise or of declaring that no fixed line of promotion existed. Within a line of promotion the order of seniority should be determined by years of service within the line and where there was no such line by years of service within the branch. If, at the date of the award sought, a recognised line of seniority existed within a line of promotion it was not to be altered because of the award. An officer passed over for promotion must be notified, it was claimed, and should be entitled to lodge an appeal with the head of his department who must then refer it to the Appeals Board constituted by the State legislature if professional officers are represented thereon. That board's decision was to be final. If no such appeal board had been constituted by the State legislature, the classification committee should perform the function. It will be seen that now there is a claim for an express clause for the utilisation of the State Appeals Board where it is constituted with the desired representation. This may have been done because it was felt that the State legislation (e.g. in New South Wales) might not cover an appeal where under federal law a line of promotion was established, instead of the mere seniority contemplated by State law. On the other hand the claim for the utilisation of the Appeals Board may be nothing but an instinctive filling out of the tenor of the demand to be expressed. The contention made before us for the Commissioner for Railways was that the claims and the failure to accede to them created a dispute as to what should be the basis or method of promotion and as to the way of obtaining a decision as to the right promotion to any given vacancy according to that basis or method. This, according to the contention, must include the question whether the State board should be authorised to perform this federal task falling outside, as it did, the duty under State law of dealing with appeals on a quite different basis of promotion.

[14]

This log of claims took the form of a proposed award for which a demand was made on the railway commissioners of the States. It was restricted to officers engaged in a professional capacity by a railways department and to members of the organisation. It demanded that the order of seniority of officers prior to the date of the (proposed) award should be preserved at its commencement and that future promotions should be governed according to qualifications within the terms of the award. The log sought a classification committee in each State consisting of two professional representatives of the commissioner and two of the organisation with a chairman to be agreed or the industrial registrar. The classification committee was to classify the officer within six months and thereafter triennially and to determine qualifications for reclassification. The log asked that in classifying an officer the committee should primarily examine his professional ability to fulfil the duties of his office and, at its discretion, take cognisance of his experience record and suitability. There was a proviso as to his war service. Among the functions over which it was to have "jurisdiction" was the duty "to consider and determine an appeal by an officer, who in any State, is not provided for by an Appeals Board constituted by State legislation, and on which professional officers are represented". A provision was included that where it is proposed that an officer shall be passed over for promotion the department shall first notify him in writing outlining the reasons for his being passed over. There was a general clause or claim that any privileges and concessions at present granted to officers and not specifically referred to elsewhere should be continued. The opening clause in the proposed award was that the award rescinded all previous or existing awards. It appears that after the service of this log upon the various railways commissioners a number of conferences took place between the representatives of the New South Wales Commissioner, and no doubt of other commissioners, and the president and secretary of the organisation. The latter said that the organisation was pressing for the rescission by the new award of the existing rule prescribed with reference to promotion and reduction by the award of 18th September 1952. The representative of the New South Wales commissioner took up the position that the existing provisions as to promotion and reduction must be written into a new award and there must be no right of appeal to the Railways Appeals Board. The officers of the organisation insisted that its demand was that there should be a right of appeal in every officer and no limitation to those earning a salary of no more than £1,300 per annum and that the existing rules as to promotion should be rescinded. These discussions took place while the dispute arising from the log was before the conciliation commissioner. Apparently they formed part of an attempt to agree on the conditions which the conciliation commissioner might adopt in the variation he would make in his first award which, for the time being, simply incorporated former conditions. When he took the matter up again he described this particular matter, among those on which they had failed to agree, as "the salary or schedule beyond which no right of appeal should exist in the filling of, or promotion of officers to, senior positions".

[17]

The course of events preceding the delivery of the log of claims dated 17th February 1953 may help to show the significance of the demands which the log formulates. But after all the delivery of the log is the first step in the creation of the dispute and what occurred earlier does not supply any of the actual elements of a dispute in respect of the subject matter upon which the power to make the award must depend. It must not be overlooked that part of the history relates to a period when the authority to make an industrial award on such a subject depended not on the existence of a dispute but on the National Security (Industrial Peace) Regulations. It was then that the clause now at variance with the State Act took root and developed. This may explain why the necessity has been neglected of considering how far the clause adopted later could find the support of an industrial dispute of sufficient ambit. But now the validity of the clause depends on discovering enough to justify it in the industrial dispute in the creation of which the delivery of the log of 17th February 1953 was the first step. No one would expect to find in the document itself an express claim directed to the creation of an industrial dispute as to the resort to be allowed to the State Appeals Board, and none is to be found in fact. For the commissioner it is said, however, that from the beginning the purpose of the organisation of professional officers was to take away from the railways commissioner his uncontrolled freedom of choice in making promotions. It is said, further, that there has been a dispute continued intermittently as to the principle or basis upon which promotions should be made and to such a dispute it must be an ancillary question how and by what means adherence to the principle or basis is to be secured. Further, if so, it is claimed that that involves the degree to which the commissioner's discretion shall or shall not be controlled by resort to some other body and it involves the question what body it is to be.

[25]

These discussions bring out pointedly a difficulty in the case of the Commissioner for Railways which ought not to pass without notice. It is obvious that it is his and not the organisation's desire that the arbitral award shall limit the right of appeal which s. 86 of the Government Railways Act confers on officers passed over for promotion. If there be a claim that this should be done it is his not the organisation's. The commissioner derives his authority from the statute to manage and control the New South Wales Railways. He is incorporated but only as a servant or agent of the State. Section 86 is simply a limitation of his authority or perhaps more accurately a transfer of his prima facie authority to other servants of the State for final exercise. What is his status to make industrial claims on the organisation as to such a matter? The question has no connexion with the long since settled controversy about the possibility of raising a dispute in disregard or defiance of State law or of making an award inconsistent with State law. Nor does it relate to the authority of the commissioner to receive or make claims on behalf of the "Government Railways of New South Wales" that are inconsistent with the law of the State. Still less does it touch the fact that industrial disputes must often be considered simply as de facto industrial events and dealt with accordingly. The present case is a special one. For the hypothesis is that, where the question really is as to the place where the final authority is to reside on the particular question of promotion, a claim of the commissioner that a restriction should be imposed upon an appeal from his authority granted by statute may create an industrial dispute. Further, according to this conception, if the organisation does not accede to his demand the dispute would be with respect to the management of the railways of the State and in settlement of the dispute the commissioner has thus created it is supposed that his official authority may be thus amplified by federal award.

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