R v Staples; Ex parte Australian Telecommunications Commission

In my opinion it is clear that the Conciliation and Arbitration Commission ("the Commission") had no jurisdiction to deal with a dispute of the kind which Staples J. formally found to exist. The jurisdiction of the Commission to deal with a dispute in the present case must be found in the Telecommunications Act 1975 Cth, as amended ("the Act"). The jurisdiction is conferred by s. 67 (1) of the Act, and it depends on the existence of a dispute or the submission of a question as to an "industrial matter in respect of the Service", an expression which is defined by s. 66 (1) to mean "any matter in relation to the salaries, wages, rates of pay or other terms or conditions of service or employment of officers or employees". By s. 68 (1) it is provided: -

Subject to this Division, Division 1 of Part III of the Conciliation and Arbitration Act 1904-1974 extends to and in relation to the powers and functions of the Conciliation and Arbitration Commission under this Division, to and in relation to proceedings under this Division and to and in relation to awards made under this Division. If the Commission has jurisdiction under s. 67 (1), the provisions of Div. 1 of Pt III give it ancillary powers, but those provisions do not in themselves provide a source of jurisdiction to prevent or settle an industrial dispute, or to hear and determine an industrial question, of a kind other than those described in s. 67 (1). Further, the statement in s. 66 (2) that expressions used in Div. 8 of Pt V of the Act that are defined by s. 4 of the Conciliation and Arbitration Act 1904 Cth, as amended, have in that Division the same respective meanings as they have in that Act, is expressly made subject to sub-s. (1), so that the definition of "industrial matter in respect of the Service" which is contained in sub-s. (1) does not take an extended meaning from any definition contained in the Conciliation and Arbitration Act.

With all respect to those who take a different view, I cannot agree that the dispute as to the hours which Mr. Morris was required to work has been proved to have come to an end by the time that Mr. Morris wrote his letter to Staples J. on 13th November 1979. The material before Staples J. showed that by about the middle of September 1979 Telecom had solved what it had previously regarded as "the complex matter of extending a thirty-six and three quarters hour week to non-unionists", who were not bound by a productivity agreement whose existence was regarded as essential to the making of the award reducing the hours of work. The solution was to require the employees who were not members of the union to sign individual agreements to increase productivity so as to offset the hours lost through the reduction of working hours; an employee who signed was allowed to work the reduced hours. However, there is no evidence that Mr. Morris was ever asked to sign any such agreement or that he would have done so if requested. The dispute as to his working hours may have been susceptible to a solution, but it seems to me too much to say that had ceased to exist. However, it had become a dispute between a former employee and his former employer.

Miss Simpson submitted that Staples J. had power to amend his formal findings as to the nature of the dispute and if Staples J. had jurisdiction that submission is no doubt correct. In fact, of course, Staples J. had departed from his informal findings, and had excluded the finding that there was a dispute as to hours of employment. That variation is significant, having regard to the order which he proceeded to make, which was, in substance, an order that Telecom reinstate Mr. Morris in his former employment. Moreover, the only relief which Mr. Morris requested in his letter of 13th November 1979, which notified the existence of a dispute and requested the Commission to hear the case, was "reinstatement, restitution and reparation". The notification, the formal finding and the order all combine to show that the order was made in settlement of a dispute relating to the reinstatement of Mr. Morris in his former employment. Clearly such an order was beyond the jurisdiction of the Commission.

It is therefore unnecessary to consider the wider issues that were raised in argument. However, I should add that, as at present advised, I share the view suggested by Stephen, Mason and Wilson JJ. that the whole context of Div. 8 of Pt V of the Act requires the expression "industrial matter in respect of the Service" to be understood to refer to matters of an industrial character and not to individual disputes such as that between Mr. Morris and Telecom.

Since there can be little doubt that Mr. Morris genuinely believed that Telecom had discriminated against him because he was not a member of a union, it is gratifying to observe that Mr. Charles, who appeared for Telecom, informed us that the offers which it announced before Staples J. (which included an offer to accept Mr. Morris back in employment) remain open.

I would make absolute the order nisi for a writ of prohibition.

This is the return of an order nisi for writs of prohibition and certiorari in respect of a decision of Staples J. sitting as a Deputy President of the Commonwealth Conciliation and Arbitration Commission in the purported exercise of jurisdiction conferred by s. 67 of the Telecommunications Act 1975 ("the Act") in a dispute between one Michael Morris and the prosecutor Australian Telecommunications Commission ("Telecom").

For some years prior to January 1979, Michael Morris was employed by Telecom as a temporary telephonist on night duty at the main trunk exchange in Sydney. He was not a member of the Australian Telephone and Phonogram Officers Association ("the Association"). Towards the end of 1978 Telecom and the Association agreed, subject to undertakings by the latter with respect to increased productivity, to a reduction in the weekly hours of work from forty to thirty-six and three-quarters. The new arrangement was to come into operation from 1st January 1979. However, this reduction in hours applied only to members of the Association, with the consequence that in December 1978, Mr. Morris was notified that he would be required to continue to work forty hours each week.

Mr. Morris resented what he believed to be this discriminatory approach. He proceeded on and after 1st January 1979, to work only the reduced number of hours per week that was required of members of the Association. He was then transferred to day shift from 22nd January 1979, but following an altercation with Telecom management on that day he left the Exchange, and has not performed any duties for Telecom since that date.

By-law 156 of the Telecommunications (Staff) By-laws, made by Telecom pursuant to s. 111 of the Act, provides:

(1) The Commission may at any time terminate the services of an employee.

(2) Where an employee absents himself from duty without permission, and is so absent for a continuous period of not less than two weeks, he shall be deemed to have resigned from his employment with the Commission at the expiration of that period of two weeks.

By letters dated 21st February 1979, and 27th September 1979, Telecom directed Mr. Morris to resume work, but on each occasion he failed to do so. The September letter specifically informed him that if he failed to report for duty on 8th October 1979, he would be deemed to have resigned with effect from 22nd October.

On 13th November 1979, Mr. Morris wrote a letter to Staples J. purporting to give notice "pursuant to s. 25" of the Conciliation and Arbitration Act of the existence of an industrial dispute between himself and Telecom. There may be a question as to whether s. 25 has any application in respect of disputes which the Commission has jurisdiction to entertain by virtue of s. 67 of the Act, but, in any event, we observe that this letter of Mr. Morris cannot serve any purpose relevant to s. 25 because that section refers only to the notification of a dispute by an organization or an employer.

Nevertheless, Staples J. decided to act on the letter, and the matter came on for hearing in the Commission in January 1980, and again in March. On 31st March 1980, he made a finding of a dispute in the following terms:

Whereas Michael Morris alleges that on or about 27 October 1978 the Australian Telecommunications Commission discriminated against the said Michael Morris for reasons other than necessary to the job and dealt with him unequally in that he was required to work a standard working week of forty hours in contrast with a requirement of others in similar circumstances of only thirty-six and three-quarter hours work per week, and the said Michael Morris is not or may not be any longer an employee of the Australian Telecommunications Commission, i find that a dispute exists between Michael Morris and the Australian Telecommunications Commission upon the question whether the employer ought in all circumstances to reinstate Michael Morris in employment as nearly as practicable upon terms and conditions of service identical with those obtaining in the work circumstances of the said Michael Morris prior to the inception of the dispute but so that the length of the ordinary working week of the claimant shall be thirty-six and three-quarter hours and no more. On 1st April 1980, Staples J. made the order which is the subject of these proceedings. In substance, it was to the effect that within seven days Telecom reinstate Mr. Morris in his former employment on the night shift of the Sydney Trunk Exchange, and thereafter deal with him equally and without discrimination in the matter of the length of his ordinary standard working week.

Although a number of grounds were set out in the order nisi, Mr. Charles, counsel for Telecom, based his case for the writs on two grounds either of which would be sufficient to deny jurisdiction to the Commission. The first was that there was no industrial dispute or industrial matter within the meaning of the Act because Mr. Morris was an individual acting in his own cause. It was said that the Commission has no jurisdiction to settle disputes that arise between a single employee and an employer. The second ground was that in any event, Mr. Morris was no longer an employee, with the consequence that any dispute fell outside an industrial dispute or industrial matter as defined.

The Act establishes the Australian Telecommunications Commission Service consisting of persons appointed as officers, or employed as temporary employees in accordance with the Act (s. 38). Division 8 of Pt V of the Act outlines the powers and functions of the Commonwealth Conciliation and Arbitration Commission in respect of the Service. Section 67 provides, so far as is relevant:

(1) The Conciliation and Arbitration Commission is empowered -

(a) to prevent or settle, by conciliation or arbitration, industrial disputes in respect of the Service; and

(b) to hear and determine industrial questions in respect of the Service submitted to it

The key phrases in this section are defined in s. 66, as follows:

In this Division, unless the contrary intention appears -

"industrial dispute in respect of the Service" means a dispute (including a threatened, impending or probable dispute) as to an industrial matter in respect of the Service, and includes -

(a) a part of an industrial dispute in respect of the Service;

(b) an industrial dispute in respect of the Service so far as it relates to a matter in dispute; or

(c) a question arising in relation to an industrial dispute in respect of the Service;

"industrial matter in respect of the Service" means any matter in relation to the salaries, wages, rates of pay or other terms or conditions of service or employment of officers or employees;

"industrial question in respect of the Service" means -

(a) an industrial dispute in respect of the Service; and

(b) an industrial matter in respect of the Service;

(2) Subject to sub-section (1), expressions used in this Division that are defined by section 4 of the Conciliation and Arbitration Act 1904-1974 have in this Division the same respective meanings as they have in that Act.

(3) Officers and employees shall be deemed to be employees in an industry within the meaning of the Conciliation and Arbitration Act 1904-1974.

The relationship between the Act and the Conciliation and Arbitration Act is further explicated in s. 68:

(1) Subject to this Division, Division 1 of Part III of the Conciliation and Arbitration Act 1904-1974 extends to and in relation to the powers and functions of the Conciliation and Arbitration Commission under this Division, to and in relation to proceedings under this Division and to and in relation to awards made under this Division.

(2) In the application of Division 1 of Part III of the Conciliation and Arbitration Act 1904-1974 in accordance with sub-section (1) of this section -

(a) references to industrial disputes shall be read as references to industrial questions in respect of the Service;

(b) references to the parties to an industrial dispute shall be read, in relation to the powers of the Commission under paragraph 67 (1) (b) of this Act, as references to employees to whose employment the industrial disputes or industrial matters relate, the Australian Telecommunications Commission and organizations of which any such employees are members; and

(c) references to arbitration shall be read as including references to the hearing and determination of industrial matters in respect of the Service.

We turn now to a consideration of the first argument upon which Telecom relies. It poses the question whether Mr. Morris can raise an industrial question, being either an industrial dispute or an industrial matter, in respect of the Service, based on his personal confrontation with Telecom. Mr. Charles argued that the adjective "industrial" necessarily imported into the notion of a dispute or matter the requirement of an organization or group of employees or employers. It demanded a collective character, such as would naturally be described as affecting "the industry" in a way that a personal dispute between an individual employee and his employer would not. He referred to several cases in this Court where Justices have elaborated on the concept of an industrial dispute, and there are many dicta that appear to provide strong support for his contention. The following statement appears in the judgment of Sir John Latham in Metal Trades Employers Association v. Amalgamated Engineering Union [1] :

Industrial disputes are essentially group contests - there is always an industrial group on at least one side. A claim of an individual employee against his employer is not in itself an industrial dispute. If it professes to be based upon an existing right (as, for example, a contract of employment, or an award (see Mallinson v. Scottish Australian Investment Co. Ltd.) [2] ) such a claim may give rise to litigation in the civil Courts - but it is not an industrial dispute. If a claim is made by an individual employee for some improvement in his pay or conditions of employment, the refusal of the claim by his employer may result in a personal dispute, but this in itself would not be an industrial dispute. See also the judgments of McTiernan J. [3] (quoting from the judgments of Isaacs J. and Starke J. in the Burwood Cinema Case [4] ; Jumbunna Coalmine N.L. v. Victorian Coal Miners' Association [5] per Griffith C.J., O'Connor J. [6] ; Reg. v. Portus; Ex parte McNeil [7] ; and Reg. v. Coldham; Ex parte Fitzsimons [8] . 1. (1935) 54 C.L.R. 387, at pp. 403-404. 2. (1920) 28 C.L.R. 66. 3. (1935) 54 C.L.R. 42 387, at pp. 441-442. 4. (1925) 35 C.L.R. 528, at pp. 535-536, 548-549. 5. (1908) 6 C.L.R. 309, at p. 332. 6. (1908) 6 C.L.R., at pp. 351, 353. 7. (1961) 105 C.L.R. 537, at p. 546. 8. (1976) 137 C.L.R. 153, at pp. 171-172.

The rationale for this concept of an industrial dispute may be reflected in the words of Isaacs J. in Jumbunna [9] :

The Constitution and the Act alike look to a dispute that dislocates or may dislocate a particular industry - the extent of dislocation being immaterial; but the governing idea is primarily the preservation of peace in the industry generally and its uninterrupted progress, and not the settlement of individual quarrels as such. (cf. Dixon J. in Metal Trades [10] ) 1. (1908) 6 C.L.R., at p. 373. 2. (1935) 54 C.L.R., at p. 427.

Miss Simpson, appearing as counsel for Mr. Morris, in the course of a concise and closely reasoned argument, observed that the discussion contained in the judgments in these cases was set in the constitutional context provided by s. 51 (xxxv.) of the Constitution, and that consequently they were concerned both with the requirement of "interstateness" and the necessity to give the grant of power as broad a meaning as the words would allow. She argued that they were not intended to be exhaustive of the circumstances in which an industrial dispute could arise, and that with reference to the present case there was nothing in the interpretation provisions of either the Act or the Conciliation and Arbitration Act to exclude the individual disputant. Some support for the submission is to be gleaned from a passage in the judgment of Griffith C.J. in R. v. Commonwealth Court of Conciliation and Arbitration; Ex parte Broken Hill Proprietary Co. Ltd. [11] where the Chief Justice prefaced a quotation from his judgment, and from that of O'Connor J., in Jumbunna with the statement that he did not intend, nor did he think that O'Connor J. intended, the words used to be an exhaustive definition of all possible industrial disputes.

But, with respect to the arguments of both counsel, it seems to us to be unhelpful to ask the question in the blunt way in which it has been presented. So to ask it inevitably challenges the mind to conceive of the unusual case in which a dispute evincing an industrial character might be brought to the Commission by an individual disputant. It is not immediately apparent, for example, why an individual employee may not raise with the management a question of safety procedures attending the performance of the work and find himself in an industrial dispute with his employer on that question in the event of an unsatisfactory response. A dispute about safety procedures may threaten repercussions within the industry. The letter from Mr. Morris to Staples J., by which his dispute was brought to the notice of the Commission, bore the stamp of novelty, and that not only because it contained the well known prayer for freedom which appears in Rabindranath Tagore's Gitanjali. It was novel both in its purpose and its achievement; at least it appears to have been so, as the attention of the Court has not been drawn to any other case in which an individual employee has successfully invoked the jurisdiction of the Commission in relation to a dispute between him and his employer. Yet novelty cannot of itself be a ground for placing the matter beyond jurisdiction. In our opinion, the proper course is to focus in all cases on the particular dispute or matter and to determine whether that dispute or matter falls within the provisions conferring jurisdiction on the Commission. The existence of an industrial dispute is a question of fact, and will depend on the circumstances of the particular case. If it appears that a lone employee cannot invoke the jurisdiction of the Commission then we suspect that the reason is that the limited nature of the dispute or matter denies to it an industrial character.

It is therefore necessary to examine the precise nature of the dispute in the present case. We have already set out the finding of Staples J. in that regard. It was to the effect that a dispute existed upon the question whether Telecom ought to reinstate Mr. Morris in his former employment but subject to a thirty-six and three-quarter hour week. Is this an "industrial dispute" or "industrial question" in respect of the Service within the meaning of s. 67 (1)? It will be so only if it is a dispute as to "any matter in relation to the salaries, wages, rates of pay or other terms or conditions of service or employment of employees" (s. 66 (1)). In our opinion, the definition of industrial matter in s. 66 is exhaustive and there is no room for importing the expansive definition of the term from s. 4 of the Conciliation and Arbitration Act, whether or not the wider scope of that definition would have made any difference in the present case. Examining the matter in this way, we are unable to resist the conclusion that the Act did not give the Commission jurisdiction to deal with the dispute that Staples J. found to exist. That finding followed a conclusion by His Honour, which in our opinion was amply justified, that Mr. Morris' employment had come to an end automatically by operation of by-law 156 in consequence of his having absented himself from work without permission. In our opinion the question of his reinstatement cannot in these circumstances be a matter in relation to "the terms or conditions of service or employment of employees".

Miss Simpson presented argument in the alternative on this question. In the first place, she argued that a dispute about reinstatement was within the jurisdiction of the Commission. Alternatively, she argued that His Honour's finding was erroneous, and that in such a case it did not determine the question of jurisdiction. She said that s. 24 of the Conciliation and Arbitration Act, which provides for the Commission to make a finding, inter alia, as to whether there is an industrial dispute was only a machinery section, and in any event the Commission was empowered to vary such a finding. The real dispute, in her submission, was over the hours of work which Mr. Morris should be required to work. Even if one were able to accept each step of this alternative argument, there remains what to our minds is the insuperable difficulty that there was no longer any such dispute in existence at the time when Mr. Morris wrote his letter to Staples J. in November 1979. The evidence was that in September 1979, at the time when Mr. Morris was given a final opportunity to resume work and thereby avoid the consequences of a deemed resignation pursuant to by-law 156, Telecom was treating all non-members of the Association in precisely the same way as it treated members, so far as hours of work were concerned. The position then was that had Mr. Morris chosen to work when given the opportunity he would have been required to work only thirty-six and three-quarter hours per week.

We therefore conclude that on neither of Miss Simpson's arguments was there any foundation for the assumption of jurisdiction by the Commission. We would also add, with reference to the earlier discussion of the possibility of an industrial dispute arising between a single employee and his employer, that in the circumstances of this case even if Mr. Morris were able to bring the subject-matter of his dispute within the literal terms of the definition of industrial matter in s. 66, we would have grave difficulty in drawing a conclusion in favour of jurisdiction. Notwithstanding that the definition does not include the word "industrial", and notwithstanding the absence of any constitutional considerations occasioned by reference in other cases to s. 51 (xxxv.) of the Constitution, we incline to the view that the whole context of Div. 8 requires an "industry" character to be given to the concept. It may be true that Mr. Morris in January 1979 had a dispute with his employer over the number of hours that he was required to work, and that such a dispute might have satisfied the literal words of the definition of "industrial matter" (provided that the word "employees" were read in the singular, and subject to a decision that the application of s. 23 of the Acts Interpretation Act was not excluded by the context), nevertheless there is no suggestion in the materials before the Court that the dispute had any implication or likely repercussion or dislocation for the industry as such so as to give the necessary character to what would otherwise be no more than a personal dispute.

It remains to refer to the second ground on which Telecom sought the issue of the prerogative writs in this case, namely, the consideration that Mr. Morris' employment had been terminated by his deemed resignation prior to the matter being taken up by the Commission, and that there was therefore no ground on which the Commission could exercise jurisdiction. Having regard to the conclusion to which we have come, it is unnecessary to deal with this contention.

It is noted that subsequent to the grant of the order nisi in these proceedings Telecom issued a writ against Staples J. and Mr. Morris seeking a declaration and other relief to cover the situation in the event that the Court might find some procedural difficulty in relation to the issue of the prerogative writs. In our opinion, having regard to the conclusion to which we have come, the remedy of prohibition is clearly appropriate and sufficient to dispose of the matter: cf. R. v. Hibble; Ex parte Broken Hill Proprietary Co. Ltd. [12] ; R. v. Hickman; Ex parte Fox and Clinton [13] . It is therefore unnecessary to take up any questions raised by the claim indorsed on the writ of summons or the matter of certiorari.

1. (1920) 28 C.L.R. 456, at p. 463. 2. (1945) 70 C.L.R. 598.

We would make absolute the order nisi for prohibition.

I have had the advantage of reading the joint reasons for judgment of Stephen, Mason and Wilson JJ. For the reasons which they give I agree that the order nisi for a writ of prohibition should be made absolute.