EXPLANATORY STATEMENT

What I am about to read is an explanatory statement.  It is not part of the judgment, but is intended to assist in public understanding of the judgment. 

The 194 applicants in this proceeding were formerly employees of the Hydro-Electric Commission (“the Hydro”).  Their employment terminated as a result of their retirement or retrenchment in the late 1980s or early 1990s.  They claim that as a consequence of wrongful conduct by the Hydro they have lost the opportunity to obtain benefits under the Retirement Benefits Fund Scheme (“the Scheme”).  That Scheme provided (and still provides) retirement benefits for employees of the Tasmanian Government and government instrumentalities such as the Hydro.  Persons employed in a permanent capacity were obliged to join.  From 1974 onwards temporary employees could elect to join. 

Six applicants have been selected as being typical of various categories of applicants whose employment commenced and terminated at different times.  When I speak of “the applicants”, I mean those six selected applicants. 

The applicants say they were in truth permanent employees, and not temporary as the Hydro contends.  Alternatively, they say that if they were temporary employees the Hydro, as a matter of deliberate policy, did not inform them of their right to elect to join the Scheme, and in some instances positively misled them as to that right. 

I find all these claims fail.

I find that the applicants were not employed in a permanent capacity, even though each of them was employed by the Hydro for a substantial period.  Employment for many years need not be inconsistent with an employee being temporary.  Much of the Hydro’s workforce was of necessity temporary because it was engaged in the construction of dams and associated works, which by law required Parliamentary approval for each project.  The Hydro was not engaged in dam construction on a permanent and indefinite basis.  Also, the status of being temporary or permanent has to be determined as at the time employment commences.  The Scheme legislation required the deduction of contributions from the salaries of permanent employees to commence immediately upon their appointment.  This does not allow for the possibility that temporary employees could, in hindsight, be regarded as achieving permanency gradually as the years passed.

I turn to the applicants’ alternative argument.  The first question is whether the Hydro, as a matter of law, owed to the applicants a duty to advise them of temporary employees’ right to join the Scheme, that being a duty the breach of which would give the applicants a right to damages.  I answer that question No.  There was in law no such duty, whether under statute or in contract or tort.

If there was such a duty, the Hydro did not breach it.  The Hydro in fact took reasonable steps to bring to the notice of its employees the existence of that right, which had been contained since 1974 in an Act of Parliament. The Hydro had in place routine administrative and clerical procedures for dealing with applications by temporary employees to join the Scheme.  It distributed a circular which was placed on notice boards throughout Hydro workplaces.  In early 1978 Mr Jack Russell, then Personnel Superintendent at Head Office in Hobart, travelled to Tullah and conducted a meeting with Union representatives for the specific purpose of encouraging temporary employees to join the Scheme.  From 1980 onwards the Hydro published widely, and gave at least to all new employees and very many existing employees, a booklet known as the Blue Book.  This set out comprehensive details of matters affecting terms and conditions of employment, facilities and the like.  It included a clear statement of the right of temporary employees to elect to join the Scheme.

Some temporary employees did join the Scheme, although there were good reasons, which I shall shortly mention, why temporary employees might consider the Scheme an undesirable option. 

In any event I am not satisfied that the applicants were in fact unaware of their right to elect to join the Scheme.

Moreover, I find that any further notice the Hydro might have given to the applicants would not have led them to apply to join the Scheme.  Entry into the Scheme was not a particularly attractive option for many temporary employees.  An employee had to pay 5.5 per cent of salary.  If he or she retired before retirement age during most of the period with which this case is concerned, the employee could only get back his or her contributions without interest.  Moreover he or she would lose the right to one week’s salary for each year of service under the Public Servants Retiring and Death Allowances Act 1925, a right which cost nothing.

The Scheme became much more attractive for temporary employees when, in late 1989, the Act was amended in a way which had the effect that temporary employees could join and buy back prior years of service.  Those who did this prior to retirement were able to receive substantial payments.  But this possibility did not become widely known until 1992, by which time the applicants’ employment had already terminated.

However the applicants’ case is not a complaint that they were not informed about the possibility of buying back prior years of service.  Rather they say that had they been told of their right to join at any time during their employment, they would have joined.  As already mentioned, I am not satisfied that this is the case. 

In 1993 Parliament passed an Act to bar retrospectively actions by former State employees (including Hydro employees) who claimed they had not been advised of their right to join the Scheme.  But the language of this Act is not sufficiently broad to cover the claims made in the present proceeding.  Those claims fail on their merits.

The applicants claimed exemplary damages. It is very rare for courts to award exemplary damages.  Such damages go beyond compensation and are reserved for cases where there has been particularly high-handed or reprehensible conduct. In the present case the applicants contend that the Hydro, as a matter of deliberate policy, denied them their legal rights by classifying them as temporary and concealing from them their right to elect to join the Scheme.  The Hydro followed this policy, so it is alleged, to reduce its costs - even though it knew the economic interests of its employees would be seriously injured. 

I find that these allegations are quite unsupported by the evidence.

The Hydro’s policy as to temporary and permanent classification, especially of its construction workforce, was largely dictated by the circumstance that, as I have mentioned, each Hydro dam project depended by law on Parliamentary approval.  Also, the allegation of a deliberate policy to conceal the right of temporary employees to join the Scheme is flatly contradicted by the evidence I have already mentioned.

The claims of the six selected applicants will be dismissed with costs.  However the remaining applicants must be given the opportunity to make any submissions as to why the same order should not be made in their case.  I shall therefore postpone the making of formal orders and direct that all applicants file and serve written submissions within fourteen days and the Hydro respond to those submissions within a further seven days.  The hearing is adjourned to a date to be fixed.