FEDERAL COURT OF AUSTRALIA
INDUSTRIAL LAW -Unlawful termination - Whether employer had valid reason for terminating employment based on its operational requirements - Whether reinstatement is practicable and appropriate
Industrial Relations Act 1988
Workplace Relations and Other legislative Amendment Act 1996
Kumar v Prima Furniture (NSW) Pty Ltd (unreported, Federal Court of Australia, Moore J, 20 June 1997)
Cox v South Australian Meat Corporation (1995) 60 IR 293
Wyndham Lodge Nursing Home v Reader (No. 2)(1996)65 IR 253
Kenefick v Australian Submarine Corporation Pty Ltd (No 2) (1996) 65 IR 366
Perkins v Grace Worldwide Aust) Pty Ltd (unreported, Industrial Relations Court of Australia, Full Court, 7 February 1997)
Patterson v Newcrest Mining Limited (unreported, Industrial Relations Court of Australia, Full Court, 6 June 1996)
Nicolson v Heaven and Earth Gallery Pty Ltd (1994) 1 IRCR 199
Anthony Smith & Associates Pty Ltd v Sinclair (1996) 67 IR 240
ROSS WOLRIGE & APESMA v AUSTRALIAN BROADCASTING CORPORATION
No. NI 4709R of 1995
MOORE J
SYDNEY
24 JULY 1997
IN THE FEDERAL COURT OF AUSTRALIA ) General Distribution
)
NEW SOUTH WALES DISTRICT REGISTRY ) No. NI 4709R of 1995
)
GENERAL DIVISION )
BETWEEN: ROSS WOLRIGE
First Applicant
AND: ASSOCIATION OF PROFESSIONAL,
ENGINEERS, SCIENTISTS
& MANAGERS AUSTRALIA
Second Applicant
AND: AUSTRALIAN BROADCASTING CORPORATION
Respondent
JUDGE: Moore J
PLACE: Sydney
DATE: 24 July 1997
ORDER OF THE COURT
THE COURT ORDERS THAT:
(1) The application for review is dismissed.
NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA ) General Distribution
)
NEW SOUTH WALES DISTRICT REGISTRY ) No. NI 4709R of 1995
)
GENERAL DIVISION )
BETWEEN: ROSS WOLRIGE
First Applicant
AND: ASSOCIATION OF PROFESSIONAL,
ENGINEERS, SCIENTISTS
& MANAGERS AUSTRALIA
Second Applicant
AND: AUSTRALIAN BROADCASTING CORPORATION
Respondent
JUDGE: Moore J
PLACE: Sydney
DATE: 24 July 1997
REASONS FOR JUDGMENT
On 5 December 1995 an application was lodged under s 170EA of what was then entitled the Industrial Relations Act 1988 (“the Act”) by the Association of Professional Engineers Scientists and Managers, Australia (“the Union”) on behalf of Mr Ross Wolrige. Mr Wolrige was then an employee of the Australian Broadcasting Corporation (“the Corporation”) and it was anticipated his employment would terminate on 17 December 1995. As is apparent from agreed facts which I recount shortly, Mr Wolrige’s employment was not terminated until 7 May 1996.
The application under s 170EA was heard by a Judicial Registrar over four days in October and November 1996 and judgment was given on 29 November 1996. Seven witnesses were called in the hearing. The Judicial Registrar ordered that Mr Wolrige be reinstated and paid remuneration lost. On 16 December 1996 the Corporation applied under s 377 of the Act for a review of the determination of the Judicial Registrar by a judge. On 6 February 1997 an application for a stay was heard and refused in a judgment given on 27 February 1997. By operation of item 64 of Schedule 16 of the Workplace Relations and other Legislative Amendment Act 1996, the review is heard by the Federal Court of Australia: see Kumar v Prima Furniture (NSW) Pty Ltd (unreported, Federal Court of Australia, Moore J, 20 June 1997).
The review was heard on 16 and 17 June 1997 and, by agreement, was conducted by reference to the transcript of the oral evidence before the Judicial Registrar and the documentary evidence tendered. This brings into play the principles discussed by von Doussa J in Cox v South Australian Meat Corporation (1995) 60 IR 293 at 294 and further considered by the Full Court in Wyndham Lodge Nursing Home v Reader (No. 2) (1996) 65 IR 253 at 258. The application of these principles has relevance only in relation to one matter that might be material.
The following summary of the events leading to the termination of Mr Wolrige’s employment is, in the main, drawn from facts agreed between the applicants and the Corporation. I have, in some instances, paraphrased the agreed facts or added facts that were not contentious having regard to the submissions made in the review.
On 11 March 1963 Mr Wolrige commenced employment with the Corporation as an administrative assistant. He was continuously employed by the Corporation in a variety of positions until the termination of his employment on 7 May 1996. His employment was regulated by the ABC - CPSU Employment Agreement 1994 - 96 (“the CPSU Agreement”). The CPSU Agreement sets out procedures concerning employees declared “potentially excess” to staffing requirements.
What follows in this summary of the facts is more comprehensible if relevant parts of the CPSU Agreement are explained more fully now. The CPSU Agreement commenced on 1 November 1994. It did not apply to employees at a Senior Executive level (“SE”) but did apply to employees at an Administrative Officer (“AO”) level. Part 4 of the CPSU Agreement dealt with the filling of vacancies within the Corporation. Clause 4.6 identified three types of vacancies. Clause 4.6, together with clauses 4.7 and 4.8, permitted the filling of a vacant position for up to two months at the discretion of the relevant manager. It could be filled internally. There was no need to advertise the vacancy and the manager could select an employee “through seeking individual expressions of interest, local knowledge or through bulk internal expressions of interest”. However selection was to be based on merit. The combined effect of clause 4.6 and clauses 4.9 to 4.11 was to create a similar process of selection to fill a vacancy for between two and six months though selection could “occur through canvassing existing employees via the wide distribution of expressions of interest, the official bulletin and/or bulk internal expressions of interest”. Where a vacancy was to be filled for a period of six months or more, clauses 4.6 and 4.12 to 4.32 provided a more detailed system of selection including advertising and the constitution of a selection committee of at least three people.
While the CPSU Agreement contemplates that an existing employee might perform other work by appointment to another position, it also makes provision for the performance of other work without such an appointment. Clauses 4.33 and 4.34 provided:
“4.33 HIGHER DUTIES ATTACHMENT. Where the ABC has need for a task to be performed for a defined period of time which has been caused either by a specific project or through backfilling, then an employee may be attached to the vacancy, and paid accordingly, for the period specified. A higher duties attachment does not constitute a permanent variation to the employee’s pre-existing salary level or employment status.
4.34 Filling of Higher Duties Attachment. Higher Duties attachments will be selected and filled on the same basis as other vacancies contained elsewhere in this Part.”
Backfilling typically arises when an employee goes on leave and another more junior employee acts in the vacant position and the vacant position of the other employee is, in turn, filled by someone else. Backfilling of several positions may arise in a chain of positions temporarily vacated by the occupants temporarily acting in higher positions. As is apparent from its terms, clause 4.33 could also operate where a special project is undertaken.
Clause 4.18 provided that a “potentially excess employee” was to be considered, when applying for a position, in isolation and selected if “assessed as being suitable for the vacancy given a reasonable period of training, if necessary”.
This notion of a “potentially excess employee” derived from Part 9, Redeployment and Redundancy, of the CPSU Agreement. Clause 9.8, which applied to Mr Wolrige’s circumstances, provided:
“Other Redundancy. Where redundancy occurs for any other reason, formal notice to the employee under Section 9.21 is to be initiated. The Union will be advised simultaneously. The Union will also be advised of all relevant information pertaining to the redundancy. Consultation with the Union will occur in the stated times (sic) frames. Section 9.12 to 9.19 will apply for employees with less than 24 months continuous service.”
Clause 9.21 provided:
“FORMAL NOTICE (REDUNDANCY OTHER THAN ECONOMIC CIRCUMSTANCES). Where the ABC believes that an employee, or a class of employees, is potentially excess to the staffing requirements of the ABC for any reason other than through economic circumstances, the ABC will formally advise that employee that he/she is ‘potentially excess’. The ABC will, in the formal notice, outline the circumstance(s) surrounding the potential redundancy to the employee. Formal notice to the Union will occur simultaneously with the employee’s notification. The advice to the Union will contain all relevant information to facilitate consultation between the ABC and the Union.”
Once a notice was given, an employee had four weeks to decide whether to accept immediate retrenchment or to seek possible substitution or retraining and redeployment. If the employee decided to follow the latter course the CPSU Agreement provided for a period of eight weeks in which the employee might be redeployed. An “action plan” has to be developed and implemented. Clauses 9.34 and 9.35 repeated, in substance, the provisions earlier referred to in clause 4.18. During this eight week period, redeployment could have been effected by substitution. This is dealt with by clauses 9.29 to 9.31 which provided:
“9.29 SUBSTITUTION. Where a potentially excess employee has indicated a preference to be retained in employment, the ABC may seek, on a volunteer basis, from other employees who are not affected by a potential excess situation, acceptance of a retrenchment package in substitution of a potentially excess employee. The ABC will have regard to comparable or potential skills and relative efficiency of the employees in question.
9.30 ABC Satisfied With Comparable Skills. Where the ABC is satisfied that the current or potential skills and relative efficiency are comparable having regard to operational requirements, the ABC may substitute the volunteer employee for another potentially excess employee. The volunteer employee may be declared ‘excess’ by the ABC in accordance with Section 9.41 as soon as practicable with due notice or payment in lieu. Concurrent with the volunteer employee being declared excess, the former potentially excess employee will be redeployed and all redundancy action taken under this Part terminated.
9.31 ABC Not Satisfied With Comparable Skills. Where the ABC considers that the current or potential skills and relative efficiency between the employees in question are not comparable having regard to operational requirements, the original redundancy process may continue.”
I now return to the summary of the facts. While employed with the Corporation Mr Wolrige held permanent appointments at grades up to and including level AO8. He also acted in positions at SE3 level. From 12 January 1988 until March 1992 he acted at SE3 level in the position of Head TV Facilities Marketing. His salary was maintained at the SE3 level until 26 June 1994.
In March 1992 the position of Head TV Facilities Marketing was advertised and Mr Wolrige’s application for substantive appointment to that SE3 position was unsuccessful. On 4 May 1992 he was issued with a notice advising him that he was potentially excess to the Corporation’s staffing requirements. In July 1992 he was redeployed to the acting position of Co-ordinator, Program Inventory Group at AO6 level. The grading of that position was then under review. Mr Wolrige’s salary was maintained at an SE3 level while in this position.
On about 19 October 1993, an arrangement was made between the Corporation, the ABC Senior Executives Association and Mr Wolrige that:
(a) if the position of Co-ordinator, Program Inventory Group was graded at AO6, Mr Wolrige would fill that position at AO6 level and not be eligible for redundancy;
(b) if the position was graded above AO6, Mr Wolrige could compete on merit for appointment to the position;
(c) if unsuccessful in obtaining the appointment, Mr Wolrige would be eligible for redundancy at this acting SE3 level;
(d) Mr Wolrige’s salary maintenance at the SE3 level would end when the position’s grade was determined.
In April or May 1994, Mr Wolrige was redeployed to the substantive AO8 position of Special Projects Manager, Subscription Services. This was a new position created to facilitate the provision of services to the Corporation’s Pay-TV operations, which were to be operated by an independent company known as Arnbridge Australia Pty Ltd (later known as Australian Information Media Pty Ltd (“AIM”)). Redeployment to this substantive position meant that the redundancy action commenced in May 1992 ceased. Mr Wolrige’s services as Special Projects Manager, Subscription Services were, in May or June 1994, provided by the Corporation to AIM , by his secondment, and Mr Wolrige remained an employee of the Corporation. In his role as Special Projects Manager with AIM, Mr Wolrige performed a range of different duties on a project by project basis as required by AIM.
From May 1994 onwards there were discussions and correspondence between Mr Wolrige and others about the level of pay he would receive while seconded to AIM and the level at which he would return to the Corporation. The nature and effect of those discussions and correspondence were matters in dispute between the parties and I return to consider them later. From 26 June 1994 Mr Wolrige’s salary reverted to the AO8 level.
By letter dated 17 July 1995 Mr Wolrige was advised by Ms Julie Steiner, Chief Executive of AIM, that due to organisational and staffing constraints, AIM would no longer require his services after 1 September 1995. Mr McGarrity as General Manager of Resources and Services, ABC Television, had authority to make decisions about Mr Wolrige’s employment with the Corporation once his services were no longer required by AIM.
On 19 July 1995, Mr King, Federal Head TV Human Resources of the Corporation, made a handwritten note on a copy of the letter from Ms Steiner to Mr Wolrige reading:
“GMR&S TV
Ian,
As discussed last week. We now have a date - 1 September. Do you wish me to initiate formal redundancy/redeployment action? If so I will have it handled by NSW TV HR”.
On or before 20 July 1995, Mr McGarrity responded by a note stating:
“To Alan,
Please arrange for me to meet with Ross. After that redeployment/redundancy action should be initiated.”
On 1 August 1995 Mr Wolrige met with Mr McGarrity. There was an issue about what was said at this meeting.
On 6 September 1995, the ABC advised Mr Wolrige in writing that he was “potentially excess” to staffing requirements under clause 9.21 of the CPSU Agreement. On 28 September 1995, the Board of AIM formally announced its decision to wind up the pay-TV operations.
On 17 October 1995 Mr Wolrige confirmed to the Corporation that he wished to accept the redeployment option available under the CPSU Agreement. This occurred after the four week period for the making of that election had been extended by the Corporation. During the 12 weeks following his acceptance of the redeployment option, Mr Wolrige applied for every position advertised in the Official Bulletin (an in house publication) at AO6 level or higher for which he considered himself suitable. Mr Wolrige did not obtain any position within the 12 week redeployment period. Some positions for which he applied were withdrawn because they were no longer required. Where the position for which he applied did go to a selection committee, Mr Wolrige did not appeal the selection committee’s decision not to appoint him to the position.
Mr Wolrige was given extensions of time beyond the 12 week redeployment period to apply for redeployment to ongoing funded positions with the Corporation. During the extended period, Mr Wolrige applied for every position advertised in the Official Bulletin at AO6 level or higher for which he considered himself suitable. Mr Wolrige did not obtain any position within the extended redeployment period. Where a position for which he applied went to a selection committee, Mr Wolrige did not appeal the selection committee’s decision.
As noted earlier, on 5 December 1995 the Union filed an application under s 170EA. On 13 December 1995 Mr Wolrige was advised in writing that his employment would terminate on 17 December 1995, but that he could elect to work out a four week notice period until 12 January 1996. As part of the process of conciliation of Mr Wolrige’s application under s 170EA before the Australian Industrial Relations Commission, the Corporation agreed to extend the date for termination of Mr Wolrige’s employment to 9 February 1996. On 1 March 1996 the Corporation agreed to extend further Mr Wolrige’s employment until 19 April 1996.
On 20 March 1996 following a request by the ABC Senior Executives’ Association a memo was sent by electronic mail to sections of the Corporation asking whether they had work which Mr Wolrige could perform until 19 April 1996. The work would be funded by Federal TV management during the redeployment period. Short-term project work was identified in the NSW Programme Department and Mr Wolrige performed that work. On 19 April 1996 a further extension of the redeployment period until 7 May 1996 was agreed between the Union and the Corporation as part of “without prejudice” negotiations. On 7 May 1996 Mr Wolrige’s employment terminated. He received a redundancy payment equal to 77 weeks’ salary at the AO8 level plus leave entitlements. On 3 March 1997 the Corporation reinstated Mr Wolrige pursuant to the orders of Judicial Registrar Tomlinson. A supernumerary position was created for this purpose.
In the preceding summary, I noted that there was an issue about what Mr McGarrity discussed with Mr Wolrige at a meeting on 1 August 1995. Mr Wolrige gave evidence that Mr McGarrity said the Corporation was not going to make him redundant as it would cost it too much money and that he, Mr McGarrity, had a project in mind for him. Mr Wolrige denied being told at this meeting that a notice of the type he received on 6 September 1995, that he was potentially excess to requirements, would be sent.
Mr McGarrity’s account in his affidavit and oral testimony took issue with some aspects of Mr Wolrige’s account. He said he did not state that the Corporation would not make Mr Wolrige redundant. His evidence was less clear as to whether he put in issue Mr Wolrige’s denial that he was told a notice would issue. However in a memorandum written by Mr McGarrity dated 29 November 1995, he asserts he did tell Mr Wolrige that a notice would issue.
The Judicial Registrar made no specific finding about this divergence in the evidence as to what occurred at the meeting on 1 August 1995. Nor did she do so in relation to another meeting on 4 September 1995 between Mr Wolrige and Mr Smith which was the subject of conflicting evidence. Mr Wolrige said he received no forewarning of the letter of 6 September 1995, Mr Smith said he explained at that meeting to Mr Wolrige that a notice would issue. He declined to alter that evidence in cross-examination. It appears he was viewed by the Judicial Registrar as a credible and reliable witness.
Counsel for the applicants submitted that I could, as a matter of law, make no finding that Mr Wolrige was told that the notice of 6 September 1995 was to be sent before it was sent. I doubt that I am so constrained but, in my opinion, it really does not matter. The principal issue in these proceedings is whether the Corporation had a valid reason for terminating Mr Wolrige’s employment based on the operational requirements of the Corporation: see 170DE(1). The Corporation accepted that s 170EDA(1) requires it to prove that it had a valid reason based on its operational requirements. It did not seek to do so in the review by proving that either prior to the decision being made to send the notice or prior to the notice being sent, Mr Wolrige was consulted. Its case rested on its invocation of, and adherence to, the procedure provided for in Part 9 of the CPSU Agreement coupled with the evidence that Mr Wolrige was not redeployed in the period prior to the termination of his employment in May 1996. Indeed, it also relied on his failure to gain employment within the Corporation from the time judgment was given by the Judicial Registrar in November 1996 to date.
In my opinion, the Corporation was entitled to decide to send, and send, the notice it did on 6 September 1995 without prior consultation with Mr Wolrige. It is to be recalled that Mr Wolrige was the subject of an earlier notice that he was potentially excess to requirements when he was appointed to the AO8 position of Special Projects Manager in May 1994. It was made clear to Mr Wolrige that this appointment was conditional. He had first been told in a letter of offer dated 10 May 1994 that:
“I also confirm that once consortium arrangements for the new company (Arnbridge Australia Pty Ltd) are finalised, the company wishes to contract your services from the ABC to continue with the establishment phase of the operation. I’ll be in a better position to discuss the specific job requirements closer to the launch date.
Under this contractual arrangement, you would continue as an employee of the ABC and be subject to the terms and conditions of employment applicable to employees of the Corporation.”
This offer was accepted in writing by Mr Wolrige by letter dated 11 May 1994. The redeployment of Mr Wolrige to this position was effective from either 16 May 1994 or 27 June 1994. On 5 July 1994 he was sent a letter from a human resources manager which included the following:
“Under the arrangements discussed in Kim William’s letter of 18 May 1994, the ABC will provide your services, as and when required, to Arnbridge Australia Pty Ltd to continue work on the establishment phase of the operation. You should note that the project officer position was solely established to facilitate the provision of your services to Arnbridge and continuance of this arrangement is dependent upon the on-going work requirements of Arnbridge.”
The letter of 18 May 1994 referred to in the above extract was in the same terms as the letter of 10 May 1994 making the offer though the salary had been increased. This increase in the salary appears to have been in response to a request of Mr Wolrige in his letter of acceptance of 11 May 1994.
Mr Wolrige was avoiding being excess to requirements by accepting an appointment to the AO8 position. However it was being made clear to him at the time of his appointment, that the position he was taking up was one which would exist only for so long as AIM had work that it wished to have done by the occupant of the position. I would have thought that at least implicit in this arrangement was that if AIM indicated it did not wish to have work done by the occupant of the position then there was a real prospect that Mr Wolrige, as the occupant, would find himself in the position he had been before being appointed to it, viz, potentially excess to the Corporation’s requirements.
Indeed later correspondence with Mr Wolrige made this express. In his acceptance letter of 11 May 1994 Mr Wolrige had raised not only the salary he would receive as a Special Projects Manager but also his salary level should he return to the Corporation. This was the subject of further discussions and correspondence. In an internal memorandum of 5 August 1994, Mr McGarrity wrote:
“On 5th August I spoke to Ross Wolrige regarding the attached letter dated 5th July. As Ross and I understand it, Ross is to be employed by the ABC at the top of the AO8 range and the ABC is to then contract to provide his services to Arnbridge. You should negotiate with Arnbridge on the ABC’s behalf in respect of the term of this arrangement.
Ross fully understands that as and when the contract between the ABC and Arnbridge to provide his services ceases that Ross will be at the AO8 level for the purposes of any re-employment and redundancy action that may follow within the ABC.”
Reference was made by Mr Wolrige to this memorandum in a letter dated 28 January 1995 he wrote to Mr McGarrity. Mr Wolrige wrote, in part:
“I suggest that a simplified version of the arrangement should basically recognise the status quo ie: that whilst working in Pay TV at the maximum of the Admin level 8, the previous ABC salary level of Senior Officer level (point 3) should apply for re-employment or redundancy - this was originally requested and may well be possible now in light of recent changes. Obviously it is to my advantage to retain the Senior Officer level and after spending 30 years getting there, I do not wish to give it up lightly.”
It is to be noted that Mr Wolrige makes reference to re-employment or redundancy. Mr King responded to this letter of Mr Wolrige with a memorandum dated 13 February 1995 in which he referred to the earlier memorandum of 5 August 1994. He wrote, in part:
“Ian McGarrity wrote to me (Fed Head TV HR) on 5 August 1994 following discussions with you. Ian stated in his memo, copied to you,
“Ross fully understands that as and when the contract between ABC and Arnbridge to provide his services ceases that Ross will be at the AO8 level for the purposes of any re-employment and redundancy action that may follow within the ABC.”
Mr Wolrige was plainly on written notice, at the very latest by 13 February 1995, and probably as early as August 1994, that if the arrangement with AIM concerning the provision of his services came to an end, that he again might be subject to the procedures of the type provided for in Part 9 of the CPSU Agreement.
In any event the procedures in Part 9 require no more than the Corporation form a belief about the position of an individual employee or a class of employee. There is no requirement arising from Part 9 that there be consultation before a notice is issued under clause 9.21. Indeed the terms of 9.8, on one view, require that the notice be issued if an employee is, or might be, excess to requirements. It is true that by issuing a notice a process is put in train that can lead to the termination of employment. However, as the Corporation pointed out in submissions, it is a process that confers benefits on the affected employee in that he or she gains the opportunity to obtain, preferentially, other employment within the Corporation: see clauses 4.18, 9.34 and 9.35.
In my opinion the real issue in these proceedings is whether the application of the procedures in Part 9 to Mr Wolrige, as they were varied or modified by agreement, permits me to conclude that the Corporation’s operational requirements provided a valid reason for his termination. That would be so if I can infer that there were no positions in the Corporation to which Mr Wolrige might be appointed and, perhaps, no work for him to do that the Corporation might reasonably be expected to ask him to do. If those inferences are drawn then, in my opinion, the Corporation would have proved, as s 170EDA requires it to prove, that it had a valid reason for terminating his employment for reasons relating to its operational requirements.
At least for the purposes of s 170DE(1) an employer cannot be expected to retain in employment an employee for whom it has no work subject to the application of processes of the type referred to in Part III of the Convention concerning Termination of Employment at the Initiative of the Employer (Schedule 10 to the Act) and Part III of the Recommendation concerning Termination of Employment at the Initiative of the Employer (Schedule 11 to the Act). I should add that Part 9 of the CPSU Agreement broadly conforms with the requirements of those parts of the Convention and Recommendation and I can discern nothing in those parts that indicates that, to conform with them, Mr Wolrige should have been consulted, in the circumstances arising in July 1995, before a notice was issued under clause 9.21.
I earlier drew a distinction between positions to which Mr Wolrige might be appointed and work he might do. I did so because employment in the Corporation, as reflected in the CPSU Agreement, is in identified positions to which employees might be appointed or which might be filled temporarily. However, consistent with clause 4.33 of the CPSU Agreement, work can be done by an employee on a specific project, or during another person’s absence when positions are “backfilled” without the appointment of the employee to a position for that purpose. For reasons which will become apparent shortly, it is not critical that I determine whether the Corporation has proved there was no work for Mr Wolrige to do or whether it was necessary for it to do so to satisfy s 170EDA(1).
Before considering further the evidence, I should indicate that, in my opinion, the Corporation does not discharge the burden imposed by s 170EDA(1) by simply showing it complied with Part 9 of the CPSU Agreement. An award or industrial agreement may contain no provisions dealing with termination, may contain simple provisions such as a provision requiring that notice be given or may contain highly prescriptive or detailed provisions of the type found in Part 9. Compliance with an award or industrial agreement that required only that notice be given plainly would not address the issue raised by s 170EDA(1) in a case of the type exemplified in the present proceedings. Demonstrated compliance with Part 9 provides a means of meeting the burden imposed by s 170EDA(1). That is because, in relation to an employee whom the Corporation believes is potentially excess to requirements, compliance with Part 9 (but the application of which results in termination) would at least tend to demonstrate if not demonstrate, that the belief that initiated the process was well founded and the employee had no relevant role to play in the Corporation’s business or undertaking. A valid reason for termination would be demonstrated having regard to the Corporation’s operational requirements.
In the present case, I am satisfied that adequate and reasonable attempts were made to find alternative employment for Mr Wolrige by the process of him applying for positions which were advertised in the Official Bulletin and for which he might be suitable. Whether applications for such jobs were made as a result of Mr Wolrige acting alone and on his own initiative or because he was assisted by others charged with the task of assisting him is probably beside the point. The fact that he applied for and did not secure such an appointment provides cogent evidence that suitable positions, advertised in this way, did not exist. This evidence goes a long way to establishing no positions existed for which Mr Wolrige was suitable.
However, perhaps with the exception of a memorandum sent on 20 March 1996, no attempt was made to seek a substitute in the manner provided by clauses 9.29 to 9.31. I accept that the CPSU Agreement does not require the Corporation to seek a substitute and whether it does so or not is a discretionary matter. As explained during cross-examination by Mr Palmer, national industrial relations manager, television, the process of seeking volunteers that might be a substitute was usually done when the Corporation had “rounds of redundancies, not isolated individuals”. In re-examination he gave an example concerning camera operators. In many circumstances, such a policy may well be reasonable, given Part 9’s potential logistical implications, though, in terms, clauses 9.29 to 9.31 are not limited in this way. Moreover, it appears to me that a greater effort to find another position could reasonably be expected in relation to an employee who had worked for the Corporation for 33 years when the Corporation had, in substance, been his only employer.
It must be borne in mind that I am approaching the matter on the basis that the implementation of the procedure in Part 9, but which led to termination, would enable the Corporation to demonstrate that positions did not exist to which Mr Wolrige might be appointed and thus that it had a valid reason for the termination based on its operational requirements. During cross-examination Mr Palmer gave the following evidence:
“Mr Wolrige being someone who has 33 years’ experience in many different positions with the ABC would have skills and experience to do a range of different jobs within the ABC? --- I’m sure that he does possess some skills to do something like that, yes.
You would agree that there would be positions within the ABC filled by other staff which Mr Wolrige would have the skills and experience to fill if they were vacant? --- I can’t answer that. I have no knowledge that - I know Ross brings certain skills but whether you asked me to match them with a whole range of jobs that are available, that is not my role, it is the role of the people that manage the area. I don’t believe I can give you a straight yes on that one.
I am asking a very general question and it is simply this and I would have thought it not a difficult question for you to answer and that is given Mr Wolrige’s range of experience over his lengthy appointment and the skills that you understand he would have just at least from reading his CV and otherwise knowing his skills and abilities from the discussions with him and lengthy attempts to try and find him work that you would be able to make a general comment without necessarily naming particular positions; that there would be a number of different positions within the ABC which Mr Wolrige would have the skills and ability to do albeit that they are now currently filled by other people? --- In a general context, yes I would say.”
I accept that the tenor of this evidence is guarded. In re-examination Mr Palmer said that, at the time, the Union did not identify a person who could substitute for Mr Wolrige; there would be not a great deal more than 320 AO8 positions in the Corporation nationally and they represent a level of skill in a range of separate disciplines.
However the Act requires the Corporation to prove a valid reason based on operational requirements. In my opinion, in the circumstances of this case, if the Corporation fails to prove that Mr Wolrige could not be placed in a position within the Corporation then it has failed to satisfy the burden arising from the operation of s 170DE(1).
In my opinion, the evidence of Mr Palmer leaves room for real doubt about the absence of any position to which Mr Wolrige might have been appointed by the mechanism in clauses 9.29 to 9.31. That doubt would have been eliminated had the Corporation sought employees to volunteer as substitutes and none had been forthcoming or none forthcoming from positions for which Mr Wolrige was suitable. While, as I earlier noted, it was not obliged to call for volunteers as substitutes, the issue I must address is whether the Corporation has demonstrated it had a valid reason for terminating Mr Wolrige’s employment on 7 May 1996 based on its operational requirements. In my opinion, it has not. Accordingly I find that the termination of Mr Wolrige’s employment was in contravention of s 170DE(1).
The applicants contended that the Corporation had contravened 170DC. That section applies where employment is terminated for reasons related to the employee’s conduct or performance. The Corporation does not, nor ever has, contended that the termination of Mr Wolrige’s employment related to his conduct or performance. Nor, in my opinion, does the evidence support a conclusion that the termination was for that reason. This is not a case where the number of employees of an employer is to be reduced because of economic or other circumstances and a selection is made between potential candidates for retrenchment having regard to their perceived comparative skills: see Kenefick v Australian Submarine Corporation Pty Ltd (No 2) (1996) 65 IR 366. Rather the Corporation was having to deal with a situation where it was necessary for a long standing employee having to be placed in a position in which the skills and attributes he possessed, could be utilised. That did not occur. The applicants pointed to instances where they contended a choice or preference was made between Mr Wolrige and another employee in filling a position where the other employee was chosen. However not only do I doubt that they raise an issue about real and substantial choice or preference between employees of broadly comparable and suitable skills and ability, but such preference as there was, was not, in the circumstances of this case, the reason for the termination. Mr Wolrige’s termination was not for a reason relating to his conduct or performance. There was, in my opinion, no contravention of s 170DC.
I turn now to the question of remedy. Mr Wolrige seeks an order for re-instatement which is opposed by the Corporation. Section 170EE requires consideration of whether reinstatement is impracticable and whether, in all the circumstances of the case, it is appropriate to make the order. These matters, and particularly the latter, have been recently canvassed by a Full Court of the Industrial Relations Court of Australia in Perkins v Grace Worldwide (Aust) Pty Ltd (unreported, 7 February 1997). The Full Court endorsed, indirectly, observations of Wilcox CJ in Patterson v Newcrest Mining Limited (unreported, Industrial Relations Court of Australia, 6 June 1996) that:
“The requirement to consider the impracticability of reinstatement necessarily requires the Court to have regard to all the relevant circumstances of the case relating to the employer and the employee; as I said in Nicolson, to evaluate the practicability of a reinstatement order in a common sense way.”
and observations of Wilcox CJ in Nicolson v Heaven and Earth Gallery Pty Ltd (1994) 1 IRCR 199 at 210 that:
“It is important to note that Parliament stopped short of requiring that, for general compensation to be available, reinstatement be impossible. The word “impracticable” requires and permits the Court to take into account all the circumstances of the case, relating to both the employer and employee, and to evaluate the practicability in a commonsense way. If a reinstatement order is likely to impose unacceptable problems or embarrassments, or seriously affect productivity, or harmony within the employer’s business, it may be “impracticable” to order reinstatement, notwithstanding that the job remains available.”
The case of the Corporation in resisting an order for reinstatement was, as I apprehend it, that no suitable position was found for Mr Wolrige during what has been a fairly lengthy period in which he has applied for positions within the Corporation and that since the termination of his employment, the Corporation has been required, for budgetary reasons, to reduce its workforce by a further 300 or so positions. There was evidence about that matter which is, in a sense, in any event a notorious fact.
However, in my opinion, the proper approach for me to adopt is not to interfere with the order of reinstatement made by the Judicial Registrar but to make it plain that such an order would not preclude the termination of Mr Wolrige’s employment in accordance with the terms of the applicable industrial instrument and subject to any legislative constraints applying at the time it occurred, if it occurred. I adopt this approach because of the conclusion I earlier reached that the Corporation has not demonstrated that positions do not exist with the Corporation that Mr Wolrige might occupy, involving duties he could reasonably perform at an acceptable standard. There may be a position presently occupied by another employee who would be prepared to be made redundant in lieu of Mr Wolrige. If not, and no other suitable positions exist, then lawful termination may follow.
However I am not satisfied that the reinstatement is impracticable or that the discretion conferred by s 170EE(1) should be exercised with the result that no order for reinstatement should be made. The Court has power conferred by s 170EE(1)(a)(ii) to order the employer to reinstate an employee by appointing him or her to another position. The exercise of that power was considered by a Full Court of the Industrial Relations Court of Australia in Anthony Smith & Associates Pty Ltd v Sinclair (1996) 67 IR 240. The Full Court said (at 244):
“We have already set out the terms of s 170EE(1)(a)(ii) of the Act. The subparagraph empowers the Court to require the employer to reinstate the employee by appointing him or her “to another position on terms and conditions no less favourable than those on which the employee was employed immediately before the termination”. This might be a specific position, the availability and suitability of which is revealed by the evidence. On other occasions, the Court will not specify a particular position. Provided that the Court is satisfied that reinstatement is practicable and appropriate, it is open to the court to make an order in terms of par (a)(ii), leaving it to the employer to choose the position and to comply with the Court’s order to provide terms and conditions that are no less favourable than those on which the employee was employed immediately before the termination. If this course is taken, the employer may select an existing position, or he or she may create a new position for the purpose. If the latter, contrary to the submission of counsel for the employer, it will not be to the point that, in the absence of the order, the employer might not have created the position. We appreciate that creation of a new position may occasion a cost, or other disadvantage, to the employer. Where there is evidence that this will be so, that evidence may be relevant on the issues of practicability and appropriateness. But it would be contrary to principle to treat such evidence as necessarily determinative. The occasion for the order arises because the employer has acted unlawfully in terminating the employee’s employment. A reinstatement order is akin to an injunction compelling a wrongdoer to restore the position of the innocent party. In considering whether to grant an injunction, a court will always take into account the consequences of an order to the wrongdoer but the existence of adverse consequences has never been regarded as excluding the possibility of an order being made.”
The position to which Mr Wolrige might, by operation of an order under s 170EE(1)(a)(ii), be appointed might be a temporary one. It might not. However, as I earlier noted, I do not intend, by preserving the order of the Judicial Registrar, to inhibit the Corporation in the medium term (and by that I mean months not years), if no work is available for Mr Wolrige to perform that the Corporation wishes to have done.
Having regard to the evidence earlier referred to about the effective salary level at which Mr Wolrige was employed, the Judicial Registrar correctly ordered lost remuneration at the AO8 level. I do not see any need to vary the orders made by the Judicial Registrar. Accordingly, I order that the application for review be dismissed.
I certify that this and the preceding seventeen (17) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore.
Associate:
Dated: 24 July 1997
Counsel for the Applicant: Mr I Taylor
Solicitor for the Applicant: Ms E Boase of the Association of Professional Engineers, Scientists and Managers Australia
Solicitor for the Respondent: Ms H McKenzie of Blake Dawson Waldron
Dates of Hearing: 16 & 17 June 1997
