FEDERAL COURT OF AUSTRALIA

National Tertiary Education Union v La Trobe University [2015] FCAFC 142

THE COURT ORDERS THAT:

1.    The Court’s order made on 11 December 2014 be amended by the deletion of the words, “by consent”.

2.    The appeal be allowed.

3.    Order 1 of the Court’s orders made on 11 December 2014 be set aside.

4.    The matter be remitted to the primary Judge to be heard and determined in accordance with law.

5.    There be no order as to costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

Jessup J

1    This is an appeal from an order made by a single Judge of the court on 11 December 2014, whereby his Honour dismissed the application of the appellant, National Tertiary Education Union, for declarations, penalties and injunctions in respect of what was alleged to be a contravention of cl 74 of the La Trobe University Collective Agreement 2014 (“the 2014 agreement”) on the part of the respondent, La Trobe University. The primary Judge’s order gave effect to reasons which his Honour had published on 8 December 2014, and it was by reference to those reasons that the appellant sought to establish error of the kind that should be corrected on appeal.

2    In dealing with the appellant’s challenge to those reasons, it is necessary to commence with the procedural history of the matter that came before his Honour for adjudication. The appellant filed its Originating Application on 19 November 2014. It sought a declaration that, by terminating, or proposing to terminate, the employment of employees by way of compulsory redundancy, other than as a last resort, the respondent contravened s 50 of the Fair Work Act 2009 (Cth) (“the FW Act”). It sought the imposition of a pecuniary penalty on the respondent for each contravention of s 50, and a permanent injunction to restrain the respondent from terminating the employment of any employee by reason of compulsory redundancy pursuant to a restructuring program which the respondent had proposed, other than in accordance with cl 74 of the 2014 agreement. The appellant also sought interlocutory orders that its Originating Application be heard and determined before 17 December 2014.

3    In its Statement of Claim, the appellant alleged that, on or about 9 October 2014, the respondent had announced that it was proceeding to implement the proposed restructuring. A consequence was that some 280 employees were to have their employment terminated by reason of redundancy. Of those 280, 180 had expressed interest in leaving their employment, and 100 were to have their employment terminated by compulsory redundancy.

4    The balance of the Statement of Claim, paras 18-24, should be set out in full. They provided as follows:

18.    As to the professional staff, La Trobe:

(a)    has not implemented a general voluntary redundancy program;

(b)    has not permitted all employees in professional positions to express an interest in accepting a voluntary redundancy package; and

(c)    has refused to accept expressions of interest from employees seeking to voluntary [sic] cease employment with La Trobe.

19.    By reason of the matters set out in paragraph 18, in relation to the professional employees, La Trobe:

(a)    used, is using, or intends to use, compulsory redundancies other than as a last resort;

(b)    failed to ensure that redundancies were avoided wherever possible; and

(c)    failed to make reasonable attempts to mitigate against compulsory redundancies and to avoid job losses.

20.    By reason of the matters set out in paragraph [sic] 18 and 19 above, La Trobe contravened, and continues to contravene, section 50 of the FW Act.

21.    As to its academic staff, La Trobe has, variously:

(a)    not offered a general voluntary redundancy program;

(b)    directly selected a number of employees for compulsory redundancy without first considering voluntary redundancies and/or permitting the selected employees to apply for positions in the new structure; and/or

(c)    implemented a ‘spill and fill’ process in the terms pleaded in paragraph 23 [sic] below.

22.    In relation to the ‘fill and spill’ process pleaded in paragraph 21(c) above, La Trobe has:

(a)    directly appointed some employees to positions in the new structure;

(b)    called for expressions of interest in early departure from, and only from, the pool of employees not directly appointed to a position in the new structure and whose substantive position is affected by the Implementation; and

(c)    implemented a competitive selection process for employees not directly appointed to a position in the new structure, including employees who have expressed interest in leaving the employ of La Trobe; and

(d)    refused to accept expressions of interest from some of the pool of employees who have expressed interest in voluntarily leaving the employ of La Trobe.

23.    By reason of the matters set out in paragraph 22 and 23 [sic] above, in relation to the academic employees, La Trobe:

(a)    used, is using, or intends to use, compulsory redundancies other than as a last resort;

(b)    failed to ensure that redundancies were avoided wherever possible; and

(c)    failed to make reasonable attempts to mitigate against compulsory redundancies and to avoid job losses.

24.    By reason of the matters set out in paragraph 22-24 above, La Trobe contravened, and continues to contravene, section 50 of the FW Act.

5    The provision under which the appellant sued, s 50 of the FW Act, provides that “[a] person must not contravene a term of an enterprise agreement.” The 2014 agreement was an enterprise agreement within the meaning of this section. In turn, the provision of the 2014 agreement which, according to the appellant, the respondent contravened was cl 74, as follows:

The University is committed to job security. Wherever possible redundancies are to be avoided and compulsory retrenchment used as a last resort. The University reserves the right to use the agreed redundancy procedures and provisions set out in this Agreement when all reasonable attempts to mitigate against such action and to avoid job loss have been unsuccessful.

6    The proceeding was mentioned before the primary Judge on 21 November 2014. At that time, it became apparent that there was significant disagreement between the parties as to the nature and volume of evidence which would need to be called at trial. The appellant’s position was that it could make good its case by presenting evidence about the processes which the respondent had put in place to deal with redundancies, while the respondent’s position was that it would be necessary to examine separately its treatment, or proposed treatment, of each of the employees whose positions had become redundant.

7    In these circumstances, it was agreed that it would assist the conduct of the proceeding if the court were to determine, as a preliminary question, whether, on its true construction, cl 74 of the 2014 agreement imposed any, and if so what, binding obligation on the respondent. It was that question which was subsequently debated before the primary Judge, and which was answered in the negative in his Honour’s reasons of 8 December 2014. That answer made the dismissal of the proceeding itself inevitable, which was done by the order made on 11 December 2014.

8    Against that procedural background, it is convenient to turn next to the provisions of the 2014 agreement.

9    The agreement is divided into eight lettered parts, namely:

PART A    ABOUT THIS AGREEMENT

PART B    EMPLOYMENT UNDER THIS AGREEMENT

PART C    SALARIES AND CLASSIFICATION

PART D    ALLOWANCES

PART E    WORKING HOURS

PART F    LEAVE PROVISIONS

PART G    CONSULTATION AND CHANGE

PART H    TERMINATION AND DISCIPLINE

10    There are four clauses in Part G of the agreement, namely:

71.    DISPUTE SETTLING PROCEDURES

72.    GRIEVANCE PROCEDURES

73.    MANAGING CHANGE

74.    JOB SECURITY

As noted above, it was cl 74, “Job security”, which was the subject of the primary Judge’s decision of 8 December 2014.

11    Part H of the agreement consists of the following clauses:

75.    TERMINATION & NOTICE

76.    REDUNDANCY PROCEDURES

77.    DISCIPLINARY PROCEDURES

78.    INDEPENDENT CHAIRS

79.    RESEARCH MISCONDUCT

80.    ILL-HEALTH RETIREMENT

81.    REDEPLOYMENT OTHER THAN REDUNDANCY

As will be apparent from the heading, cl 76 of the 2014 agreement also assumed some importance in the hearing before the primary Judge.

12    Clause 73 of the 2014 agreement, “Managing change”, deals with the general subject first introduced into federal awards as a result of the decisions of the Australian Conciliation and Arbitration Commission made on 2 August and 14 December 1984 in the Termination, Change and Redundancy Case (1984) 8 IR 34 and 9 IR 115, 126-128. In addition to requiring the respondent to consult with the affected employees and the relevant trade unions with respect to changes that may have significant impact upon employees, cl 73 includes the following provisions:

73.8    Vacant positions arising through organisational change will, where possible, be filled by redeployment of existing staff whose positions become redundant.

73.9    For the avoidance of doubt, the redeployment process does not preclude reasonable interview or assessment to determine whether the position is a suitable vacant position or competitive merit based selection where there are multiple staff seeking redeployment.

13    The terms of cl 74 of the 2014 agreement are as set out in para 5 above.

14    Clause 76 of the 2014 agreement, “Redundancy procedures”, is lengthy and detailed. So far as its provisions may shed some light on the proper construction of cl 74, they include the following:

76.1    This Clause shall:

(a)    apply to academic and professional employees in continuing positions who are covered by this Agreement;

(b)    not apply to casual employees, employees employed on fixed-term contracts, Research Continuing employees or employees employed pursuant to Clause 37 (Senior Staff Performance Based Contract) of this Agreement;

(c)    not detract from the obligations of the University to consult pursuant to Clause 73 (Managing Change) of this Agreement; and

(d)    allow employees to be assisted by a Representative at every stage during the procedures set out in this Clause.

76.2    The University will actively seek to redeploy any employee who may be notified of potential redundancy to a suitable vacant position.

Grounds for Redundancy

76.3    Where the University has decided to terminate the employment of one or more employee(s) for reasons of an economic, technological, structural or similar nature, including:

(a)    a decrease in student load in any course or subject on any campus;

(b)    a decision to cease offering or to change the academic content of any course, subject or unit, or to cease support of a research area on any campus;

(c)    financial exigency in an organisational unit or cost centre;

(d)    where the position is no longer required as a result of changed work methods, reorganisation, financial exigency, or the application of technology; and/or

(e)    where the duties of the position are changed to such an extent that the incumbent is no longer competent to perform those duties,

the University will formally notify the affected employee(s), and their Representatives, in writing that their employment will terminate, the reason(s) for the termination, and the proposed date of cessation of employment.

Where the University is required to provide a notification pursuant to s.530 of the FW Act, a copy will also be provided to the relevant Unions together with a copy of the template letter sent to affected staff.

….

Redeployment

76.5    When the University has formally notified an employee of a proposed date for redundancy, there will be an 8 week redeployment period from the date of receipt of the written notice.

76.6    By the expiration of ten (10) working days from the commencement of the redeployment period, the employee must advise in writing to the Executive Director (Human Resources), whether they wish to:

(a)    apply for early separation and include the balance of the redeployment period in his or her redundancy benefits; or

(b)    seek redeployment within the University.

76.7    Where the University seeks to redeploy an employee, or the employee who may be facing potential redundancy seeks redeployment, the University shall (taking into account the relevant skills, experience and work preferences of the employee):

(a)    examine options for retraining;

(b)    examine measures that could be taken to avoid termination;

(c)    arrange counselling (which may also include assistance such as financial advice, outplacement services and resume preparation) for the employee as required and allow reasonable time off work to attend interviews;

(d)    monitor all vacancies within the University;

(e)    offer the employee redeployment to a suitable vacant position where such a position exists;

(f)    at the request of the employee, or his or her Representative, consult with the employee regarding (a) to (e) above.

76.8    Suitable vacant position means a position at the same classification level and same or equivalent time fraction of the employee and for which the employee has the skills and qualifications to undertake. A reasonable amount of time may be taken into account, if an employee needs to update skills and experience to undertake the duties of the position, but this will not normally be greater than six (6) months.

76.9    At the employee’s initiation and request, the University may agree to redeploy the employee to a position at a different classification level and/or different campus. In such cases, if the employee does not agree to proceed with the redeployment, it will not be considered as a rejection of a·reasonable offer of redeployment.

76.10    If redeployment is, by agreement, to a lower classified position then a staff member who is redeployed pursuant to this Clause shall have salary, and where possible entitlements accrued under this Agreement, maintained for the following periods:

(a)    employees who have been in the classification prior to redeployment for less than 12 months: 6 months salary maintenance;

(b)    employees who have been in the classification prior to redeployment for 12 months or greater: 12 months salary maintenance.

76.11    Redeployment pursuant to this Clause to a lower classification level shall be to the highest incremental point within that classification level.

76.12    Other than as stated in this Clause, this Clause does not restrict the right of the University to transfer an employee to another position at their same classification level at the campus at which the employee is based.

Application for Early Separation Severance Benefit

76.13    Where an employee who has been given notice pursuant to sub-clause 76.3 has applied for early separation, the University shall not unreasonably refuse such an application and where accepted by the University, the employee will be entitled to include the balance of the redeployment period in his or her redundancy benefits, in which case the employee will receive upon termination:

(a)    the unexpired portion of the eight (8) week redeployment period (if any) as part of the genuine redundancy payment; and

(b)    the notice period prescribed in sub-clause 76.4 as part of the genuine redundancy payment; and

(c)    payment of pro rata Long Service Leave pursuant to Clause 65 (Long Service Leave).

15    Before the primary Judge, the respondent’s principal contention was that cl 74 imposed no binding obligation on it. Rather, the clause amounted to no more than a series of aspirational or hortatory statements. Alternatively, the respondent submitted that any obligation arising under the clause was to be found in the third sentence, which required that the respondent could not have resort to the agreed redundancy procedures in the 2014 agreement until it had made all reasonable attempts to mitigate against such resort and to avoid job losses. On either view, cl 74 did not require the respondent to implement a voluntary redundancy scheme or to offer voluntary redundancies to particular employees; and it did not dictate the basis on which staff might be selected for termination of employment on redundancy grounds.

16    By contrast, the appellant accepted that the first sentence of cl 74 could be characterised as aspirational, but maintained that the second and third sentences, when read together, imposed obligations on the respondent. The third sentence emphasised the mandatory nature of the second sentence by making it plain that the respondent could not exercise its reserved right unless and until the asserted obligations prescribed by the second sentence had been satisfied.

17    The primary Judge accepted that the reference in the third sentence of cl 74 to the “agreed redundancy procedures” was a reference to the procedures in cl 76. His Honour noted that there had been some debate before him as to whether cl 76 applied only to compulsory redundancies or whether it also applied to “voluntary redundancies”. His Honour adverted to the two senses in which the word “redundancy” might be understood, namely, the conventional industrial relations sense of an employee’s job becoming redundant and the looser, but nonetheless often encountered, sense of a particular employee being dismissed from his or her employment on account of a redundancy in the former sense. As to the latter sense, his Honour noted that it was not uncommon, in industrial parlance, to encounter references to “voluntary redundancy” and “compulsory redundancy” where what was being referred to was a termination of employment following a redundancy.

18    The primary Judge held that it was in the former, or conventional, sense that the word “redundancies” was used in the second sentence of cl 74 of the 2014 agreement. But his Honour had a difficulty with the meaning of the words “such action” in the third sentence. He said:

One possibility is that they refer to the avoidance of redundancy and resort to compulsory retrenchment – matters mentioned in the second sentence. Alternatively, the action referred to might be the use of the procedures contained in Clause 76. Either way confusion arises. Given that compulsory retrenchment is effectively rendered the last resort by the provisions of Clause 76 the first possibility would effectively require the University to do some or all of the things prescribed by Clause 76 before invoking it. The alternative construction also gives rise to difficulty: while it makes sense to qualify the University’s right to invoke Clause 76 until all reasonable attempts to avoid the need to do so have been taken, it is less clear how reasonable attempts to avoid job loss can be a necessary precursor to resort to Clause 76 when Clause 76 itself provides for processes such as redeployment and retraining in order to avoid job losses.

19    The primary Judge then moved to cl 76 itself, holding that the terminological problems to which he had referred were there “compounded”. His Honour took the view that, for the most part, the word “redundancy” was used in cl 76 as a reference to termination of employment, but that this was not a consistent usage.

20    His Honour next dealt with some previous authority to which he had been referred by the appellant – National Tertiary Education Union v Royal Melbourne Institute of Technology (2013) 234 IR 139 and National Tertiary Education Industry Union v Victoria University [2014] FWC 7711 – but held that those cases provided no support for the appellant’s constructional argument.

21    His Honour considered, and rejected, a submission made on behalf of the appellant that an examination of the 2014 agreement as a whole disclosed that all the aspirational statements were concentrated in Part A, and that Part G, in which cl 74 appeared, contained only prescriptive provisions. An argument advanced by the appellant based upon a much earlier, corresponding, agreement was also rejected.

22    The main deliberative section of his Honour’s reasons was expressed as follows:

Despite having made due allowance for the factors which require a benign construction of industrial instruments, I am not persuaded that the second and third sentences of Clause 74 of the Agreement, either separately or collectively, impose obligations on the University. As already noted, the second sentence does not, expressly, refer to the University. Nor does it contain any words of obligations such as “will” or “shall” which are employed elsewhere in the Agreement to impose obligations on the University: see, for example, Clauses 63.11(c), 67, 72.18, 73.2, 73.4 and 73.5. The second sentence of Clause 74 does no more than provide aspirational particulars of the aspirational commitment made in the first sentence.

This conclusion is not changed by a reading of the second and third sentences in conjunction. The third sentence records a reservation by the University of its right to resort to Clause 76. The need for such a reservation is unclear given that the University was entitled to use Clause 76 even had such reservation not been made. The apparent intention of the reservation was to provide some general comfort to employees, in the event of redundancies occurring, by recording the University’s policy that compulsory termination of service would only occur after other less drastic measures had been explored. For reasons which I have already explained …, the terms in which the reservation is expressed are ambiguous. Moreover, the words lack precision and practical effect. They do not, for example, stipulate for how long the University will pursue alternative options (some of which are already provided for in Clause 76) before invoking Clause 76.

23    The appellant’s grounds of appeal, as expressed in its Notice of Appeal as amended during the hearing of the appeal, were the following:

1.    The learned trial judge erred in concluding (Reasons at [18]) that Clause 74 of the La Trobe University Collective Agreement 2014 imposes no binding obligations on the University, and contains no more than aspirational or hortatory statements.

2.    The learned trial judge erred in failing to conclude that Clause 74 of the La Trobe University Collective Agreement 2014 imposes binding obligations on La Trobe University that are capable, depending on the facts to be found, of prohibiting the conduct alleged in paragraphs 21 and 22 of the Statement of Claim dated 19 November 2014.

3.    The learned trial judge erred in failing to have regard to evidence adduced at trial in relation to the common understanding of the parties with respect to the operation of Clause 74.1 of the La Trobe University Collective Agreement [2014] as set out in the agreed minutes of a meeting held on 2 May 2013, (Exhibit 1) which recorded the negotiating parties’ common understanding of the previous iteration of Clause 74 (Clause 69 in the La Trobe University Collective Agreement 2009), to the effect that redundancy is the “last resort”, and that notice of redundancy is only to be given after the option to redeploy has been exhausted.

4.    The learned trial judge erred in concluding (Reasons at [43] – [44]) that there was no evidence in relation to the reason for which the parties agreed to include a sunset clause limiting the operation of a previous iteration of the Job Security Clause (at that time found in Clause 14 of the La Trobe University Enterprise Bargaining Agreement [2001]) in circumstances where there was in fact evidence adduced at trial that:

a.    In 2001, Clause 69 of the Agreement contained the same text as now appears in Clause 74 of the La Trobe University Collective Agreement [2014], but with the addition of a “sunset” clause, which provided that the then Clause 14 would cease to operate as at the nominal expiry date of the 2001 Agreement;

b.    The Affidavit of Mary Bernadine Martin (at paragraphs [25] to [26]) confirmed that the sunset clause was included in Clause 14.3 during negotiations for the 2001 Agreement by reason of the University’s insistence on the job security provisions having a time limit on their period of operation.

5.    The learned trial judge erred in having regard (Reasons at [48]) to the failure by the Applicant to make application to the Fair Work Commission pursuant to section 217(1) of the Fair Work Act 2009 (Cth) to vary the La Trobe University Collective Agreement [2014], despite the fact that the failure by a party to pursue a potential alternative or additional remedy in another jurisdiction is not relevant to the court’s consideration of the correct interpretation of an enterprise agreement.

6.    The learned trial judge erred in concluding (Reasons at [46]) that the purpose of the reference within the text of Clause 74 to the processes provided for in Clause 76 is merely to provide “some general comfort” to employees. His Honour erred in failing to find that the reference to Clause 76 in the final sentence of Clause 74 has the effect of confirming that the provisions in Clause 76 only come into play when it is clear that it is impossible to avoid making positions redundant, and that the condition of “last resort” has been satisfied.

24    Before turning to a consideration of these grounds as such, something should be said about the procedure that was followed in this case. While I recognise the pressing circumstances that attended the resolution of the controversy raised by the appellant’s application, and while I am fully sympathetic with the streamlined approach taken by the primary Judge with the assent of the parties, it must be said that this approach, and the outcome of which the appellant now complains, were problematic in some respects.

25    His Honour treated the matter before him as the hearing and determination of a separate question pursuant to Div 30.01 of Pt 30 of the Federal Court Rules 2011 (Cth). But no specific order for such a procedure was actually made. This omission, which in some quarters might be regarded as the merest technicality, had the result that neither party, it seems, came squarely to grips with the implications, or the consequences, of the task upon which the court was embarking. As mentioned above, his Honour gave informal expression to the separate question in his reasons, being whether cl 74 of the 2014 agreement imposed any, and if so what, binding obligation on the respondent. His negative answer to that question, although binding only on the parties, provided a judicial precedent applicable to all situations. By the procedure employed, the respondent persuaded the court to make a general ruling about the operation of cl 74 which was restricted neither to the facts alleged by the appellant in its Statement of Claim nor to the controversy existing between the parties.

26    It is for this reason that I have set out, in para 4 above, paras 18-24 of the Statement of Claim. During the running of the appeal, it became clear that the gravamen of the appellant’s concern was that the respondent had embarked upon its program of restructuring, with the attendant prospect of redundancies (in both of the senses referred to above) without first calling for volunteers from the broad cohort of employees engaged in the positions that stood to be affected, or similar positions. That cl 74 operated as a positive requirement binding the respondent to call for volunteers in this way as a preliminary to entering the arena regulated by cl 76 of the 2014 agreement is a proposition which I would, for my own part, find very difficult to accept. But, in the proceeding before the primary Judge, the respondent relied neither upon s 31A of the Federal Court Act 1976 (Cth) nor upon r 16.21(1)(e) of the Rules. The result, as I say, was that his Honour was led to decide not only that the appellant’s case as framed could not succeed under cl 74, but that cl 74 imposed no binding obligation on the respondent in any circumstances.

27    These reservations about the procedure that was followed before the primary Judge must, however, be put to one side. That procedure was assented to by both parties, and no complaint was made about it by either of them in the present appeal. The only issue for us to decide is whether his Honour was in error, in the respects mentioned in the Notice of Appeal, to have held that cl 74 of the 2014 agreement imposed no binding obligation on the respondent.

28    The appellant’s generally-expressed first ground of appeal comes squarely to grips with that issue. The appellant accepted that the first sentence of cl 74 imposed no binding obligation. The third sentence is expressed as a limited reservation of a right, and there is no reason, in my view, not to understand it in this sense. As so understood, the third sentence qualifies, to an extent, what precedes it in the second sentence. It is in that sentence (ie the second) that, on the appellant’s submission, one finds the obligation that is binding on the respondent. For reasons which follow, that submission should be rejected.

29    In his reasons of 8 December 2014, the primary Judge referred to the approach to be taken to the construction of industrial instruments, such as awards and collective agreements, in terms which were not the subject of criticism by the appellant. His Honour said:

The canons of construction which are applied to industrial awards and agreements are well known and were accepted by the parties in the present proceeding. The starting point is necessarily the text of the provision. It will not be read pedantically and due allowance will be made for the likelihood that the authors are industrial relations practitioners without legal training who have been striving to find a practical solution to disputed issues. Due allowance will also be made for the fact that the parties may choose to use terminology which has a well understood meaning in the industrial relations arena but might otherwise be regarded as lacking precision: see Kucks v CSR Limited (1996) 66 IR 182 at 184 (Madgwick J) which was quoted with approval by two members of the High Court in Amcor Limited v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241 at 271 (Kirby J), 282-3 (Callinan J). The provision falls to be construed in the context of the agreement as a whole or other relevant provisions of it and having regard to the legislative background against which the agreement was made and in which it operates: Amcor at 253 (Gummow, Hayne and Heydon JJ).

30    While this broad framework for the construction of industrial instruments may be accepted as applicable to the task which confronted the primary Judge, there is an important distinction between awards and orders, on the one hand, and enterprise agreements, on the other hand, which should be noted at this stage. Awards and orders contain the commands, rules and injunctions of a public body authorised to impose upon non-consenting parties a resolution of whatever dispute, issue or proceeding had been before it. There is every reason to approach the reading of such an instrument with a disposition to finding a binding obligation, or the establishment of a substantive entitlement, in each of the operative provisions thereof. Enterprise agreements, by contrast, are the doings of the parties themselves (here using the term “parties” in the loose sense of the employer and those of its employees who, through their bargaining representatives, were involved in the relevant negotiations). Although the content of enterprise agreements is heavily regulated by the provisions of Divs 4 and 5 of Pt 2-4 of the FW Act, there is nothing, so far as I can see, to prevent the parties from including in their agreement provisions or expressions which involve no obligations at all. Indeed, the admixture in industrial agreements of provisions which give rise to obligations and those which are merely “aspirational” is a practice of long standing: see, by way of a well-known example, the argument advanced on behalf of the defendant union in Ford Motor Co Ltd v Amalgamated Union of Engineering and Foundry Workers [1969] 2 QB 303, 330. That the parties to an enterprise agreement have included aspirational or hortatory provisions in their document should be no source of surprise. Neither should there be any a priori assumption that the parties are unlikely to have included a provision which involved the establishment of no concrete entitlement or binding obligation.

31    Turning to the second sentence in cl 74 of the 2014 agreement, the terms there employed do not, in my view, naturally set up a binding prohibition or embargo, even ignoring – which I do not believe we may – the two opening words. The primary Judge took the view that the reference to “redundancies” in this sentence was a reference to redundancies in the conventional sense, and the appellant took no issue with that approach. The expression “compulsory retrenchment”, on the other hand, is clearly a reference to the non-consensual termination of the employment of a particular employee by the respondent. Grammatically, it is possible to slice this sentence into these two sections, and to read each as conveying a prohibition. So to proceed, in my respectful view, would be to change the sense of the sentence as a whole. That sense is one of a very high-level statement of intent, concerned with making clear the importance which the parties placed on job security. In an industrial relations context, there is absolutely no reason not to respect the parties’ choice to include a provision of this nature in their agreement, nor to deprecate the significance of the provision on account of its non-obligatory nature.

32    If one does look more closely at the component parts of this second sentence, again one finds words which, as the primary Judge pointed out, are not obviously those of obligation. The grammatical form “are to be avoided” does not naturally convey prohibition. Rather, it is a form most often used in the context of an advice or warning: fatty foods are to be avoided, strenuous exercise is to be avoided, etc. Likewise, use of the grammatical form “as a last resort” implies that other measures are, or might be, available as places of earlier resort: a process which comes to its unwanted conclusion at the point where some decision-maker – here, the respondent – decides that none of those other places is available. Objectively, that the parties might have intended that the imprecise evaluations and qualitative judgments conveyed by these words should be the source of binding obligations ultimately justiciable in a proceeding such as that which came before the primary Judge strikes me as a very unlikely circumstance. That conclusion is, if anything, reinforced by the presence of the governing phrase at the start of the sentence “wherever possible”.

33    The next consideration, in my view, which counts against the appellant’s case under its first ground is one which carried much force with the primary Judge. That case would have it that cl 74 provided, in effect, a gateway through which the respondent had to pass before being able to rely on cl 76. But the latter contained such a detailed and prescriptive regime of protections, and alternatives, for an employee who was facing retrenchment because his or her job had become redundant as to make it most unlikely that the parties intended that, before even commencing to operate under it, the respondent was obliged to demonstrate that compulsory retrenchment was a last resort. Those alternatives included redeployment, retraining and the examination of suitability for appointment to vacant positions. If the appellant’s argument is correct, it is difficult to see how such expedients would not be regarded as places of earlier resort for the purposes of the second sentence in cl 74.

34    In arguing the appeal, senior counsel for the appellant proposed that cl 76 made no provision requiring the respondent to call for volunteers from the cohort of relevant employees whose jobs had not become redundant but who might wish to be made “redundant” in place of those whose jobs had. It is true that cl 76 makes no such provision. But here one encounters a further problem with the construction of the second sentence in cl 74 for which the appellant contends, namely, the problem of content. What is here proposed is that this sentence, albeit expressed in the negative, should be so construed as to give it a practical operation requiring the respondent to take measures that could have been, but were not, the subject of express, and clear, agreement. What the provisions of cl 76 do make obvious is that the parties turned their minds to the potential for redeployment to avoid what would otherwise be the natural, but unwanted, consequences of the redundancy of an employee’s job, but confined their chosen measures to situations in which there was a suitable vacant position into which the affected employee might be redeployed. That the parties intended that the second sentence in cl 74 would perform service to enlarge the respondent’s redeployment obligations to situations in which there were no relevant vacancies, and to provide employees whose jobs were not redundant with the opportunity to quit their employments under redundancy terms, is, in my view, a proposition which derives no support from the terms of the clause or from the context in which it appears in the agreement.

35    For the reasons I have given, I would reject the appellant’s first ground of appeal.

36    To the extent that the second ground of appeal differs from the first, it seems to involve the proposition that the primary Judge ought to have treated the matter before him as, in effect, a test of the sufficiency of paras 21 and 22 of the Statement of Claim to found a cause of action based upon an allegation of a contravention of cl 74 of the 2014 agreement. Had this been the nature of the case run before his Honour, I have no doubt but that he would have dealt with it as such, and the criticisms which I have expressed above about the way things were done at that level would not have been available. But it was not the nature of either party’s case. Counsel for the appellant confirmed that this ground of appeal raises a point which was not advanced below. For that reason alone, I would reject it.

37    There is, however, a further reason why the second ground should be rejected. On any view the first ground is the appellant’s most comprehensive one. But the second ground cannot be understood as being advanced in the alternative to the first. Absent success on the first ground, the appellant would have nowhere to go: the primary Judge’s ruling that cl 74 imposed no obligation at all would stand. The relationship between that clause and paras 21 and 22 of the Statement of Claim would be neither here nor there. On the other hand, if the appellant succeeds on the first ground, as I consider it should not, it would be for the respondent to submit that, as a kind of fall-back position, his Honour should at least have concluded that paras 21 and 22 disclosed no reasonable cause of action under cl 74. But the respondent has filed no Notice of Contention in that regard: indeed, counsel for the respondent resisted the idea that the court should allow the amendment to the Notice of Appeal that brought this second ground into its current terms.

38    In the result, I take the view that the appellant’s second ground of appeal provides no legitimate basis for discerning error in the reasons of the primary Judge, and should be rejected.

39    The appellant’s third ground of appeal refers to a meeting between representatives of itself and of the respondent on 2 May 2013. This was part of the negotiation for a new agreement which became the 2014 agreement. The minutes recorded that the representatives of the appellant queried the job security clause in the then existing agreement and the provision in the FW Act regarding the meaning of genuine redundancy. They referred to a staff member who had a viable redeployment option to a position for which funding was available: 2/3 in the year in question and 1/3 in the second year. In response, the representatives of the respondent clarified that the job security clause set out that redundancy was the last resort. They said that efforts were made to redeploy the staff member referred to prior to giving him or her (it is not clear which) the notice of redundancy. They advised that the notice of redundancy was only given once the option to redeploy had been exhausted, and where staff elected to be redeployed, attempts were continued to be made up to the cessation date.

40    Far from bespeaking any “common understanding” as to the construction of the provision of the previous agreement with which cl 74 of the 2014 agreement corresponded, it is not at all clear that the minutes of the meeting on 2 May 2013 disclose a discussion about the terms of that clause at all; or least that they disclose a discussion which was confined to that clause. The latter part of the discussion, that in which representatives of the respondent made their most substantial contribution, appears, rather, to have been focussed on the predecessor to cl 76, particularly on cl 76.5 and the provisions which followed.

41    Whatever the content of the principle that, in construing an industrial agreement, the court may take account of “common understandings”, I take the view that the present is a very poor example of a situation in which that principle may have something useful to say. On the facts, the material to which our attention has been directed discloses no common understanding with respect to any subject that was of concern to the primary Judge. I would reject the appellant’s third ground of appeal.

42    The appellant’s fourth ground of appeal takes issue with the following passages in the reasons of the primary Judge:

The NTEU also placed some reliance on an earlier version of Clause 74. Clause 14.3 appeared in the La Trobe University Enterprise Bargaining Agreement 2001. It provided that:

“Wherever possible redundancies are to be avoided and compulsory retrenchment used as a last resort. The University reserves the right to use the agreed redundancy procedures and provisions set out in this Agreement when all attempts to mitigate against such action, to avoid job loss has been unsuccessful. This sub-Clause shall cease to have effect upon the nominal expiry date of this Agreement.”

The NTEU argued that the final sentence would not have been necessary had the earlier provisions not had coercive effect. It may reasonably be assumed that this “sunset” provision was intended to have some effect on the relative positions of the parties if a new agreement had not been negotiated before the nominal expiry date of the 2001 Agreement. There was, however, no evidence about the reason or reasons the parties agreed to incorporate the final sentence in Clause 14.3 or of any mutual understanding of its meaning and effect. In these circumstances it is not possible to conclude that its purpose and effect was to relieve the University of any obligation.

43    Before the primary Judge, there was evidence as to provenance of the final sentence in what became cl 14.3 of the 2001 agreement. The appellant caused to be read the affidavit of Mary Bernadine Martin, a senior lecturer in the Department of Computer Science and Computer Engineering. She said that, at a negotiating meeting for that agreement, a representative of the respondent insisted that the job security clause then under consideration – the provision that became cl 74 of the 2014 agreement – have a limitation on its period of operation: a “sunset clause” as such things are called. The respondent would not accept a job security clause that did not cease to operate at the nominal expiry date of the agreement. The appellant rejected that demand. The evidence does not disclose the reasons why, or the circumstances under which, the appellant ultimately acceded to the demand, but, as history shows, accede it must have.

44    The primary Judge was, therefore, correct to observe that there was no evidence “about the reason or reasons the parties agreed to incorporate the final sentence in Clause 14.3” (emphasis added). There was evidence that the respondent wanted the sentence, and that the appellant did not want it. It may also be taken that, ultimately, they agreed to it. But there was no evidence as to the reasons of the appellant, in particular, for allowing the respondent have its way in relevant respects. Much less, of course, was there any evidence as to “any mutual understanding of [the] meaning and effect” of the final sentence. His Honour was not, in my view, in error in the observation of which the appellant complains in its fourth ground of appeal.

45    The fourth ground of appeal should, therefore, be rejected.

46    As to the appellant’s fifth ground of appeal, I need only note that the appellant’s failure to have made application under s 217(1) of the FW Act formed no part of the primary Judge’s conclusion that cl 74 of the 2014 agreement imposed no obligation on the respondent. His Honour’s observation to that effect came after he had completed his construction of cl 74. I would, therefore, reject this ground.

47    I regard the matter raised under the appellant’s sixth ground of appeal as no more than argumentative apropos the broad area covered by its first ground. I would not regard it as properly advanced as a discrete ground in itself. Beyond what I have already said about the first ground, nothing needs to be said about the sixth.

48    For the reasons given above, I would dismiss the appeal.

Associate:

Dated:    8 October 2015

REASONS FOR JUDGMENT

BROMBERG J

49    Section 50 of the Fair Work Act 2009 (Cth) (FW Act), prohibits a person from contravening a term of an enterprise agreement. The appellant (NTEU) and the respondent (La Trobe) are covered by an enterprise agreement known as the La Trobe University Collective Agreement 2014 (EBA). Clause 74 of the EBA (cl 74) provides:

The University is committed to job security. Wherever possible redundancies are to be avoided and compulsory retrenchment used as a last resort. The University reserves the right to use the agreed redundancy procedures and provisions set out in this Agreement when all reasonable attempts to mitigate against such action and to avoid job loss have been unsuccessful.

50    In the proceeding before the primary judge, the NTEU alleged that La Trobe had contravened and continued to contravene cl 74 and thus s 50 of the FW Act. Declarations and the imposition of pecuniary penalties were sought as well as an interlocutory and a permanent injunction. The primary judge dismissed the NTEU’s application on the basis that the terms of cl 74 did not impose any binding obligations upon La Trobe.

51    The NTEU seeks that the order made dismissing its application be set aside and that the matter be remitted to the primary judge to be heard and determined in accordance with law. For the following reasons I would allow the appeal and grant the relief sought.

The proceeding before the primary judge

52    By its Statement of Claim, the NTEU alleged that La Trobe had implemented a “proposed restructure” the consequence of which was that 280 employees of La Trobe would have their employments terminated by reason of redundancy. The pleading is less than clear but, broadly understood, the NTEU alleged that in the implementation of the proposed restructure La Trobe should have taken, but failed to take, specified action and thereby contravened cl 74. One category of action relied upon is the failure of La Trobe to offer employees a “general voluntary redundancy program”. That failure and the other acts specified in the Statement of Claim were alleged, together, to constitute a failure by La Trobe:

(i)    not to use compulsory redundancies other than as a last resort;

(ii)    to ensure that redundancies were avoided wherever possible; and

(iii)    to make reasonable attempts to mitigate against compulsory redundancies and to avoid job losses.

53    Each of those allegations is referrable to the terms of cl 74. The Statement of Claim identified (in general terms) the acts that the NTEU alleged La Trobe should have taken and the nature of the non-compliance with cl 74 in which the failure to take those actions resulted.

54    The proceeding was brought on for mention. Neither party applied for the determination of a preliminary question but questions arose as to the proper construction of cl 74, including as to whether the clause had “binding effect”. The primary judge expressed a view that the “first step” was to decide “what clause 74 means”. That view was supported by La Trobe, whose Counsel expressed the issue as “whether or not the clause imposes any substantive obligations and if it does, whether – what are those obligations”. The primary judge made directions that submissions be filed and exchanged “as to the proper construction of clause 74” together with any supporting material “on the construction point”.

55    Rule 30.01 of the Federal Court Rules 2011 (Cth) provides that the Court may order that a question arising in a proceeding be heard separately from any other questions. The primary judge and the parties may have had the r 30.01 process in mind, but no order for separate determination of a question was made and no separate question was formulated. No order was made for the filing of a defence and no defence was filed.

56    In the submission filed by the NTEU following the mention, it was contended that cl 74 imposed positive obligations on La Trobe to, wherever possible, avoid redundancies and use compulsory retrenchment as a last resort. The primary position of La Trobe, as expressed in its written submission, was that cl 74 did not impose substantive obligations but instead set out “the aspiration and principle” that La Trobe should seek to reasonably avoid redundancy and compulsory retrenchment. La Trobe also put an alternative submission which conceded that the third sentence of cl 74 imposed an obligation upon it but contended that it was of a limited nature. Affidavits were filed by each party which included evidence about the negotiations of predecessor clauses to cl 74.

57    The reasons of the primary judge summarised the respective submissions of the parties at [18]–[19] as follows:

[18]    The University’s principal contention was that Clause 74 imposed no binding obligations on it. The Clause amounted to no more than a series of “aspirational” or “hortatory” statements: cf Reeves v MaxiTRANS Australia Pty Ltd (2009) 188 IR 297 at 303-4 (Ryan J). In the alternative the University submitted that any obligation arising under the Clause was to be found in the third sentence. It required that the University could not have resort to the agreed redundancy procedures in the 2014 Agreement until it had made all reasonable attempts to mitigate against such resort and to avoid job losses. On either view, the University contended, Clause 74 did not require the University to implement a voluntary redundancy scheme, offer voluntary redundancies to particular employees or to dictate the basis on which staff might be selected for termination of employment on redundancy grounds.

[19]    The NTEU accepted that the first sentence of the Clause could be characterised as aspirational but maintained that both the second and third sentences, when read together, imposed obligations on the University. Those obligations were “wherever possible” to avoid redundancies and to use compulsory retrenchment only as a last resort. The NTEU tacitly accepted that the third sentence did not, standing alone, impose any obligation on the University. The sentence did, however, so it was contended, emphasise the mandatory nature of the second sentence by making it plain that the University may not exercise its reserved right unless and until the asserted obligations which are prescribed by the second sentence had been satisfied.

58    Thereafter, the reasons of the primary judge are largely dedicated to a consideration of whether cl 74 is merely an aspirational statement or has binding effect upon La Trobe. Having noted that it was not in dispute that the first sentence of cl 74 was aspirational, the primary judge ultimately concluded (at [45]), that he was not persuaded that the second and third sentences of cl 74 “either separately or collectively, impose obligations on the University.” The primary judge did not address La Trobe’s alternative argument.

59    Despite any informality, the primary judge clearly proceeded on the basis that he was answering a preliminary question. At [17] the primary judge referred to r 30.01 of the Rules and stated the preliminary question as:

[W]hether, on its true construction, Clause 74 imposed any and, if so, what binding obligations on the University.

60    An issue that arose in the course of the appeal hearing was whether the entirety of that question was properly the subject of a preliminary question. The issue was the same as that identified by Kenny, Gordon and Jagot JJ in QBE Insurance (Australia) Limited v Tropical Reef Shipyard Pty Limited [2009] FCAFC 161 at [26]:

… Judicial decisions must resolve an issue in dispute. They must not be hypothetical. In order to ensure conformity with the requirements of judicial process, judicial decisions must be based on facts proved or admitted. Judicial decisions based on assumed facts are suitable only for questions of law and then only if the facts as pleaded “exhaust the universe of relevant factual material” (Bass at [50]). Judicial decisions based on assumed facts are not suitable for mixed questions of fact and law because the risk of unwitting involvement in a hypothetical exercise is too great. …

61    On one interpretation, the secondary aspect of the preliminary question (“and, if so, what”) risked going beyond the controversy in the proceeding and was thus hypothetical or advisory. I will explain by reference to the second sentence of cl 74. Two actions are identified: redundancies and compulsory retrenchment. They are not prohibited absolutely but their availability is conditioned. The concepts of “last resort” and “wherever possible” are ambulatory phrases that delimit and define what would need to be done, in particular circumstances, to avoid breach of cl 74. If, in particular circumstances, to fail to take a specific action as an alternative to redundancy or compulsory retrenchment (alternative action) would result in breach of cl 74, then La Trobe could loosely be said to have an “obligation” to take that action. If the primary judge was using “obligation” in that sense, there was a risk that his answer to the preliminary question would have been advisory.

62    Submissions were made to the primary judge that did descend to consideration of whether a particular alternative action – a voluntary redundancy scheme – was required to avoid breach of cl 74. That, too, would have been problematic. It would have been a mixed question of fact and law and so would have required, in order to be answered, that relevant facts be proven or admitted (and they were not).

63    But, that is not the question that the primary judge posed for himself. It is possible to identify the entirety of the obligation imposed by cl 74, without descending to an examination of what alternative action was necessary to maintain compliance with the clause. What the primary judge had in mind at [17] was an identification of what aspects of cl 74 (if any) were binding and then, based on that answer, an identification (either by restatement or reformulation) of what it was that the clause obliged La Trobe to do. Assuming (for the moment) that the second sentence in cl 74 was binding, the obligation therein imposed upon La Trobe might have been expressed by restatement: to avoid redundancies wherever possible and to use compulsory retrenchment as a last resort. Or, his Honour might have attempted to give some guidance in regard to the obligation by reference to the meaning of the phrases “wherever possible,” and “last resort”. The exercise was one of construction of a document. It was a relevant question of law.

64    Having determined that issue, it would have been possible in substantive proceedings and on the basis of facts proved or admitted to ascertain whether – in the particular factual circumstances of this case – whatever obligation was imposed by cl 74 was breached by the failure to take identified alternative actions. That is what the primary judge had in mind and I consider that the determination he made conformed with judicial process. A sound footing exists upon which an appeal on the grounds pressed by the NTEU may be determined.

Consideration

65    The NTEU’s first and primary ground of appeal was that the primary judge erred in concluding that cl 74 imposed no binding obligations on La Trobe and contained no more than aspirational or hortatory statements.

66    The task of construction must begin with the text of cl 74. It is not in contest that the first sentence does not impose any binding obligation upon La Trobe. It records La Trobe’s commitment to job security or, in other words, La Trobe’s commitment to providing security of employment to its employees. That serves to introduce and frame the remainder of the clause by identifying the underlying goal or objective.

67    The second sentence deals with method. It identifies the means or mechanism by which the overarching goal is to be effected or carried into practice. The context is prescriptive. The words specify what is to be done (redundancies are to be avoided) and what is not to be done (compulsory retrenchment is only to be used as a last resort) and when and in what circumstances that is to occur (“wherever possible”). In that context, there is nothing aspirational conveyed by the word “are” in the phrase “are to be avoided”. Nor does a direction made in that context that something only be done as “a last resort” connote an aspiration. Whilst not an absolute prohibition, such a stipulation is nevertheless injunctive. It imposes a stringent limitation upon action otherwise available.

68    The context includes that the reservation of La Trobe’s rights in the third sentence would be unnecessary if the second sentence left those rights unaffected. The third sentence reflects that the second sentence contains a limitation upon at least some of La Trobe’s rights. It would not have been necessary for La Trobe to have reserved its rights as against something that was merely aspirational. The qualified nature of the reservation in the third sentence is also couched in prescriptive rather than aspirational terms, and, in the context of its close connection with the second sentence, gives colour to the obligational nature of the second sentence. In that context, the words of the second sentence of cl 74 are words of obligation.

69    There are two reasons recorded to support the primary judge’s conclusion at [45] that the second sentence of cl 74 “does no more than provide aspirational particulars of the aspirational commitment made in the first sentence.” First, the second sentence does not expressly refer to La Trobe. Second, it does not contain words of obligations such as “will” or “shall,” which are employed elsewhere in the EBA to impose obligations on La Trobe. On appeal, La Trobe supported the primary judge’s construction on the same bases.

70    With respect to the primary judge, the only person that the second sentence could be addressing is La Trobe. La Trobe is the only entity with the capacity to give effect to what the second sentence seeks to have addressed. The reference to La Trobe in the first and third sentences puts that issue beyond doubt. Second, while it is true that particular words capable of conveying obligation (“will” and “shall”) were not used, that does not necessitate the result that the words that were used (“are to be”) do not themselves convey obligation. The words “are to be” are capable of connoting obligation: for example, “two motor vehicles are to be provided by A to B on or before 30 June 2016.” Context is all-important, as indeed it is for the words “will” and “shall.” The absence of express reference to La Trobe and the fact that the words “will” or “shall” are not deployed to connect the sentence’s subject with the obligation imposed is likely the consequence of the passive rather than the active voice being utilised in the second sentence of cl 74. Use of the active voice elsewhere in the EBA is of no significance. Other clauses that impose substantive obligations (such as cl 43.1) do so in the passive voice and using the phrase “are to be”. Provisions in industrial agreements commonly reflect contributions made by many different authors. That is particularly so with agreements, like the EBA, which are not new but are based on earlier agreements, only parts of which are re-negotiated. Without more, an inconsistency in grammatical style is not likely to be instructive on a construction issue such as that which cl 74 raises.

71    La Trobe also sought to support the constructional conclusion reached by the primary judge on the basis that the words utilised in cl 74 are ill-adapted to impose substantive obligations. In relation to the second sentence, the use of the phrase “wherever possible”, in the absence of any guide as to what are the contemplated possibilities, was said to give rise to a wide and uncertain operation unlikely to have been intended for a term the breach of which has penal consequences.

72    But there are countervailing reasons why “wherever possible” is well adapted to serve the purpose of cl 74 and is not out of keeping with similar expressions often used in not only obligatory, but penal contexts.

73    It is clear that cl 74 does not intend to impose an absolute prohibition on La Trobe making positions redundant or utilising compulsory retrenchment. The second sentence imposes a limitation, not a prohibition. That limitation has been expressed by reference to a general criterion or standard rather than specific prescriptions or proscriptions. The intent was to condition the extent of the limitation by the alternatives to redundancy or compulsory retrenchment that exist and are possible in the circumstances prevailing at the relevant time. The words “wherever possible” indicate the intended ambulatory nature of the extent of the limitation and that it is recognised that the content and extent of the limitation will shift with the prevailing circumstances. In the context of shifting circumstances (i.e., where what is possible may vary greatly from time to time), the phrase is well adapted to serve the purpose for which it has been utilised.

74    The type of mechanism here employed is familiar and is commonly used in obligatory settings. A “reasonable endeavours” or “best endeavours” clause in a legal contract serves a similar purpose of conditioning the extent of an obligation to the prevailing circumstances: see, e.g., Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640 at [41] (French CJ, Hayne, Crennan and Kiefel JJ). Reasonableness is often used as a standard or criterion to qualify a legal obligation. The FW Act is replete with examples, including provisions with penal consequences. For example, permit holders must not exercise State or Territory OHS rights unless they comply with reasonable requests made by the occupier of premises to comply with an occupational health and safety requirement (s 499); an employer must not request or require an employee to work more than certain hours unless the additional hours are reasonable (s 62); a person’s dismissal is not a case of genuine redundancy if it would have been reasonable in all the circumstances for the person to be redeployed (s 389); before an employer takes employer response action in regard to an enterprise agreement the employer must take all reasonable steps to notify the employees who will be covered by the agreement of the action (s 414(5)).

75    The mechanism is also a common feature of the criminal law. For example, in Victoria, the offences of blackmail and loitering near schools incorporate a reasonableness standard (ss 87 and 60B Crimes Act 1958 (Vic)), as do the defences of duress, self-defence, and sudden or extraordinary emergency (ss 322O, 322K, 322R Crimes Act). There are examples of the use of the phrase “wherever possible” in obligatory contexts including in delegated (and especially town planning) legislation (see, e.g., Sharpe v Town of Vincent [2010] WASC 391 at [55], Newcastle & Hunter Valley Speleological Society Inc v Upper Hunter Shire Council (No 2) [2010] NSWLEC 104 at Sch 1, S1.20.3(f), and ROI Properties Pty Ltd v Council of the City of Sydney [2010] NSWLEC 1096 at [46]), in imposing contractual requirements (see, e.g., Oberon Property Holdings Pty Ltd v R & D Panelform Limited Partnership [2009] NSWSC 1429 at [6] and Stocks & Holdings (Constructors) Pty Limited v Arrowsmith (1964) 112 CLR 646 at 647), in statute (see, e.g., s 26(1)(c) of the Severe Substance Dependence Treatment Act 2010 (Vic)), and indeed in industrial instruments (see, e.g., Automotive, Food, Metals, Engineering, Printing And Kindred Industries Union v Total Corrosion Control Pty Ltd [2006] AIRC 186 at [4]).

76    La Trobe made a similar contention in relation to this phrase in the third sentence: “all reasonable attempts to mitigate”. For the same reasons, the use of that phrase is not indicative of a lack of binding intent.

77    As to the asserted breadth of the second sentence, I accept the NTEU’s submission that the meaning of the phrase “wherever possible” is informed by the content of the third sentence. The qualification to the reservation of rights in the third sentence serves to delineate or demarcate the area of operation of cl 74 from that of cl 76, which contains the “agreed redundancy procedures” to which the reservation refers. I will say more about that shortly. But if that is so, and if compliance with cl 74 is an intended prerequisite to the use of the cl 76 compulsory redundancy procedures, as the third sentence suggests, then the qualification to the use of cl 76 (“when all reasonable attempts to mitigate against such action and to avoid job loss have been unsuccessful”) sheds light on the nature of the preceding obligation, imposed by cl 74. In other words, where all reasonable attempts to mitigate against the use of compulsory retrenchment have been taken, the available possibilities called up by the phrase “wherever possible” will have been exhausted. In that way, the third sentence delimits the breadth of the operation of the second sentence.

78    A further basis relied upon by La Trobe to support the conclusion reached by the primary judge was that the highly-prescriptive provisions regulating consultation (cl 73) and retrenchment (cl 76) provide the intended safeguards to employees, and that their prescriptive content sits ill with cl 74 itself having binding effect. It was said that if cl 74 was prescriptive there would be significant overlap between clauses 74 and 76.

79    First, La Trobe relied upon the terms of cl 76.3:

76.3    Where the University has decided to terminate the employment of one or more employee(s) for reasons of an economic, technological, structural or similar nature, including:

(a)    a decrease in student load in any course or subject on any campus;

(b)    a decision to cease offering or to change the academic content of any course, subject or unit, or to cease support of a research area on any campus;

(c)    financial exigency in an organisational unit or cost centre;

(d)    where the position is no longer required as a result of changed work methods, reorganisation, financial exigency, or the application of technology; and/or

(e)    where the duties of the position are changed to such an extent that the incumbent is no longer competent to perform those duties,

the University will formally notify the affected employee(s), and their Representatives, in writing that their employment will terminate, the reason(s) for the termination, and the proposed date of cessation of employment.

Where the University is required to provide a notification pursuant to s.530 of the FW Act, a copy will also be provided to the relevant Unions together with a copy of the template letter sent to affected staff.

80    As is apparent, the circumstances in (a) to (e) are examples of reasons that would justify La Trobe terminating the employment of the affected employee. La Trobe asserted that “a number of the examples [in (a) to (e)] would not arise if all ‘possible’ alternatives to redundancy needed to be examined” prior to recourse to cl 76.3. There is little force in that contention. First, I would doubt that the operation of cl 74 would entirely negate the deployment of any of the reasons for compulsory retrenchment that are contemplated in cl 76.3(a)–(e). Further, if the operation of cl 74 diminished resort to cl 76, all that would demonstrate is that an anterior process had the effect of reducing the need to rely on a fall-back process. That would evidence the successful co-existence of two prescriptive provisions with different functions. It would not demonstrate that one of the provisions (cl 74) is ill-adapted to impose substantive obligations.

81    The second basis for La Trobe asserting an overlap is that the work required by cl 74 (if binding) is already done by cl 76. There are a number of reasons why that proposition should be rejected.

82    First, cl 74 covers a wider territory than does cl 76. Clause 76 is not concerned with avoiding the loss of extant positions or, in other words, maintaining the number of positions of employment made available by La Trobe. Although, as the primary judge identified at [27]-[28], the word “redundancy” is often wrongly used (including in cl 76) to connote a retrenchment, it is clear that when “redundancy” is used in cl 74 (which speaks of both redundancies and retrenchments), it is used to connote a loss of a position. Avoiding the loss of positions or maintaining the number of available positions of employment is not a process with which cl 76 is concerned. Clause 76 deals with compulsory retrenchment, that is, the termination of an employee’s employment, and insofar as it deals with avoiding retrenchment, it seeks to do so by continuing the employment of an employee whose position is redundant rather than by saving the position that has become redundant. In contrast, cl 74 is concerned with both maintaining the overall number of positions and maintaining the employments of La Trobe’s employees.

83    Second, although both cl 74 and cl 76 are concerned with avoiding compulsory retrenchments, cl 74 potentially has a wider operation. A voluntary separation process is not provided for by cl 76 but, depending on the circumstances, might be the kind of alternative action that cl 74 may require. In such a process, employees who wish to resign are given the opportunity to do so. Usually that is encouraged by the offer of a separation package. The process may or may not entail a capacity for the employer to decline to offer a package to an employee that the employer wishes to keep. Voluntary resignations have the effect of reducing or avoiding the compulsory retrenchment of employees, because employees who may otherwise have been compulsorily retrenched are redeployed into positions vacated by the resignations.

84    There are other processes involving the resignation of employees, such as early retirement and natural attrition, that can facilitate the avoidance of compulsory retrenchment. Reducing full employments to part-time fractional employments as well as encouraging the taking of unpaid leave are other examples of processes with which cl 76 does not deal and which could, depending on the circumstances, be required as a mechanism for avoiding breach of the obligation to use compulsory retrenchment as a last resort.

85    There is, therefore, no overlap between cl 74 and cl 76 in relation to the avoidance of redundancies, properly so called. In relation to the avoidance of compulsory retrenchment, there is a capacity for cl 74 to require La Trobe to implement processes or procedures for avoiding compulsory retrenchment that cl 76 does not require. In other words, cl 74 has a role and function different and additional to cl 76. There is some overlap, but the clauses are not coextensive.

86    Relatedly, La Trobe contended that, if cl 74 had a binding effect, the redeployment procedures provided for by cl 76 would be redundant and that such an outcome could not have been intended.

87    It is true that efforts to redeploy employees may be required by cl 74 and also by cl 76. But that potential for overlap has been recognised and dealt with by the reservation in the third sentence of cl 74. The qualified reservation of La Trobe’s right to use cl 76 identifies that a two-stage process is contemplated. The first stage requires La Trobe to meet the requirements of cl 74. The second stage is access to cl 76.

88    So far as the use of redeployment is concerned, what marks out the cl 76 redeployment process from any redeployment process that cl 74 may require is that it is a process which seeks to avoid the compulsory retrenchment of an employee whose position has been identified as redundant or potentially redundant. It operates at the level of the individual and in relation to the redundancy of a particular position.

89    But redeployment can be utilised as a means of avoiding compulsory retrenchments without any particular position being identified as redundant and without any particular employee being identified for retrenchment. A reduction in the number of positions, and thus a reduction in the number of employees employed, can be achieved by a voluntary separation process or any of the processes identified at [83]–[84] above, without any particular employee being identified for retrenchment. At the macro level, rather than at the individual level, procedures that utilise redeployment to reduce the overall numbers of positions in the workforce may be available, especially in the case of a large employer.

90    In the two-stage process contemplated by cl 74, that clause is intended to operate at the macro level. When all “reasonable attempts to mitigate” have been taken at that level, the second stage (cl 76) becomes available to La Trobe. So understood, there is no significant overlap between cl 74 and cl 76 in relation to the use of redeployment as a mechanism to avoid the use of compulsory retrenchments other than as a last resort.

91    On the basis of the NTEU’s primary ground of appeal the appeal should be allowed. It is not necessary to consider the other grounds raised, some of which were coextensive with the primary ground of appeal. In allowing the appeal, orders should be made that the order made by the primary judge on 11 December 2014 be set aside and that the matter to be remitted to the primary judge to be heard and determined in accordance with law. The parties accept that the words “by consent” erroneously appear on the order made on 11 December 2014. A further order deleting those words should also be made.

Associate:

Dated:    8 October 2015

REASONS FOR JUDGMENT

White J

92    This appeal arises in unusual circumstances. The primary Judge said at [17] of his reasons that the Court was determining as a preliminary question whether, on its true construction, cl 74 of the La Trobe University Collective Agreement 2014 (the 2014 Agreement) imposed any and, if so, what binding obligations on La Trobe University (the University).

93    The Judge determined the question he had identified on the basis of the case pleaded by the appellant in its statement of claim (no defence had been filed by the University), the 2014 Agreement and some limited evidence.

94    The appeal comes to this Court in a context which involves neither found, agreed nor assumed facts. Some definition may have been given to the proceedings at first instance by the appellant’s pleaded case that the University had not in relation to the termination of employees in consequence of redundancy offered or implemented a voluntary redundancy program, but that was no more than a pleaded case.

95    Clause 74 provides:

The University is committed to job security. Wherever possible redundancies are to be avoided and compulsory retrenchment used as a last resort. The University reserves the right to use the agreed redundancy procedures and provisions set out in this Agreement when all reasonable attempts to mitigate against such action and to avoid job loss have been unsuccessful.

96    The primary Judge rejected (at [40]) the appellant’s submission at first instance that the second sentence in cl 74, even when read in conjunction with the third sentence, imposed binding obligations on the University. He regarded cl 74 as being “ambiguous and confusing” (at [47]).

97    I respectfully agree with the observations in [24]-[27] of the reasons of Jessup J about the procedure which was adopted at first instance. It has created difficulties for this Court on appeal. Nevertheless, while the Judge’s order of dismissal of the underlying proceedings stands, the appellant is out of court. An appeal is the appellant’s only remedy.

98    The particular circumstances giving rise to the appeal make it appropriate however, for the Court to confine itself now to the matters necessary for decision on the point decided by the Judge. In particular, I consider it appropriate that the Court consider whether cl 74 does create binding obligations. That determination requires the Court to identify, at least to some extent, the content of any binding obligation which may exist but, in my view, the Court should not attempt an exegesis of the scope of cl 74. That is better left to the occasion, whether at first instance or on appeal, when such a consideration may be necessary.

99    A more complete account of the facts and circumstances giving rise to the appeal is contained in the respective reasons of Jessup J and Bromberg J. It is not necessary to repeat that account in these reasons.

100    The circumstance that the order which the appellant seeks to have this Court set aside on appeal is expressed to have been made by consent is a matter of no consequence. The words “by consent” were plainly included by error.

101    I agree, respectfully, with the reasons of Jessup J concerning grounds three to six in the appellant’s amended notice of appeal and do not wish to add anything further to them. I also agree that ground two should be dismissed because it raises a matter not agitated before the primary Judge.

102    However, I consider, with respect to the primary Judge, that cl 74 of the 2014 Agreement does impose binding obligations on the University although not with the precise content for which the appellant contended. My reasons for that conclusion coincide to a significant extent, but not completely, with those given by Bromberg J at [65]-[89] of his reasons. That being so, I will state briefly my own reasons. It is not necessary to refer to the authorities concerning the principles to be applied to the construction of collective agreements: they were not in issue at the hearing.

103    It is appropriate to commence by reference to the University’s submission with respect to onus. The University submitted that the appellant had borne the onus at first instance of establishing that its construction of cl 74 was correct and, accordingly, that the issue raised on the appeal was whether it had discharged that onus.

104    In my opinion, it is inappropriate to approach the determination of the appeal on that basis. As the primary Judge recognised, the question before him was one of construction, that is, the determination of the proper meaning and effect of cl 74. Questions of that kind do not involve an onus in the sense of the moving party having to discharge an evidentiary or persuasive burden. That is because there is but one correct construction of cl 74. That construction does not vary according to which of the parties to the litigation is the moving party. To hold that the moving party has an onus is to suppose that there is an available meaning for the moving party to displace. That is an erroneous view.

105    The respondent sought to support its submission on the question of onus by reference to AFMEPKIU v Qantas Airways Limited [2001] FCA 547; (2001) 106 IR 307 at [65]-[68]. In that case, North J held that a disputed clause in an enterprise bargaining agreement was ambiguous and capable of multiple interpretations. Each party had adduced evidence of background facts which they had submitted demonstrated the proper construction of the clause for which they contended. It was in that context that North J held that the AFMEPKIU had not established on the balance of probabilities that the parties intended the agreement to operate in the manner for which it contended. Likewise, North J held that the construction advanced by Qantas was not established by its evidence of the background facts.

106    When parties seek to place before the Court evidence as to background circumstances bearing upon the proper construction of a clause in an enterprise bargaining agreement, it is natural to speak of them having a burden of proof to establish those facts and a persuasive burden of showing that those facts support the construction for which they contend. However, the AFMEPKIU case is not, on my understanding, authority for the proposition that, in a case like the present in which the Court is construing a document in accordance with its own terms, the moving party has an onus of establishing the correctness of the construction for which it contends.

107    Accordingly, I do not regard the question for this Court as being that of whether the appellant has discharged an onus.

108    Although it may be a statement of the obvious, it is appropriate to keep in mind that the document which the Court is asked to construe is an enterprise agreement made pursuant to the regime in Pt 2-4 of the Fair Work Act 2009 (Cth) (the FW Act). It is in the very nature of these agreements that they are intended to establish binding obligations. The manner of making such agreements is subject to detailed prescription and their operation is contingent upon approval by the Fair Work Commission, the obtaining of which is itself a matter of detailed prescription. In my opinion, it is natural to suppose that parties engaging in this detailed process intend that the result should be a binding and enforceable agreement. To my mind, that is an important matter of context when approaching the construction of cl 74.

109    That does not mean that parties to an enterprise agreement may not include in their agreement some matters which are in the nature of statements of aspiration or commitment and not themselves intended to be enforceable obligations or entitlements. Clearly, they may: Reeves v MaxiTRANS Australia Pty Ltd [2009] FCA 970; (2009) 188 IR 297 at [19]-[22]. The 2014 Agreement itself provides an example as the parties were agreed that the first sentence in cl 74 is aspirational in nature. But it remains the fact that the 2014 Agreement was plainly intended, at least generally, to create binding obligations and cl 74 is to be construed in that context.

110    In my opinion, the text of the second and third sentences in cl 74 in its plain and ordinary meaning is suggestive of the second sentence imposing a binding obligation. The second sentence, while expressed in the passive voice, is in the language of obligation. Whenever possible, redundancies “are to be avoided” and compulsory retrenchment[s] “are to be used as a last resort”. Terminology of this kind is just as capable of conveying obligations as are the words “will” and “shall” used in cll 73, 75 and 76, to which the respondent drew attention. Clause 74 would not have any different meaning if it had provided instead that the University “will” whenever possible avoid redundancies and “will” use compulsory retrenchment as a last resort. In my opinion, this is how a reasonable reader of the clause would understand the second sentence in cl 74.

111    I agree that the third sentence in cl 74 does not itself impose an obligation on the University: it is instead, as it says, a reservation of rights. However, that reservation is important in reaching an understanding of the effect of the second sentence. Its inclusion seems to reflect an understanding that the second sentence in cl 74 imposes an obligation on the University. While it is not impossible, it does not seem plausible that the University would have sought an express acknowledgment of its rights with respect to something that was purely aspirational.

112    In his reasons at [46], the primary Judge held that the apparent intention of the reservation in the third sentence of cl 74 was “to provide some general comfort to employees” in the event of redundancies occurring. It may be that the Judge was referring in this respect to both the second and third sentences. To my mind, this explanation does not seem persuasive. It is improbable that something intended only as a salve should be expressed in the seemingly emphatic language of obligation appearing in the second sentence when alternative terminology, more in keeping with notions of comfort and reassurance, was so obviously available. If the Judge was referring only to the third sentence, it is not readily apparent how a reservation of rights to the University could provide comfort to its employees. On the contrary, the reservation seems more adapted to providing assurance to the University.

113    The primary Judge attached significance (at [45]) to the fact that the second sentence in cl 34 does not refer expressly to the University. I respectfully take a different view. Whether aspirational or obligatory in nature, the second sentence can be referring only to the University. It is the only entity to which the 2014 Agreement can be speaking when it provides that, whenever possible, redundancies are to be avoided and compulsory retrenchment used as a last resort. The alternative explanation advanced by counsel for the respondent to the effect that the second sentence does not have a subject because it is in the nature of a statement of the “philosophical view” by both parties is not persuasive. One wonders why the University would have wished to reserve its position by the third sentence if the second sentence was no more than a statement of philosophical view. If there be a constructional choice between the second sentence being understood as conveying a statement of obligation, on the one hand, and a statement of philosophy, on the other, the former seems more plausible.

114    I do not attach the significance which the primary Judge did to the use of the passive voice in cl 74, in contrast to the active voice “will” and “shall” in cll 73 and 76. In some contexts, a difference in language of this kind may be significant. That is particularly so when the Court is construing a document prepared solely or predominantly by a single draftsperson. In that case the Court may give effect to the principle that a change of language signifies a change of meaning.

115    However, it is notorious that agreements such as the 2014 Agreement are not of that kind. Typically, they supersede a previous agreement which itself incorporated terms from previous agreements or other industrial instruments. It is commonplace for such agreements to incorporate terms settled and agreed upon at different times in the past and which are the handiwork of different draftspersons, with differing drafting styles. Perhaps because those involved attach greater importance to securing the continuation of matters previously agreed upon, it is often the case that little attention is given to the niceties of drafting discussed in texts such as Piesse, The Elements of Drafting. Different wording often reflects no more than a failure to appreciate the desirability of consistency in terminology when the same meaning is intended. For this reason, I consider that little significance can be attached to the use of the active voice in some provisions, and the passive voice in others.

116    It is also pertinent in this respect that the 2014 Agreement contains several instances of obligations imposed by language in the passive voice or in the third person. These include cl 43.1 concerning the provision of uniforms and protective clothing which uses the same words in the passive voice as does cl 74. Plainly enough that clause imposes an obligation of the University even though expressed in the passive voice, that is, uniforms and protective clothing “are to be provided”.

117    It was contended that the qualification “wherever possible” detracts from the conclusion for which the appellant contended. I respectfully disagree and consider that it tends to confirm the binding nature of the commitment. Bromberg J has given examples of the use of the term “wherever possible” (more properly “whenever possible”) having been used in an obligatory context. The 2014 Agreement itself uses the same or analogous expressions in clauses which are plainly obligatory in nature. These include cll 12.5, 26.12, 52.1, 63.11(b) and 73.8.

118    The primary Judge noted the distinction between the concepts of “redundancy” and “retrenchment” (it is workers’ jobs which may become redundant rather than the workers themselves but it is the occupant of a job who may be retrenched). The Judge also noted at [28] that, despite this distinction, it is not uncommon for those involved in industrial affairs to use the words “voluntary redundancy” and “compulsory redundancy” as referring to the termination of employment following redundancy.

119    It is possible that the parties to the 2014 Agreement have used the word “redundancy” in the second sentence of cl 74 without regard to the distinction just mentioned. That is to say, it is possible that the second sentence requires that, whenever possible, retrenchments are to be avoided and, furthermore, compulsory retrenchments are to be used as a last resort. Such a construction could be seen consistent with the overall subject matter of cl 74, namely, job security. It is also consistent with the reference to “the agreed redundancy procedures” in the third sentence, which, as will be seen shortly, are concerned with processes leading to the termination of an employee’s employment.

120    However, the second sentence refers to two distinct actions: avoiding redundancies and using compulsory retrenchment as a last resort. There would in effect be a considerable overlap of obligation therefore if “redundancies” means “retrenchments”. The improbability of that being intended is strongly suggestive of the word “redundancies” being used in cl 74 in its proper sense.

121    The University submitted that, on this basis, there would be duplication in effect of the obligations contained in cl 73 which is entitled “Managing Change”. In substance, cl 73 requires notification by the University to employees who may be affected by changes which it is proposing to introduce and an opportunity to those employees to be involved in discussions about those changes, including discussions directed to the identification of means of mitigating any adverse impacts which the changes may have. It cannot be gainsaid that in some circumstances there may be some overlap in the discharge of the obligations imposed by cll 73 and 74. But their fields of application are different. The focus of cl 73 is on managing the introduction of change in the workplace, even if that change may not result in any redundancies. Further, there is scope for cll 73 and 74 to operate independently of the other and, in particular, for cl 74 to operate even when s 73 has been invoked.

122    As the separate reasons of Jessup J and Bromberg J indicate, the primary Judge attached considerable significance to the relationship between cll 74 and 76 in the 2014 Agreement and to difficulties which he perceived in that relationship if cl 74 is understood as imposing binding obligations. Respectfully, I do not share the concerns of the primary Judge. Clauses 74 and 76 do have to be read together. The third sentence in cl 74 makes that plain. In my opinion, cll 74 and 76 can operate harmoniously if they are understood as operating at different points of time.

123    Clause 76 indicates on its own terms when it has application. It operates when the University has determined that retrenchment is necessary. That is indicated by cl 76.3 which, in my opinion, specifies not only the event triggering the operation of that subclause but the operation of the whole of cl 76. For convenience, I will set out again the relevant portions of cl 76.3:

[76.3]    Where the University has decided to terminate the employment of one or more employee(s) for reasons of an economic, technological, structural or similar nature, including:

....

The University will formally notify the affected employee(s), and their Representatives, in writing that their employment will terminate, the reason(s) for the termination, and the proposed date of cessation of employment.

Where the University is required to provide a notification pursuant to s.530 of the FW Act, a copy will also be provided to the relevant Unions together with a copy of the template letter sent to affected staff.

124    As can be seen, cl 76.3 imposes obligations on the University which arise when it has “decided to terminate the employment of one or more employee(s)” for reasons of redundancy. The employees to whom cl 76.3 speaks are particular identified employees, being those whose employment the University has decided to terminate.

125    Almost the whole of the balance of cl 76 is concerned with what follows after the University has given the notification required by cl 76.3. Clause 76.4 specifies the period of notice to be given to such employees (which varies according to their age and length of service); cl 76.5 provides for an eight week “redeployment period”; cll 76.6 to 76.12 specify steps to be taken by each employee and the University in the redeployment period, with a particular focus on attempts to locate an alternate job for the affected employees; cl 76.13 provides for early separation for those employees who request it; cl 76.14 provides for the actual termination of employment and payout of entitlements; cll 76.17 and 76.18 provide for the calculation of the employee’s entitlements; and cll 76.19 to 76.25 provide for a process of review. It apparent that the operation of each of these subclauses is entirely dependent upon the University having made the decision to terminate and having given the affected employees the notification to which cl 76.3 refers.

126    On this understanding, I consider that cll 74 and 76 have operation at different stages. Clause 74 operates at a time which is antecedent to that at which cl 76 operates. It should be understood as operating at the time when the University is making the structural, strategic or policy decisions which will, or could, result in redundancies or compulsory retrenchments. That is to say, it operates at the time when the University is deciding on the matters which may lead in due course to the operation of cl 76. In contrast to cl 76, cl 74 is not concerned primarily with identified employees, although the identity of the employees who will be affected may be obvious in some cases. Put slightly different, cl 76 operates only when the condition of “last resort” in the second sentence of cl 74 has been satisfied. That understanding provides an explanation for the University’s wish to reserve expressly in cl 74 the right to use the agreed redundancy procedures when all reasonable attempts by it to mitigate such action (termination of employment) and to avoid job loss have been unsuccessful. It also indicates that the University does not have to comply with the requirements of cl 76 at the antecedent time at which cl 74 operates.

127    Clause 76.2, which provides that the University “will actively seek to redeploy any employee who may be notified of potential redundancy to a suitable vacant position”, may be thought to be discordant with this analysis. Although this obligation is contained in cl 76, it appears before cl 76.3 and accordingly is not, on its face, subject to the event on which cl 76.3 and the remaining subclauses operate. This led to some debate at the appeal hearing as to its effect. In my opinion, it is unnecessary and undesirable to express a final view. It is sufficient to say that, despite its location in cl 76, cl 76.2 appears to operate in respect of only those employees to whom the cl 76.3 notification has been given. It seems unreasonable to regard it as imposing an obligation on the University with respect to each employee who may possibly be notified of a potential redundancy.

128    The University emphasised that cl 74 does not contain any stipulation as to what it must do in order to discharge the putative obligation contained in its second sentence. It contended that the omission of any expressed stipulations of this kind undermined the argument that the sentence imposed a binding obligation. I do not agree. The University’s obligation is to avoid, whenever possible, redundancies and to use compulsory retrenchment as a last resort. It would be natural to read in a word such as “reasonably” or “practically” into cl 74 so that the obligation imposed on the University applies whenever it is “reasonably possible” or “practically possible”. That is because it is appropriate to regard cl 74 as operating in a practical environment so that mere theoretical or impractical possibilities may be ignored.

129    The terms “to be avoided” and “as a last resort” in the second sentence are not so vague and uncertain as to be incapable of enforcement. The application of those terms will involve the determination of matters of fact and degree of a kind commonly determined by courts.

130    The University also emphasised the words “all reasonable attempts to mitigate against such action and to avoid job loss” in the third sentence of cl 74. It submitted that this terminology was ill-adapted to the imposition of substantive obligations because it was vague and of uncertain content. Whether or not that is so, need not be considered as the University’s submission overlooked that the third sentence in cl 74 does not purport on its face, to impose a substantive obligation. It is instead a reservation of rights. Any uncertainty as to the extent of a reservation should not affect the binding nature of the obligation which it purports to qualify. In any event, it is not uncommon for obligations to be imposed in general terms leaving unspecified the way in which the duty is to be discharged. The statutory duty not to drive without due care is an obvious example.

131    For these reasons, I would uphold the appeal. I repeat that I have endeavoured to confine these reasons to those sufficient to indicate that cl 74 does impose binding obligations. I have not attempted to identify the full scope and extent of those obligations. In particular, I do not express any view as to whether compliance with cl 74 might require the University to implement a program of voluntary redundancy. Consideration of that issue should be left to the occasion when it arises for determination.

Associate:

Dated:    8 October 2015