FEDERAL COURT OF AUSTRALIA

Major v State of South Australia [1999] FCA 1684

INDUSTRIAL LAW – Respondent refused to extend applicant’s period of special leave without pay – whether that refusal together with respondent’s threat of disciplinary action against the applicant constituted injury to the applicant in his employment within the meaning of s298K(1)(b) of the Workplace Relations Act 1996 (Cth) (“the Act”) or alteration of his position to his prejudice within the meaning of s298K(1)(c) of the Act – whether any such injury or alteration occurred in part for reasons prohibited by s298L(1)(a) and (m) of the Act.

Workplace Relations Act 1996 (Cth) s298K, s298L

Technical and Further Education Regulations 1998 regs16(3), 37, 68

Technical and Further Education Act (SA) 1975

Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia [No 3] (1998) 72 ALJR 873, applied

JOHN RIDGEWAY MAJOR -v- THE STATE OF SOUTH AUSTRALIA

S48 OF 1999

MARSHALL J

3 DECEMBER 1999

ADELAIDE

THE COURT ORDERS THAT:

1.                  The application be dismissed.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     This is an application for orders pursuant to s298U of the Workplace Relations Act 1996 (Cth) (“the Act”). The applicant, Mr Major, is the Secretary of the South Australian branch of the Australian Education Union (“the Union”). He is also an employee of the State of South Australia in its Department of Education, Training and Employment (“the Department”). He has not been physically engaged in his duties in the Department and its predecessors since January 1984 when he was granted special leave without pay to commence employment with a predecessor of the Union. Mr Major received successive periods of extension of such special leave until 28 February 1999.

2                     The proceeding before the Court arises as a result of the failure of the respondent to accede to Mr Major’s request to grant a further period of special leave without pay beyond 28 February 1999 until 31 December 2001 and its intention to proceed with disciplinary charges against him in the event that he does not resign from the Department.

Factual background

3                     On 29 January 1997 Mr Major was granted an extension of special leave without pay to enable him to complete his first full term of office as State Secretary of the Union. Prior to April 1997 requests for the grant of a period of special leave without pay or an extension of such leave for the purposes of employment in or holding office in the Union were generally considered favourably by the respondent.

4                     On 17 April 1997 the then Minister for Employment, Training and Further Education issued administrative instructions which included instructions relating to special leave without pay. Those instructions set out a “policy” to “be adhered to by delegates when considering leave without pay applications”. The instructions included the following:

“Note: Employees who wish to take leave without pay to fulfill a term of office with an Employee Association will need to seek approval from the Chief Executive prior to contesting an election for office.”

5                     On 18 December 1998 when Mr Major applied to further extend his period of special leave without pay, he had been elected unopposed (on 7 August 1998) to the office of Branch Secretary of the Union. He nominated for that office on a date which is unknown but which was within 14 days of 7 August 1998.

6                     Mr Major’s application to further extend his leave period beyond 31 January 1999 was dealt with in part on 29 January 1999 by a grant of an extension to 28 February 1999, whilst his request for an extension to 31 December 2001 was under consideration. On 20 February 1999 the Chief Executive of the Department, Mr Spring, accepted the recommendations of the Director, Human Resources, Mr Kelton, to reject Mr Major’s request for a further three year period of special leave without pay. Mr Spring decided to give Mr Major the option of returning to duty on 1 March 1999 or alternatively resigning from the Department.

7                     Mr Major remains on special leave without pay pending the final outcome of this proceeding. The proposed hearing of disciplinary charges against him has also been deferred pending the resolution of this matter.

The competing contentions

8                     Counsel for Mr Major, Mr Gray QC, submitted that by refusing to extend Mr Major’s period of special leave without pay, and threatening Mr Major with consequent disciplinary action, the respondent had injured Mr Major in his employment or altered his position to his prejudice within the terms of s298K(1)(b) and (c) of the Act. He further submitted that such injury and alteration occurred in part for the prohibited reasons referred to in s298L(1)(a) and (m) of the Act.

9                     Mr Gray contended that Mr Major had a right to have his application for an extension of special leave without pay considered in accordance with the Technical and Further Education Regulations 1998 (“the regulations”) made pursuant to the Technical and Further Education Act (SA) 1975.

10                  Regulation 16(3) of the regulations provides that:

“The Minister may, where reasonable cause exists, grant to an officer special leave without pay for such period and on such conditions as the Minister thinks fit.”

11                  Mr Gray submitted that the “policy” contained in the administrative instruction of April 1997 constituted an improper fetter on the discretion of the Minister “where reasonable cause exists” to grant the leave or an extension of it. He also contended that the “policy” purported to authorise conduct which was prohibited by reason of s298L(1)(a) of the Act; in other words conduct which fastened on the fact that an applicant for leave held union office. Mr Gray said that properly characterised the “policy” sought to control the proper exercise of a Ministerial discretion and dictated that the discretion be exercised in a discriminatory way.

12                  Mr Stanley, of counsel, appeared for the respondent. He submitted that the administrative instruction was authorised by the regulations and must be read together with reg 16(3) of the regulations. He referred to reg 37 which provides as follows:

“An officer must comply with these regulations and the administrative instructions of the Minister, as in force from time to time.”

13                  Mr Stanley also referred to reg 68 which provides that:

“(1)     The Minister may from time to time issue administrative instructions as contemplated by these regulations or as necessary or expedient in the exercise of the powers and functions conferred on the Minister by the Act or prescribed by these regulations.

(2)               An administrative instruction issued by the Minister under these regulations may be varied or revoked by further administrative instructions.”

14                  Mr Stanley submitted that Mr Major, as at the time of his application for extension of special leave without pay in December 1998, merely had a right to invoke a Ministerial discretion which was informed not only by reg 16(3) but also by the April 1997 administrative instruction. Consequently he contended that no injury occurred to Mr Major in his employment or alteration of his position to his prejudice as a result of the exercise of the discretion by the Minister’s delegate, Mr Spring, to refuse Mr Major’s request in accordance with the administrative instruction.

15                  Mr Gray did not contend that Mr Major had a right to have the discretion exercised in his favour. He submitted that Mr Major had a right to have his application considered and adjudged on the basis of whether reasonable cause existed for the grant of leave and not in accordance with a so called “policy”.

Consideration

16                  I accept that the concepts of injury in employment and alteration of an employee’s position to her or his prejudice are broad ones. See Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia [No 3] (1998) 72 ALJR 873 (at 876) where the first concept was said to cover “injury of any compensable kind” and the second to be “a broad additional category which covers not only legal injury but any adverse affection of, or deterioration in, the advantages enjoyed by the employee before the conduct in question.”

17                  I agree with Mr Stanley that when Mr Major applied for special leave he had a right to have that application considered in accordance with the regulations as conditioned by the April 1997 administrative instruction which was in turn authorised by the regulations. Nothing turns on the characterisation within the administrative instruction of the relevant matters contained therein as a “policy”.

18                  The rejection of Mr Major’s application for a further period of special leave without pay was considered in accordance with the administrative instruction of April 1997. That was all the respondent was required to do. It was open to the respondent in so doing to reject the application. The rejection of the application did not result in an injury of any compensable kind nor did it constitute an adverse affection of, or deterioration in an advantage enjoyed by Mr Major. Consequently I do not consider that the respondent engaged in any overt act which fell within s298K(1) of the Act. It is therefore unnecessary to determine whether reasons for the decision included prohibited reasons fitting within s298L(1)(a) or (m) of the Act. It also follows that the respondent’s intention to proceed with disciplinary action against Mr Major, in the event that he does not resign from his employment with the respondent and fails to return to work with the Department, does not constitute a breach of the material provisions of Part XA of the Act. Accordingly the appropriate order to make is that the application be dismissed.

Associate:

Dated:              3 December 1999