Lucyna Zatorski v The South Australian Railways Commission & Anor [1982] FCA 43

Reynolds v. Victorian Railways Commissioner (1903) 9 Argus L.R. 42 referred to.

Royal Australian Nursing Federation Industrial Union of Workers, Perth v. Martindale Hospital Pty T.td [1978] W.A. Indus. Gaz. 1251 referred to.

LUCYNA ZATORSKI v. THE SOUTH! AUSIRALIAY RATLWAYS COMMISSICNER

and/or THE GENRRAL MANAGER OF TAF STalE TRANSPCR? AUTHORIIY OF

THE SOUTH AUSTRALIAN RAILWAYS COMMISSIONER and/or THE GENERAL MANAGER OF THE STATE TRANSPORT AUTHORITY OF SOUTH AUSTRALIA

Respondents ORDERS JUDGES MAKING ORDER: Fisher, Sheppard and Fitzgerald J.J. WHERE MADE: Adelaide DATE: 2 April 1982,

2. The matter be remitted to the trial judge for the

THE SOUTH AUSTRALIAN RAILWAYS COMMISSIONER and/or THE GENCRAL MANAGER OF THE STAVE TRANSPORT AUTHORITY OF SOUTH AUSTRALIA

Mrs Zatorski ("the appellant") has appealed to this Court from the dismissal of a claim made by her under s.123 of the

Conciliation and Arbitration Act 1904, as amended. She alleges

that she was underpaid whilst employed by one or other or both

of the respondents during the period to which the claim relates, namely from 1 July 1973 to 28 February 1978. The claim was dismissed on a preliminary point of law which was permitted to be

In the course of the argument of this appeal, we indicated, without calling on counsel for the respondents, that we did not accept the appellant's first point, which was that the respondents, who had intervened by leave in other proceedings commenced by the appellant against a later employer, The Australian National Railways Commission ("the previous proceedings") were bound by the findings of fact and law made by the primary judge in those proceedings, notwithstanding that his decision was reversed on appeal on a point which was not argued before him. We remain satisfied that no estoppel

Because of the way in which this matter has proceeded to date, no more falls to be decided on this appeal than the question of law which was answered adversely to the appellant by the learned primary judge. There 1s no occasion for an zunvestigation into the merits generally. If the appeal succeeds, the matter will have to go back for the hearing to be concluded

and it will remain for the appellant to establish her case.

The appellant's claim is that, during the period in question, she was entitled to be, but was not, paid at the rate prescribed by the Railways Salaried Officers Award, 1960 ("The State Salaried Officers'Award") for payment to an adult female officer, a member of the Australian Railways Union, employec in the South Australian Railways, and occupying a position in the classification of Ticket Clerk. The appellant relies upon her work history and the duties she performed. The respondents'

sole answer to her claim is that since, as the appellant concedes,

she is unable to prove that she was formally appointed to such a position, she was not, within the meaning of the Award, an officer occupying the position as required by the Award.

The learned primary judge said that, in view of the appellant's inability to prove a formal appointment, he considered himself constrained by the decision of the Full Court in the previous proceedings to dismiss her claim in these

The Australian National Railways Commission ("the Commission")

was established as a body corporate by the Commonwealth Railways

Act 1917, as amended, (re-titled The Australian National Railways

Act in 1975). Subject to that Act, the Commission is empowered to

An Agreement dated 21 May 1975 made between the Commonwealth and the State of South Australia ("the Agreement") provided for the Commission to take over, from 1 March 1978, certain railways previously conducted by the South Australian Railways, 1.e. as we take it, by the present respondents. Clause 15 of the Agreement was 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,

namely The Railways (Transfer Agreement) Act 1975, South

Australia, and The Railways Agreement (South Australia) Act 1975,

Commonwealth. Section 14 of the State Act provides 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 virtue of this section vacate his office."

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

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."

Whilst we do not intend to shut out the right of the respondents to challenge any fact if so desired, it does not seem to be disputed that the appellant was employed on the South Australian Railways until 28 February 1978 or that the appellant commenced to be employed by the Commission on 1 March 1978. According to the judgment of the Full Court in the previous proceedings, the General Manager of the Commission, by undated letter addressed to the appellant offered late in the year 1977 employment to her which she subsequently accepted. It is sufficient for present purposes to note that the Full Court in the previous proceedings held the position offered and

Part III of The Australian National Railways Act, the Commonwealth

Conciliation and Arbitration Commission made two awards, 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 28 June 1978 respectively, and each came into operation on and from 1 March 1978. The Commission 1s a party to each Award as is the Australian Railways Union, of which it does not

seem to be disputed the appellant was at all material times a

For the appellant to succeed in the previous proceedings it was necessary for her to bring herself within the operation of The Salaried Officers Award. The Full Court held that she did

Australian National Railways Act, and the word "employee" is

there defined to mean "any person employed by the Commission under this Act", there are critical sections of that Act in which a distinction is drawn between officers and employees. For example, s.46(1) 1s as follows:-

for the purpose of this Act." Section 46(1) 1s in Part III of that Act, which is headed "The Razrlway Service", a term defined to mean "the service

consisting of the persons appointed as officers or engaged as

Reference has already been made to the fact that the Commonwealth Awards were made pursuant to Part III of the Act. The Full Court in the previous proceedings said that the two Awards "recognise 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

Having regard to the terms of the Salaried Officers Award, and in particular the definition therein of 'officer' and clause 6 and Part II which deal with entitlements to the salary rates prescribed by the Award, it was necessary, to come within the Award, that the appellant be:-

(i) employed under the provisions of the Australian

National Railways Act, i.e. in the case of an officer, appointed as distinct from engaged;

(ii) occupying a position in a classification provided an the Award; and

(i11) classified in a grade or class prescribed in the Award.

Obviously, in her employment by the Commission, the appellant did not meet these requirements in respect of a

In view of the finding that the position that the appellant was offered and which she accepted was not that of Ticket Clerk,

1t is apparent that the decision by the Full Court does not

directly decide this case. Nor, indeed, did it seek to do so; on the contrary, reference was made to this matter as undecided and the judgment was expressly described as one "reached on a consideration of the material before us and depends on the Salaried Officers Award". The respondents specifically disavowed any reliance upon that judgment as resulting in any estoppel in these proceedings. Further, there was no submission made

to us that the legislation and awards in the respective proceedings wererelevantly identical, or that for some other reason a detailed comparison, beyond that contained in the

Full Court judgment in the previous proceedings,was likely to be productive. Likewise it was not suggested that a detailed comparison between the subject award and any other award would be of particular assistance. Our own survey of the Acts and the

However, brief reference to these matters is appropriate because the Full Court in the previous proceedings did refer to this matter. They said:-

"By an application made in the year 1978, the respondent had. made a similar claim against the

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 Railway and Salaried Officers

Award 1960, hereinafter called 'the State Salaried Officers'Award' and the 'Railways Traffic, Permanent Way in 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 the grade entitled "Porter, Class 1, 2 or 3 when receiving at a station

or on duty at a station without supervision (other that 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." (We have for convenience, adopted here as elsewhere the same

It is correct, as was there said, that whereas the State Traffic Etc. Award speaks of employees, the State Salaried Officers' Award speaks of officers. But the definition of "officer" in the latter award and, 1f 1t 1s relevant, the definition of "employee" in the last paragraph of Part V of the former, seem to us at least to diminish the significance of this distinction. More relevant, to our minds, is the distinction between the definition of "officer" in the Salaried Officers Award and the definition of the same term in the

State Salaried Officers' Award, which 1s set out below.

It is also correct, as the other Full Court observed, that there 1s a difference between the language of the State Traffic Etc. Award and the language of the State Salaried Officers' Award dealing with the bases of entitlement to salaries, Just as there is a difference with respect to those matters in

the Commonwealth Awards with which that Court was concerned. We

are not, however, satisfied that, at least so far as the

appellant is concerned, the State Traffic Etc. Award provided

for payment to persons "performing work in all of the grades

or occupations" listed, any more than does the Traffic

Operating Award. Such a provision is made in the State Traffic Etc Award with respect to adult male employees (Part 5, Clause 2),

but in the case of adult femalesthe requirement 1s simply that

they be "employed in the classifications" listed (Part 5, Clause

In any event, whereas in the previous proceedings the case against the appellant was that she was not covered by the Salaried Officers Award but by the Traffic Operating Award, here the case against her asserts that she was not covered by the State Salaried Officers' Award in the relevant classification notwith- standing that the consequence would be that, at the relevant time, she would not have been covered by any award. This serves at least to highlight the difficulty of using changes in language from award to award as a basis for the construction of one or the other. Further, although both the State Traffic Etc. Award and the State Salaried Officers' Award were made by the same Commissioner at about the same time, they arose out of different

disputes and there were some differences in the parties.

Whether or not the comments in the previous judgment on the position whilst the appellant was employed by the South Australian Railways were entirely accurate, we do not see any reason to express the slightest doubt as to the correctness of the judgment of the Full Court in the previous proceedings

with respect to the matter which was there under consideration.

We do not understand that the Full Court based its decision

on the mere existence of the two differences found to exist between the later Awards. Rather, those differences derived particular significance both from the Commonwealth Acts under which those Awards were made, and from the requirement, in the definition of "officer" in the Salaried Officers Award, that

an officer be classified. Those Commonwealth Acts drew a similar distinction to that contained in the awards and required that officers be appointed and not engaged, a scheme also to be

found in the Agreement and in the Railways Agreement (South

The Agreement 1s, of course, irrelevant in this present

matter and the State Acts, the South Australian Railways

Commissioners Act, 1936 (renamed the Railways Act of South

Australia in 1975) and the Railways (Transfer Agreement) Act 1975,

do not correspond with the Commonwealth Acts to which reference had been made. Further, although we were pressed to the

contrary, we have not been able to find in the South Australian statutes a similar legislative scheme to that discerned by the other Full Court in the Commonwealth statutes. There seems little point in embarking upon a detailed description of the provisions

of the South Australian Acts which, at least in the case of

the earlier of the two statutes above referred to need, as we

were told, to be set into historical context in order to be properly understood. For what 1t 1s worth, we observe that in the more recent statute in 1975, the South Australian Parliament

seems to have been totally heedless of any difference between

appointing an officer and engaging an employee. It describes

those who were to vacate their employment by the State instrumentalities and become employed by the Commission, both officers and employees, as having been "appointed pursuant to

s.25 of The South Australian Railways Commissioners Act, 1936-

1974" and as being "in office" : see s.14. Any suggestion that this was not intended to deal with all officers and employees in the State Railways at the time is denied by the absence from the Act of any other provision directed to the termination of

the employment of any employees not dealt with by that section.

It is by no means surprising that the uniformity found to

exist between the later Awards and the Commonwealth Acts is

missing when one turns to the earlier Awards and the South Australian statutes. On the contrary, it 1s extremely improbable that those earlier Commonwealth Awards would be found to contain a formula which reflected at the same time the different legislative schemes in South Australia, Victoria and Tasmania, employees

The relevant provisions of the State Salaried Officers'

Award, on which the appellant's claim is based, are as follows:-

{b) Thais award shall be applicable to ... members of the Australian Rallways Union employed by ... the South Australian Railways Commissioner in grades or occupations for which salaries are herein prescribed ...

South Australian Railways (11) Adult female officers occupying positions in the classification provided herein and employed in the South Australian Railways shall be paid at the rate

of salary prescribed in the following table: ..." (One of the classifications is 'Ticket Clerk').

" 60 - DEFINITIONS In this award (unless inconsistent with the context) (a) 'Officer' means any person employed by the respondents

an any of the callings for which rates of pay are prescribed herein.

As we have earlier noted, the respondents' submission is that the appellant must fail because she was not formally appointed as a Ticket Clerk. We stress the notion of formal appointment since the word "appoint" may bear more than one

Meaning (see e.g., Tarnesby v Kensington, Chelsea and Westminster

Area Health Authority (Teaching) [1980] I.C.R. 475, 481) and

anformal appointment may be sufficient even where there is

specific reference to appointment in a statute (see e.g. Frost v

Bolland (1826) 5 B & C 612, 621). The difficulty of the word has also been noticed in other contexts; an example is Gillespie

v South Clifton Colliery Ptv. Lte, (1970) 72 S.R. (N.S.W.) 366, 374

The essential requirement for present purposes of the State Salaried Officers' Award is that the appellant was in the

relevant period occupying a position in the classification of

Ticket Clerk. Whilst no doubt it follows that in one sense it was necessary that she was appointed to such a position, this need mean no more than that she was employed to perform the

relevant duties: cf. Reynolds v Victorian Railways Commissioner

(1903) 9 Argus L.R. 42, 43. The question ultimately for

determination is a question of fact: cf. Royal Australian

Nursing Federation Industrial Union of Workers, Perth v Martindale

Hospital Pty. Ltd. [1978] W.A. Indus. Gaz. 1251. The appellant's

position is stronger than the claimant in that case since the Award there did speak of appointment. There is a passage in the judgment of Wallace J. at page 1252 which is reminiscent of the Full Court judgment in the previous proceedings, although, as

we have earlier said, in that judgment of the Full Court the language of the Award derived special significance from the

There is one final matter. For the respondents, our. attention was drawn to Clause 51 of the State Salaried Officers' Award which provided for a Classification Board of Reference with respect to the South Australian Railways and reliance was also placed upon the following further passage in the judgment of the Full Court in the previous proceedings:

"It follows that we have not reached and do not express

any view whether the work she does and the conditions under which it 1s performed aresuch 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."

We propose to say no more than that we are satisfied that

Clause 51 can have no relevant operation in these proceedings

consistently with the respondents' submission that the appellant

is not covered by the subject Award or indeed any Award.

In summary we are of the opinion that to succeed in her

claim the appellant must establish that, 1n the relevant period,

she was "employed ... in" the "grade or and that she was "occupying" a position It is not necessarily an answer to this to show that she was formally appointed

occupation of Ticket Clerk' ain that classification. claim that she is unable

Accordingly, we are of opinion that the appeal should be

allowed and the matter sent back for the hearing to be

d eceding I certify that this ana tne 13 pr pages are a true Copy of the Reasons for Judgment of the Court. -