R v Booth; Administrative & Clerical Officers' Association, Ex p

May 2 Gibbs, Stephen, Mason, Jacobs and Murphy JJ.

This Court has made absolute an order nisi granted by Jacobs J. so far as it relates to mandamus and certiorari and has discharged the order so far as it relates to prohibition. It is now necessary to give our reasons for taking that course.

On 16th January 1978 the Minister for Employment and Industrial Relations and the Public Service Board respectively gave notices, for the purposes of s. 12C of the Public Service Arbitration Act 1920 Cth, as amended ("the Act"), informing the Public Service Arbitrator that an industrial situation existed involving the Public Service Board and the Minister on the one hand and members of the Administrative and Clerical Officers' Association ("A.C.O.A.") on the other, and applying to the Arbitrator to exercise his powers under s. 12D of the Act. The particulars given in the notices included the following:

The State Branches of the Association in New South Wales and Victoria have banned the handling by their members of applications from applicants outside the Service for advertised vacancies of Employment Officer (Class 4) in the Department of Employment and Industrial Relations, until a right of appeal against outside appointees is available. The decision to advertise vacancies outside as well as inside the Service followed the conclusion by the Board and the Department that this course would be necessary for the achievement of the new goals and the rapidly expanded staffing needs of the Commonwealth Employment Service consequential on Government decisions. Action to deal with this notification as a matter of urgency is sought because members of the public are being greatly inconvenienced and the Department's efforts to alleviate severe work pressures on Commonwealth Employment Service staff in New South Wales and Victoria are being jeopardised The matter was referred to a Deputy Public Service Arbitrator who called a conference between the parties on 18th January 1978. At the conference the Australian Public Service Association (Fourth Division Officers) ("A.P.S.A.") sought and was granted leave to intervene in the proceedings. The conference continued on 19th January and was then adjourned. On 23rd January notices for the purposes of s. 12C of the Act were given by the Minister and the Public Service Board informing the Arbitrator that an industrial situation existed involving the Minister and the Board on the one hand and members of the A.P.S.A. on the other. On 24th and 25th January the matters commenced by both sets of notices were heard together by the Deputy Arbitrator.

Throughout the proceedings the Deputy Arbitrator refused to deal with the question whether or not officers of the Australian Public Service should have a right of appeal against the appointment to positions in the service of persons who were not at the time of their appointment officers of the service. It is convenient to refer to such persons as "outsiders". On 25th January 1978 the Arbitrator made the following statement:

It has been put forward by the A.C.O.A. supported by the A.P.S.A. that I do have jurisdiction to arbitrate on the matters in issue between the parties.

I have considered all aspects of the question of jurisdiction and it is my view that this tribunal does not have the jurisdiction to arbitrate on those matters which are at the crux of this dispute. I am therefore faced with a confrontation between the two unions on the one side and the Public Service Board and the Department on the other. As I have said, the members of both organizations are refusing to carry out their lawful instructions. That action is supported and endorsed by the executives of both organizations.

Responsibilities are placed upon this tribunal by s. 12D of the Act. They are responsibilities which I cannot escape. As I have said, I am faced with a situation where members of the organizations are refusing to carry out their lawful duty. They have ignored my recommendations which were given last Thursday

In my view, I cannot stand aside from the responsibilities placed upon me. Accordingly I propose to make orders directed against both organizations and their members who are involved in this illegal action, directing both the organizations and their members to lift all bans, restrictions and limitations and prohibiting them from engaging in conduct that would constitute or bring about the industrial situation which has been referred to in both the notifications.

Finally it appears to me necessary in this case that the orders should also include a provision which should permit the Chief Officer to stand down those employees who refuse to carry out their lawful instructions. I do that because my pleas to the organizations and their members have been ignored, and because every possible opportunity has been taken within the jurisdiction which I have to try and prevent this current situation arising where this distasteful duty of making orders against these two organizations and their members has become a necessity.

However, as I say, I think there is no other alternative available to me.

He proceeded to make orders directing the A.C.O.A. and the A.P.S.A. and their members who were employed in offices of the Commonwealth Employment Service in the Department of Employment and Industrial Relations in New South Wales and Victoria to cease the application of bans, limitations or restrictions on work involved in the handling of applications from applicants outside the service for advertised vacancies of Employment Officer (Class 4). He further ordered, inter alia, in the following terms: And it is hereby further ordered that as from 8 a.m. on Thursday, 26th January 1978, the Chief Officer as defined in the Public Service Act 1922 or an officer authorized by the Chief Officer may stand down from duty any officer or employee employed in the offices of the Commonwealth Employment Service of the Department of Employment and Industrial Relations in the States of New South Wales and Victoria, who refuses to perform the whole or any part of his duties and may deduct payment for any day or portion thereof during which such officer or employee is stood down.

A period of standdown under the preceding paragraph hereof shall be regarded as leave of absence without pay and shall not count as service for any purpose under a determination of an Arbitrator or the Public Service Act.

The first question for decision is whether the Deputy Arbitrator had jurisdiction to consider the merits of the dispute, and power, if he thought it appropriate, to make an order granting to the officers concerned a right of appeal against the appointment of outsiders to positions in the service. This depends upon the proper construction of a number of provisions of the Act.

It was not disputed, and could not be disputed in the light of the definition of industrial situation in s. 3 (1) of the Act, that the action of the branches of the two Associations in banning the performance by their members of certain of their duties gave rise to an industrial situation. The notices were validly given under s. 12C. The duty of the Arbitrator when such a notice is given is set out in s. 12D as follows:

(1) Where the Arbitrator has been informed under the last preceding section of the existence or likely occurrence of an industrial situation, the Arbitrator or a Deputy Arbitrator -

(b) may, subject to the next succeeding sub-section, after hearing such evidence (if any) as he thinks fit, make such orders as he thinks necessary or desirable for putting an end to, or preventing the occurrence of, the situation or preventing the occurrence of further industrial situations or such other orders as he thinks necessary or desirable by reason of the existence or likely occurrence of the situation.

(2) The orders that may be made under the last preceding sub-section are -

(a) orders relating to conditions of employment of officers or employees (whether members of an organization or not) who are concerned in or affected by, or are likely to be concerned in or affected by, the industrial situation; or

(b) orders directing the cessation of conduct that constitutes, or encourages the continuation of, the industrial situation or prohibiting the engaging in conduct that would constitute or bring about the industrial situation.

The powers given by this section are subject to a qualification imposed by s. 22. References in that section to the Arbitrator are to be read as including references to a Deputy Arbitrator (s. 20A). Section 22 provides, inter alia, as follows:

(1) The Arbitrator may make a determination which is not in accord with an award or order of the Commonwealth Court of Conciliation and Arbitration or of the Commission, but, except as provided by this section, is not empowered to make a determination which is not in accord with a law of the Commonwealth.

(2) The Arbitrator may, where he thinks it proper to do so, make a determination that, in his opinion, is not, or may not be, in accord with a law of the Commonwealth relating to conditions of employment of employees in the Public Service, not being -

(a) the Compensation (Australian Government Employees) Act 1971-1973, the Commonwealth Employees' Furlough Act 1943-1953 or the Superannuation Act 1922-1956; or

(b) any other prescribed Act or the prescribed provisions of any other Act.

Sub-sections 3, 4, 5 and 6 provide that a determination made under sub-s. 2 shall be laid before each House of the Parliament, and that either House of Parliament may disapprove the determination. Sub-section 7 then provides: Subject to the last two preceding sub-sections and to the Constitution, a determination or part of a determination that has come into operation has full force and effect, notwithstanding the provisions of any law of the Commonwealth.

Since the very wide words of s. 12D (1) (b) are subject to sub-s. 2, it is clear that the question whether the Deputy Arbitrator had power to make an order giving officers of the Public Service a right of appeal against the appointment of outsiders to positions in the service depends on whether such an order would be one "relating to conditions of employment" of the officers concerned. The expression "conditions of employment" is defined in s. 3 (1) of the Act to mean "salaries, wages, rates of pay or other terms or conditions of service or employment". The expression as so defined is obviously intended to have a wide meaning. In Australian Tramway Employes Association v. Prahran and Malvern Tramway Trust [1] , in a passage cited by Dixon C.J. in Reg. v. Findlay; Ex parte Commonwealth Steamship Owners' Association [2] , Isaacs and Rich JJ. said:

The "terms" of employment are the stipulations agreed to or otherwise existing on both sides upon which the service is performed. The "conditions" of employment include all the elements that constitute the necessary requisites, attributes, qualifications, environment or other circumstances affecting the employment. No doubt this extensive meaning should be attributed to the word "conditions" in the definition. The "other terms or conditions of service or employment" cannot be limited to those which are ejusdem generis with salaries, wages and rates of pay. A condition relating to seniority would come within the definition: cf. Commissioner for Railways (N.S.W.) v. McCulloch [3] . The fact that an employee has, or has not, a right of appeal against the appointment of an outsider to a position the filling of which would affect his seniority is a circumstance affecting his employment. It is true of employment generally, including employment in the Public Service, that importance is attached by employees to the maintenance of their positions of seniority, with its influence on their prospects of promotion, and a natural enough way of preserving the existing seniority of an employee is to give him a right of appeal against the making of an appointment which would in a practical sense affect his seniority or his prospects. Under the Public Service Act 1922 Cth, as amended ("the Public Service Act"), an officer is given a right of appeal against the promotion of another officer to a vacant office and seniority is one matter which may be considered: see s. 50 (6). A right of appeal against the appointment of an outsider to a vacant office, whether granted by statute, award or agreement, might be made a term of the employment of an employee who might be affected by the appointment, and if granted would at least be a condition of the employment of such employee. 1. (1913) 17 C.L.R. 680, at p. 693. 2. (1953) 90 C.L.R. 621, at p. 630. 3. (1946) 72 C.L.R. 141.

On behalf of the respondents reference was made to a number of cases in which it has been held that not every demand made by employees on their employer gives rise to an industrial dispute. As Walsh J. said in Reg. v. Portus; Ex parte Australia & New Zealand Banking Group Ltd. [4] , it is necessary to have regard to the character of the demand, and an industrial dispute will only arise if the employees demand a benefit or privilege of a kind which has a relevant connexion with the relationship of employer and employee. However there is nothing "remote or tenuous" (to use the words of Dixon C.J. in Reg. v. Findlay; Ex parte Commonwealth Steamship Owners' Association [5] ) about the connexion between an employee's seniority and prospects of promotion, and their protection by a right of appeal, on the one hand, and his employment on the other. The respondents placed much emphasis on the fact that what was sought was a mere right of appeal, and that the Deputy Arbitrator was not asked to lay down the criteria by which the decision of the appeal should be governed. This, it was said, meant that there was no direct connexion between the right of appeal and the employment. It is true that if a right of appeal is granted, and no criteria are established by which the appeal is to be determined, the discretion of the body determining the appeal is so much the wider, but it does not follow that the connexion between the right of appeal and the employment is any the less direct. In any case it should be remembered that it would be no objection to the jurisdiction of the Deputy Arbitrator if it were beyond power to make an order in the precise terms suggested in the notice: see Reg. v. Holmes; Ex parte Altona Petrochemical Co. Ltd. [6] .

1. (1972) 127 C.L.R. 353, at p. 365. 2. (1953) 90 C.L.R., at p. 631. 3. (1972) 126 C.L.R. 529, at pp. 533, 559-560, 562-563.

It was also urged by the respondents that the demand for a right of appeal related to the management or administration of the Public Service, rather than to the conditions of employment of the officers. However, it is quite impossible to say that an order providing the right of appeal which is now sought would be one dealing with management or managerial policy as such. An order of that kind would deal directly with the conditions of employment of the officers concerned.

It is desirable to mention two cases upon which particular reliance was placed by the respondents. In Reg. v. The Members of the Railways Appeals Board and The Commissioner for Railways (N.S.W.); Ex parte Davis [7] , a provision of an award which, inter alia, deprived officers of a right of appeal if passed over for promotion was held to be invalid. The reason given by the majority of the Court was that the dispute which was settled by the making of the award was not of sufficient ambit to authorize the inclusion of the provision. It is true that McTiernan J. and Taylor J. expressed doubts whether a dispute concerning the principles upon which the promotion of officers should be determined can be said to be a dispute as to an industrial matter within the meaning of the Conciliation and Arbitration Act 1904 Cth, as amended [8] . However those doubts appear to have been founded upon the form of the definition of "industrial matter" in that Act. In Reg. v. Portus; Ex parte City of Perth [9] it was held that the failure to accept the demands in a log of claims that employees whose employment was terminated or who were dismissed should have a right of appeal to the Conciliation and Arbitration Commission, which should have power to determine whether the termination or dismissal was harsh, unjust or unreasonable, did not give rise to an industrial dispute. One ground for this decision was that the demand related to the powers and functions of the Commission, and not to the relations of employers and employees; such a demand was beyond the capacity of the employers to grant, since the powers and functions of the Commission were regulated by statute [10] . The case is distinguishable from the present, where the demand does not seek the conferral of new powers and jurisdiction on a statutory body. It is unnecessary to consider whether a demand of that kind might be granted by an arbitrator, having regard to the provisions of ss. 12D and 22.

1. (1957) 96 C.L.R. 429. 2. (1957) 96 C.L.R., at pp. 451, 453. 3. (1973) 129 C.L.R. 312. 4. (1973) 129 C.L.R., at pp. 315, 319, 325, 328.

It was further submitted by the respondents that an order granting a right of appeal would not be "in accord with" the provisions of Div. 4 of Pt III of the Public Service Act, which confides to the Public Service Board the power to appoint officers of (inter alia) the Fourth Division, and is therefore placed beyond the powers of the Deputy Arbitrator by s. 22 (1). An order made under s. 12D (1) is a determination within the meaning of s. 22: see s. 3 (1) ("determination"). An order of the kind suggested would not deprive the Board of its power to appoint officers of the Fourth Division. The fact that an appeal may be brought against an appointment shows that the power to appoint is vested in some authority other than that which is given power to hear the appeal. The grant of a right of appeal would affect the exercise of the power to make an appointment, to the extent that it would render it reviewable, but would not take away the power. An order of that kind would not be out of "accord" with the Public Service Act. It would not directly conflict with any provision of the Public Service Act, and would do no more than indirectly affect the operation of that Act. In any case the Public Service Act is "a law relating to conditions of employment of employees in the Public Service". It is apparent that Pt III of the Public Service Act contains many provisions relating to the conditions of employment of such employees. It therefore comes within the exception created by s. 22 (2).

For these reasons the Deputy Arbitrator had power to make an order granting to the officers concerned in or affected by or likely to be concerned in or affected by the industrial situation a right of appeal against the appointment of outsiders to positions in the service, provided that he thought such an order "necessary or desirable for putting an end to, or preventing the occurrence of, the situation or preventing the occurrence of further industrial situations" or "necessary or desirable by reason of the existence of the situation". However he misconstrued the provisions of the Act and misconceived the extent of his powers. He wrongly failed to consider the merits of the dispute which had given rise to the industrial situation. Once this conclusion was reached it was clear that mandamus should issue to command him to exercise the jurisdiction which he wrongly declined. Moreover the orders that he in fact made were made only because of the erroneous interpretation which he had placed on s. 12D and his erroneous assumption that he lacked jurisdiction to determine the merits of the dispute. His statement, which is quoted above, makes this plain. For that reason those orders could not be allowed to stand. Certiorari was issued in respect of them.

The respondents placed no reliance on the provisions of s. 20 of the Act which provides (inter alia) that no determination of a Deputy Arbitrator made under the Act shall be challenged or called in question, or be subject to prohibition or mandamus, in any court on any account whatever. It is therefore unnecessary to discuss the many cases in which the effect of privative sections such as s. 20 has been considered, either in relation to the position arising under the Constitution (see, for example, R. v. Hickman; Ex parte Fox and Clinton [11] ; R. v. Murray; Ex parte Proctor [12] and R. v. Metal Trades Employers' Association; Ex parte Amalgamated Engineering Union, Australian Section [13] ) or in a unitary system where no constitutional question arises (see, for example, Anisminic Ltd. v. Foreign Compensation Commission [14] ).

1. (1945) 70 C.L.R. 598. 2. (1949) 77 C.L.R. 387. 3. (1951) 82 C.L.R. 208. 4. [1969] 2 A.C. 147.

On behalf of the prosecutors, it was submitted that the operation of the order which gave a power to stand down from duty any officer or employee who refused to perform his duties was in any case beyond the power of the Deputy Arbitrator. Again the question is whether the order related to the conditions of employment of the officers and employees concerned. Of course it may be, and, subject to exceptions, will perhaps ordinarily be, a condition of employment that an employee who does no work is not entitled to any wages. The respondents submitted that the Public Service Board had, without any order of the Deputy Arbitrator, power to stand down officers who refused to work. Whether that is so does not arise for decision in the present case. If the power already existed it could be exercised whether or not the order of the Deputy Arbitrator was valid. If the power did not already exist it might be conferred by the Deputy Arbitrator if it were right to say that the order conferring it was one relating to the conditions of employment of the officers or employees concerned in or affected by or likely to be concerned in or affected by the industrial situation. There is obviously a close connexion between the employment of an officer, and the power of his employer to stand him down. There would seem in principle no reason why in an appropriate case the Deputy Arbitrator could not order that it should be a condition of employment that employees be stood down in certain circumstances. In the present case the order actually made appears intended to be a provision of an enforcement or disciplinary nature rather than an order relating to conditions of employment, and it is objected that it is in any case too wide in its terms to be a proper exercise of the power. It is unnecessary to consider these particular objections, or whether the case would have been a proper one for prohibition if the main challenge made by the prosecutors had failed, because for reasons already given the order giving power to stand down was in any case quashed by certiorari.