Opinion Number. 1797

Subject

EMPLOYMENTPREFERENCE TO EX-SERVICEMEN SEEKING EMPLOYMENT: WHETHER COMMONWEALTH EMPLOYMENT SERVICE SHOULD PROVIDE ADVICE TO PROSPECTIVE EMPLOYERS ON WHETHER PERSONS REGISTERED FOR EMPLOYMENT ARE ENTITLED TO PREFERENCE: MEANING OF ‘PERSON ENTITLED TO PREFERENCE’: WHETHER PERSONS SEEKING TO BE REGISTERED MAY BE REQUIRED TO PROVIDE EVIDENCE OF ENTITLEMENT TO PREFERENCE: DUTY OF EMPLOYERS TO GIVE PREFERENCE TO EX-SERVICEMEN: WHETHER s 12 OF RETURNED SOLDIERS AND SAILORS EMPLOYMENT ACT 1919 (NSW) IS INCONSISTENT WITH RE-ESTABLISHMENT AND EMPLOYMENT ACT 1945

Key Legislation

RE-ESTABLISHMENT AND EMPLOYMENT ACT 1945 ss 24, 25, 27, 48, Pt II Div 2: RETURNED SOLDIERS AND SAILORS EMPLOYMENT ACT 1919 (NSW) s 12

Date
Client
The Secretary, Department of Labour and National Service

I refer to your memorandum No. 47/27B/679 of the 5th March, 1947, requesting advice on certain questions concerning the effect of the preference provisions of the Re-establishment and Employment Act 1945 on the operations of the Commonwealth Employment Service.

The first question relates to the function of the Employment Service to refer for interviews, with a view to engagement by prospective employers, persons registered for employment with the Employment Service. Advice is desired as to whether it is incumbent on the Employment Service to refer only such persons as are entitled to preference or to give an indication to the employer as to whether any person so referred is, or is not, a person who might be entitled to preference.

It appears that it is the practice of the Employment Service, on an application made by a prospective employer, to select from the persons on its register any person, or persons, who appear to have the qualifications and experience stipulated by the employer for the vacant position to be filled and refer that person, or persons, to the employer for interview, no information being furnished as to whether the person, or persons, so referred is, or are, ‘entitled to preference’ within the meaning of the Act.

There is nothing in the Act which expressly makes it incumbent on the Employment Service to pursue either of the courses mentioned in the second paragraph of this memorandum.

I think it can be confidently stated also that there is nothing in the Act which impliedly provides that it is the function of the Employment Service to refer to the employer only such persons on the register as are entitled to preference. In my opinion, consideration of the relevant provisions of the Act leads to the contrary view.

Section 48 of the Act which prescribes the functions of the Commonwealth Employment Service provides that those functions shall be, in general, to provide services and facilities in relation to employment for the benefit of persons seeking to become employed, to change employment or to engage labour, to provide facilities to assist in bringing about and maintaining a high and stable level of employment throughout the Commonwealth and, in particular, but without limiting the generality of the foregoing—

(a)  to provide facilities to assist in the re-employment of discharged members of the Forces, including facilities relating to the operation of the preceding Divisions of this Part;

(b)  to provide facilities to assist in the re-establishment of civilians who have been engaged in war work; …

(f)  to provide means whereby any person in receipt of unemployment benefit under the Unemployment and Sickness Benefits Act 1944, or of a re-employment allowance under Division 2 of Part VI of this Act, may obtain employment; and

(g)  to provide such advice and information services, and such other facilities in relation to employment, or to matters connected with employment, as the Minister determines.

The obligation to give preference, in the engagement of any person for employment, to a ‘person entitled to preference’ within the meaning of the Act is imposed, by section 27 of the Act, upon the employer. ‘Employer’ is defined by section 25 as including an intending employer. The obligation imposed is an obligation to give that preference unless there is reasonable and substantial cause for not doing so.

The Employment Service is charged by section 48 with the functions of providing services and facilities in relation to the employment of both persons who are and persons who are not entitled to preference.

In my view, the intention of the Act clearly is that selection from amongst the persons available for employment of the person to be employed is a matter to be decided by the employer. If he engages a person not entitled to preference he does so at his peril; the onus of proving the prescribed excuse is cast upon him.

In the view I take, it is no part of the prescribed functions of the Employment Service to assume the responsibility of the employer in the matter of selection. On the contrary, I think it is the proper function of the Employment Service, as contemplated by the Act, to bring to the employer’s notice, in response to application made by him, particulars of all persons on its register with the qualifications stipulated by the employer who are available for employment in the vacant position.

Accordingly, I am of opinion that it is not incumbent on the Employment Service to refer to a prospective employer only such persons on its register as are entitled to preference.

On the other hand it is a prescribed function of the Employment Service, in particular, to provide facilities to assist in the re-employment of discharged members of the Forces, including facilities relating to the operation of Division 2 of Part II of the Acts (c.f. paragraph (a) of section 48). I think that the Employment Service fails to discharge that function if, in submitting to a prospective employer particulars of the persons on its register who are available and may be suitable for employment according to his specifications, it fails to supply the very information which is essential to enable him to discharge his obligations under the Act in relation to giving the due measure of preference.

Accordingly, in my opinion, it is incumbent on the Employment Service to indicate to the employer whether any person is, or is not, a ‘person entitled to preference’ within the meaning of the Act.

In this connexion, it is observed that you foresee many administrative difficulties in the way of indicating whether any person may be entitled to preference. The class of persons who are entitled to preference is defined by section 25 of the Act. I think that, if it were prescribed by regulation that persons entitled to preference who are seeking enrolment on the register should furnish evidence of their entitlement, that would clearly be a matter necessary or convenient to be prescribed for carrying out or giving effect to the Act. On receipt of the requisite evidence, an appropriate notation could be made in the register.

With regard to the Returned Soldiers and Sailors Employment Act, 1919, of New South Wales, which is referred to by you in connexion with the questions considered in the foregoing paragraphs of this memorandum, I do not think that comparison of that Act with the Commonwealth Act under consideration assists in the solution of the questions, as the New South Wales Act sets up a fundamentally different system.

The second question on which I am asked to advise relates to that New South Wales Act. Advice is desired as to whether section 12 of that Act, which requires employers to engage labour through a State labour exchange has any force in view of the Re-establishment and Employment Act—vide sections 24 and 27(3)(d).

My answer to that question is, shortly, ‘No’. Sub-section (2) of section 24 of the Re-establishment and Employment Act is as follows:

(2) The provisions of this Division shall apply to the exclusion of any provisions, providing for preference in any matter relating to the employment of discharged members of the Forces, of any law of a State, or of any industrial award, order, determination or agreement made or filed under or in pursuance of any such law, and whether the law, award, order, determination or agreement was enacted, made or filed before or after the commencement of this section.

The provisions of the New South Wales Act, considered as a whole, are clearly provisions of a law of a State providing for preference in a matter relating to the employment of discharged members of the Forces, namely, their engagement for employment. Though section 12 of that Act is of general application to the engagement of all employees, the purpose of this section appears to be to make provisions necessary for the implementing of the preference contemplated by the Act, and so it may rightly be regarded as a provision providing for preference. In any event, I think that section 12, by reason of its interrelation with the purely preference provisions of the Act, cannot stand alone and remain in force during the exclusion from operation of those provisions.

Accordingly, in my opinion, section 12 of the Returned Soldiers and Sailors Employment Act, 1919, of New South Wales has no force or effect during the period for which sections 24 to 33 of the Re-establishment and Employment Act 1945 remain in force.

My view is also requested as to whether the Employment Service is legally under any obligation to submit applicants to employers with a view to engagement in such a way as to give some preference to persons entitled to preference. Having regard to the observations contained in paragraphs 3 and 4 of your memorandum, I take it that the words ‘some preference’ connote reference to the prospective employer ahead of other applicants or some other advantage over the other applicants available.

As already stated above, I take the view that, to discharge properly the functions assigned to it by section 48 of the Act, the Employment Service is obliged to inform a prospective employer who utilizes its services of all particulars of the persons available, to enable the employer to meet the obligations which the Act imposes upon him. It is for the employer to make the selection and for the Employment Service to provide the facilities to enable him to make the selection required by the Act in circumstances of a particular case.

The foregoing remarks are not to be taken as meaning that the Employment Service may not refer to the employer only such persons available as are considered suitable, having regard to the qualifications specified by the employer. Indeed, I agree that it would not be practicable for the Service, if it is to function effectively, to do otherwise than form this preliminary judgement on the basis of the specifications of the employer. Upon the employer remains the obligation to give the due measure of preference required by the Act in the particular circumstances of the case, having regard to the nature of employment and the qualifications necessary therefore.

In my view, the Employment Service is not legally under any obligation to give precedence in referral to a prospective employer to any person whom, it considers, is entitled to preference, but, if there is such a person who is available and may reasonably be held to be qualified, it is part of the functions of the Service to inform the employer accordingly. As stated above, it is my view that the Service is under an obligation to inform the employer fully of all persons who are available and qualified, indicating which of those persons are persons entitled to preference.

In a case recently decided by the Supreme Court of Queensland (Retallack v. Hodda,1 not yet reported) the Court held that, before filling a vacancy, an employer is required by the Re-establishment and Employment Act to take such steps as are reasonable in the circumstance of the particular case to ascertain whether there is a person entitled to preference who is qualified and available. In many cases, reference by the employer to the Employment Service would be held to be the step reasonable in the circumstances. Consequently, it appears essential that, in order to ensure, so far as possible, that the preference contemplated but the Act is given in due measure, the Employment Service should furnish full information in all cases to prospective employers utilizing its services.

[Vol.37, p. 372]

1 Retallack v Hodda; Ex parte Hodda [1947] St R Qd 105; 41 QJPR 114.